Case T-75/04: Actionbrought on 17 February 2004 by Arch Chemicals,Inc., and Arch Timber Protection Limited against the Commission of the EuropeanCommunities
Date: 2004-02-17
Institutions: Court of First Instance
Subjects: European Commission, United Kingdom, United States, action for annulment (EU), competition law, marketing, marketing standard, pesticides industry

C 106/72

EN

Official Journal of the European Union

30.4.2004

— in the alternative, reduce the amount of the fine imposed

on the applicants by that decision;

— annul

the decision adopted by the Commission on 3
December 2003 in Case COMP/38.359 in so far as it
concerns Le Carbone Lorraine S.A;

— order the Commission to pay the costs.

— in the alternative, annul or reduce the amount of the fine

imposed on it by that decision;

Pleas in law and main arguments:

— order the Commission to pay all the costs.

In the contested decision the Commission imposed on the
applicants a fine in the sum of EUR 30 870 000 for infringe-
ment of Article 81(1) EC and Article 53(1) EEA by taking part
in a series of agreements and concerted practices on the market
for electrical and
in carbon and graphite-based products
mechanical applications.

In support of their action, the applicants claim, first, that the
Commission erred in law by assuming that the first applicant,
Schunk GmbH, which is a finance holding company, is jointly
and severally liable for the fine imposed on its subsidiary, the
second applicant, Schunk Kohlenstofftechnik GmbH (‘SKT’).
Further, they plead that the contested decision has an unlawful
legal basis, since Article 15 of Regulation 17/62 (1) gives the
Commission a margin of discretion in relation to the amount
of fines and is therefore incompatible with the principle of
legal certainty and with higher ranking Community law. In
addition, the Commission discriminated against the applicants
relative to other undertakings in fixing the amount of the
imposed fines, incorrectly assessed the deterrent effect of the
fines and the cooperation of the applicants, and failed to have
regard to material circumstances.

(1) EEC Council: Regulation No 17: First Regulation implementing Arti-
the Treaty (OJ, English Special Edition

cles [81] and [82] of
1959—1962, p. 87).

Pleas in law and main arguments:

In the contested decision, the Commission imposed on the
applicant a fine of 43 050 000 euros for taking part, with five
other undertakings, in a cartel on the market in carbon and
graphite-based products for electrical and mechanical applica-
tions.

In support of its action, the applicant claims first that the
Commission erred in law by not defining the relevant markets
for the products at issue. The applicant also pleads breach of
the principles of proportionality and legitimate expectations
concerning the setting of the ‘starting amount’ of the fine in
question. The Commission was also in breach of the principle
of legal certainty by increasing the ‘starting amount’ of 105 %
in relation to the duration of the breach. In addition, the appli-
cant complains that the Commission did not take account of
mitigating circumstances in its favour and did not allow it the
maximal reduction provided for its alleged cooperation in the
enquiry. The Commission was in breach of the principle of
equal treatment by not allowing the applicant a reduction in
respect of the impact on it of a series of crushing fines in the
same field of activity, whereas it allowed another undertaking
concerned such a reduction on those grounds.

Action brought on 20 February 2004 by Le Carbone
Lorraine S.A. against the Commission of the European
Communities

Action brought on 17 February 2004 by Arch Chemicals,
Inc., and Arch Timber Protection Limited against the
Commission of the European Communities

(Case T-73/04)

(2004/C 106/144)

(Language of the case: French)

(Case T-75/04)

(2004/C 106/145)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 20 February 2004 by Le Carbone
Lorraine S.A, having its registered office in Paris, represented
by Antoine Winckler and Me Igor Simic, lawyers.

The applicant claims that the Court should:

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 17 February 2004 by Arch Chemi-
cals, Inc., Norwalk, Connecticut, USA and Arch Timber Protec-
tion Limited, Castleford, United Kingdom, represented by Mr K.
Van Maldegem and Mr C. Mereu, lawyers.

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C 106/73

The applicants claims that the Court should:

— order the annulment of Article 3 (and annex II), Article
4(2), Article 5(3), Article 10(2), second paragraph, Article
11(3), Article 13 and Article 14(2) of Commission Regu-
lation (EC) No 2032/2003 of 4 November 2003 on the
second phase of the 10-year work programme referred to
the European
in Article 16(2) of Directive 98/8/EC of
Parliament and of the Council concerning the placing of
biocidal products on the market, and amending Regulation
(EC) No 1896/2000;

— declare the illegality and the inapplicability vis-à-vis the
applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive
98/8/EC of the European Parliament and of the Council of
16 February 1998 concerning the placing of biocidal
products on the market;

— declare the illegality and the inapplicability vis-à-vis the
applicant of Article 6(2) of Commission Regulation (EC) No
1896/2000 of 7 September 2000 on the first phase of the
programme referred to in Article 16(2) of Directive
98/8/EC of the European Parliament and of the Council on
biocidal products;

— order the defendant to compensate the applicant in the
provisional amount of 1Euro for damages suffered as a
result of the adoption and entry into force of the contested
measure, as well as any applicable interest, pending the
exact calculation and determination of the exact amount;

— order the defendant to pay all costs and expenses in these

proceedings.

Pleas in law and main arguments:

The applicants are producers of biocide active substances and
of biocidal products, namely, non-agricultural pesticidal
products, containing these active substances. The applicants
hold marketing authorisations in several Member States and
many of their products are protected through intellectual prop-
erty rights.

In accordance with Directive 98/8/EC (1) and Commission
Regulation (EC) No 1896/2000 (2), the applicants notified their
active substances and product type combinations and, there-
fore, became participants in the review programme within the
meaning of Commission Regulation (EC) No 2032/2003 (3).
Under the rules of the second stage of the review programme,
the applicants are obliged to develop expensive proprietary
data, such as scientific studies and risk assessments, and submit
these data to a designated Rapporteur Member State.

The applicants seek the annulment of Article 4(2) of Regulation
No 2032/2003 because it fails to set a deadline by which
companies other than the participants' can no longer market
biocidal products notified by participants and listed in annex II
to the regulation. Furthermore, according to the applicants,
Article 3(2) and annex II of Regulation No 2032/2003 fail to
list the names of the applicants as participants for their notified
active substances and product type combinations. Also, the
applicants seek the annulment of Article 5(3) and preamble 10
of Regulation No 2032/2003 because it allows companies who
are not participants, to apply for the inclusion of an active
substance or product type combination under more favourable
conditions. The applicants also contest Article 10(2), second
paragraph, of Regulation No 2032/2003 because it allows the
Rapporteur Member State to take into account additional infor-
mation submitted by others. The applicants also object to the
fact that Article 11(3) and preamble 18 allow the defendant to
conduct unilaterally a
active
comparative
substances and product type combinations before the conclu-
sion of the review. Article 13 and preamble 20 are being
contested by the applicants in that they allow the defendant to
suspend or stop the review on the basis of a proposal of the
defendant submitted under Directive 76/769/EEC (4). Hereby, a
hazard-based assessment would be preferred over the sector
specific risk assessment of Directive 98/8/EC concerning the
placing of biocidal products on the market. Finally, the appli-
cants seek annulment of Article 14(2) because it retroactively
and without a proper reasoning amends the notification rules
contained in Regulation No 1896/2000, thus changing a deci-
sive factor for the applicants for participation in the review
programme.

assessment of

In support of their application, the applicants submit that the
defendant misused its powers under Directive 98/8/EC by
implementing the directive in a way that goes beyond the text
of the directive and changes the applicants' rights and expecta-
tions. The applicants furthermore claim that the defendant had
no competence to introduce in Regulation No 2032/2003 the
contested provisions without consulting the European Parlia-
ment and the Council. According to the applicants, Directive
98/8/EC should have been modified in order to introduce these
provisions.

The applicants also submit that the defendant violated the EC
Treaty and principles of Community Law, such as the Treaty
provisions on fair competition, the principles of undistorted
competition,
expectations,
proportionality, non-discrimination, the right to property, the
right to pursue a trade and, finally, the supremacy of interna-
intellectual
tional agreements, specifically the protection of
property rights under the TRIPs agreement.

and legitimate

certainty

legal

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In support of their application, the applicants also submit a
plea of
illegality against Article 6(2) of Regulation No
1896/2000 and Articles 9(a), 10(3), 11 and 16(1) of Directive
98/8/EC.

Action brought on 17 February 2004 by Bactria Industrie-
hygiene-Service Verwaltungs GmbH against the Commis-
sion of the European Communities

(Case T-76/04)

(2004/C 106/146)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 17 February 2004 by Bactria Indus-
triehygiene-Service Verwaltungs GmbH, Kirchheimboladen,
Germany, represented by Mr K. Van Maldegem and Mr Claudio
Mereu, lawyers.

The applicant claims that the Court should:

— order the annulment of Article 3 (and annex II), Article
4(2), Article 5(3), Article 10(2), second paragraph, Article
11(3), Article 13 and Article 14(2) of Commission Regu-
lation (EC) No 2032/2003 of 4 November 2003 on the
second phase of the 10-year work programme referred to
the European
in Article 16(2) of Directive 98/8/EC of
Parliament and of the Council concerning the placing of
biocidal products on the market, and amending Regulation
(EC) No 1896/2000;

— declare the illegality and the inapplicability vis-à-vis the
applicant of Articles 9(a), 10(3), 11 and 16(1) of Directive
98/8/EC of the European Parliament and of the Council of
16 February 1998 concerning the placing of biocidal
products on the market;

— declare the illegality and the inapplicability vis-à-vis the
applicant of Article 6(2) of Commission Regulation (EC) No
1896/2000 of 7 September 2000 on the first phase of the
programme referred to in Article 16(2) of Directive
98/8/EC of the European Parliament and of the Council on
biocidal products;

— order the defendant to compensate the applicant in the
provisional amount of 1 Euro for damages suffered as a
result of the adoption and entry into force of the contested
measure, as well as any applicable interest, pending the
exact calculation and determination of the exact amount;

— order the defendant to pay all costs and expenses in these

proceedings.

Pleas in law and main arguments:

The pleas in law and arguments invoked by the applicant are
the same as those invoked in Case T-75/04.

The applicants
state that Article 6(2) of Regulation No
1896/2000 forms the basis of the contested Articles 3 and
4(2), as well as annex II, of Regulation No 2032/2003 and sets
the rule that notified active substance or product type combina-
tions can be freely marketed by any other company which has
neither access to the applicants' protected data, nor has devel-
oped an equivalent data set. The applicants claim that Article
6(2) of Regulation No 1896/2000 ignores the data protection
provisions of Directive 98/8/EC and that the defendant misused
its powers and lacked the competence to adopt it.

The applicants state furthermore that Articles 9(a), 10(3) and
11 of Directive 98/8/EC are related to the contested Article 3
and annex II of Regulation No 2032/2003. According to the
applicants, Article 9(a) of Directive 98/8/EC is illegal because it
discriminates between active substances that were on the
market before 14 May 2000 and active substances that were
not on the market on that date,
therefore causing unfair
competition. Furthermore, the applicants submit that Articles
9(a), 10(3), 11 and 16(1) of Directive 98/8/EC are inconsistent
with other provisions of that directive. Specifically, they fail to
establish, contrary to Article 12 and 27 of Directive 98/8/EC, a
transparent
link between the applicants and their notified
active substance or product type combinations. Finally, the
applicants claim that Article 16(1) of Directive 98/8/EC should
be declared illegal so that Member States are no longer allowed
to continue applying their pre-existing legislation for main-
taining biocidal product registrations that are not supported by
a notification at the Community level.

(1) Directive 98/8/EC of the European Parliament and of the Council of
16 February 1998 concerning the placing of biocidal products on
the market (OJ L 123, p. 1).

(2) Commission Regulation (EC) No 1896/2000 of 7 September 2000
on the first phase of the programme referred to in Article 16(2) of
Directive 98/8/EC of the European Parliament and of the Council
on biocidal products (OJ L 228, p. 6).

(3) Commission Regulation (EC) No 2032/2003 of 4 November 2003
on the second phase of the 10-year work programme referred to in
Article 16(2) of Directive 98/8/EC of the European Parliament and
of the Council concerning the placing of biocidal products on the
market, and amending Regulation (EC) No 1896/2000 (OJ L 307, p.
1).

(4) Council Directive 76/769/EEC of 27 July 1976 on the approxima-
tion of the laws, regulations and administrative provisions of the
Member States relating to restrictions on the marketing and use of
certain dangerous substances and preparations (OJ L 262, p. 201).