Case T-422/03: Action brought on 23 December 2003 by Enviro Tech Europe, Ltd., and Enviro Tech International Inc. against the Commission of the European Communities
Date: 2004-02-21
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical product, dangerous substance

21.2.2004

EN

Official Journal of the European Union

C 47/35

Decision of the Board of
Appeal:

Pleas in law:

Action dismissed.

— order the Commission to pay all costs and expenses in

these proceedings.

Infringement of Article 8(1)(b),
(2)(c) and (5) of Regulation (EC)
No 40/94.

Pleas in law and main arguments

Action brought on 23 December 2003 by Enviro Tech
Europe, Ltd., and Enviro Tech International Inc. against
the Commission of the European Communities

(Case T-422/03)

(2004/C 47/67)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 23 December 2003 by Enviro Tech
Europe Ltd., Kingston-upon-Thames, United Kingdom and
Enviro tech International, Inc., Chicago, USA, represented by
Mr C. Mereu and Mr K. Van Maldegem, lawyers.

The applicant claims that the Court should:

— annul Commission Decisions D(2003) 430307 and

D(2003) 430309 of 4 November 2003;

— declare the Commission liable for damages suffered by
applicants to date and pending these proceedings as a
result of the Commission’s unlawful conduct, including
but not
limited to its denial of applicant’s request
and related adoption of the contested decision, and to
compensate applicants for such damage in the provisional
amount of EUR 350 000;

— declare the Commission liable for imminent losses and
damages foreseeable with sufficient certainty, even if such
losses and damages cannot be precisely assessed;

the Commission’s
The applicants seek the annulment of
to classify
decisions rejecting the applicants’ request not
n-propyl bromide as a highly flammable substance (risk
phrase R11) and reproductive toxicant category 2 (risk
phrase R60) , but instead to classify it as a category 3/R62
substance for reproductive toxicity and R18 substance for
the applicants requested
flammability.
the Commission to exclude n-propyl bromide from the
29th Adaptation to Technical Progress of Directive 67/548/
EEC (1) until a proper and complete assessment of all the
scientific data had been made by the Commission.

In the alternative,

In support of their application, the applicants claim that the
Commission has violated the provision of Directive 67/
548/EEC concerning the applicable testing methods and
classification criteria for chemical substances. According to the
applicant, the Commission has made a manifest error of
assessment and an incorrect application of the testing methods
for physico-chemical properties set forth in annex V, point A.9
of Directive 67/548/EEC, the classification criteria for toxico-
logical properties set forth in annex VI, point 4.2.3 of Directive
67/548/EEC and the criterion of normal handling or use set
forth in annex VI, point 1.1 of Directive 67/548/EEC.

The applicants also claim that the Commission has violated
the applicants’ legitimate expectations that the Commission
would assess the data submitted by the applicants in accord-
ance with their obligations under Directive 67/548/EEC,
diligently, impartially and by relevance to the relevant criteria
of Directive 67/548/EEC.

The applicants invoke furthermore a violation of Article 95(3)
EC Treaty. According to the applicants, the Commission failed
to consider and assess all the scientific data available as well as
new developments based on scientific facts.

The applicants state that the contested decisions are based on
the precautionary principle. According to the applicants, this
principle only applies to risk assessment and cannot be used
in hazard assessments. Also, even if the principle should apply
in this case, this would only be possible in the case of scientific
uncertainty.

C 47/36

EN

Official Journal of the European Union

21.2.2004

The applicants finally claim that the Commission has violated
fundamental principles of Community law, such as the prin-
ciple of legal certainty and legitimate expectations, the prin-
ciple of independence and excellence of scientific advice, the
principle of proportionality, the principle of equal treatment
and the principle of sound administration. The applicants also
claim that there was a lack of competence on the part of the
Commission and that the Commission misused its powers.

(1) Council Directive 67/548/EEC of 27 June 1967 on the approxi-
mation of laws, regulations and administrative provisions relating
to the classification, packaging and labelling of dangerous sub-
stances (OJ English special edition: Series I Chapter 1967, p. 234).

The applicant submits that the reasoning for the contested
decision is unsound and that that decision infringes the general
principle of sound administration that reasons must be stated
for decisions. The applicant also alleges infringement of
Article 5 of Appendix 2 to the Staff Regulations of Europol (1)
and infringement of the principle of due care.

(1) Council Act of 3 December 1998 laying down the staff regulations

applicable to Europol employees (OJ 1999 C 26, p. 7).

Action brought on 23 December 2003 by Elisabeth Saskia
Smit against Europol

(Case T-423/03)

(2004/C 47/68)

(Language of the case: Dutch)

An action against Europol was brought before the Court of
First Instance of the European Communities on 23 December
2003 by Elisabeth Saskia Smit, represented by P. de Casparis
and M.F. Baltussen.

The applicant claims that the Court should:

1.

2.

annul the implicit rejection by Europol of her objection
to the decision of 19 May 2003 and, at the same time,
annul the decision of 19 May 2003;

order Europol to pay the applicant compensation includ-
ing, in any event, the costs of the present proceedings.

Pleas in law and main arguments

The applicant’s application for the post of ‘Asset Administrator’
with Europol was rejected by the contested decision.

Action brought on 20 December 2003 by Gerhard Kein-
horst against the Commission of the European Communi-
ties

(Case T-428/03)

(2004/C 47/69)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 December 2003 by Gerhard
Keinhorst, residing in Overijse (Belgium), represented by
Nicolas Lhoëst, lawyer, with an address for service in Luxem-
bourg.

The applicant claims that the Court should:

— Annul the decision of the appointing authority dated
23 December 2002, in so far as it did not award the
applicant additional seniority and therefore reclassified
him in Grade A6, Step 1, instead of Grade A6, Step 3;

— Annul the decision of the appointing authority dated

14 April 2003, in so far as it:

— did not fix the applicant’s classification in Grade A6,

Step 3 upon recruitment,

— did not reconstruct the applicant’s career in grade
by bringing forward the date of his promotion to A5
and, if appropriate, promoting him to A4,

— limited the date on which the reclassification
decision took effect as regards its pecuniary effects
to 5 October 1995;