Case T-76/04: Actionbrought on 17 February 2004 by Bactria Industriehygiene-ServiceVerwaltungs GmbH against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), competition law, marketing, marketing standard, pesticides industry

C 106/74

EN

Official Journal of the European Union

30.4.2004

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).