Case T-40/05: Action brought on 28 January 2005 by Ritec International Limited against the Commission of the European Communities
Date: 2005-04-16
Institutions: Court of First Instance
Subjects: European Commission, United Kingdom, appeal to the Court (EU), chemical product, derogation from EU law, environmental protection, glass industry, ozone

16.4.2005

EN

Official Journal of the European Union

C 93/33

Action brought on 28 January 2005 by Ritec International
Limited against the Commission of the European Commu-
nities

(Case T-40/05)

(2005/C 93/63)

(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 28 January 2005 by Ritec Interna-
tional Limited, established in Enfield (United Kingdom), repre-
sented by P.H.L.M. Kuypers and M.J. Osse,
lawyers with an
address for service in Luxembourg.

The applicant claims that the Court should:

— declare that the applicant does not require to obtain an
exemption under Article 5(7) Regulation 2037/2000/EC for
its particular use of HCFC-141b in the product ‘ClearShield’;

— in the alternative, order the Commission to take as soon as
possible a new decision in accordance with the ruling of
the Court, should the Court declare that the applicant is
required to obtain an exemption under Article 5(7) Regu-
lation 2037/2000 for its particular use of HCFC-141b in
the product ‘ClearShield’;

— declare that the applicant has sufficiently demonstrated that
for its particular use of HCFC-141b in the product ‘Clear-
Shield’ no technically and economically feasible alternative
substance or technology is available nor can be used in the
sense of Article 5(7) Regulation 2037/2000;

— order the Commission to pay all the costs in these proceed-

ings.

Pleas in law and main arguments

allows

Article 5(7) of Regulation 2037/2000/EC (1)
the
Commission, following a request by a competent authority of a
Member State, to authorise a time-limited exemption allowing
the use and placing on the market of hydrochlorofluorocar-
bons, in cases where it is demonstrated that, for a particular
use, technically and economically feasible alternative substances
or technologies are not available or cannot be used. The
competent authority of
the United Kingdom filed such a
request to obtain, for the applicant, an exemption for its par-
ticular use of HCFC-141b in its product ‘ClearShield’, a glass
protection product. On 23 November 2004 the Commission
rejected this application.

was planning to release the flammable ‘ClearShield’ or a spray
booth in 2005, that flammable glass protection products can
be rendered safe for
the applicator when the flammable
product is applied in a spray booth, and that it has had suffi-
cient time to replace the use of HCFC-141b with alternatives. It
further contends that the contested decision fails to take into
account that the applicant has found an alternative to the use
of HCFC-141b. At the same time the applicant challenges the
Commission's finding that several non-HCFC alternatives are
available but not yet implemented due to flammability concerns
or that
they are used by other companies within the EU
market. The applicant submits that it has found only one alter-
native which is not commercially available.

The applicant further challenges the Commission's findings that
use of HCFC-141b had already been banned under Regulation
3093/1994 (2) and that an exemption under Article 5 (7) of
Regulation 2037/2000 was necessary for
the applicant's
continued use of that substance. According to the applicant its
particular use of HCFC-141b is not covered by regulation
2037/2000 or, at the very least, will be prohibited only after
2015.

Finally, the applicant alleges that the Commission's decision
infringes Article 253 EC by failing to state the reasons on
which it is based.

(1) Regulation (EC) No 2037/2000 of the European Parliament and of
the Council of 29 June 2000 on substances that deplete the ozone
layer, OJ L 244 p. 1.

(2) Council Regulation (EC) No 3093/94 of 15 December 1994 on

substances that deplete the ozone layer, OJ L 333 p. 1.

Action brought on 28 January 2005 by Dimon Incorpo-
rated against the Commission of the European Commu-
nities

(Case T-41/05)

(2005/C 93/64)

(Language of the case: English)

The applicant considers that the Commission misunderstood
the way in which the applicant uses HCFC-141b and further
contests the Commission's assertions that products similar to
non-flammable ‘ClearShield’ are marketed, that the applicant

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 28 January 2005 by Dimon Incor-
porated, established in Danville, Virginia (USA), represented by
L.Bergkamp, H. Cogels and J. Dhont, lawyers.