Case T-122/05: Action brought on 21 March 2005 by Robert Benkö and Others against the Commission of the European Communities
Date: 2005-07-09
Institutions: Court of First Instance
Subjects: Austria, European Commission, action for annulment (EU), directory, environmental protection, protected area, protected species, protection of animal life, protection of plant life

C 171/22

EN

Official Journal of the European Union

9.7.2005

ORDER OF THE PRESIDENT OF THE COURT OF FIRST
INSTANCE

of 27 April 2005

in Case T-34/05 R Makhteshim-Agan Holding BV and
Others v Commission of the European Communities

(Interlocutory proceedings — Interim measures — Action for
failure to act — Admissibility — Directive 91/414/EEC)

European Communities on 21 March 2005 by Robert Benkö,
Kohfidisch (Austria), Nikolaus Draskovich, Güssing (Austria),
Alexander Freiherr von Kottwitz-Erdödy, Kohlfidisch (Austria),
Peter Masser, Schwanberg (Austria), Alfred Prinz von und zu
Liechtenstein, Deutschlandsberg (Austria), Marenzi Privatstif-
tung, Ebergassing (Austria), Marktgemeinde Götzendorf an der
Leitha (Austria), Gemeinde Ebergassing (Austria), Ernst Harrach,
Bruck an der Leitha (Austria), Schlossgut Schönbühel-Aggstein
AG, Vaduz, and Heinrich Rüdiger Fürst Starhemberg'sche
Familienstiftung, Vaduz,
represented by M. Schaffgotsch,
lawyer.

(2005/C 171/37)

(Language of the case: English)

In Case T-34/05 R: Makhteshim-Agan Holding BV and Others,
established in Amsterdam (Netherlands), represented by C.
Mereu and K. Van Maldegen, lawyers, against Commission of
the European Communities (Agent: B. Doherty, with an address
for service in Luxembourg) — application for an order for
interim measures concerning the evaluation of Endosulfan with
a view to its possible inclusion in Annex I to Council Directive
91/414/EEC of 15 July 1991 concerning the placing of plant
protection products on the market (OJ 1991 L 230, p. 1) —
the President of the Court of First Instance made an order on
27 April 2005, the operative part of which is as follows:

1. The application for interim measures is dismissed.

2. Costs are reserved.

The applicants claim that the Court should:

1. annul the contested Commission decision in its entirety or,
should that form of order not be granted, in the alternative,

2. annul the contested decision in respect of all the Austrian
sites of Community importance (code AT in Annex 1 to the
contested decision) or, should that form of order not be
granted, in the alternative,

3. annul the inclusion of sites AT 1114813, AT 2242000,
AT 1220000, AT 1205A00, AT 3122000 and AT 3120000
in the contested Commission decision or, should that form
of order not be granted, in the alternative,

4. annul the inclusion of sites specified in Annex 1 to the
contested decision as sites of Community importance for
habitats and species with a degree of representativity and
global assessment of B, C and D (in the alternative, C and D
or, in the further alternative, D only) in accordance with the
standard data sheets of the Member States, in respect of

Action brought on 21 March 2005 by Robert Benkö and
Others against the Commission of the European Commu-
nities

(Case T-122/05)

(2005/C 171/38)

(Language of the case: German)

(a) all the sites included in the contested decision (as listed

in Annex 1) or, in the alternative

(b) all the Austrian sites (code AT in Annex 1) or, in the

alternative

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

(c) only sites AT 1114813, AT 2242000, AT 1220000,

AT 1205A00, AT 3122000 and AT 3120000,

9.7.2005

EN

Official Journal of the European Union

C 171/23

5.

in any event, however, order the Commission to pay the
costs of these proceedings.

Action brought on 18 March 2005 by Société des Planta-
tions de Mbanga ‘SPM’ against the Council of the European
Union and Commission of the European Communities

Pleas in law and main arguments

Under Commission Decision C(2004) 4031 of 7 December
2004 adopting, pursuant to Council Directive 92/43/EEC, (1)
the list of sites of Community importance for the Continental
biogeographical region, (2) properties belonging to the appli-
cants fall under the protective regime established by that direc-
tive.

The applicants claim inter alia that the contested decision was
not based on the necessary weighing of benefits as between the
higher public interests and the rights of the citizen and the
regional authority, who are directly affected.

The applicants submit that the contested decision is at variance
with Directive 92/43/EEC since the necessary bases for esti-
mating the required cost of financing were not properly drawn
up, and since the action framework to be adopted pursuant to
Article 8 of the directive was not drawn up and would not
have been sufficient.

(Case T-128/05)

(2005/C 171/39)

(Language of the case: French)

An action against the Council of the European Union and the
Commission of the European Communities was brought before
the Court of First Instance of the European Communities on 18
March 2005 by Société des Plantations de Mbanga ‘SPM’, estab-
lished at Douala (Cameroun), represented by Pierre Soler-
Couteaux, lawyer.

The applicant claims that the Court should:

The applicants further complain that, because of the division of
jurisdiction in Austria, the coherence of the network of areas of
conservation called for by Directive 92/43/EEC is not guaran-
teed, and that in practically all cases the areas of conservation
actually end at Land frontiers, which in the applicants' view is
wrong both under Community law and from the technical
point of view of nature conservation.

1. order the Commission and the Council jointly and severally
to pay compensation for the damage suffered in the amount
of EUR 15 163 825 together with interest at the statutory
rate;

2. order the Commission and the Council to pay the costs.

The applicants also submit that the Commission failed, in the
contested decision, to state expressly and specifically for which
species and habitats the sites now listed as sites of Community
importance are actually of Community importance.

Pleas in law and main arguments

Finally, the applicants claim that, as far as the sites affecting the
applicants are concerned,
inaccurate technical bases were
turned into the substance of the decision, and that the sites
were therefore incorrectly declared to be sites of Community
importance for certain species and habitats.

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation
of natural habitats and of wild fauna and flora (OJ 1992 L 206,
p. 7).

(2) OJ 2004 L 382, p. 1.

The applicant produces, processes, and markets bananas for
export in the Republic of Cameroon and in other countries. In
order to market its bananas within the Community, the appli-
cant is required to obtain import licences from importer opera-
tors, because it is not an operator, for the purpose of the Com-
munity legislation, and it is not part of a European or multina-
tional group.

The applicant claims that importer operators misuse the Com-
munity provisions governing the Community system of banana
imports for their own benefit by reintroducing, by means of an
excessive and disproportionate charge on import licences, duty
on banana imports from ACP States normally subject to a zero
duty.