Case T-432/05: Action brought on  8 December 2005  — EMC Development v Commission
Date: 2006-02-11
Institutions: Court of First Instance
Subjects: European Commission, European standard, action for annulment (EU), cement, complaint to the Commission, horizontal agreement, restriction on competition

C 36/34

EN

Official Journal of the European Union

11.2.2006

Pleas in law and main arguments

The applicant produces chlorothalonil -based plant protection
products and, therefore, has an interest in securing the inclu-
sion of that substance in Annex I of the PPPD (1), which would
allow it to continue with the production of its product. It thus
contests Directive 2005/53 (2)
this
substance in Annex I but with a specification that would
operate to exclude the product the applicant produces.

insofar as

includes

it

In support of this application the applicant first invokes a
number of alleged procedural flaws of the contested measure,
as well as a number of substantive legal flaws. From a proce-
dural standpoint, the applicant contends that it was unlawfully
rejected as a main data submitter and that its studies were
unlawfully removed from Appendix IIIA to the review report.
In this context, it also alleges that the current version of that
report cannot have been approved by the Standing Committee,
since it is posterior to the latter's meeting approving the review
report. It also alleges that it was excluded from certain critical
meetings and/or exchanges,
in violation of procedural safe-
guards provided for in the PPPD and Regulation 3600/92 (3)
and that its chlorothalonil specification was unlawfully with-
drawn from Annex I to the PPPD despite the reliance on its
data. The applicant also challenges the Commission's decision
to rely on a new FAO specification for changing the chlorotha-
lonil specification under the PPPD, submitting that such a
change was not scientifically necessary.

further contends that

its own chlorothalonil
The applicant
specification meets the requirements of Article 5 and therefore
the Commission was obliged, under this latter provision as well
as Article 95 EC, to include it in Annex I. It also considers that
the principle of subsidiarity was violated in that the Commis-
sion followed a ‘maximal standard’ for chlorothalonil, violating
the Member States' prerogative when making re-registration
decisions under the PPPD. Also, the applicant invokes the viola-
tion of
the principle of sound administration enshrined in
Article 211 EC as well as the violation of Article 13 of the
PPPD and of the applicant's legal rights and legitimate expecta-
tions.

Moreover, the applicant contends that the contested measure
violates its rights to a fair hearing,
its right of defence, the
Commission's duty to state reasons and fundamental Com-
munity law principles such as proportionality, legitimate expec-
tations,
legal certainty and equal treatment. It also allegedly
violates the applicant's right to property since it deprives the
applicant of its right to conduct business activities. Further, the
applicant considers that the contested measure distorts compe-
tition to the extent that it effectively creates a monopoly for a
competitor's product, allegedly the only one conforming to the
specification adopted.

In the alternative,
the applicant attacks the Commission's
alleged failure to act upon its formal request to either formally
adopt the contested measure with an amended chemical iden-
tity/purity definition satisfying the applicant's submissions or to
refrain from adopting it in its current form pending a decision
on a different chemical identity/purity definition.

The applicant finally requests compensation for the damages it
allegedly incurred due to its inability to continue marketing of
its plant protection products based on chlorothalonil.

(1) Council Directive 91/414/EEC of 15 July 1991 concerning the
placing of plant protection products on the market OJ L 230,
19/08/1991, p. 1.

(2) Commission Directive 2005/53/EC of 16 September 2005
amending Council Directive 91/414/EEC to include chlorothalonil,
chlorotoluron, cypermethrin, daminozide and thiophanate-methyl
as active substances, OJ L 241, 17/09/2005, p. 51.

(3) Commission Regulation (EEC) No 3600/92 of 11 December 1992
laying down the detailed rules for the implementation of the first
stage of the programme of work referred to in Article 8 (2) of
Council Directive 91/414/EEC concerning the placing of plant
protection products on the market, OJ L 366, 15/12/1992, p. 10, as
last amended by Regulation (EC) No 2266/2000, OJ L 259,
13/10/2000, p. 27.

Action brought on 8 December 2005 — EMC Develop-
ment v Commission

(Case T-432/05)

(2006/C 36/72)

Language of the case: English

Parties

Applicant(s): EMC Development AB (Lulea, Sweden)
sented by: M. Elvinger, lawyer]

[repre-

Defendant(s): Commission of the European Communities

Form of order sought

— Annul the Commission's decision dated 28th September
2005 rejecting the applicant's complaint pursuant to Article
3(2) of Council regulation 17/62;

— order the Commission to pay the costs.

11.2.2006

EN

Official Journal of the European Union

C 36/35

Pleas in law and main arguments

The applicant is a corporate body inter alia responsible for the
research and development
continued testing and further
regarding an alternative cement product known as energetically
modified cement. The applicant introduced a complaint before
the Commission under Regulation 17/62, accusing the Euro-
pean producers of Portland cement (the type of cement which
is predominant in the European market) of a series of beha-
viours constituting serious violations of Article 81 EC. More
specifically, the complaint concerned the EN 197-1 standard,
adopted in the context of directive 89/106 (1). According to the
applicant, this standard was purposefully designed to favour
existing major players in the market to the exclusion of other
cement producers or market challenging products and technol-
ogies. This was allegedly achieved through close cooperation
the European
between the
the duly
Committee for standardisation and CEMBUREAU,
appointed trade association of European cement producers, the
vast majority of whose members are well established Portland
cement producers.

sub-committee of

technical

The applicant now challenges
the decision rejecting its
complaint. It alleges that the offending standard amounts to a
horizontal cooperation agreement in violation of Article 81 EC.
In the alternative, the applicant contends that the standard
breaches the aims of Articles 28 and 29 EC and cannot, in any
event, be justified at a Member State level under Article 30 EC.

(1) Council Directive 89/106 of 21 December 1998 on the approxima-
the
relating to Construction products, OJ L 40

laws, regulations and administrative provisions of

tion of
Member States
11.12.1989, p.12

Action brought on 18 November 2005 — Sanchez Ferriz v
Commission

(Case T-433/05)

(2006/C 36/73)

Language of the case: French

Parties

Applicant: Carlos Sanchez Ferriz (Brussels, Belgium) (represented
by: F. Frabetti, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

as an incidental plea, the preparatory measures for that
decision;

— Annul the allocation of promotion points during the 2004
in particular, following the recommendations of

exercise,
the promotion committees;

— Order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

The applicant, a Commission official, challenges the decision
not to promote him during the 2004 exercise. In support of
his action, he submits that the definitive version of his career
development report for the period from 1 July 2001 to 31
December 2002 had not been compiled by the time the
contested decision was adopted.
the
opinion that when allocating 'priority points' to officials for the
purpose of their classification with a view to promotion, the
Commission gave excessive weight to the 'remainder' of the
officials who, although they had reached the promotion
threshold, had not been promoted during the earlier exercises.
The applicant also levels a more general criticism against the
allocation of points which, he states, fails to comply with the
requirement to carry out a comparative examination of merits
for the purpose of promotion.

In addition, he is of

the General

On that basis, the applicant alleges infringement of Article 45
of the Staff Regulations, and of
Implementing
Provisions and the Commission's Administrative Guide for
assessment and promotion,
infringement of the principle of
non-discrimination, infringement of the principle of prohibition
infringement of the duty to give
against arbitrary treatment,
reasons, infringement of the principle of the protection of legit-
imate expectations and infringement of the duty to have regard
for the interests of officials.

(1) List published in Administrative Notice No 130 - of 30.11.2004

Order of the Court of First Instance of 17 November 2005
— Grijseels and Lopez Garcia v European Economic and
Social Committee

(Case T-162/05) (1)

(2006/C 36/74)

Language of the case: French

The President of the Fourth Chamber has ordered that the case
be removed from the register.

— Annul the list of officials promoted under the 2004 exer-
cise (1), insofar as that list does not include his name, and,

(1) OJ C 171, 9.7.2005.