Case T-454/05: Action brought on  20 December 2005  — Sumimoto Chemical Agro Europe and Philagro France v Commission
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), market approval, plant health legislation, plant health product

C 60/44

EN

Official Journal of the European Union

11.3.2006

imposed. According to the applicant,

The applicant also challenges its placement in the second cate-
gory for determination of the basic amount, and the size of the
basic amount
the
Commission overrated the possibility of the applicant having a
real
impact on competition, both in an absolute sense in
comparison with the impact of the other undertakings involved
but also in the light of the applicant's precarious financial situa-
tion and the limited size of the market. It also submits in that
connection that the Commission infringed the principle of fair-
ness and proportionality, Article 23(3) of Regulation 1/2003,
the Guidelines on the method of setting fines and the obliga-
tion to state reasons.

According to the applicant,
the Commission also wrongly
assessed attenuating circumstances in relation to the applicant
and infringed the Guidelines on the method of setting fines and
the obligation to state reasons. The Commission ought to have
taken into account as attenuating circumstances the fact that
the applicant did not implement the agreements made and that
it had played a very limited and passive role.

According to the applicant, a much too small a reduction in
the fine imposed was granted to it on account of its coopera-
tion with the investigation, in breach of the obligation to state
reasons, the principle of equality and proportionality and the
Leniency Notice.

Finally,
the applicant seeks compensation for the damage
suffered by it as result of the Commission's infringement of the
principle of the protection of legitimate expectations and the
obligation of secrecy, by publishing the applicant's internal
price lists.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles
81 and 82 of the Treaty (OJ 2003 L 1, p. 1)

Action brought on 20 December 2005 — Sumimoto
Chemical Agro Europe and Philagro France v Commission

(Case T-454/05)

(2006/C 60/84)

Language of the case: English

Parties

Applicants: Sumitomo Chemical Agro Europe SAS (Lyon,
France) and Philagro France SAS (Lyon, France) [represented
by: K. Van Maldegem, C. Mereu, lawyers]

Defendant: Commission of the European Communities

Form of order sought

— Order the annulment of Commission Decision D/430967;

or, in the alternative,

— order the defendant to comply with its obligations under
Community law and propose the inclusion of procymidone
in Annex I to the PPPD for all uses/crops, as requested by
the applicants;

— order the defendant to compensate the applicants in the
provisional amount of 1 (one) Euro for damages suffered as
a result of Commission Decision D/430967, or, in the alter-
native, as a result of the defendant's failure to comply with
its obligations under Community law by failing to respond
to the applicants, as well as any applicable interests,
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

Council Directive 91/414 (1) concerning the placing of plant
protection products on the market (known as the ‘plant protec-
tion products directive’ or ‘PPPD’) provides that Member States
shall not authorise a product unless it is inscribed in Annex I
of the Directive. The applicants have repeatedly contacted the
Commission with a view to ensuring that procymidone, the
active substance contained in their plant protection products,
should be included in Annex I.

By letter of
the 20 October 2005, which constitutes the
contested Decision, the Commission informed the first appli-
cant that possible inclusion of procymidone in Annex I would,
at most, cover the supported uses that have been the subject of
EU evaluation; it further makes such inclusion conditional on
the submission of a proposal for highly detailed conditions of
use and risk mitigation measures.

The applicants request the annulment of that Decision, criti-
cizing the proposed limited authorisation of procymidone,
which would lead to it being registered only for two crops,
namely plums and cucumbers, as well as the requirement for
highly detailed conditions of use. According to the applicant,
these requirements violated the PPPD which only refers to
broad use categories, such as insecticides, growth regulators or
herbicides, leaving it to the Member States to assess use in rela-
tion to specific crops. In the same context the applicants allege
that the requirement for detailed conditions is neither allowed
under the PPPD nor scientifically justified.

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Official Journal of the European Union

C 60/45

The applicants further submit that the contested Decision errs
when it states that studies submitted after the fixed deadlines
cannot be examined because, according to the applicants, all
procymidone data were timely submitted. They also consider
that the contested Decision violates Articles 95(3) and 152(1)
EC by refusing to consider studies submitted in time and found
satisfactory by the evaluators.

The applicants also invoke violations of the PPPD, of Regu-
lation 3600/92 (2), of the principles of sound administration, of
subsidiarity and proportionality, of legitimate expectations and
legal certainty, of the excellence and independence of scientific
advice, of equal treatment and ‘estoppel’ and of the duty to
state reasons.

Should the court consider that the contested letter is not an act
which can be challenged under Article 230(4) EC, the appli-
cants submit that their action is still admissible under Article
232 EC against the Commission's failure to act upon their
administrative complaint and formal request. In addition and
independently of the actions for annulment and failure to act,
the applicants claim compensation for damages suffered as a
direct consequence of the contested letter.

(1) OJ L 230, 19/08/1991, p. 1.
(2) 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

Action brought on 30 December 2005 — Gütermann v
Commission

(Case T-456/05)

(2006/C 60/85)

Language of the case: German

Parties

Applicant: Gütermann Aktiengesellschaft
(Gutach-Breisgau,
Germany) (represented by: J. Burrichter, B. Kasten and S. Orli-
kowski-Wolf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul Article 1(1) of the Decision in so far as it declares
that the applicant infringed Article 81 EC and Article 53 of
regards Sweden, Norway and
the EEA Agreement as
Finland also in the period from January 1990 up to and
including December 1993;

— annul Article 2 of the Decision in so far as it imposes a fine

of EUR 4,021 million on the applicant;

— in the alternative, reduce as appropriate the fine imposed

on the applicant in Article 2 of the Decision;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant
is challenging Commission Decision C(2005)
3452 final of 14 September 2005 in Case 38.337 — PO/
Thread (amended by the defendant's decision of 13 October
2005). In the contested decision a fine was imposed on the
applicant for infringement of Article 81 EC and Article 53 of
the EEA Agreement.

In support of its application the applicant is relying on four
pleas in law.

First, it alleges breach of Article 7 of Regulation No 1/2003. (1)
In this connection it submits that the finding as to the duration
of the infringements in Article 1(1) of the contested decision is
incorrect.

In its second plea in law the applicant submits that there has
been an infringement of Article 15(2) of Regulation No
17/1962 (2) or of Article 23(2) of Regulation No 1/2003. It
considers that Article 2 of the contested decision infringes
fundamental principles regarding the assessment of fines. In
addition, it is submitted that those provisions were infringed by
Article 2 of the contested decision due to misapplication of the
1996 Leniency Notice.

Lastly, the applicant submits that Article 2 of the contested
decision amounts to an infringement of
the principle of
proportionality as insufficient regard was had to the individual
position of the applicant in fixing the fine.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles
81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2) EEC Council: Regulation No 17: First Regulation implementing Arti-
cles 85 and 86 of the Treaty (OJ, English Special Edition 1959-
1962, p. 87).