Case T-75/06: Action brought on  27 February 2006  — Bayer CropScience a.o. v Commission
Date: 2006-04-22
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), health risk, market approval, marketing restriction, pesticide, plant health legislation, plant health product

22.4.2006

EN

Official Journal of the European Union

C 96/31

By its second plea, put forward by way of alternative submis-
sion, the applicant submits that the Commission erred in law
by misconstruing the notion of
'undertaking' within the
meaning of Article 81 EC and, as a result, imposing on it a fine
calculated on the basis of the consolidated turnover of Groupe
Gascogne, whereas, according to the applicant, it ought to have
based itself on the aggregate corporate turnover of Groupe
Gascogne and Sachsa, having failed to set out reasons as to
why the other subsidiaries of Groupe Gascogne ought to be
included within ‘the undertaking’ liable in respect of the prac-
tices of Sachsa adjudged anti-competitive in the contested deci-
sion.

By its third plea, put forward as a further alternative, the appli-
cant contends that the Commission infringed the principle of
proportionality by imposing an allegedly excessive fine on
Sachsa and Groupe Gascogne jointly and severally, in particular
by failing to ensure that
there was a reasonable relation
between the penalty imposed and the actual turnover achieved
by Groupe Gascogne within the plastic bags sector.

Action brought on 27

February

2006 — Bayer

CropScience a.o. v Commission

(Case T-75/06)

(2006/C 96/50)

Language of the case: English

91/414/EEC and the withdrawal of authorisations for plant
protection products containing this substance; and

— order the defendant to pay all costs and expenses in these

proceedings.

Pleas in law and main arguments

Council Directive 91/414 (2) 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, who are producers of endo-
sulfan, request the annulment of the contested Decision, which
refused to include endosulfan in that Annex.

In support of their application they first invoke a number of
alleged procedural irregularities, namely: that the assessment of
the contested Decision is based on criteria other than those
specified in Directive 91/414, is incomplete and makes only
selective use of the data submitted by the applicants; that new
guidelines and criteria established by the Commission were
applied retroactively after
the applicant's notification and
submission of data; and that the Commission refused to advise
and consult with the applicants in relation to changing evalua-
tion criteria and policy.

The applicants further allege that from a substantive law view-
point the contested Decision violates Article 95(3) EC and
Article 5(1) of Directive 91/414. They consider
the
Commission failed to comply with its duty, under these provi-
sions, to assess active substances and include them in Annex I
in light of current scientific and technical knowledge and
subject only to the requirements listed in article 5.

that

Parties

Applicants: Bayer CropScience AG (Monheim am Rhein,
Germany), Makhteshim-Agan Holding BV (Amsterdam, Nether-
lands), Teko AE (Athens, Greece) and Aragonesas Agro SA
(Madrid, Spain)
[represented by: C. Mereu and K. Van
Maldegem, lawyers]

Defendant: Commission of the European Communities

They further invoke the violation of a number of general prin-
ciples of Community law, namely: the principle of proportion-
ality, the principle of legitimate expectations and legal certainty,
the duty to perform a diligent and impartial assessment, the
right of due process (right of defence and right
to a fair
hearing), the principle of excellence and independence of scien-
tific advice, the principle of equal treatment, the principle that
more general provisions must give way to a lex specialis and
finally the principle of estoppel.

Form of order sought

(1) OJ L 317, 3/12/2005 p. 25
(2) OJ L 230 , 19/08/1991 p.1

— Order

the

annulment

Decision
of
2005/864/EC (1), of 2 December 2005, concerning the
to Directive
non-inclusion of endosulfan in Annex I

Commission