Case T-311/06: Action brought on 7 November 2006 – FMC Chemical and Arysta Lifesciences v EFSA
Date: 2006-12-30
Institutions: Court of First Instance
Subjects: European Food Safety Authority, action for annulment (EU), administrative formalities, dangerous substance, exchange of information, indemnification, marketing standard, pesticide, plant health product, report

30.12.2006

EN

Official Journal of the European Union

C 326/65

— Annulment of

the following provisions of Commission
Regulation (EC) No 1572/2006 of 18 October 2006
amending Regulation (EC) No 824/2000 establishing proce-
dures for the taking-over of cereals by intervention agencies
and laying down methods of analysis for determining the
quality (1) of cereals (‘the Regulation’):

— The Commission has failed to fulfil

its obligation under
Article 253 EC to state the reasons on which legal acts are
based.

— The Commission has infringed the internal rules of

the
Management Committee for Cereals in not respecting the
time-limit laid down by those rules.

— Article 1(1) insofar as it refers to maize;

— Article 1(3), amending Article 9(b) of Regulation No

824/2000, insofar as it refers to maize;

— the value relating to the specific weight required for
maize appearing in line E of the table given in point 1
of the annex, and

— Table III in point 2 of the annex insofar as it refers to

maize.

— An order that the Commission of the European Commu-

nities pay the costs.

(1) OJ L 290, 20.10.2006, p. 29.

Action brought on 7 November 2006– FMC Chemical and
Arysta Lifesciences v EFSA

(Case T-311/06)

(2006/C 326/138)

Language of the case: English

Pleas in law and main arguments

The applicant seeks the partial annulment of Article 1 of Regu-
lation No 1572/2006 and the annex thereto because it
considers that they are unlawful.

Parties

It relies on the following pleas in support of its application:

— The Commission has breached the legitimate expectations of
the producers by introducing during the financial year a
requirement relating to the specific weight of maize, and the
principles of legal certainty and proportionality by allowing
an inordinately short preparatory period between the date of
publication and the date of entry into force and by failing to
take account of the need for gradual adjustment.

Applicants: FMC Chemical SPRL (Brussels, Belgium) Arysta Life-
sciences SAS (Nogueres, France) (represented by: C. Mereu, K.
Van Maldegem, lawyers)

Defendant: European Food Safety Authority (EFSA)

Form of order sought

— The Commission did not have the authority to lay down the

requirement relating to the specific weight of maize.

— Declare the present application admissible and well founded;

— In the event that it is considered that the Commission was
empowered to lay down that requirement,
the applicant
submits that the defendant has exceeded its powers, given
that it significantly altered the intervention regime for maize
in practice under the pretext of amending the qualitative
parameters for intervention.

— Even if it is considered that the Commission was empowered
to lay down the requirement relating to the specific weight
of maize, that institution made a manifest error of assess-
ment,
in that, by establishing a criterion for the average
quality of maize, it did not take account of the fact that the
maize produced in the Community is used mainly for
animal fodder.

— annul

the EFSA's Conclusion Report,

titled ‘Conclusion
regarding the peer review of the pesticide risk assessment of
the active substance Carbofuran’;

— order the EFSA and/or the European Commission by way of
incidental request in accordance with Articles 63 and 64 of
the Court's Rules of Procedure, to produce the proposal
regarding the (non) inclusion of Carbofuran in Annex I to
Directive 91/414/EEC it intends to present to the Standing
Committee on the Food Chain and Animal Health for a vote
at its 22/24 November 2006 meeting, or any other meeting;

— declare the illegality and inapplicability vis-à-vis the appli-
cants and the review of their Carbofuran dossiers of Article
20 of Commission Regulation (EC) No 1490/2002;

C 326/66

EN

Official Journal of the European Union

30.12.2006

— order the defendant to compensate the applicants for the
damages incurred as a result of the contested measure, and
to hold at this stage by interlocutory statement that the
defendant is obliged to compensate the applicants for the
damages they incurred and to reserve the fixing of
the
amount of compensation either by agreement between the
parties or by the Court in the absence of such agreement;

Action brought on 17 November 2006– FMC Chemical v
EFSA

(Case T-312/06)

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

(2006/C 326/139)

proceedings.

Language of the case: English

Pleas in law and main arguments

the active

The application at stake is made pursuant to Article 230 EC for
the annulment of the decision of the European Food Safety
Authority (‘EFSA’) of 28 July 2006, concluding on the evalua-
substance Carbofuran under Directive
tion of
91/414/EEC (1)
(‘The Plant Protection Products Directive’ or
‘PPPD’), in so far as it fails to include or to consider critical new
evidence on Carbofuran submitted by the applicants to the
designated Belgian Rapporteur Member State and to the extent
it introduces new data requirements based on the retroactive
application of new guidance documents, which the applicants
could not foresee, and for which it was scientifically not possible
to conduct and submit new studies in time.

Specifically, the applicants claim that the contested measure
represents the final procedural step in the administrative assess-
ment of the substance under Commission Regulation (EC) No
451/2000 of 28 February 2000 (2) laying down the detailed
rules for the implementation of the second and third stages of
the work programme referred to in Article 8(2) of the PPPD, as
amended by Commission Regulation 1490/2002 (3) for which
the applicants submit they are the sole notifiers and main data
submitters.

The applicants hereby also raise a plea of
illegality against
Article 20 of Regulation (EC) No 1490/2002, which provides
for a mandatory involvement of EFSA in the review of active
substances covered by the second stage of the review, and by
requiring the EFSA to assess whether the substance in question
may be expected to meet the safety requirements of the PPPD
and be included in its Annex I. Precisely, the applicants contend
that the above-mentioned regulation, which entered into force
at a time when the applicants had completed their complete
dossiers, cannot retroactively apply to the ongoing Carbofuran
review and consequently the contested measure cannot serve as
a basis for a Commission proposal regarding the inclusion of
Carbofuran in Annex I of the PPPD.

Moreover, the applicants seek compensation for the damages
caused to them as a result of the defendant's conduct during the
Carbofuran evaluation process and in the adoption of
the
contested measure.

(1) OJ 1991 L 230, p. 1.
(2) OJ 2000 L 55, p. 25.
(3) OJ 2002 L 224, p. 23.

Parties

Applicant: FMC Chemical SPRL (Brussels, Belgium) (represented
by: C. Mereu, K. Van Maldegem, lawyers)

Defendant: European Food Safety Authority (EFSA)

Form of order sought

— Declare the present application admissible and well founded;

— annul

the EFSA's Conclusion Report,

titled ‘Conclusion
regarding the peer review of the pesticide risk assessment of
the active substance Carbosuflan’;

— order the EFSA and/or the European Commission by way of
incidental request in accordance with Articles 63 and 64 of
the Court's Rules of Procedure, to produce the proposal
regarding the (non) inclusion of Carbosuflan in Annex I to
Directive 91/414/EEC it intends to present to the Standing
Committee on the Food Chain and Animal Health for a vote
at its 22/24 November 2006 meeting, or any other meeting;

— declare the illegality and inapplicability vis-à-vis the appli-
cant and the review of their Carbosuflan dossiers of Article
20 of Commission Regulation (EC) No 1490/2002;

— order the defendant to compensate the applicants for the
damages incurred as a result of the contested measure, and
to hold at this stage by interlocutory statement that the
defendant is obliged to compensate the applicants for the
the
damages they incurred and to reserve the fixing of
amount of compensation either by agreement between the
parties or by the Court in the absence of such agreement;

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

proceedings.