Case T-31/07: Action brought on 12 February 2007 — Du Pont de Nemours (France) and Others v Commission
Date: 2007-02-12
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), marketing standard, pesticide, pharmaceutical product, plant health control, plant health product

C 69/28

EN

Official Journal of the European Union

24.3.2007

Action brought on 12 February 2007 — Du Pont de
Nemours (France) and Others v Commission

(Case T-31/07)

(2007/C 69/57)

Language of the case: English

Parties

Applicants: Du Pont de Nemours (France) SAS (Puteaux, France),
Du Pont Portugal Serviços (Lisbon, Portugal), Du Pont Ibérica SL
(Barcelona, Spain), Du Pont de Nemours
(Belgium) BVBA
(Mechelen, Belgium), Du Pont de Nemours Italiana Srl (Milan,
Italy), Du Pont de Nemours (Nederland) BV (Dordrecht, The
Netherlands), Du Pont de Nemours (Deutschland) GmbH (Bad
Homburg, Germany), DuPont CZ s.r.o. (Prague, Czech Republic),
DuPont Hungary Trading Ltd (Budaors, Hungary), DuPont
(Warsaw, Poland), DuPont Romania Srl
Poland Sp.z o.o.
(UK) Ltd (Herts, United
(Bucharest, Romania), Du Pont
Kingdom), Du PontAGro Hellas SA (Athens, Greece), DuPont
International Operations Sarl
(Switzerland), DuPont Solutions
(France) SAS (Puteaux, France) (represented by: D. Waelbroeck,
N. Rampal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annulment

of

the

annex of Commission Directive
2006/133/EC amending Directive 91/414/EEC to include
flusilazole as active substance insofar as it fixes the expira-
tion date of the inclusion period for flusilazole at 30 June
2008;

— annulment of Article 3(2) of Directive 2006/133/EC
amending Directive 91/414/EEC to include flusilazole as
active substance insofar as it
fixes the date until which
Member States shall, after re-evaluation, amend or withdraw
the authorisation of products containing flusilazole at
30 June 2008;

— annulment of part A of the Specific Provisions contained in
annex of Commission Directive 2006/133/EC amending
Directive 91/414/EEC insofar as it places a restriction on the
types of crops on which the use of
flusilazole may be
authorised by the Member States following its inclusion in
Annex I to Directive 91/414/EEC, and which must be imple-
mented by 30 June 2007 (‘the contested restrictions’);

— condemn the Commission to repair any damage suffered by
the applicants as a result of the contested restrictions and to
the damage
set

this compensation for

the amount of

suffered by the applicants currently estimated at approxi-
mately $109 million (around €84 million); or any other
amount reflecting the damage suffered or to be suffered by
the applicants as further established by them in the course
of this procedure especially to take due account of future
damage;

— in the alternative, to order the parties to produce within a
reasonable period of time from the date of the judgement
figures as to the amount of compensation arrived at by
agreement between the parties or, in the absence of agree-
ment,
to order the parties to produce within the same
period their conclusions with detailed figures;

— order an interest at the rate set at the time by the European
Central Bank for main refinancing operations, plus two
percentage points, or any other appropriate rate to be deter-
mined by the Court, be paid on the amount payable as from
the date of the Court's judgment until actual payment;

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

proceedings.

Pleas in law and main arguments

By means of their application, the applicants seek partial annul-
ment of the annex of Commission Directive 2006/133/EC (1),
of 11 December 2006 amending Annex I of Directive
91/414/EEC (2) concerning the placing of plant protection
products on the market (hereinafter, the ‘PPPD’) insofar as it
imposes constraints both to the inclusion period of flusilazole
and to the types of crops on which the use of flusilazole may
be authorised by Member States.

The applicants claim that the contested restrictions are illegal
insofar as they are based on a pure ‘hazard’ assessment and not
a ‘risk’ assessment as required by Directive 91/414/EEC. More
specifically, they submit that by reducing the inclusion period to
18 months instead of the normal period of 10 years, as well as
by restricting the authorised use of flusilazole to certain crops
only,
the Commission has allegedly infringed its obligations
deriving from the EC Treaty and the said directive and its
amending regulations as well as several fundamental principles
and objectives of Community law. Namely, the applicants claim
that the principle of proportionality, the principle of sound
administration and the right to be heard, as well as principles of
legal certainty, legitimate expectations, and non- discrimination,
and the duty to provide an appropriate statement of reasons
have been violated by the defendant. It is finally submitted that
the defendant misused its powers in view of the fact that the
the
restrictions have been decided arbitrarily,
criteria set in the directive.

irrespective of

24.3.2007

EN

Official Journal of the European Union

C 69/29

In addition to the action for annulment, the applicants have also
introduced an action for compensation on the basis of Articles
235 and 288(2) EC in order to repair the damage allegedly
suffered by them as a result of the contested restrictions.

(1) Commission Directive 2006/133/EC amending Council Directive
91/414/EEC to include flusilazole as active substance; OJ L 349,
2006, p. 27.

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

Action brought on 7 February 2007 — Slovakia v Commis-
sion

(Case T-32/07)

(2007/C 69/58)

Language of the case: Slovak

Parties

Applicant: Slovak Republic (represented by: J. Čorba, Agent)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision;

— in the event that the Court of First Instance does not agree
with the opinion set out at paragraph 95 of the application,
preserve, in accordance with Article 231(2) EC, those effects
of the contested decision on the basis of which the applicant
decides the total quantity of allowances and their allocation
to individual businessmen on their territory;

— order the defendant to pay the costs.

Pleas in law and main arguments

contests

applicant

the Commission's Decision

The
of
29 November 2006, which concerns the national allocation
plan for the allocation of emissions allowances for greenhouse
gases notified by the Slovak Republic in accordance with Direc-
tive 2003/87/EC of
the
Council (1). According to the contested decision, certain aspects
of the Slovak national allocation plan are incompatible with
Annex III to Directive No 2003/87/EC.

the European Parliament and of

The applicant submits in support of its action that the Commis-
sion infringed Article 9(3) in conjunction with Article 9(1) and
Article 11(2) of Directive No 2003/87/EC and the principle of
legitimate expectations in that, irrespective of the national allo-
cation plan, in the contested decision it applied its own method
of setting the maximum total annual average amount of emis-
sions allocations, appropriating to itself without authority the
task which the directive entrusted to the Member States.

Furthermore, the applicant submits that, even if the defendant
was entitled to apply its own method of setting the total quan-
tity of emissions allowances, by failing to consult the applicant
about the use of that method before the publication of the
contested decision, it breached the principle of loyal cooperation
of the institutions of the Community with the authorities of the
Member States.

Moreover, the defendant infringed Article 9(3) in conjunction
with Article 1 and Article 9(1) and criteria 1 to 4 of Annex III
to Directive 2003/87/EC and the general
legal principle of
proportionality, in that the method of setting the total amount
of emissions allocations which it applied fails to take into
account the need to increase electricity production on the appli-
cant's territory from carbon intensive sources as a result of the
obligation to close two power-plant units of the nuclear power
station at Jaslovské Bohunice.

Finally, the applicant asserts that there has been a breach of the
essential procedural requirement to state adequate reasons.

(1) Directive 2003/87/EC of

the
Council of 13 October 2003 establishing a scheme for greenhouse
gas emission allowance trading within the Community and amending
Council Directive 96/61/EC (OJ L 275, 25.10.2003, p. 32).

the European Parliament and of

Order of the Court of First Instance of 22 January 2007 —
Verband der Internationalen Caterer in Deutschland v
Commission

(Case T-5/05) (1)

(2007/C 69/59)

Language of the case: German

The President First Chamber has ordered that
removed from the register.

the case be

(1) OJ C 82, 2.4.2005.