Case T-30/07: Action brought on 5 February 2007 — Denka International v Commission
Date: 2007-04-14
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), consumer protection, foodstuffs legislation, fruit, pesticide residue, plant health legislation, vegetable

14.4.2007

EN

Official Journal of the European Union

C 82/41

— again as a subsidiary matter, the applicant requests that the
Court of First Instance, if it should consider that Lipor has
not satisfied all the requirements of Directive 92/50/EC,
should order the Commission, because of breach of
the
principle of proportionality, to fix at 100 % the financial
correction relating to the financing of the contracts with
Hidroprojecto.

Action brought on 5 February 2007 — Denka International
v Commission

(Case T-30/07)

(2007/C 82/90)

Pleas in law and main arguments

Language of the case: English

In support of its action the applicant alleges errors of law, mani-
fest errors of assessment, insufficient and inaccurate reasoning
and breach of the principle of proportionality.

So far as the contract concluded by the applicant with Hidro-
projecto in 1989 is concerned, the applicant claims that the
Commission erred in its assessment of the value of Block D of
the contract.

With regard to the contract concluded by the same bodies in
1997, the applicant claims that the Commission erred in its
assessment, not understanding that those contracts were,
in
part, the realisation of the 1989 contract and, in part, exten-
sions of that contract which proved necessary as the project
developed. It also criticises the Commission for having consid-
ered that the contracts ought to have been awarded by open
tendering procedure. In the applicant's view, even if it were to
be held that those contracts were independent of the 1989
contract and that they crossed the threshold value fixed by
the exception
Directive 92/50 for award by open tender,
provided for by Article 11 of that directive was applicable to
them.

In respect of the contracts of 28 March and 28 April 1995, also
concluded by the same bodies, the applicant claims that the
Commission made an error of assessment in regarding them as
a single contract and as an extension of the 1989 contract and
in asserting that the award of the procurement contract ought
to have been preceded by a call for tenders. It argues that there
are in fact two contracts concluded on different dates. One of
them was concluded following a restricted invitation to tender
and the other did not cross the value threshold that would have
made it subject to the tendering procedure. In any case, both
were concluded in accordance with Portuguese law at a time
when Directive 92/50 had not yet been transposed into
domestic law.

Finally, with regard to the contracts concluded by the applicant
with IDAD in 1999, the applicant, although admitting that the
Commission could consider them together in order to deter-
mine their respective values and whether they were subject to
the rules governing public procurement contracts, explains the
reasons which led it to enter into separate contracts and claims
that IDAD is a public body and, as such, a contracting authority
for the purposes of Directive 92/50. Consequently, it takes the
view that the Commission ought to have taken those reasons
into account and not ordered a financial correction of 100 %.
According to the applicant, that correction runs counter to the
principle of proportionality.

Parties

Applicant: Denka International BV (Barneveld, The Netherlands)
(represented by: K. Van Maldegem, C. Mereu, lawyers)

Defendant: Commission of the European communities

Form of order sought

— annulment of Article 2(b) and Annex II of Commission

Directive 2006/92/EC; and

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

proceedings, as well as interests thereof.

Pleas in law and main arguments

By means of its application, the applicant seeks partial annul-
ment of Commission Directive 2006/92/EC (1), of 9 November
2006, amending Annexes to Council Directives 76/895/EEC,
86/362/EEC and 90/642/EEC as regards maximum residue
levels for dichlorvos (hereinafter the ‘the MRL Directive’ or ‘the
contested measure’) and in particular
its Article 2(b) and
Annex II thereof.

The applicant claims that these provisions modify the maximum
residue level for the substance at stake from the previously
applicable 2 mg/kg to a new threshold value of 0.01 mg/kg
based on an underlying assessment of the applicant's dossier
conducted
of Directive
related
the
91/414/EEC (hereinafter,
‘PPPD’) that is procedurally, scientifi-
cally and legally flawed.

assessment

under

Procedurally, the applicant submits that the contested measure
was adopted in violation of the procedural safeguards set out in
Article 8 of Regulation 451/2000 and the auditum alteram
partem principle or principle to a fair hearing, while it also
infringes the duty to state reasons (Article 235 EC). In addition,
the applicant claims that through the adoption of the contested
measure the Commission misused its powers, as it achieved the
same objective as a decision of non-inclusion without having
recourse to such decision.

C 82/42

EN

Official Journal of the European Union

14.4.2007

From a substantive legal standpoint, the contested measure is
allegedly based on a manifest error of assessment and violates,
according to the applicant
(i) Article 4(1)(f) of Directive
91/414/EEC, (ii) Article 5 of the MRL Directive, as well as (iii)
fundamental principles of Community law, namely (a) legitimate
expectations and legal certainty, (b) Article 211 EC and the prin-
ciple of sound administration, and (c) the principle of propor-
tionality.

(1) Commission Directive 2006/92/EC of 9 November 2006 amending
annexes
to Council Directives 76/895/EEC, 86/362/EEC and
90/642/EEC as regards maximum levels for captan, dichlorvos,
ethion and folpet (OJ, L 311, p. 31).

Action brought on 12 February 2007 — Hellenic Republic
v Commission of the European Communities

(Case T-33/07)

(2007/C 82/91)

Language of the case: Greek

them and the loss suffered by the European Community, and, in
the alternative, the Commission lacked power ratione temporis to
impose corrections.

More specifically, in the olive oil sector, the applicant submits
that the defendant exceeded the limits of the discretion enjoyed
by it, because it doubled the correction from 5 % to 10 %
although no worsening — but, on the contrary, an improve-
ment — of the control system had been noted. Also, in the
applicant's submission the defendant erred in its interpretation
of Community provisions and in the assessment of the facts,
infringing the principle of proportionality.

In relation to the cotton sector, the applicant puts forward as a
plea for annulment incorrect assessment of the facts, incorrect
reasoning, the lack of a legal basis for imposing the correction,
the incorrect interpretation and application of Article 12(1) of
Regulation (EEC) No 1201/89 (2) and infringement of the prin-
ciple of legal certainty because the duration of the procedure for
allocating expenditure exceeded 10 years.

In relation to the grape sector, the applicant puts forward the
argument that the defendant misinterpreted the guidelines for
corrections
inadequate
in setting the figure of 10 % for
secondary controls, and that the defendant gave an inadequate
statement of reasons for the decision as regards the correction
for currants.

Parties

Applicant: Hellenic Republic (represented by: I. Khalkias and G.
Kanellopoulos)

Defendant: Commission of the European Communities

In relation to citrus fruit, the applicant submits that the defen-
dant mistakenly relied upon, and did not provide a sufficient
statement of reasons in respect of, the stated deficiencies in
administrative controls, infringing the principle of proportion-
ality; in the alternative it erred in its interpretation and temporal
application of Annex 16 to document 17933/2000 with regard
to the classification of the checks in question as basic.

Form of order sought

— annul

the contested Commission decision or alter it

in
accordance with the matters set out more specifically below;

— order the Commission to pay the costs.

Pleas in law and main arguments

In its action challenging Commission Decision C(2006) 5993
final of 14 December 2006 (OJ 2006 L 355, p. 96) by which
the Commission excluded from Community financing certain
expenditure incurred by the Member States — in the present
case the Hellenic Republic — in the context of clearing expendi-
the European Agricultural
ture of
Guidance and Guarantee Fund (EAGGF), the Hellenic Republic
puts forward the following pleas for annulment.

the Guarantee Section of

By the first, general, plea of annulment, which relates to all the
corrections, the applicant submits that the defendant infringed
an essential procedural requirement which is laid down in sub-
paragraph (a) [sic] of the third subparagraph of Article 8(1) of
Regulation (EC) No 1663/95 (1),
in respect of the failure to
conduct a bilateral discussion with the Greek authorities on the
the infringements attributed to
assessment of

the gravity of

Finally, with regard to the late payments, the applicant pleads
that there was an incorrect assessment of the facts because of
the imposition of a double correction in respect of budget item
B01-1210-160,
interpretation and application of
Article 4(2) of Regulation (EC) No 296/96 (3) in relation to the
basis for calculation of the 4 % reserve, and an incorrect assess-
ment and insufficient statement of reasons so far as concerns
the exceptional circumstances and special management condi-
tions that were put forward.

incorrect

(1) Commission Regulation (EC) No 1663/95 of 7 July 1995 laying
down detailed rules for the application of Council Regulation (EEC)
No 729/70 regarding the procedure for the clearance of the accounts
of the EAGGF Guarantee Section (OJ No L 158, 8.7.1995, p. 6).
(2) Commission Regulation (EEC) No 1201/89 of 3 May 1989 laying
down rules implementing the system of aid for cotton (OJ No L 123,
4.5.1989, p. 23).

(3) Commission Regulation (EC) No 296/96 of 16 February 1996 on
data to be forwarded by the Member States and the monthly
booking of expenditure financed under the Guarantee Section of the
Agricultural Guidance and Guarantee Fund (EAGGF) and repealing
Regulation (EEC) No 2776/88 (OJ No L 39, 17.2.1996, p. 5).