Case T-561/08: Action brought on 15 December 2008 — Bactria and Gutknecht v Commission
Date: 2008-12-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), damages, dangerous substance, data protection, pesticide

7.3.2009

EN

Official Journal of the European Union

C 55/37

The judgment creates further legal uncertainty in relation to the
distinction between various
types of procedural measures,
concerning requests for the production of confidential docu-
ments by an entity and the circumstances in which such
requests may be refused (measures of organisation of procedure
and orders for evidence to be taken). In the present case, the
Tribunal also fundamentally misinterpreted the Commission's
position, as the latter did not in any way refuse such production.
The Commission merely explained that it could not produce the
relevant documents on the basis of the measures of organisation
of procedure ordered by the Tribunal, but was awaiting an order
(for the production of evidence) of the Tribunal.

— order

the European Community to pay the applicants'
compensatory interest at the default rate from the date of
the losses suffered;

— order the European Community to pay default interest of
8 % or any other appropriate rate to be determined by the
Court, calculated on the amount payable as from the date of
the Court's judgment until actual payment; and

— order the Commission to pay all costs of these proceedings.

Action brought on 15 December 2008 — Bactria and
Gutknecht v Commission

(Case T-561/08)

(2009/C 55/67)

Language of the case: English

Parties

Applicants: Bactria Industriehygiene-Service Verwaltungs GmbH
Jürgen Gutknecht (Kirchheim-
(Kirchheimbolanden, Germany),
bolanden, Germany) (represented by: K. Van Maldegem and C.
Mereu, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare the application admissible and well founded;

Pleas in law and main arguments

By means of their application, the applicants claim compensa-
tion, pursuant to Article 235 EC, for the damages allegedly
suffered form the adoption of Article 6(2) of Commission Regu-
lation 1896/2000 of 7 September 2000 (1) on the first phase of
the programme referred to in Article 16(2) of Directive 98/8/EC
of the European Parliament and of the Council concerning the
placing of biocidal products on the market (2) together with
Commission Regulation 2032/2003 (3) and Commission Regu-
lation 1451/2007 (4).

In the alternative, the applicants claim compensation for the
damages allegedly suffered from the failure of the Commission
to ensure protection of the data protection rights granted to
to Article 12 of Directive 98/8/EC. They
notifiers pursuant
further submit that the damage suffered by the applicants as a
result of the Commission's unlawful conduct consists of a signif-
icant reduction in the value of the first applicant's business and
the lost profit (lucrum cessans) which the first applicant would
have made by selling the biocidal products at issue an the active
substances contained in those biocidal products but for the
conduct of the Community.

In addition to the damage allegedly suffered by the second appli-
cant as a shareholder of and therefore owner of the business of
the first applicant, it is submitted that the second applicant has
also suffered the loss of his livelihood. Finally, the applicants
claim compensatory interest at the default rate from the date the
losses claimed occurred.

— order the European Community to pay the damages suffered
by the applicants as a result of (i) the unlawful adoption of
Article 6(2) of the First Review Regulation together with the
Second Review Regulation and Commission Regulation
1451/2007; or,
the Commission's
in the alternative (ii)
failure to take the necessary measures to ensure that the
applicants' data protection rights under
the Directive
98/8/EC were maintained and free-riding avoided during the
review programme,
amount of
estimated at
EUR 3 912 569, or other amount as further established by
the applicants in the course of these proceedings or by the
Court ex aequo et bono;

total

a

— in the alternative, rule on interlocutory judgment that the
European Community is obliged to make reparation for the
loss suffered and order the parties to produce to the Court
within a reasonable period from the date of the judgment
the compensation agreed
figures as to the amount of
between the parties or, failing agreement, order the parties
to produce to the Court within the same period their
submissions with detailed figures in support;

(1) Commission Regulation (EC) No 1896/2000 of 7 September 2000
on the first phase of the programme referred to in Article 16(2) of
Directive 98/8/EC of the European Parliament and of the Council on
biocidal products (OJ 2000 L 228, p. 6).

(2) Directive 98/8/EC of the European Parliament and of the Council of
16 February 1998 concerning the placing of biocidal products on
the market (OJ 1998 L 123, p. 1).

(3) Commission Regulation (EC) No 2032/2003 of 4 November 2003
on the second phase of the 10-year work programme referred to in
Article 16(2) of Directive 98/8/EC of the European Parliament and
of the Council concerning the placing of biocidal products on the
market, and amending Regulation (EC) No 1896/2000 (OJ 2003
L 307, p. 1).

(4) Commission Regulation (EC) No 1451/2007 of 4 December 2007
on the second phase of the 10-year work programme referred to in
Article 16(2) of Directive 98/8/EC of the European Parliament and
of the Council concerning the placing of biocidal products on the
market (OJ 2007 L 325, p. 3).