CELEX: C2004/047/67
Language: en
Date: 2004-02-21 00:00:00
Title: Case T-422/03: Action brought on 23 December 2003 by Enviro Tech Europe, Ltd., and Enviro Tech International Inc. against the Commission of the European Communities

21.2.2004            EN                          Official Journal of the European Union                                            C 47/35
Decision of the Board of     Action dismissed.                           —     order the Commission to pay all costs and expenses in
Appeal:                                                                        these proceedings.
Pleas in law:                Infringement of Article 8(1)(b),
                             (2)(c) and (5) of Regulation (EC)
                             No 40/94.
                                                                         Pleas in law and main arguments
                                                                         The applicants seek the annulment of the Commission’s
                                                                         decisions rejecting the applicants’ request not to classify
                                                                         n-propyl bromide as a highly flammable substance (risk
                                                                         phrase R11) and reproductive toxicant category 2 (risk
                                                                         phrase R60) , but instead to classify it as a category 3/R62
                                                                         substance for reproductive toxicity and R18 substance for
Action brought on 23 December 2003 by Enviro Tech                        flammability. In the alternative, the applicants requested
Europe, Ltd., and Enviro Tech International Inc. against                 the Commission to exclude n-propyl bromide from the
      the Commission of the European Communities                         29th Adaptation to Technical Progress of Directive 67/548/
                                                                         EEC (1) until a proper and complete assessment of all the
                                                                         scientific data had been made by the Commission.
                       (Case T-422/03)
                        (2004/C 47/67)                                   In support of their application, the applicants claim that the
                                                                         Commission has violated the provision of Directive 67/
                                                                         548/EEC concerning the applicable testing methods and
                                                                         classification criteria for chemical substances. According to the
                 (Language of the case: English)                         applicant, the Commission has made a manifest error of
                                                                         assessment and an incorrect application of the testing methods
                                                                         for physico-chemical properties set forth in annex V, point A.9
                                                                         of Directive 67/548/EEC, the classification criteria for toxico-
                                                                         logical properties set forth in annex VI, point 4.2.3 of Directive
                                                                         67/548/EEC and the criterion of normal handling or use set
An action against the Commission of the European Communi-                forth in annex VI, point 1.1 of Directive 67/548/EEC.
ties was brought before the Court of First Instance of the
European Communities on 23 December 2003 by Enviro Tech
Europe Ltd., Kingston-upon-Thames, United Kingdom and
Enviro tech International, Inc., Chicago, USA, represented by
Mr C. Mereu and Mr K. Van Maldegem, lawyers.                             The applicants also claim that the Commission has violated
                                                                         the applicants’ legitimate expectations that the Commission
                                                                         would assess the data submitted by the applicants in accord-
                                                                         ance with their obligations under Directive 67/548/EEC,
                                                                         diligently, impartially and by relevance to the relevant criteria
The applicant claims that the Court should:
                                                                         of Directive 67/548/EEC.
—    annul Commission Decisions D(2003) 430307 and
     D(2003) 430309 of 4 November 2003;
                                                                         The applicants invoke furthermore a violation of Article 95(3)
                                                                         EC Treaty. According to the applicants, the Commission failed
—    declare the Commission liable for damages suffered by               to consider and assess all the scientific data available as well as
     applicants to date and pending these proceedings as a               new developments based on scientific facts.
     result of the Commission’s unlawful conduct, including
     but not limited to its denial of applicant’s request
     and related adoption of the contested decision, and to
     compensate applicants for such damage in the provisional
     amount of EUR 350 000;                                              The applicants state that the contested decisions are based on
                                                                         the precautionary principle. According to the applicants, this
                                                                         principle only applies to risk assessment and cannot be used
—    declare the Commission liable for imminent losses and               in hazard assessments. Also, even if the principle should apply
     damages foreseeable with sufficient certainty, even if such         in this case, this would only be possible in the case of scientific
     losses and damages cannot be precisely assessed;                    uncertainty.
 ---pagebreak--- C 47/36                  EN                           Official Journal of the European Union                                          21.2.2004
The applicants finally claim that the Commission has violated                 The applicant submits that the reasoning for the contested
fundamental principles of Community law, such as the prin-                    decision is unsound and that that decision infringes the general
ciple of legal certainty and legitimate expectations, the prin-               principle of sound administration that reasons must be stated
ciple of independence and excellence of scientific advice, the                for decisions. The applicant also alleges infringement of
principle of proportionality, the principle of equal treatment                Article 5 of Appendix 2 to the Staff Regulations of Europol (1)
and the principle of sound administration. The applicants also                and infringement of the principle of due care.
claim that there was a lack of competence on the part of the
Commission and that the Commission misused its powers.
                                                                              (1) Council Act of 3 December 1998 laying down the staff regulations
                                                                                  applicable to Europol employees (OJ 1999 C 26, p. 7).
(1) Council Directive 67/548/EEC of 27 June 1967 on the approxi-
    mation of laws, regulations and administrative provisions relating
    to the classification, packaging and labelling of dangerous sub-
    stances (OJ English special edition: Series I Chapter 1967, p. 234).
                                                                              Action brought on 20 December 2003 by Gerhard Kein-
                                                                              horst against the Commission of the European Communi-
                                                                                                              ties
Action brought on 23 December 2003 by Elisabeth Saskia                                                 (Case T-428/03)
                        Smit against Europol
                                                                                                        (2004/C 47/69)
                           (Case T-423/03)
                                                                                                  (Language of the case: French)
                            (2004/C 47/68)
                     (Language of the case: Dutch)                            An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
                                                                              European Communities on 20 December 2003 by Gerhard
                                                                              Keinhorst, residing in Overijse (Belgium), represented by
                                                                              Nicolas Lhoëst, lawyer, with an address for service in Luxem-
An action against Europol was brought before the Court of                     bourg.
First Instance of the European Communities on 23 December
2003 by Elisabeth Saskia Smit, represented by P. de Casparis
and M.F. Baltussen.                                                           The applicant claims that the Court should:
                                                                              —     Annul the decision of the appointing authority dated
The applicant claims that the Court should:                                         23 December 2002, in so far as it did not award the
                                                                                    applicant additional seniority and therefore reclassified
1.    annul the implicit rejection by Europol of her objection                      him in Grade A6, Step 1, instead of Grade A6, Step 3;
      to the decision of 19 May 2003 and, at the same time,
      annul the decision of 19 May 2003;                                      —     Annul the decision of the appointing authority dated
                                                                                    14 April 2003, in so far as it:
2.    order Europol to pay the applicant compensation includ-
      ing, in any event, the costs of the present proceedings.                      —    did not fix the applicant’s classification in Grade A6,
                                                                                         Step 3 upon recruitment,
                                                                                    —    did not reconstruct the applicant’s career in grade
                                                                                         by bringing forward the date of his promotion to A5
Pleas in law and main arguments                                                          and, if appropriate, promoting him to A4,
                                                                                    —    limited the date on which the reclassification
The applicant’s application for the post of ‘Asset Administrator’                        decision took effect as regards its pecuniary effects
with Europol was rejected by the contested decision.                                     to 5 October 1995;