CELEX: C2002/144/96
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-45/02: Action brought on 26 February 2002 by DOW AgroSciences B.V. and DOW AgroSciences Ltd. against the European Parliament and the Council of the European Union

C 144/46                EN                     Official Journal of the European Communities                                     15.6.2002
Action brought on 26 February 2002 by DOW Agro-                           newly created sub-category of priority substances, allegedly
Sciences B.V. and DOW AgroSciences Ltd. against the                       ‘under review’, which might be reclassified as ‘priority hazard-
European Parliament and the Council of the European                       ous substances’ in twelve months’ time, the contested measure
                              Union                                       would also create the legal conditions for the phasing-out and
                                                                          ultimate ban of the said substances.
                          (Case T-45/02)
                         (2002/C 144/96)
                    (Language of the case: English)
                                                                          The applicants submit that the inclusion of chlorpyrifos and
                                                                          trifluralin in the list of priority substances is illegal for the
                                                                          following reasons:
An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Instance of the European Communities on 26 February 2002
by DOW AgroSciences B.V. and DOW AgroSciences Ltd.,
represented by Mr Koen Van Maldegem and Mr Claudio Mereu
of McKenna & Cuneo LLP, Brussels (Belgium).                               —     the defendants improperly used the simplified (fast-track)
                                                                                procedure of Article 16(2), second paragraph, of the
                                                                                WFD, instead of basing the inclusion on the final PPPD
                                                                                risk assessment results, as required by Article 16(2)
The applicant claims that the Court should:                                     point (a). Furthermore, the defendants listed chlorpyrifos
                                                                                and trifluralin on the basis of a summary and expedited
—     declare the present application admissible and well-                      ‘hazard assessment’, rather than on the basis of aquatic
      founded;                                                                  toxicity and exposure data and a completed PPPD ‘risk
                                                                                assessment’, as required by Article 16(2) point (a) of the
                                                                                WFD.
—     order the partial annulment of Decision no. 2455/2001/
      EC of the European Parliament and of the Council of
      20 November 2001 establishing the list of priority
      substances in the field of water policy and amending
      Directive 2000/60/EC, so as to remove chlorpyrifos and
      trifluralin from the measure;                                       —     By circumventing Article 16(2) point (a) of the WFD, the
                                                                                defendants disregarded the hierarchy among sources of
                                                                                Community law (principle of lex superior).
—     order the defendants to pay all costs and expenses in
      these proceedings.
                                                                          —     By including chlorpyrifos and trifluralin in Annex X of
Pleas in law and main arguments                                                 the WFD, the contested measure also places the WFD in
                                                                                conflict with the more specific and therefore prevailing
                                                                                PPPD (principle of lex specialis).
The applicants in the prsent case seek the partial annulment of
Decision 2455/2001 (1), mentioned above, in as much as it
lists as ‘priority substances’ two of their plant protection
product active substances, chlorpyrifos and trifluralin, using a
procedure other than the one based on the risk assessment                 —     By ignoring available scientific and technical data in their
results of Council Directive 91/414/EEC concerning the pla-                     expedited and summary hazard assessment, and by
cing on the market of plant protection products (2) (the Plant                  imposing a maximum environmental standard for the
Protection Products Directive — PPPD), as it should be                          two substances in question, the defendants violated
provided in Article 16(2) point (a) of Directive 2000/60/EC of                  Articles 174, 175 and 176 of the Treaty.
23 October 2000, establishing a framework for Community
action in the field of water policy (3) (the Water Framework
Directive — WFD), which the contested measure purports to
implement.
                                                                          —     By restricting and potentially banning chlorpyrifos and
                                                                                trifluralin through the contested measure and thereby
The contested measure would restrict the marketing and use                      placing them at a competitive disadvantage with compet-
of the applicants’ chlorpyrifos and trifluralin-based agricultural              ing substances, the defendants distorted competition, in
products. Moreover, by placing these two substances in a                        violation of Article 2 of the Treaty.
 ---pagebreak--- 15.6.2002               EN                     Official Journal of the European Communities                                      C 144/47
The applicants also raise the point of a violation of the                 tion product active substance trifluralin in the list of priority
principles of consistency and uniform application of Com-                 substances which will be restricted in the EU insofar as it
munity law, of proportionality and of legal certainty and                 entails direct or indirect ‘discharges, emissions and losses’ in
legitimate expectations.                                                  the aquatic environment during normal agricultural use.
In addition, the applicants claim that the contested measure
also departs from the letter and the spirit of the international          The pleas in law and main arguments are similar to those
agreements to which it expressely refers (OSPAR, HELCOM                   relied upon in Case T-45/02 (DOW AgroSciences and Others -
and the Barcelona Convention).                                            v- Parliament and Council (2).
(1) OJ L 331, of 15.12.2001, p. 1.                                        (1) OJ [2001] L 331, p. 1.
(2) OJ L 170, of 25.6.1992, p. 40.                                        (2) See p. 46 of the present Official Journal.
(3) OJ L 327, of 22.12.2000, p. 1.
Action brought on 26 February 2002 by Finchimica,
S.p.A. and I.Pi.Ci. — Industria Prodotti Chimici, S.p.A.
against the European Parliament and the Council of the                    Action brought on 27 February 2002 by Makhteshim-
                         European Union                                   Agan Holding B.V. against the European Parliament and
                                                                                        the Council of the European Union
                          (Case T-46/02)
                                                                                                     (Case T-57/02)
                         (2002/C 144/97)
                                                                                                    (2002/C 144/98)
                    (Language of the case: English)
                                                                                              (Language of the case: English)
An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Instance of the European Communities on 26 February 2002
by Finchimica, S.p.A. and I.Pi.Ci. — Industria Prodotti Chimici,
S.p.A., represented by Mr Koen Van Maldegem and Mr Claudio                An action against the European Parliament and the Council of
Mereu of McKenna & Cuneo LLP, Brussels (Belgium).                         the European Union was brought before the Court of First
                                                                          Instance of the European Communities on 27 February 2002
                                                                          by Makhteshim-Agan Holding B.V., represented by Mr Philippe
The applicant claims that the Court should:                               Logelain, Mr Koen Van Maldegem and Mr Claudio Mereu of
                                                                          McKenna & Cuneo, LLP, Brussels (Belgium).
—     partially annul Decision no. 2455/2001/EC of the Euro-
      pean Parliament and of the Council of 20 November
      2001 establishing the list of priority substances in the            The applicant claims that the Court should:
      field of water policy and amending Directive 2000/60/
      EC (1), so as to remove trifluralin from the measure;
                                                                          —     order the partial annulment of Decision no. 2455/2001/
—     order the defendants to pay all costs and expenses in                     EC of the European Parliament and of the Council of
      these proceedings.                                                        20 November 2001 establishing the list of priority
                                                                                substances and priority hazardous substances in the field
                                                                                of water policy and amending Directive 2000/60/EC, so
                                                                                as to remove the applicant’s substances — Atrazine,
                                                                                Chlorpyrifos, Diuron, Endosulfan, Isoproturon (IPU),
Pleas in law and main arguments                                                 Simazine and Trifluralin — from the measure;
The applicants seek the partial annulment of Decision                     —     order the defendants to pay all costs and expenses in
no. 2455/2001/EC which includes the applicants’ plant protec-                   these proceedings.