CELEX: C2002/144/99
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-59/02: Action brought on 28 February 2002 by Archer Daniels Midland Company against the Commission of the European Communities

C 144/48               EN                    Official Journal of the European Communities                                      15.6.2002
Pleas in law and main arguments                                         According to the applicant, the defendants further violated
                                                                        Articles 174, 175 and 176 of the EC Treaty by ignoring
                                                                        available scientific and technical data. The contested measure
                                                                        also violates Article 2 of the EC Treaty. According to the
                                                                        applicant, the measure distorts competition since it does not
                                                                        affect other competing plant protection products.
The applicant in this case produces pesticides (plant protection
products). The applicant contests the inclusion of certain of its
products in the list of priority substances in the field of water
                                                                        The applicant submits also that there has been a violation of
policy. This list is established by the defendants in execution
                                                                        fundamental principles of Community law. The applicant
of Directive 2000/60/EC (1). The products listed are considered
                                                                        submits that the defendants have violated Directive 2000/60
to present a risk to or via the aquatic environment and
                                                                        and therefore have infringed a superior law. The defendants
their emissions must be reduced. Furthermore, the contested
                                                                        also violated the more specific Directive 91/414/EEC, accord-
decision indicates some of the applicant’s products as priority
                                                                        ing to which some of the applicant’s products are authorised
substances ’under review’, which will lead, according to the
                                                                        for use. The contested measure also violates the principle of
applicant, to a classification as priority hazardous substances.
                                                                        legal certainty and legitimate expectation since it frustrated the
These substances pose a higher risk for the aquatic environ-
                                                                        applicant’s expectations that its products would be assessed in
ment and their emissions must be eliminated.
                                                                        accordance with the procedure under Directive 91/414/EEC
                                                                        which is still current. The applicant further claims a violation
                                                                        of the principle of equal treatment, since the procedure used
                                                                        for the establishment of the contested measure has led to a
                                                                        result contrary to that reached by the procedure under
                                                                        Directive 91/414/EEC. The contested measure would, finally,
In support of its application, the applicant claims that the            infringe the principle of proportionality.
defendants violated the procedural requirements of Directive
2000/60/EC. Article 16 (2) point (a) of this Directive provides
that plant protection products are prioritised by a risk
assessment procedure. The Defendants used however a simpli-             (1) Directive 2000/60/EC of the European Parliament and of the
fied procedure called ’combined monitoring-based and model-                 Council of 23 October 2000 establishing a framework for
ling-based priority setting’. According to the applicants, the              Community action in the field of water policy (OJ L 327,
defendants had no jurisdiction to use this simplified procedure             22.12.2000 P. 1).
currently instead of the risk-based procedure laid down in              (2) Council Directive 91/414/EEC of 15 July 1991 concerning the
Article 16 (2) point (a). According to the applicant, the                   placing of plant protection products on the market (OJ L 230,
                                                                            19.8.1991 P. 1).
conditions laid down in Article 16 of Directive 2000/60/EC
for the use of a simplified procedure are not met. The applicant
further points out that the risk assessments of its plant
protection products under Directive 91/414/EEC (2) are still
continuing. Therefore, the defendants acted ultra vires by not
respecting the procedural and methodological requirements of
the basic Directive 2000/60.
                                                                        Action brought on 28 February 2002 by Archer Daniels
                                                                        Midland Company against the Commission of the Euro-
The applicant further contests the creating of a list of priority                              pean Communities
substances under review. According to the applicant this list is
in fact a list of tentative priority hazardous substances.
                                                                                                  (Case T-59/02)
According to the applicant there is no legal basis to establish
such a list. There is also no reasoning for the selection of these
substances as priority substances under review.                                                  (2002/C 144/99)
                                                                                           (Language of the case: English)
The applicant further submits that the contested decision is in
conflict with the more specific Council Directive 91/414/EEC
on plant protection products. Therefore the defendants violate          An action against the Commission of the European Communi-
the principle lex specialis derogat lex generalis. This Directive       ties was brought before the Court of First Instance of the
imposes a specific risk assessment for plant protection prod-           European Communities on 28 February 2002 by Archer
ucts. According to the applicant, the result of this specific           Daniels Midland Company, represented by Ms Lynda Martin
procedure should have been awaited before the classification            Alegi, Mr Bill Batchelor, Ms Marta Garcia and Mr Carl Otto
of its products was undertaken.                                         Lenz of Baker & McKenzie, London (United Kingdom).
 ---pagebreak--- 15.6.2002               EN                   Official Journal of the European Communities                                    C 144/49
The applicant claims that the Court should:                             was a leader and its conclusions as to the appropriate level of
                                                                        deterrent uplift in its assessment of the fine.
—     annul Article 1 of the Decision, to the extent that it finds
      that Archer Daniels Midland Company (‘ADM’) has                   Finally, the applicant claims that the defendant has violated
      violated Article 81 EC Treaty and Article 53 EEA                  Article 15(2) of Regulation no. 17 and rules applicable to the
      Agreement by agreeing (i) to restrict capacity and (ii) to        setting of fines. In this regard, the applicant considers that
      designate price leaders in relation to citric acid;               there has been an infringement of the principles of legal
                                                                        certainty, inasmuch as the Guidelines of Fines Methodology
                                                                        was applied to a cartel which ended many years before
—     annul Article 3 of the Decision in so far as it pertains to       these Guidelines were adopted; equal treatment; protection of
      ADM;                                                              legitimate expectations and proportionality. In particular, the
                                                                        Commission did not correctly assesse the value of ADM’s
                                                                        cooperation
—     in the alternative, modify Article 3 of the Decision as it
      pertains to ADM, so as to annul or substantially reduce
      the fine imposed on ADM therein;
—     order that the Commission pay all of the costs of the
      proceedings.
                                                                        Action brought on 28 February 2002 by Dr. Hans Heu-
                                                                        bach GmbH & Co KG against the Commission of the
                                                                                            European Communities
Pleas in law and main arguments
                                                                                                   (Case T-64/02)
                                                                                                 (2002/C 144/100)
The applicant in the present case challenges the Commission
Decision of 5 December 2001, relating to a proceeding under
Article 81 of the EC Treaty and Article 53 of the EEA                                     (Language of the case: German)
Agreement (Case COMP/E-1/36.604 — Citric Acid), to the
extent that it finds that ADM has violated these provisions by
agreeing to restrict capacity and to designate price leaders in
relation to citric acid.                                                An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 28 February 2002 by Dr. Hans
                                                                        Heubach GmbH & Co KG, of Langelsheim (Germany), rep-
In support of its claims, the applicant submits that the Decision       resented by Frank Montag and Günter Bauer, lawyers.
is inadequately reasoned, in as much as:
                                                                        The applicant claims that the Court should:
—     the Commission did not give proper reasons regarding
      how it took account of the damage to and the impact on
      competition or in relation to its decision not to take into       —     annul Article 3(b) of the contested decision;
      account, in assessing the level of ADM’s fine, ADM’s EEA
      in the affected product market;                                   —     reduce to a reasonable sum the amount of the fine
                                                                              imposed on the applicant in the contested decision;
—     it failed to state on what basis an uplift of 100 % could
                                                                        —     order the defendant to pay the costs.
      be considered necessary to have a deterrent effect;
—     the Commission did not state reasons for assessing ADM
      as a leader.                                                      Pleas in law and main arguments
                                                                        The contested decision is the same as that at issue in Case
The applicant submits that there has been an infringement by            T-33/02 Britannia Alloys & Chemicals v Commission (not yet
the Commission of essential procedural requirements, in that            published). The applicant argues that the basic amount of the
it failed to put to ADM its key conclusions regarding the               fine corresponds to more than 100 % of its EEA-wide product
nature of the violations in question, its conclusions that ADM          turnover in 1998, and that the amount of the fine imposed on