21.2.2009

EN

Official Journal of the European Union

C 44/55

(Case T-539/08)

(2009/C 44/97)

Language of the case: English

Parties

Applicant(s): Etimine SA (Bettembourg, Luxembourg) and Ab Etiproducts Oy (Espoo, Finland) (represented by: C. Mereu and K. Van Maldegem, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—declare the application admissible and well-founded;

—partially annul the contested measures by annulling the entries in Annex 1G to the contested measure relating to the following substances:

—boric acid; boric acid, crude natural,

—diboron trioxide; boric oxide,

—disodium tetraborate anhydrous; boric acid, disodium salt; tetraboron disodium heptaoxide, hydrate; orthobroic acid, sodium salt,

—disodium tetraborate decahydrate; borax decrahydrate,

—disodium tetraborate penthahydrate; borax pentahydrate.

—in alternative, partially annul the contested measures by annulling the entries in Annex 1G to the contested measure relating to the following substances:

—diboron trioxide; boric oxide,

—disodium tetraborate anhydrous; boric acid, disodium salt; tetraboron disodium heptaoxide, hydrate; orthobroic acid, sodium salt,

—disodium tetraborate decahydrate; borax decrahydrate,

—disodium tetraborate penthahydrate; borax pentahydrate.

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

Pleas in law and main arguments

By means of this application, the applicant seeks partial annulment pursuant to Article 230 EC of Commission Directive 2008/58/EC of 21 August 2008 amending, for the purpose of its adaptation to technical progress, for the 30th time, Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (1) in so far as it classifies certain borates as toxic to reproduction for both fertility and development effects.

The applicant puts forward three pleas in law in support of its claims.

First, the applicant claims that the Commission has infringed essential procedural requirements as the contested measure fails to comply with the applicable legislative procedure and therefore infringes Articles 5 and 7 EC, Article 29 of Council Directive 67/548/EEC (2) and Article 5 of Council Decision 1999/468/EC (3).

Second, the applicant argues that the Commission committed errors of assessment in applying the criteria for classification of the borate substances and thus infringed Council Directive 67/548/EEC. It submits that the Commission did not apply or failed to properly apply the ‘normal handling and use’ principle provided for in Annex VI to Directive 67/548/EEC, unlawfully applied risk assessment criteria while, in the applicant's opinion, they are irrelevant in the context of classification of substances under Directive 67/548/EEC and failed to apply or misapplied the ‘appropriateness’ criterion in breach of point 4.2.3.3 of Annex VI to Directive 67/548/EEC. Furthermore, the applicant contends that the Commission failed to give sufficient weight to epidemiological and human data submitted by the applicant and, in result, the contested measure is partially vitiated by a manifest error of assessment. The applicant claims that the Commission unlawfully extrapolated data relating to one of the borate substances for the purposes of classifying the other borate substances and therefore the contested measure must be partially annulled at least in so far as it concerns the other borate substances. The applicant submits that the Commission failed to provide adequate reasons pursuant to Article 253 EC as no justification was given by the Commission to explain the grounds for the extrapolation of data.

Third, the applicant claims that the Commission infringed fundamental principles of the community law such as principle of proportionality as stated in Article 5 EC as, in the applicant's opinion, the contested measure goes beyond what is necessary to achieve the aims pursued by that measure.

(1) OJ L 246, p. 1.

(2) Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, OJ 196, p. 1.

(3) Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ L 184, p. 23.