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EU court rejects haloxyfop-R and carbosulfan cases
Jul. 21, 2008
Separate attempts by Dow AgroSciences and FMC to challenge pesticide assessments by the European Food Safety Authority (EFSA) have been thrown out by an EU court. The companies had contested decisions by the EU authorities in 2006 not to re-register Dow's herbicide, haloxyfop-R, and FMC's insecticide/nematicide, carbosulfan. Both were seeking annulment of the EFSA's opinions on the risk assessments of the active ingredients that were used in the review process. However, the EU Court of First Instance has ruled the claims inadmissible as the EFSA's opinion is only an interim step in the EU registration procedure.
Phase-out procedures are already under way for haloxyfop-R and carbosulfan in EU member states, with a deadline of December 2008 to sell and use existing stocks. Both companies had previously been denied a suspension to the phase-out procedures for the ais. Dow has since resubmitted an application for EU approval of haloxyfop-R.
In both court cases, the EFSA argued that its opinion is not a measure that can be contested in law. The opinion is just a preliminary step in a procedure enabling the European Commission to adopt a final decision, it stated. Dow and FMC disputed this view, saying that such a situation would enable the EFSA to avoid any accountability for its acts with regard to pesticide risk assessment. As an intervener in the FMC case, the European Crop Protection Association (ECPA) pointed out that the Commission has delegated the task of making a scientific assessment to the EFSA. The ECPA argued that the Commission cannot ignore the assessment and must, on the basis of the EFSA opinion as to whether safe uses exist or not, make proposals for or against the registration of ais.
However, the Court sided with the EFSA's view. It ruled that only the Commission's final decision produces binding legal effects that are capable of affecting the interests of companies. The Court acknowledged the applicants' argument that action for annulment should be available for all measures adopted by institutions that are intended to have legal effects. Nevertheless, applicants have to show that the contested measure is intended to produce such effects, and in the present cases they have "failed to do so", the Court added.
The Court also dismissed the ECPA's argument that the Commission is bound by the EFSA's opinion. It quoted the procedural rules of the EU review of existing ais, which state that, after receiving the EFSA opinion, the Commission draws up a draft review report and on the basis of the finalised review report, submits a draft directive or decision to the regulatory committee. "It does not follow from that provision that the Commission is bound by the EFSA opinion," the Court ruled.
Dow's and FMC's claims for compensation were also dismissed. Both companies had claimed for damages relating to: loss of profit as a result of their customers' stated intention to reduce or stop their purchases of the ais; non-material damage resulting from damage to reputation; and actual damage associated with additional costs incurred followed the EFSA's requests for data at an advanced stage in the evaluation procedure. However, in both court cases, the Court said that the companies had not quantified the damage nor given any facts that would enable the extent of the damage to be assessed.
In both court cases, the Court ordered each party to bear their own costs.
Source: Agrow
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