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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Arch Chemicals and Arch Timber Protection v Commission [2011] EUECJ T-79/04 (20 September 2011)
URL: http://www.bailii.org/eu/cases/EUECJ/2011/T7904.html
Cite as: [2011] EUECJ T-79/4, [2011] EUECJ T-79/04
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.



JUDGMENT OF THE GENERAL COURT (Second Chamber)

20 September 2011 (*)

(Actions for annulment – Health policy – Placing on the market of biocidal products – Regulation (EC) No 2032/2003 – Not individually concerned – Inadmissibility)

In Joined Cases T-‘75/04 and T-‘77/04 to T-‘79/04,

Arch Chemicals, Inc., established in Norwalk, Connecticut (United States),

Arch Timber Protection Ltd, established in Castleford, West Yorkshire (United Kingdom),

represented by K. Van Maldegem and C. Mereu, lawyers,

applicants in Case T-‘75/04,

Rhodia UK Ltd, formerly Rhodia Consumer Specialties Ltd, established in Watford, Hertfordshire (United Kingdom), represented by K. Van Maldegem and C. Mereu, lawyers,

applicant in Case T-‘77/04,

Sumitomo Chemical (UK) plc, established in London (United Kingdom), represented by C. Mereu and K. Van Maldegem, lawyers,

applicant in Case T-‘78/04,

Troy Chemical Co. BV, established in Vlaardingen (Netherlands), represented by K. Van Maldegem and C. Mereu, lawyers,

applicant in Case T-‘79/04,

supported by

European Chemical Industry Council (CEFIC), established in Brussels (Belgium), represented initially by M. Bronckers, Y. van Gerven and P. Charro, and subsequently by Y. van Gerven, lawyers,

intervener,

v

European Commission, represented initially by X. Lewis and F. Simonetti, and subsequently by P. Oliver and G. Wilms, acting as Agents,

defendant,

supported by

European Parliament, represented initially by A. Neergaard and M. Moore, and subsequently by A. Neergaard and J. Rodrigues, acting as Agents,

by

Council of the European Union, represented initially by B. Hoff-Nielsen, M. Sims and F. Ruggeri Laderchi, and subsequently by M. Sims and F. Florindo Gijón, and finally by F. Florindo Gijón and R. Liudvinaviciute-Cordeiro, acting as Agents,

and by

Kingdom of the Netherlands, represented initially by S. Terstal, and subsequently by H. Sevenster, acting as Agents,

interveners,

ACTION for annulment of Article 3, Article 4(2), Article 5(3), the second subparagraph of Article 10(2), Article 11(3), Article 13, Article 14(2) of and Annex II to Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1),

THE GENERAL COURT (Second Chamber),

composed of N.J. Forwood, President, F. Dehousse and J. Schwarcz (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 15 December 2010,

gives the following

Judgment

 Legal context

1        Under Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, p. 1), the Commission of the European Communities was tasked with commencing a 10-year programme of work for the systematic examination of all active substances already on the market on 14 May 2000 (‘the existing active substances’). The initial phase of the programme was laid down in Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC (OJ 2000 L 228, p. 6).

2        Pursuant to Articles 3 and 4 of Regulation No 1896/2000, existing active substances had to be identified and those to be evaluated with a view to their possible inclusion in Annex I, IA or IB to Directive 98/8 in one or more product types had to be notified no later than 28 March 2002. That time-limit was subsequently extended for certain substances.

3        Under Articles 3 and 4 of Regulation No 1896/2000, the identification and notification of existing active substances consist of submitting to the Commission the information referred to in Annexes I and II to that Regulation respectively and must be carried out by the producers or formulators of the substances in question or by associations of them. The Commission is to accept a notification if it has been made within the time-limit prescribed and if it complies with the requirements of Annex II to Regulation No 1896/2000, including the obligation to associate the existing active substance to one or more of the 23 types of biocidal products listed in Annex V to Directive 98/8. Acceptance of a notification gives the notifier the possibility of supplying to the authority of the designated Rapporteur Member State all the data and information necessary for evaluation of the existing active substance with a view to its possible inclusion in Annex I or IA to Directive 98/8 during the second phase of the work programme referred to in Article 16(2) of that directive (‘the work programme’).

4        Under Article 5 of Regulation No 1896/2000, Member States may, within a certain period, identify additional existing active substances and indicate their interest in the possible inclusion in Annex I or Annex IA to Directive 98/8 of existing active substances for which no notification has previously been accepted by the Commission.

5        Article 6 of Regulation No 1896/2000 provides that a regulation implementing the second phase of the work programme is to be adopted containing an exhaustive list of existing active substances validly identified or for which equivalent information has been submitted in a notification and an exhaustive list of substances for which the Commission has accepted at least one notification in accordance with Article 4 of Regulation No 1896/2000 or for which a Member State has indicated its interest in accordance with Article 5 of that regulation.

6        The lists in question were drawn up pursuant to Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the work programme and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1). According to Article 1 thereof, Regulation No 2032/2003 is intended to lay down detailed rules for the implementation of the second phase of the programme of work for the systematic examination of all existing active substances.

7        Thus, Annex I to Regulation No 2032/2003 contains the exhaustive list of existing active substances identified under the first phase of the work programme. Annex II to Regulation No 2032/2003 contains an exhaustive list of existing active substances, each one related to one or more types of products, for which either a notification has been accepted by the Commission or a Member State has indicated its interest under Regulation No 1896/2000. Annex III to Regulation No 2032/2000 contains the list of existing active substances which have been identified but which not have been the subject of an accepted notification or of an indication of interest by a Member State.

8        Pursuant to Article 4 of Regulation No 2032/2003, the existing active substances listed in Annex III to that regulation are not included in Annex I, IA or IB to Directive 98/8, the Member States being required to ensure that biocidal products containing them are no longer placed on the market with effect from 1 September 2006. The same applies to biocidal products containing existing active substances listed in Annex II to Regulation No 2032/2003, but for which no notification has been accepted in relation to them. In addition, an active substance which has not been identified cannot be regarded as an existing active substance.

9        A Rapporteur Member State is designated in Annex V to Regulation No 2032/2003 to examine each existing active substance listed in Annex II to that regulation for the type or types of biocidal products in association with which it has been notified. Under Articles 5, 6 and 7 of Regulation No 2032/2003, that examination is carried out on the basis of a complete dossier complying with the requirements set out in Annex IV to that regulation. That dossier is submitted to the Rapporteur Member State within the period specified in Annex V to the regulation by one or more producers, formulators or associations which have submitted a notification accepted by the Commission, which are designated, for the purposes of the further procedure, as participants under Article 2 of that regulation.

10      In order to avoid duplication of effort and to reduce testing on vertebrate animals, Article 6 of Regulation No 2032/2003 provides that participants are to make all reasonable efforts to avoid duplication of testing on those animals and to establish collective complete dossiers, failing which each individual dossier is to detail the efforts made to secure co-operation and the reasons for the non-participation of certain participants. In addition, the Rapporteur Member States are required, under the same provision, to inform participants that other participants are seeking review of a particular active substance.

11      In the same context, Article 8 of Regulation No 2032/2003 provides that a producer, formulator or association, by mutual agreement, can join or replace a participant and lays down the conditions under which an applicant or a Member State can take over the role of participant in the place of a participant which has unilaterally withdrawn.

12      Article 5(3) of Regulation No 2032/2003 provides that an applicant who is not a participant and who wishes to apply, in accordance with Article 11 of Directive 98/8, for the inclusion in Annex I, IA or IB thereto of an existing active substance which has been notified, or in which a Member State has indicated an interest, in relation to a product type specified in Annex V to that regulation is to submit a complete dossier within the time period specified in that annex for that substance/product type combination. It is also stated that that possibility exists without prejudice to any submission of a collective dossier under Article 8 of Regulation No 2032/2003 (see paragraph 11 above).

13      Under Article 10 of Regulation No 2032/2003, if the Rapporteur Member State considers a dossier to be complete within the meaning of Article 9 of that regulation, it is to carry out the evaluation in accordance with Article 11(2) of Directive 98/8 and prepare a report on that evaluation, making a recommendation as to whether the existing active substance in question should be included or not in Annex I, IA or IB to Directive 98/8. The Commission is to take a decision in accordance with the procedures set out in Article 11 of Regulation No 2032/2003 and Articles 27 and 28 of Directive 98/8.

14      On 4 December 2007, the Commission adopted Commission Regulation (EC) No 1451/2007 of 4 December 2007 on the second phase of the 10-year work programme (OJ 2007 L 325, p. 3) which, pursuant to Article 18 thereof, repeals Regulation No 2032/2003.

 Facts and procedure

15      Arch Chemicals, Inc. and Arch Timber Protection Ltd (Case T-‘75/04), Rhodia UK Ltd, formerly Rhodia Consumer Specialties Ltd (Case T-‘77/04), Sumitomo Chemical (UK) plc (Case T-‘78/04) and Troy Chemical Co. BV (Case T-‘79/04) are producers of active substances used in biocidal products and of biocidal products containing those substances.

16      The applicants notified active substances in association with different product types to the Commission in accordance with Article 4(1) of Regulation No 1896/2000.

17      The notifications in question were accepted by the Commission and those substances are listed in Annex II to Regulation No 2032/2003, the applicants having thereby become participants in respect of each of the active substance/product type combinations notified.

18      By separate applications lodged at the Court Registry on 17 February 2004, the applicants brought the present actions, by which they seek, inter alia, annulment of Article 3, Article 4(2), Article 5(3), the second subparagraph of Article 10(2), Article 11(3), Article 13, Article 14 of and Annex II to Regulation No 2032/2003 (‘the contested provisions’) and compensation for the loss suffered following the adoption of that regulation.

19      By separate document lodged at the Court Registry on 24 March 2004, Sumitomo Chemical (UK) made an application to suspend the operation of the contested provisions.

20      By document lodged at the Court Registry on 17 May 2004, the Council of the European Union sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

21      By separate documents lodged at the Court Registry on 19 and 24 May 2004, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court in each of the cases.

22      By document lodged at the Court Registry on 24 May 2004 the European Chemical Industry Council (CEFIC) sought leave to intervene in these proceedings in support of the form of order sought by the applicants.

23      By document lodged at the Court Registry on 11 June 2004, the Kingdom of the Netherlands sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.

24      By document lodged at the Court Registry on 17 June 2004, the Parliament applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

25      By order of the President of the Court of 2 July 2004, the application for interim measures made by Sumitomo Chemical (UK) was dismissed and the costs reserved.

26      By orders of 2 August 2004, the President of the Fifth Chamber of the General Court granted the applications for leave to intervene.

27      In the context of measures of organisation of procedure, on 21 October 2005 the Court invited the parties to give their views on two questions to which the applicants and the Commission responded within the time-limit set.

28      By orders of the Court of 13 October 2006, in each of the cases, the plea of admissibility was joined with the substance of the case and the decision on costs was reserved for the final judgment.

29      Upon a change in the composition of the Chambers of the Court, the Judge-‘Rapporteur was assigned to the Seventh Chamber, to which the present cases were consequently allocated.

30      By letters of 20 December 2007, the applicants withdrew their claims for damages and interest.

31      By application lodged at the Court Registry on 6 March 2008 and registered as Case T-‘120/08, the applicants sought annulment of Article 3(2), Article 4, Article 7(3), the second subparagraph of Article 14(2), Article 15(3), Article 17 of and Annex II to Regulation No 1451/2007.

32      By letters of 13 March 2008, the applicants sought leave, in each of the present actions, to reformulate their claims and pleas in law, following the adoption of Regulation No 1451/2007 repealing Regulation No 2032/2003, to direct them against the provisions mentioned in the preceding paragraph.

33      The Commission agreed that, in each case, the applicants should reformulate their original pleadings, the Council, Parliament and Kingdom of the Netherlands having raised no objection in that regard.

34      On 18 June 2008, the Court put written questions to the parties, who answered those questions within the time-limit set.

35      By letters of 18 September 2009, the Court informed the parties that it had authorised the applicants to reformulate their claims and pleas in law following the adoption of Regulation No 1451/2007 had and set a deadline of 30 October 2009 for them to lodge a pleading comprising such a reformulation.

36      When the Judge-Rapporteur initially designated could no longer act as a result of ceasing to hold office, the President of the Court appointed a new Judge-‘Rapporteur, by decision of 16 October 2009.

37      By documents lodged at the Court Registry on 30 October 2009, the applicants informed the Court that they were withdrawing their applications to reformulate their claims and pleas in law.

38      By documents lodged at the Court Registry on 27 November 2009, the Commission, in each of the cases, submitted its observations on the applicants’ withdrawal of their applications to reformulate their claims and pleas in law and questioned whether the applicants continued to have any interest in the dispute. In letters dated 7 January 2010, the applicants responded to the Commission’s observations, maintaining that they continued to have an interest in the dispute.

39      By order of the President of the Seventh Chamber of the General Court of 5 July 2010, Cases T-‘75/04 and T-‘77/04 to T-‘79/04 were joined for the purposes of the oral procedure and the judgment.

40      In the context of measures of organisation of procedure, on 5 July 2010 the Court invited the applicants and the Commission to give their views on two questions, to they which responded within the time-limit set.

41      Upon a change in the composition of the Chambers of the Court, the Judge-‘Rapporteur was assigned to the Second Chamber, to which the present cases were consequently allocated.

 Forms of order sought by the parties

42      The applicants claim that the Court should:

–        declare the actions admissible;

–        examine the substance of the actions before ruling on admissibility or, in the alternative, reserve any decision as to admissibility until the judgment in the main proceedings;

–        annul the contested provisions;

–        declare that Article 9(a), Article 10(3), Article 11 and Article 16(1) of Directive 98/8 and Article 6(2) of Regulation No 1896/2000 are unlawful;

–        order the Commission to pay the costs.

43      In support of the form of order sought by the applicants, the CEFIC claims that the Court should:

–        declare the actions admissible;

–        examine the substance of the actions before ruling on their admissibility or reserve any decision as to admissibility until the judgment in the main proceedings or, in the alternative, consider the plea of inadmissibility at the same time as the substance of the case;

–        annul the contested provisions.

44      The Commission contends that the Court should:

–        dismiss the actions as inadmissible or, in the alternative, as unfounded;

–        order the applicants to pay the costs.

45      In support of the Commission, the Council and the Parliament contend that the General Court should:

–        dismiss the actions as inadmissible in their entirety;

–        dismiss the actions as unfounded.

46      In support of the Commission, the Kingdom of the Netherlands claims that the General Court should dismiss the actions as unfounded.

 Law

47      The fourth paragraph of Article 230 EC provides that any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

48      In accordance with settled case-law, the objective of that provision is in particular to prevent the European Union institutions from being in a position, merely by choosing the form of a regulation, to exclude an application by an individual against a decision which concerns him directly and individually; it therefore makes clear that the choice of form cannot change the nature of a measure (judgment of the Court of Justice in Joined Cases 789/79 and 790/79 Calpak and Società Emiliana Lavorazione Frutta v Commission [1980] ECR 1949, paragraph 7; orders of the General Court in Case T-‘12/96 Area Cova and Others v Council and Commission [1999] ECR II-‘2301, paragraph 24, and in Case T-‘447/05 SPM v Commission [2007] ECR II-‘1, paragraph 61).

49      In addition, a measure of general application can be of individual concern to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and thereby distinguishes them individually in the same way as the addressee (see order of the Court of Justice in Case C-‘258/02 P Bactria v Commission [2003] ECR I-‘15105, paragraph 34 and the case-law cited).

50      A measure is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract (Case T-‘13/99 Pfizer Animal Health v Council [2002] ECR II-‘3305, paragraph 82; Case T-‘70/99 Alpharma v Council [2002] ECR II-‘3495, paragraph 74; and Case T-‘139/01 Comafrica and Dole Fresh Fruit Europe v Commission [2005] ECR II-‘409, paragraph 87).

51      Furthermore, where the contested measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons may be individually concerned by that measure inasmuch as they form part of a limited class of economic operators (Joined Cases C-‘182/03 and C-‘217/03 Belgium and Forum 187 v Commission [2006] ECR I-‘5479, paragraph 60).

52      In the present cases, it must be borne in mind that Regulation No 2032/2003 is intended, pursuant to Article 1 thereof, to lay down detailed rules for the implementation of the second phase of the programme of work for the systematic examination of all existing active substances. In that context, the regulation in question contains, in particular, provisions on the organisation of that examination, such as those governing the classification of those substances, the designation of Rapporteur Member States and their responsibilities with regard to the completeness of the dossiers submitted and the thorough evaluation of the dossiers (see paragraphs 9 and 13 above).

53      In that context, it is true that, in accordance with Article 6(4) of Regulation No 1896/2000 and Article 4(3) of Regulation No 2032/2003, with effect from the entry into force of the latter regulation, only those active substances listed in Annex I to that regulation can be regarded as ‘existing’ and, in accordance with Article 5(1) of Regulation No 2032/2003, only ‘existing’ active substances listed in Annex II to that regulation will be subject to review on the basis of a complete dossier.

54      None the less, those circumstances do not have the effect of distinguishing the applicants as members of a limited class of economic operators to which the provisions of Regulation No 2032/2003 apply, including the contested provisions, for each of the following reasons.

55      In that regard, it must be borne in mind that Article 8 of Regulation No 2032/2003 makes it possible for a producer, a formulator or an association to join or replace a participant by mutual agreement or, failing such agreement, where a participant unilaterally withdraws and no other participant has requested review of the same active substance in combination with the same product type or types (see paragraph 11 above). There is even provision, in that event, for the time-limits for submission of a complete dossier to be extended. The possibility of replacing a participant with another producer, formulator or association is also available where the participant in question does not supply the Rapporteur Member State with the information requested by it within the time-limits set or where it does not pay the fees laid down in Article 25 of Directive 98/8 (Article 10(3) and (6) of Regulation No 2032/2003).

56      Furthermore, Article 5(3) of Regulation No 2032/2003 provides that an operator who has not submitted a notification accepted by the Commission may submit a complete dossier to the Rapporteur Member State for evaluation of an existing active substance with a view to its inclusion in Annex I, IA or IB to Directive 98/8 (see paragraph 12 above).

57      In those circumstances, clearly the provisions of Regulation No 2032/2003 on existing active substances which have been notified in association with one or more types of biocidal products, stated in general terms and laying down the means of implementation of the second phase of the work programme, do not concern only participants falling within the meaning of Article 2 of that regulation, but also any operator who could join or replace a participant pursuant to Article 8 of that regulation or who could take part in the review procedure by submitting a complete dossier to the Rapporteur Member State under Article 5(3) thereof.

58      In addition, Article 3(3) and Article 4 of Regulation No 2032/2003 concern in particular producers and formulators of biocidal products containing active substances which have been identified but which have not been the subject of a notification accepted by the Commission or an indication of interest by a Member State, and producers and formulators of types of biocidal products which have not been the subject of any notification accepted by the Commission in combination with an existing active substance.

59      It follows from paragraphs 55 to 58 above that the provisions of Regulation No 2032/2003 concern an indeterminate number of economic operators who could seeking inclusion in Annex I, IA or IB to Directive 98/8 of an existing active substance listed in Annex II to that regulation or who could form part of one of the groups described in the preceding paragraph. The provisions in question do not, therefore, concern only producers, formulators or associations which have submitted a notification accepted by the Commission in accordance with Article 4(2) of Regulation No 1896/2000 or affect the applicants in a particular way by reason of their belonging to that group of operators. Regulation No 2032/2003 cannot therefore be regarded either as a bundle of individual decisions or as an act affecting the applicants individually, either in its entirety or as regards the contested provisions (see, to that effect, the order in Bactria v Commission, paragraph 49 supra, paragraphs 34 and 36).

60      The fact that the participants are individually identified in Annex II to Regulation No 2032/2003 by virtue of a footnote referring to an internet site where their names and details appear is of no consequence to the conclusion reached in the preceding paragraph, since such identification seeks to encourage cooperation between the participants and the submission of joint dossiers (see paragraphs 10 and 11 above).

61      Moreover, contrary to the applicants’ submissions, Articles 3 and 4 of Regulation No 1896/2000 do not grant them any particular protection such as to distinguish them individually for the purpose of the contested provisions or Regulation No 2032/2003 in its entirety. Article 4 of Regulation No 1896/2000, the only provision relevant to the matter, since the applicants claim to be individually concerned as participants within the meaning of Article 2 of Regulation No 2032/2003, merely lays down the procedure enabling operators which wish to apply for inclusion of an existing active substance in Annex I or IA to Directive 98/8 to submit, by way of a notification, the data required for that purpose. Article 4 of Regulation No 1896/2000 and, a fortiori, Article 3 thereof are therefore neither intended to nor have the effect of granting the applicants, as future participants, particular protection of any sort, or to require the Commission to take account of their position in order to grant them a particular status in the context of Regulation No 2032/2003 in comparison to other operators covered by Article 5(3) or Article 8 of that regulation.

62      With regard to the alleged particular status from which the applicants benefit on the ground that Regulation No 2032/2003 was drawn up on the basis of the active substances notified and accepted by the Commission, it must be noted that the fact that a person is involved in the process of adoption of a European Union act distinguishes him individually as regards the act in question only in the event that procedural guarantees were provided for in favour of that person by the European Union legislation. Thus, once a provision of European Union law requires that, in adopting a decision, a procedure must be followed in which a natural or legal person may claim any rights, including the right to be heard, the special legal position which that person enjoys has the effect of differentiating him individually within the meaning of the fourth paragraph of Article 230 EC (order of the Court of Justice in Case C-‘483/07 P Galileo Lebensmittel v Commission [2009] ECR I-‘959, paragraph 53).

63      In that regard, it is sufficient to note that the participation of the applicants in the process of adoption of Regulation No 2032/2003 is not in any way intended to enforce a procedural right, by the exercise of which they would have been likely to affect the content of the substantive provisions of that regulation. In accordance with the system instituted by Regulation No 1896/2000, notifications made by the applicants under Article 4 thereof merely enabled determination, pursuant to Article 6(1) of that regulation, of the annex to Regulation No 2032/2003 in which the active substances had to be included and consequently whether one of the provisions of Article 4 of that regulation was going to apply or whether, on the other hand, they would be part of the existing active substances notified under Article 5 thereof. In those circumstances, the participation of the applicants in the process of adoption of Regulation No 2032/2003 does not distinguish them individually for the purposes of the fourth paragraph of Article 230 EC.

64      It must be noted that, with regard to the other procedural guarantees relied on by the applicants, Article 27 of Directive 98/8 concerns the stage following submission to the Commission of the evaluation by the Rapporteur Member State. Accordingly, assuming that that provision gives procedural guarantees, they will benefit all applicants, that is to say, both participants within the meaning of Article 2 of Regulation No 2032/2003 and other operators who have joined the procedure under Article 5(3) or Article 8 of that Regulation.

65      The same is true of Articles 6 and 9 of Regulation No 2032/2003 which, apart from the fact that they do not give procedural guarantees in the context of the drafting of that regulation, apply, by their object, not only to participants within the meaning of Article 2 thereof, but also to all other applicants who have joined the procedure under Article 5(3) or Article 8 thereof.

66      Those findings are also valid as regards the alleged individual concern under Article 12 of Directive 98/8, which sets the periods during which Member States are prohibited from making use of the information submitted by the applicant for authorisation of a biocidal product for the benefit of a second applicant or any later applicants, with regard in particular to the information concerning the existing active substances. That provision does not restrict the right to protection of such data only to the participants within the meaning of Article 2 of Regulation No 2032/2003, but also confers it on all other applicants having joined the procedure under Article 5(3) or Article 8 thereof. Consequently, the right conferred in Article 12 of the directive does not distinguish the applicants individually as participants within the meaning of Article 2 of Regulation No 2032/2003.

67      With regard to the harm to the alleged exclusive and pre-existing intellectual property rights of the applicants, it must be borne in mind that Regulation No 2032/2003 is intended to establish the procedures for the implementation of the second phase of the work programme. Accordingly, it does not affect, as such, the validity of the patents covering the applicants’ existing active substances, or the rights deriving therefrom.

68      Even if, as the applicants point out, a decision not to include an existing active substance in one of the annexes to Directive 98/8 would have the consequence of that substance being withdrawn from the market and thus would affect the value of any intellectual property rights, so that the applicants and the proprietors of those rights would, in that event, be individually affected by that decision, the fact remains that Regulation No 2032/2003 does not constitute such a decision.

69      Furthermore, as is apparent from Article 6(1)(b) and Article 6(2) of Regulation No 1896/2000, read in conjunction with Article 3(2) of Regulation No 2032/2003, all producers of an active substance listed in Annex II to the latter regulation and all formulators of biocidal products containing that active substance can put it on the market or continue to sell it as such or in biocidal products, for the product type or types for which the Commission has accepted at least one notification. The applicants’ notifications were all accepted by the Commission (see paragraph 16 above), so that Regulation No 2032/2003 does not affect either the alleged established rights or the continuation of the markets for biocidal products sold by the applicants, which those notifications are supposed to guarantee.

70      Consequently, without it being necessary to examine the question raised by the Commission concerning the possible disappearance of the applicants’ interest in bringing the action (see paragraph 38 above), the present actions must be dismissed as inadmissible since the applicants are not individually concerned.

 Costs

71      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, including, in the case of Sumitomo Chemical (UK), those relating to the application for interim relief, as applied for by the Commission.

72      Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States and institutions intervening in the proceedings are to bear their own costs. In the present cases, the Parliament, the Council and the Kingdom of the Netherlands must be ordered to bear their own costs.

73      The third subparagraph of Article 87(4) of the Rules of Procedure provides that the Court may order an intervener other than those referred to in the second subparagraph of Article 87(4) to bear its own costs. In the present cases, the CEFIC must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the actions;

2.      Orders Arch Chemicals, Inc., Arch Timber Protection Ltd, Rhodia UK Ltd, Sumitomo Chemical (UK) plc and Troy Chemical Co. BV to bear their own costs and to pay those incurred by the European Commission including, in the case of Sumitomo Chemical (UK) plc, those relating to the application for interim relief;

3.      Orders the European Parliament, the Council of the European Union, the Kingdom of the Netherlands and the European Chemical Industry Council (CEFIC) to bear their own costs.

Forwood

Dehousse

Schwarcz

Delivered in open Court in Luxembourg on 20 September 2011.

[Signatures]

* Language of the case: English.

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