Five biocides producers have lodged identical proceedings against the European Commission over the 1998 Directive on biocidal products and its daughter legislation.
They claim that the laws provide grossly inadequate protection for firms investing heavily in defending their products during the EU’s ten-year programme for reviewing the safety of all existing active substances used in biocides. "Free riders" will, they argue, be able to undermine their market position both during and after the reviews (ENDS Report 358, pp 58-59 ).
Last year, two of the five companies, Bactria and Sumitomo Chemicals (UK), applied for a suspension of the review programme until the main case was determined.
In July, however, the European Court of First Instance rejected their application - essentially accepting the Commission’s view that those parts of the legislation which the firms wanted suspended were not identical to those in their main action, as they would need to be under the court’s rules of procedure in order to qualify for a possible interim order.
Both firms challenged that decision, but their appeal was rejected on 13 December. The court again held that it could not suspend a measure if it was not the same as that which had already been challenged.
The ECFI also said it was for the appellants and not the court to propose the precise form which any interim order should take in order to ensure that their position was not irremediably prejudiced before the main action was decided, but this they had failed to do in their appeal.
The main case is not expected to be heard until well into 2005 at the earliest.