# C_2022222EN.01002201.xml

| 7.6.2022 | EN | Official Journal of the European Union | C 222/22 |
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7.6.2022

EN

Official Journal of the European Union

C 222/22

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Appeal brought on 15 April 2022 by Arysta LifeScience Great Britain Ltd against the judgment of the General Court (Seventh Chamber) delivered on 9 February 2022 in Case T-740/18, Taminco and Arysta LifeScience Great Britain v Commission

(Case C-259/22 P)

(2022/C 222/33)

Language of the case: English

Parties

Appellant: Arysta LifeScience Great Britain Ltd (represented by: C. Mereu, avocat)

Other parties to the proceedings: European Commission, Taminco BVBA

Form of order sought

The Appellant claims that the Court should:

| — | set aside the judgment under appeal; and |
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set aside the judgment under appeal; and

| — | annul the contested regulation (1) and award the costs of this appeal and of the proceedings before the General Court to the Appellant or award the costs of this appeal to the Appellant and refer the cases back to the General Court for re-consideration. |
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annul the contested regulation (1) and award the costs of this appeal and of the proceedings before the General Court to the Appellant or award the costs of this appeal to the Appellant and refer the cases back to the General Court for re-consideration.

Pleas in law and main arguments

| 1. | The General Court erred in law when holding that the Appellant’s rights of defence are limited to the specific provisions set out in Articles 12(3) and 14(1) of regulation 844/2012. The General Court erred in law by failing to consider that the process for the renewal of the approval of substances is administrative in nature and, therefore, the Appellant can exercise its rights of defence beyond the provisions set out in the relevant legal framework explicitly providing for such rights (e.g. Regulations 1107/2009 (2) and 844/2012 (3)). |
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1.

The General Court erred in law when holding that the Appellant’s rights of defence are limited to the specific provisions set out in Articles 12(3) and 14(1) of regulation 844/2012. The General Court erred in law by failing to consider that the process for the renewal of the approval of substances is administrative in nature and, therefore, the Appellant can exercise its rights of defence beyond the provisions set out in the relevant legal framework explicitly providing for such rights (e.g. Regulations 1107/2009 (2) and 844/2012 (3)).

| 2. | The General Court erred in law by holding that the Appellant cannot withdraw one of its representative uses from its notification dossier. Pursuant to Regulations 1107/2009 and 844/2012, the freedom in choosing the representative uses at the beginning of the renewal process mirrors and necessarily entails the freedom of withdrawing them during such procedure.
  The General Court also erred in law by holding that European Food Safety Authority’s (EFSA) Administrative Guidance is applicable. The process for the renewal is one single process combining two interconnected phases. It is therefore irrelevant that the EFSA’s administrative guidance concerns the process starting with the ‘submission of an application and ends with the adoption and publication of the EFSA conclusions’, and that consequently, the withdrawal could only occur in the first phase before EFSA. |
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2.

The General Court erred in law by holding that the Appellant cannot withdraw one of its representative uses from its notification dossier. Pursuant to Regulations 1107/2009 and 844/2012, the freedom in choosing the representative uses at the beginning of the renewal process mirrors and necessarily entails the freedom of withdrawing them during such procedure.

The General Court also erred in law by holding that European Food Safety Authority’s (EFSA) Administrative Guidance is applicable. The process for the renewal is one single process combining two interconnected phases. It is therefore irrelevant that the EFSA’s administrative guidance concerns the process starting with the ‘submission of an application and ends with the adoption and publication of the EFSA conclusions’, and that consequently, the withdrawal could only occur in the first phase before EFSA.

| 3. | The General Court erred in law and/or distorted the evidence thus reaching a wrong legal conclusion, by referring to the foliar use of the substance to justify conclusions on the seed treatment use. It inconsistently refered to issues related to the foliar uses — which the Appellant withdrew — to conclude that ‘the Commission was not required to base the contested implementing regulation solely on grounds relating to the use of thiram as a seed treatment’.
  In addition, the General Court erred in law and/or distorted the evidence by holding that the Commission correctly amended the contested regulation to reflect the withdrawal of the foliar use. The contested regulation continues to support the non-renewal of thiram based on issues concerning the foliar use (e.g. recital 8 of the contested regulation reads: ‘The authority identified a high acute risk to consumers and to workers from application of thiram by foliar spraying.’), which was withdrawn by the Appellant. |
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3.

The General Court erred in law and/or distorted the evidence thus reaching a wrong legal conclusion, by referring to the foliar use of the substance to justify conclusions on the seed treatment use. It inconsistently refered to issues related to the foliar uses — which the Appellant withdrew — to conclude that ‘the Commission was not required to base the contested implementing regulation solely on grounds relating to the use of thiram as a seed treatment’.

In addition, the General Court erred in law and/or distorted the evidence by holding that the Commission correctly amended the contested regulation to reflect the withdrawal of the foliar use. The contested regulation continues to support the non-renewal of thiram based on issues concerning the foliar use (e.g. recital 8 of the contested regulation reads: ‘The authority identified a high acute risk to consumers and to workers from application of thiram by foliar spraying.’), which was withdrawn by the Appellant.

| 4. | The General Court erred in law, distorted the evidence and/or based its conclusions on inconsistent reasoning and/or without a sufficient statement of reasons, when it held that the metabolite M1 is relevant for the assessment of seed treatment uses. Any reference to the metabolite M1 — directly related to foliar use — should have been disregarded by the General Court due to the withdrawal of such use.
  The General Court did the same when it held that there is a risk for seed treatment uses due to the presence of the metabolite DMCS. The risk must be regarded as acceptable for seed treatment with regard to the metabolite DMCS as the rates are much lower for seed treatment and have been detected below the threshold of concern. |
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4.

The General Court erred in law, distorted the evidence and/or based its conclusions on inconsistent reasoning and/or without a sufficient statement of reasons, when it held that the metabolite M1 is relevant for the assessment of seed treatment uses. Any reference to the metabolite M1 — directly related to foliar use — should have been disregarded by the General Court due to the withdrawal of such use.

The General Court did the same when it held that there is a risk for seed treatment uses due to the presence of the metabolite DMCS. The risk must be regarded as acceptable for seed treatment with regard to the metabolite DMCS as the rates are much lower for seed treatment and have been detected below the threshold of concern.

| 5. | The General Court misinterpreted the precautionary principle and/or erred in law and/or distorted the evidence on record thus reaching a wrong legal conclusion when holding that the Commission conducted a proper impact assessment under the precautionary principle. The Commission failed to conduct any impact assessment, but simply concluded ‘that the risks and issues identified overrule the impact of possible loss of the substance’. The Commission could have at least specified the elements allegedly taken into account to reach such conclusion. |
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5.

The General Court misinterpreted the precautionary principle and/or erred in law and/or distorted the evidence on record thus reaching a wrong legal conclusion when holding that the Commission conducted a proper impact assessment under the precautionary principle. The Commission failed to conduct any impact assessment, but simply concluded ‘that the risks and issues identified overrule the impact of possible loss of the substance’. The Commission could have at least specified the elements allegedly taken into account to reach such conclusion.

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(1)  Commission Implementing Regulation (EU) 2018/1500 of 9 October 2018 concerning the non-renewal of approval of the active substance thiram, and prohibiting the use and sale of seeds treated with plant protection products containing thiram, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending Commission Implementing Regulation (EU) No 540/2011 (OJ 2018 L 254, p. 1).

(2)  Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009, L 309, p. 1).

(3)  Commission Implementing Regulation (EU) No 844/2012 of 18 September 2012 setting out the provisions necessary for the implementation of the renewal procedure for active substances, as provided for in Regulation No 1107/2009 (OJ 2012 L 252, p. 26).

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