# C_2021289EN.01004501.xml

| 19.7.2021 | EN | Official Journal of the European Union | C 289/45 |
| --- | --- | --- | --- |

19.7.2021

EN

Official Journal of the European Union

C 289/45

---

Action brought on 27 May 2021 — ABOCA and Others v Commission

(Case T-302/21)

(2021/C 289/61)

Language of the case: English

Parties

Applicants: ABOCA SpA Società Agricola (Sansepolcro, Italy), Coswell SpA (Funo di Argelato, Italy), Associação portuguesa de suplementos alimentares (Apard) (Lisbon, Portugal) (represented by: B. Kelly, Solicitor, K. Ewert, lawyer, D. Scannell, and C. Thomas, Barristers-at-law)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should annul the Commission Regulation (EU) 2021/468 of 18 March 2021 amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards botanical species containing hydroxyanthracene derivatives (1) (‘the contested Regulation’), in full or (alternatively) in part, and order the payment of their costs by the Commission.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

| 1. | First plea in law, alleging that the Commission’s decision to proceed under Regulation (EC) 1925/2006 (the ‘Additions Regulation’) is unlawful:






  — | The contested Regulation’s use of the word ‘preparations’ appears to seek to prohibit the use of whole–plant ingredients and natural botanical extracts as foods. The Additions Regulation does not provide the Commission the power to ban foodstuffs. |
| --- | --- | --- |

1.

First plea in law, alleging that the Commission’s decision to proceed under Regulation (EC) 1925/2006 (the ‘Additions Regulation’) is unlawful:

—

The contested Regulation’s use of the word ‘preparations’ appears to seek to prohibit the use of whole–plant ingredients and natural botanical extracts as foods. The Additions Regulation does not provide the Commission the power to ban foodstuffs.

| — | The Commission should have followed the stricter procedure and legal test under Directive 2002/46/EC. |
| --- | --- |

—

The Commission should have followed the stricter procedure and legal test under Directive 2002/46/EC.

| 2. | Second plea in law, alleging that the contested Regulation is legally uncertain:






  — | The applicants cannot determine if their products are subject to additional scrutiny under Article 1(2) of the contested Regulation because the meaning of ‘preparations’ in the context of the Additions Regulation is unclear. |
| --- | --- | --- |

2.

Second plea in law, alleging that the contested Regulation is legally uncertain:

—

The applicants cannot determine if their products are subject to additional scrutiny under Article 1(2) of the contested Regulation because the meaning of ‘preparations’ in the context of the Additions Regulation is unclear.

| — | The relationship between the two articles of the Additions Regulation is unclear. |
| --- | --- |

—

The relationship between the two articles of the Additions Regulation is unclear.

| — | In any event, the contested Regulation breaches the principle of non-discrimination by targeting the applicants’ products and not the many food products, which also contain HADs in similar quantities. |
| --- | --- |

—

In any event, the contested Regulation breaches the principle of non-discrimination by targeting the applicants’ products and not the many food products, which also contain HADs in similar quantities.

| 3. | Third plea in law, alleging that the 2017 analysis of the European Food Safety Agency (‘EFSA’) is not capable of satisfying the legal test required under the Additions Regulation:






  — | The applicable legal test requires an identifiable harmful effect on human health to place the relevant substances in the Annex to the Additions Regulation. |
| --- | --- | --- |

3.

Third plea in law, alleging that the 2017 analysis of the European Food Safety Agency (‘EFSA’) is not capable of satisfying the legal test required under the Additions Regulation:

—

The applicable legal test requires an identifiable harmful effect on human health to place the relevant substances in the Annex to the Additions Regulation.

| — | EFSA’s conclusions did not identify a harmful effect on human health. |
| --- | --- |

—

EFSA’s conclusions did not identify a harmful effect on human health.

| — | The Commission’s approach is disproportionate because it does not meet the test of ‘necessity’ set out in the Additions Regulation. |
| --- | --- |

—

The Commission’s approach is disproportionate because it does not meet the test of ‘necessity’ set out in the Additions Regulation.

| — | The Commission did not consider data published since 2017, which demonstrates no harmful effect on human health from consuming the relevant substances. |
| --- | --- |

—

The Commission did not consider data published since 2017, which demonstrates no harmful effect on human health from consuming the relevant substances.

---

(1)  OJ 2021, L 96, p. 6.

---