Judgment;Summary — ECLI:EU:C:2024:175
Date: 2024-02-29
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Agriculture and Fisheries;Animal feedingstuffs;Public health;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-13/23 – 1 
Case C-13/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 January 2023 
Referring court: 
Verwaltungsgericht Osnabrück (Germany) 
Date of the decision to refer: 
15 December 2022 
Applicant: 
cdVet Naturprodukte GmbH 
Defendant: 
Niedersächsisches Landesamt für Verbraucherschutz und 
Lebensmittelsicherheit (LA-VES) 
  
Subject matter of the main proceedings 
Animal feed – Authorisation and marketability of a feed additive – Grapefruit 
seed extract – Regulation No 1831/2003 – Charter of Fundamental Rights 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is Regulation (EC) No 1831/2003, in particular Article 3(1)(a), Article 4(1), 
Article 7(1) and Article 10(1)(a), (2) and (5) thereof, which provide that, in 
the case where no authorisation has been granted, a blanket ban on placing 
on the market, using and processing feed additives is to be ordered, with no 
account taken of the circumstances of the particular case in question, 
compatible with the principle of proportionality enshrined in Article 52(1) of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-13/23 
 
2  
the Charter, in the light of the freedom to conduct a business protected by 
Article 16 of the Charter and the right to property provided for in 
Article 17(1) of the Charter?  
2. In the event that the Court answers the first question in the affirmative, with 
the result that Regulation (EC) No 1831/2003, in particular Article 3(1)(a), 
Article 4(1), Article 7(1) and Article 10(1)(a), (2) and (5) thereof, is to be 
interpreted without restriction, does the extract used by the applicant as a 
feed additive, which, according to the distributor’s product specification 
sheet, is produced from grapefruit seeds and grapefruit peel and is described 
in that sheet as grapefruit seed extract (more specifically, grapefruit seed 
extract S), (also) constitute (in any event) the substance listed in Article 2, 
point 3, of Implementing Regulation (EU) No 2021/758, in conjunction with 
Part 1 of Chapter I.A of Annex I thereto, as ‘Grapefruit extract CoE 140’? 
Provisions of European Union law relied on 
Regulation (EU) 2017/625 of the European Parliament and of the Council of 
15 March 2017 on official controls and other official activities performed to 
ensure the application of food and feed law, rules on animal health and welfare, 
plant health and plant protection products, amending Regulations (EC) 
No 999/2001, (EC) No 396/2005, (EC) No 1069/2009, (EC) No 1107/2009, (EU) 
No 1151/2012, (EU) No 652/2014, (EU) 2016/429 and (EU) 2016/2031 of the 
European Parliament and of the Council, Council Regulations (EC) No 1/2005 
and (EC) No 1099/2009 and Council Directives 98/58/EC, 1999/74/EC, 
2007/43/EC, 2008/119/EC and 2008/120/EC, and repealing Regulations (EC) 
No 854/2004 and (EC) No 882/2004 of the European Parliament and of the 
Council, Council Directives 89/608/EEC, 89/662/EEC, 90/425/EEC, 91/496/EEC, 
96/23/EC, 96/93/EC and 97/78/EC and Council Decision 92/438/EEC (Official 
Controls Regulation): Article 138(1) and (2)(d) 
Regulation (EC) No 1831/2003 of the European Parliament and of the Council of 
22 September 2003 on additives for use in animal nutrition: Article 1(1), 
Article 3(1), Article 4(1), Article 7(1), Article 10(1)(a), (2) and (5) 
Commission Implementing Regulation (EU) No 230/2013 of 14 March 2013 on 
the withdrawal from the market of certain feed additives belonging to the group of 
flavouring and appetising substances: Article 1, Annex to Article 1 
Commission Implementing Regulation (EU) 2021/758 of 7 May 2021 on the 
status of certain products as feed additives within the scope of Regulation (EC) 
No 1831/2003 of the European Parliament and of the Council and on the 
withdrawal from the market of certain feed additives: Article 1, Article 2, Part 1 of 
Chapter I.A of Annex I, pursuant to Article 1 
Regulation (EC) No 178/2002 of the European Parliament and of the Council of 
28 January 2002 laying down the general principles and requirements of food law, 
CDVET NATURPRODUKTE 
 
3 
establishing the European Food Safety Authority and laying down procedures in 
matters of food safety: Article 15(1) and (2) 
Regulation (EC) No 767/2009 of the European Parliament and of the Council of 
13 July 2009 on the placing on the market and use of feed, amending European 
Parliament and Council Regulation (EC) No 1831/2003 and repealing Council 
Directive 79/373/EEC, Commission Directive 80/511/EEC, Council Directives 
82/471/EEC, 83/228/EEC, 93/74/EEC, 93/113/EC and 96/25/EC and Commission 
Decision 2004/217/EC: Article 17(1)(e) 
Provisions of national law relied on 
Lebensmittel-, Bedarfsgegenstände- und Futtermittelgesetzbuch (Food, 
Commodities and Feed Code (‘the LFGB’): Paragraph 17(2), point 1(a) and 
point 2(a), Paragraph 21(3), point 1(b), Paragraph 39(1) and (4) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is an undertaking which produces and sells animal feed. The 
applicant’s product range includes, inter alia, the product ‘DarmRein 
Pulver/GutClean Powder’, a complementary feed for dogs, cats and other 
domestic animals which the applicant describes on its product label, in accordance 
with Article 17(1)(e) of Regulation No 767/2009, as being composed of ‘brewer’s 
yeast, willow bark and elm bark’. According to the labelling, the product contains 
other additives including, inter alia, grapefruit seed extract. The product is further 
labelled as follows: ‘For intestinal cleansing, powder, particularly suitable for 
cats. For on-demand feeding in diet-related digestive and intestinal problems’. The 
label also includes a feeding recommendation. 
2 On 24 February 2022, employees of the defendant carried out at the applicant’s 
premises an official inspection as provided for in Article 137(2) of Regulation 
2017/625. At that point, there were a number of complaints relating, inter alia, to 
the product ‘DarmRein Pulver/GutClean Powder’. According to the distributor’s 
product specification sheet examined as part of that inspection, the substance 
listed under sensory additives on the product label as grapefruit seed extract is – as 
stated – grapefruit seed extract (more specifically, grapefruit seed extract S). The 
extract, which was produced by extraction with vegetable glycerine from 
grapefruit seeds and grapefruit peel, consists of glycerine-containing extract 
(83%), water and vitamin C. The most important ingredients (active substances) 
are, in particular, ascorbic acid (vitamin C) and a ‘grapefruit-bioflavonoid 
complex’. 
3 Following a hearing, the defendant, by decision of 30 March 2022 adopted under 
Article 138(1) and (2) of Regulation 2017/625 in conjunction with 
Paragraph 39(1) and (4) of the LFGB, prohibited the applicant from offering and 
placing on the market the product in question, on the ground of failure to obtain 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-13/23 
 
4  
authorisation for additives within the European Union. At the same time, the 
defendant ordered immediate enforcement on the basis of point 4 of the first 
sentence of Paragraph 80(2) of the Verwaltungsgerichtsordnung (Rules of 
Procedure of the Administrative Court) (VwGO). By way of grounds for its order, 
the defendant stated in essence that the feed additive contained in the product, 
grapefruit seed extract, was affected by the market withdrawal laid down in 
Article 1 of Implementing Regulation No 230/2013 in conjunction with Part A of 
the Annex thereto and for that reason was not marketable.  
4 Article 10(2) of Regulation 1831/2003 provides for the possibility of feed 
additives being re-evaluated, on condition that an application to that effect is 
submitted in accordance with Article 10(2) in conjunction with Article 7 of that 
regulation, as a means of identifying and assessing any risks associated with them, 
in the interests of humans, animals, the environment, users and consumers. Since 
the grapefruit seed extract feed additive used by the applicant had not been the 
subject of any such applications when the transitional period expired, there has 
been an infringement of Article 3(1) of Regulation No 1831/2003 and 
Paragraph 21(3), point 1(b), of the LFGB, according to which feed additives 
which have not been so authorised may not be placed on the market. Furthermore, 
since the grapefruit seed extract feed additive contained in it has not been 
authorised, the applicant’s product must be regarded as ‘unsafe’, within the 
meaning of Article 15(1) of Regulation No 178/2002, and, in addition, not 
marketable from that point of view. Since the feed additive used is ‘unsafe’ within 
the meaning mentioned above, there is at the same time an infringement of 
Paragraph 17(2), point 2(a) and point 3(a), of the LFBG. 
5 On 11 October 2022, the applicant brought an action against that decision, and at 
the same time applied for interim relief. 
6 In the light of the doubts as to the compatibility of the contested rules with EU law 
(first question) and the interpretation of EU law (second question) respectively, 
forming the subject of the present request for a preliminary ruling, the applicant 
was granted interim relief and the suspensory effect of its action was restored. 
The essential arguments of the parties in the main proceedings 
7 In support of its position, the applicant argues that the feed additive incorporated 
into its product is grapefruit extract and not – as the defendant considers – 
grapefruit seed extract. Grapefruit extract is expressly mentioned in the European 
Commission’s list of authorised additives in feedingstuffs (OJ 2004 C 50, p. 1) as 
a feed additive authorised in the European Union. In accordance with Article 1 in 
conjunction with Part 1 of Chapter I.A of Annex I – under the heading 
‘Flavouring and appetising substances’ – to Implementing Regulation 
No 2021/758, the feed additive ‘Citrus x paradisi – Grapefruit extract CoE 140’ 
(Grapefruit extract), for which there is no CAS number, is indeed in principle to 
be withdrawn from the market. However, Article 2, point 3, of that implementing 
CDVET NATURPRODUKTE 
 
5 
regulation contains a transitional provision which allows the applicant to continue 
to place on the market the product manufactured using that additive, ‘Darm-Rein 
Pulver/GutClean Powder’, until 30 May 2023.  
8 The distributor’s product specification sheet makes it clear that the extract used is 
produced from grapefruit seeds and grapefruit peel. The extract used as a feed 
additive is fully equivalent to other extracts which are lawfully marketed as 
grapefruit extract. Furthermore, the feed additive used by the applicant is not one 
of the other substances listed in the annexes to Implementing Regulations 
No 230/2013 and No 2021/758 respectively. The fact that grapefruit seeds are one, 
but specifically not the only, ingredient used in the manufacturing process may 
have informed the distributor’s decision to choose the grapefruit seed extract 
description. This does nothing to alter the factual and legal classification of the 
substance as grapefruit extract in accordance with Article 1 of Implementing 
Regulation No 2021/758, in conjunction with Part 1 of Chapter I.A of Annex I 
(under the description ‘grapefruit extract CoE 140’) thereto. It follows that the 
description grapefruit seed extract is indeed inaccurate, inasmuch as it may give 
the false impression that grapefruit seeds alone are used during the manufacturing 
process. There is therefore no infringement warranting intervention as provided 
for in Article 138(1) and (2)(d) of Regulation 2017/625.  
9 In any event, moreover, the order made by the defendant interferes 
disproportionately with its freedom to conduct a business. There is nothing 
whatsoever to indicate that the product in question is ‘unsafe’ or potentially 
harmful to health. The defendant, whose submissions are confined to speculation 
without substance, has thus failed to discharge its duty to investigate. What is 
more, the applicant shares the doubts expressed by the Chamber with respect to 
the compatibility of the provisions applied by the defendant with EU law. After 
all, Regulation No 1831/2003 involves, ultimately, the imposition of a blanket ban 
on placing on the market and using all feed additives with no account taken of the 
circumstances of the particular case concerned. 
10 The defendant defends the legal order concerning feed which it made. It is clear 
from the distributor’s product specification sheet that the product in question 
contains the feed additive grapefruit seed extract. Grapefruit extract and grapefruit 
seed extract are not identical substances for the purposes of the law concerning 
animal feed, and the applicant cannot therefore successfully rely on the 
transitional provision contained in Article 2, point 3 of Implementing Regulation 
No 2021/758, since that provision relates only to grapefruit extract and not to 
grapefruit seed extract. 
11 That is also confirmed by the fact that the grapefruit extract covered by the 
Implementing Regulation (‘Grapefruit extract CoE 140’) comes under CAS 
number 8016-20-4, while the grapefruit seed extract used by the applicant in its 
product comes under CAS number 90045-43-5. The two terms are not therefore 
readily interchangeable. What is more, the composition of an extract differs both 
qualitatively and quantitatively depending on which parts of a fruit (for example, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-13/23 
 
6  
seeds, peel, pulp) are extracted. The term grapefruit extract is ultimately only an 
imprecise, or even inadequate, characterisation of the mixture of substances which 
it designates; the term grapefruit seed extract, on the other hand, is a more precise 
description of a grapefruit extract.  
12 Since the feed additive used, grapefruit seed extract, does not have the 
authorisation required under Article 10(2) in conjunction with Article 7 of 
Regulation No 1831/2003, it is not marketable, in accordance with Article 3(1) of 
that regulation. In the light of the sense and purpose of the authorisation procedure 
under EU law, which is to identify and assess any health risks that may be 
associated with a feed additive, it cannot be assumed, contrary to the view taken 
by the applicant, that the product sold by it is safe or harmless. The applicant is 
required to carry out an authorisation procedure before the European Food Safety 
Authority (EFSA) in order to have the feed additive ‘grapefruit seed extract’, in 
respect of which no reliable studies and findings are currently available, examined 
and assessed from the point of view of the existence of potential risks.  
13 At the same time, it follows from the foregoing that, since the grapefruit seed 
extract in the feed additive is not authorised, the product is ‘unsafe’ within the 
meaning of Article 15(1) of Regulation No 178/2002. The applicant’s – purely 
economic – interests have been noted and adequately taken into account. 
Furthermore and finally, there are no serious doubts from the point of view of EU 
law as regards the proportionality of Regulation No 1831/2003, since, in 
accordance with the precautionary principle, it protects legal interests of 
paramount importance in the form of human health, animal health and the 
environment. The regulatory objective, described in recital 4 of Regulation 
No 1831/2003, of ensuring a high level of protection for humans, animals and the 
environment, can be achieved only by way of an authorisation procedure in which 
a safety assessment is carried out as part of a Community procedure for feed 
additives. That is the only way of taking adequate account of the complexity of 
the subject matter under regulation, technological progress and scientific 
development. The blanket authorisation of all feed additives without further 
assessment by an expert body poses a serious risk to the aforementioned legal 
interests. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 By its first question, the referring court wishes to ascertain whether Regulation 
No 1831/2003, in particular Article 3(1)(a), Article 4(1), Article 7(1) and 
Article 10(1)(a), (2) and (5) thereof, which provide that, where no authorisation 
has been granted, a blanket ban on placing on the market, using and processing 
feed additives is to be ordered, without taking into account the circumstances 
obtaining in the particular case, is compatible with the principle of proportionality 
enshrined in Article 52(1) of the Charter, in the light of the freedom to conduct a 
business protected by Article 16 of the Charter and the right to property provided 
for in Article 17(1) of the Charter. 
CDVET NATURPRODUKTE 
 
7 
15 The principle of proportionality is one of the general legal principles of EU law. 
As an essential structural principle, it is of fundamental importance as an objective 
principle of EU law in the sense that it operates as general guideline for conduct 
within the framework of EU law (judgment of 19 June 1980, Testa and Others, 
C-41/79, 121/79 and 796/79, EU:1980:163, paragraph 21). 
16 The principle of proportionality is now expressly codified in Article 52(1) of the 
Charter. That states that any limitation on the exercise of the rights and freedoms 
recognised by the Charter must be provided for by law and respect the essence of 
those rights and freedoms. Subject to the principle of proportionality, limitations 
may be made only if they are necessary and genuinely meet objectives of general 
interest recognised by the Union or the need to protect the rights and freedoms of 
others. The rights and freedoms protected by the Charter include, inter alia, the 
freedom to conduct a business (Article 16) and the right to property (the first 
sentence of Article 17(1)), which is to say the freedom to own, use, dispose of and 
bequeath lawfully acquired possessions. 
17 In that regard, it is the settled case-law of the Court of Justice that the principle of 
proportionality requires that acts of the EU institutions be appropriate for attaining 
the legitimate objectives pursued by the legislation at issue and do not exceed the 
limits of what is appropriate and necessary in order to achieve those objectives. 
With regard to judicial review of compliance with those conditions, where 
interferences with fundamental rights are at issue, the extent of the EU 
legislature’s discretion may prove to be limited, depending on a number of factors, 
including, in particular, the area concerned, the nature of the right at issue 
guaranteed by the Charter, the nature and seriousness of the interference and the 
object pursued by the interference (judgment of 8 April 2014, Digital Rights 
Ireland and Others, C-293/12 and C-594/12, EU:2014:238, paragraphs 46 and 
47). 
18 As regards the freedom to conduct a business and the right to property, the Court 
of Justice has repeatedly held that these are not absolute rights, but must be 
considered in relation to their social function. Consequently, restrictions may be 
imposed on those freedoms, provided that those restrictions in fact correspond to 
objectives of general interest pursued by the European Union and do not 
constitute, with regard to the aim pursued, a disproportionate and intolerable 
interference, impairing the very substance of those rights. It follows from this that 
the legal assessment of proportionality must be carried out in accordance with the 
need to reconcile the requirements of the protection of those various fundamental 
rights protected by the Union legal order, and striking a fair balance between them 
(judgment of 6 September 2012, Deutsches Weintor, C-544/10, EU:2012:526, 
paragraphs 47 and 54). 
19 The referring court has doubts as to whether, in the present case, a fair balance 
consistent with the principle of proportionality (Article 52(1) of the Charter), as 
defined above, is struck between the freedom to conduct a business (Article 16 of 
the Charter) and the right to property (first sentence of Article 17(1) of the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-13/23 
 
8  
Charter), on the one hand, and the protection of the legal interest in the health of 
humans, animals and the environment pursued by Regulation No 1831/2003, on 
the other, given that that regulation requires, where feed additives have not 
already been authorised, a blanket ban on placing them on the market, using them 
and processing them to be ordered, with no account taken of the circumstances of 
the particular case concerned. 
20 The circumstances of the particular case include, for example, the question 
whether the feed additive in question is also a naturally occurring (plant) 
substance or a synthetic one, or in what absolute amount or concentration the feed 
additive is added to the feed. Regulation No 1831/2003 lays down the same legal 
consequences for all scenarios, without assessing such circumstances. According 
to the distributor’s product specification sheet, the feed additive used by the 
applicant in the product concerned is grapefruit seed extract. The components of 
the extract are of exclusively natural (vegetable) origin; there is not even the 
remotest indication that these are potentially harmful to human or animal health, 
particularly since the concentration of the feed additive incorporated probably 
falls below the range where it can be detected. The first question is relevant to the 
decision to be given because Regulation No 1831/2003 would not be applicable if 
it were contrary to EU law. 
21 In the event that the Court of Justice answers the first question in the affirmative, 
the referring court wishes, by its second question, to ascertain whether the extract 
used by the applicant as a feed additive (also) constitutes (in any event) the 
substance ‘Grapefruit extract CoE 140’ listed in Article 2(3) of Implementing 
Regulation No 2021/758, read in conjunction with Part 1 of Chapter I.A of 
Annex I thereto.. 
22 It is true that, in accordance with Article 1 of Implementing Regulation 
No 2021/758, the feed additives specified in Annex I of that regulation must be 
withdrawn from the market in respect of the animal species or categories of 
animals as specified in that annex, and those feed additives include, inter alia, the 
substance ‘Grapefruit extract CoE 140’ listed in Part 1 of Chapter I.A of 
Annex I – under the heading ‘Flavouring and appetising substances’ – to that 
regulation. In accordance with Article 2, point 3, of Implementing Regulation 
No 2021/758, compound feed and feed materials produced with the additives 
referred to in paragraph 1, which include, inter alia, the product sold by the 
applicant, may continue to be placed on the market until 30 May 2023. 
23 If the extract used by the applicant as a feed additive did indeed constitute the 
substance ‘Grapefruit extract CoE 140’ listed in Part 1 of Chapter I.A of Annex I 
to the aforementioned regulation – under the heading ‘Flavouring and appetising 
substances’ –, the applicant would be entitled, on the basis of the transitional 
provision contained in Article 2, point 3, of Implementing Regulation 
No 2021/758, to continue to place its product on the market on a temporary basis 
until 30 May 2023. At the material time, that is to say when the decision of 
30 March 2022 was adopted, there would therefore have been no basis for the 
CDVET NATURPRODUKTE 
 
9 
defendant to take action under Article 138(1) and 2(d) of Regulation 2017/625, in 
its capacity as the regulatory authority, for infringement of the legal provisions on 
animal feed. 
24 The referring court notes that, in its view, it has not been established that the 
applicant committed the alleged infringement of Article 15(1) of Regulation 
No 178/2002 which the defendant assumes it to have committed. In accordance 
with that provision, feed must not be placed on the market or fed to any food-
producing animal if it is ‘unsafe’. In accordance with paragraph 2 of that 
provision, feed must be deemed to be ‘unsafe’ for its intended use if it is 
considered to have an adverse effect on human or animal health (first indent). 
[German] national law contains a similar prohibition in Paragraph 17(2), 
point 1(a), of the LFGB. The syntax of Article 15(1) of Regulation No 178/2002 
(‘if it is considered to’ [in the German-language version, ‘if it is capable of’]) 
shows that, while actual harm to health in a particular case is not necessary, the 
feed must – in the light of objective reasons for suspicion – actually have the 
capacity to harm health in specific circumstances, which is to say that the feed 
must exhibit clearly ascertainable characteristics capable of causing harm to 
health. The mere possibility of that feed having such effects is, however, not 
sufficient. 
25 The defendant, on which the burden of making and proving a proper case in this 
regard falls, has not presented any specific evidence to show that the product sold 
by the applicant might be harmful to health given the use of the feed additive in 
question. A fiction to the effect that all unauthorised feed additives are to be 
regarded as ‘unsafe’ within the meaning of Article 15(1) and (2) of Regulation 
No 178/2002 is not – so far as it is possible to tell – provided for in EU law. That 
aside, the market withdrawals of the feed additives listed in the aforementioned 
implementing regulations, which were carried out as a result of those regulations, 
did not take place because of specific safety concerns, but, rather, solely because 
an application for their authorisation had not been submitted within the prescribed 
period. For the same reasons, the referring court would argue, the applicant has 
also not infringed Paragraph 17(2), point 2(a) and point 3(a), of the LFBG. 
26 The aforementioned concerns, from the point of view of EU law, regarding the 
lawfulness of Regulation No 1831/2003 (first question) and the interpretation of 
the reference to the substance ‘Grapefruit extract CoE 140’ listed in Article 2, 
point 3, of Implementing Regulation No 2021/758, in conjunction with Part 1 of 
Chapter I.A. of Annex I thereto (second question), can be dealt with only in the 
context of a preliminary ruling procedure under the second paragraph of 
Article 267 TFEU.