Judgment — ECLI:EU:T:2015:375
Date: 2015-06-12
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Action for annulment - unfounded
Origin: United Kingdom;Netherlands

summary form, coherently and intelligibly in the application itself. In that regard, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (see, to that effect, judgment of 14 December 2005 in General Electric v Commission, T‑210/01, ECR, EU:T:2005:456, paragraph 592). That argument must therefore be rejected as inadmissible. 163 It follows that neither Article 30(4) of Regulation No 178/2002 nor the obligation to state reasons was infringed during the review of the health claims submitted to the EFSA. 164 In light of the foregoing, the third part of the second plea must be rejected, as must the second plea in its entirety. 165 Consequently, the application for the annulment of Regulation No 432/2012 must be rejected. 2. The application for a declaration that Regulation No 1924/2006 is inapplicable Admissibility 166 The Commission and the Council consider that the application made in the alternative by the applicants, seeking a declaration, pursuant to Article 277 TFEU, that Regulation No 1924/2006 is inapplicable, since the main action brought against Regulation No 432/2012 is itself inadmissible. Moreover, they submit that, in any event, the scope of a plea of illegality must, in accordance with settled case-law, be limited to what is necessary for the outcome of the proceedings. 167 The applicants contest those arguments. 168 Pursuant to Article 277 TFEU, notwithstanding the expiry of the period laid down in the sixth paragraph of Article 263 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the Union is at issue, plead the grounds specified in the second paragraph of that article, in order to invoke before the Court of Justice of the European Union the inapplicability of that act. 169 According to settled case-law, the possibility provided by Article 277 TFEU of invoking the illegality of a measure of general application does not constitute an independent right of action and may only be sought incidentally, since where the main action is inadmissible the plea of illegality must also be declared inadmissible (see, to that effect, order of 17 June 2008 in Dow AgroSciences v EFSA, T‑397/06, EU:T:2008:208, paragraph 63 and the case-law cited). 170 A plea of illegality raised indirectly under Article 277 TFEU, when challenging in the main proceedings the legality of another measure, is admissible only if there is a link between the contested measure and the provision forming the subject-matter of the plea. Since the purpose of Article 277 TFEU is not to enable a party to contest the applicability of any measure of general application in support of any action whatsoever, the scope of a plea of illegality must be limited to what is necessary for the outcome of the proceedings. It follows that the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned (see, to that effect, judgment of 20 November 2007 in Ianniello v Commission, T‑308/04, EU:T:2007:347, paragraph 33 and the case-law cited). 171 In the present case, the Court points out, in the first place, that in so far as the applicants’ action has been brought primarily against Regulation No 432/2012 and, indirectly, against Regulation No 1924/2006, the admissibility of the application brought on the basis of Article 277 TFEU depends, as is apparent from the case-law cited in paragraph 169 above, on the admissibility of the action seeking the annulment of Regulation No 432/2012. In the light of the conclusion reached in paragraph 51 above in relation to the admissibility of the application seeking the annulment of Regulation No 432/2012, the plea of illegality must be declared admissible. 172 In the second place, in so far as Regulation No 1924/2006, in particular Article 13(3) thereof, constitutes the basis on which Regulation No 432/2012 was adopted, a sufficiently close link can be found between the two measures for the purposes of the case-law cited in paragraph 170 above. The existence of such a link may be inferred, inter alia, from the finding that the measure against which the main action has been brought is essentially based on a provision of a measure whose legality is contested (see, to that effect, judgments of 25 October 2006 in Carius v Commission, T‑173/04, ECR-SC, EU:T:2006:333, paragraph 46, and Ianniello v Commission, paragraph 170 above, EU:T:2007:347, paragraph 33; see, to that effect and by analogy, judgment of 4 March 1998 in De Abreu v Court of Justice, T‑146/96, ECR-SC, EU:T:1998:50, paragraphs 25 and 29). 173 It follows that the arguments of the Commission and the Council seeking that the plea of illegality raised by the applicants in relation to Regulation No 1924/2006 be declared inadmissible must be rejected. 174 Moreover, the Court points out that the applicants merely contest the legality of Article 13(1) to (3) of Regulation No 1924/200 and of the transitional schemes established in Article 28(5) and (6) of that regulation. Accordingly, in the light of the case-law cited in paragraph 170 above, only those provisions may be the subject of a plea of illegality under Article 277 TFEU. Consequently, the Court shall restrict its examination in the context of the present application to those provisions. Substance 175 The applicants rely on two pleas in support of the application for a declaration that Regulation No 1924/2006 is inapplicable, alleging an infringement of the right to be heard and of the principle of legal certainty. The first plea in support of the application for a declaration that Regulation No 1924/2006 is inapplicable, alleging an infringement of the right to be heard 176 The applicants claim that Article 13(3) of Regulation No 1924/2006 infringes their right to be heard, laid down in Article 41 of the Charter of Fundamental Rights. In particular, they consider that, like Article 13(5) and Article 14 of Regulation No 1924/2006, the authorisation procedure for the health claims referred to in Article 13(3) of that regulation should have enabled food business operators to submit comments, particularly before the EFSA, as regards claims of interest to them. The applicants cite the judgment of 17 September 1998 in Primex Produkte Import-Export and Others v Commission (T‑50/96, ECR, EU:T:1998:223, paragraphs 58 to 61), in which it was held, in essence, that the parties directly affected by a public measure must have an opportunity to be heard even in the absence of any specific rules in that regard. 177 The Commission, supported by the Council, the BEUC, the Parliament and the French Republic, contests those arguments. 178 First of all, in so far as concerns the argument alleging an infringement of the right to good administration, suffice it to note that, as is apparent from paragraph 97 above, Article 41(2)(a) of the Charter of Fundamental Rights includes, inter alia, the right of every person to be heard, before any individual measure which would affect him or her adversely is taken. However, in the present case, in so far as Article 13(3) of Regulation No 1924/2006 leads, as has been stated in paragraph 36 above, to the adoption of a measure of general application, the arguments seeking a declaration that there has been an infringement of the right to be heard, as laid down in that provision of the Charter of Fundamental Rights, cannot be upheld. 179 Moreover, as regards the applicants’ argument that Article 13(5) and Article 14 of Regulation No 1924/2006 provide for a procedure under which operators in the sector are to be duly heard, the Court points out, as do the Parliament and the Commission, that the authorisation procedure set out in those two articles is different from that in Article 13(3) of Regulation No 1924/2006 in that it is triggered by the application of individuals, who may then submit comments on EFSA opinions and obtain an individual decision. By contrast, Article 13(1) to (3) of Regulation No 1924/2006 concerns only an authorisation procedure which is triggered by the Member States, in the context of which no right to be heard is thus conferred on individuals. 180 Furthermore, as regards the judgment in Primex Produkte Import-Export and Others v Commission, paragraph 176 above (EU:T:1998:223), invoked by the applicants, it must be found that, unlike in the present case, that judgment concerned individual administrative measures, adopted in the area of duty on imports of meat of bovine animals. It is only in that context that the Court established, as the applicants point out, that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question (judgment in Primex Produkte Import-Export and Others v Commission, paragraph 176 above, EU:T:1998:223, paragraph 59). However, in so far as Regulation No 432/2012 constitutes a measure of general application, the reasoning and conclusions in that judgment are not relevant to the present case. 181 In any event, even supposing that the approach adopted in that judgment of the Court relied on by the applicants may be transposed to the present case, it must be considered that, as acknowledged by the applicants in their application, the adoption of Regulation No 432/2012 was preceded by a public consultation stage, during which the interested parties, including the applicants, were given the opportunity to submit comments. The procedure followed by the Commission must, therefore, be regarded as being consistent with the findings of the Court in the judgment in Primex Produkte Import-Export and Others v Commission, paragraph 176 above (EU:T:1998:223). Moreover, as pointed out by the Parliament, in the context of the adoption procedure of the regulation, provided for in Article 25 of Regulation No 1924/2006, food business operators had the opportunity to express their views in the context of the regular contact which the Commission, Parliament, Council and the Member States maintained with interested parties. 182 The result is that the applicants cannot usefully submit that Regulation No 1924/2006, in particular Article 13(3) thereof, infringes the right to good administration and, in particular, the right to be heard. 183 In the light of all of the foregoing, the first plea in support of the application seeking a declaration that Regulation No 1924/2006 is inapplicable must be rejected. The second plea in support of the application for a declaration that Regulation No 1924/2006 is inapplicable, alleging an infringement of the principle of legal certainty 184 The second plea of the applicants in support of the application for a declaration that Regulation No 1924/2006 is inapplicable comprises two complaints. 185 By their first complaint the applicants submit that Regulation No 1924/2006 infringes the principle of legal certainty in so far as Article 28 of the regulation does not lay down reasonable transitional periods within which to comply with provisions of the regulation. In essence, they criticise the obligation, after the entry into force of Regulation No 432/2012, to remove from the supply chain foods which had lawfully been placed onto the market prior to 2012. 186 By their second complaint the applicants submit that the scope of the review required so as to authorise health claims under Article 13(3) of Regulation No 1924/2006 was not clearly defined. 187 The Commission, supported by the Council, the BEUC, the Parliament and the French Republic, contests those two complaints. 188 It should be pointed out, at the outset, that, in accordance with the case-law cited in paragraph 86 above, the principle of legal certainty requires that legal rules be clear and precise, and that their consequences be foreseeable. 189 As regards, in the first place, the complaint by which it is alleged that the transitional period provided for in Regulation No 1924/2006 was unreasonably short, particularly in order to comply with the requirements of Regulation No 432/2012, the Court finds that, although the applicants accuse the Council and the Parliament of having laid down very short transitional adaptation periods, they merely advance vague assertions in that regard and do not state at any point in their written pleadings that those transitional periods led to uncertainty on their part as a result of a possible lack of clarity. 190 In any event, in so far as concerns the argument that food supplements or health foods, which can be preserved for long periods of two to three years, should have benefited from a longer transitional period, the six months granted by Regulation No 432/2012 appear sufficient to adapt the labelling and advertising of those foods, and the applicants have not even stated, for example, what, in their view, the reasonable duration which the Commission should have provided for in the regulation ought to have been. In that regard, the Court points out that Regulation No 432/2012 did not aim to prohibit the marketing of the applicants’ goods as such, but merely to have the health claims which were not consistent with Regulation No 1924/2006 removed from their labelling. 191 The result is that Regulation No 1924/2006 does not infringe the principle of legal certainty in so far as concerns the transitional periods provided for in Article 28 thereof. 192 The first complaint cannot therefore be upheld. 193 As regards, in the second place, the complaint by which it is alleged that Regulation No 1924/2006 lacks clarity, the Court points out that the legal framework applicable to the health claims under that regulation was clear and that its consequences were foreseeable for food business operators and, consequently, that no infringement of the principle of legal certainty can be found within the meaning of the case-law. First, a reading of Article 10(1) of Regulation No 1924/2006 in conjunction with Article 13 thereof makes it clear that the health claims were prohibited unless, (i) they complied with the general and specific requirements laid down in the regulation and, (ii) they were authorised in accordance with the regulation. Second, Article 28(5) and (6) of Regulation No 1924/2006, which concerns transitional provisions, authorised the use of health claims until the adoption of the list of permitted health claims, as explained in paragraphs 80 to 83 above. 194 The applicants further submit that the EFSA consultation procedure was not set out in detail in Regulation No 1924/2006 and that, in particular, the scientific criteria which that authority was to apply in its evaluations of health claims was not specified in the regulation. 195 However, it must be found, in that regard, that in the light of the provisions of Regulation No 1924/2006 there was no doubt as to the scientific evaluation criteria to be applied under the regulation. First of all, as has been pointed out in paragraphs 135 and 138 above, Article 2(2)(5) of Regulation No 1924/2006 states that, to establish whether a health claim is justified, it is necessary to determine the existence of a cause and effect relationship between the food at issue and the specific functions referred to. Next, Article 5 of Regulation No 1924/2006 establishes as conditions for the authorisation of health claims that, (i) the substance for which the claim is made is contained in the final product in a quantity that will produce the beneficial effect claimed or is not present, and, (ii) that the quantity of the product that can reasonably be expected to be consumed provides a significant quantity of the substance to which the claim relates that will produce the effect claimed. Finally, pursuant to Article 6 of Regulation No 1924/2006, read in the light of recitals 17 and 23 in the preamble thereto, cited in paragraph 126 above, health claims had to be based on and substantiated by generally accepted scientific evidence. 196 It follows that the applicants’ argument relating to the lack of a more detailed provision in relation to the application by the EFSA of the criteria set out in Article 13(1) of Regulation No 1924/2006, when it is consulted in the context of the procedure provided for in Article 13(3) of that regulation, must be rejected. 197 The applicants’ second complaint cannot therefore be upheld. 198 In the light of the foregoing, the second plea raised in support of the application for a declaration that Regulation No 1924/2006 is inapplicable must be rejected, as must, consequently, that application in its entirety. 2. The application for annulment of the list of claims on hold 199 The Commission, supported, inter alia, by the French Republic and the BEUC, submits that the application for annulment of the list of health claims on hold is inadmissible. In its view, an action cannot be brought under Article 263 TFEU against that list, since it is merely an interim measure which does not have any regulatory or decisional content and which is therefore not capable of altering the legal situation of the applicants. Moreover, the Commission asserts that it is not possible to identify from the application the complaints raised by the applicants in support of the substance of their application. 200 The applicants contest the plea of inadmissibility raised by the Commission. They consider, in essence, that the list of claims on hold constitutes a challengeable act given that, among other legal effects, it makes the list of claims on hold subject to the transitional provisions laid down in Article 28 of Regulation No 1924/2006. As to the substance, the applicants claim that the list of claims on hold is unlawful and should be annulled ‘as the creation of such a list lacks legal basis and infringes the principles of legal certainty, good administration and non-discrimination’ and ‘[f]or the same grounds as identified in section V of [the] application’. 201 According to settled case-law, any measure the legal effects of which are binding on and capable of affecting the interests of the applicant by bringing about a distinct change in his legal position is an act or a decision which may be the subject of an action under Article 263 TFEU for a declaration that it is void (judgments of 11 November 1981 in IBM v Commission, 60/81, ECR, EU:C:1981:264, paragraph 9; of 31 March 1998 in France and Others v Commission, C‑68/94 and C‑30/95, ECR, EU:C:1998:148, paragraph 62; and of 4 March 1999 in Assicurazioni Generali and Unicredito v Commission, T‑87/96, ECR, EU:T:1999:37, paragraph 37). To determine whether an act or decision produces such effects, it is necessary to look to its substance (order of 13 June 1991 in Sunzest v Commission, C‑50/90, ECR, EU:C:1991:253, paragraph 12, and judgment in France and Others v Commission, EU:C:1998:148, paragraph 63). 202 Moreover, according to equally settled case-law, in the case of acts or decisions adopted by a procedure involving several stages, in principle an act is open to review only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (judgment of 18 December 1992 in Cimenteries CBR and Others v Commission, T‑10/92 to T‑12/92 and T‑15/92, ECR, EU:T:1992:123, paragraph 28). 203 In the present case, it must be considered that the list of claims on hold does not constitute a challengeable act. The adoption of a list the sole purpose of which is to compile a register of the health claims which are still being evaluated and in respect of which the Commission has not made a final decision constitutes merely an interim measure the purpose of which is to determine which health claims are, and which are not, to be included on the list of permitted claims. It is that latter list which constitutes the final decision. 204 Moreover, although, as the applicants submit, the Commission has stated that the claims on hold remained subject to the transitional provisions laid down in Article 28(5) and (6) of Regulation No 1924/2006, that indication lacks any element of decision and merely points out the consequences resulting from the regulation itself for the claims which are still being evaluated. 205 It follows that the application for annulment of the list of claims on hold must be rejected as inadmissible. 206 For the sake of completeness, even supposing that the list of claims on hold may be regarded as a challengeable act, in the way put forward by the applicants, suffice it to note that, according to settled case-law, a claim for annulment is not admissible unless the applicant has an interest in seeing the contested act annulled. An applicant’s interest in bringing proceedings presupposes that the annulment of the contested act is capable alone of having legal consequences, that the action is therefore appropriate, by its result, to obtain a benefit for the party which brought it and that that party can show an actual and current interest in the annulment of that act (see judgment of 19 June 2009 in Socratec v Commission, T‑269/03, EU:T:2009:211, paragraph 36 and the case-law cited). 207 According to settled case-law, it is the applicant that must prove that it has an interest in bringing proceedings. If the interest pleaded by an applicant concerns a future legal situation, it must demonstrate that the prejudice to that situation is already certain. Accordingly, an applicant cannot rely on future and uncertain situations to justify its interest in applying for annulment of the contested act (see judgment in Hagenmeyer and Hahn v Commission, paragraph 71 above, EU:T:2014:234, paragraph 39 and the case-law cited). 208 In the present case, the Court observes that, as indicated in recitals 10 and 11 in the preamble to Regulation No 432/2012, the claims which have been placed on hold continue to benefit from the legal rules which were applicable to them prior to the adoption of Regulation No 432/2012. Consequently, the undertakings concerned by those claims may continue to use them for the marketing of their foods in accordance with Article 28(5) and (6) of Regulation No 1924/2006. Accordingly, no benefit can be derived from the annulment of the list of health claims on hold. Moreover, when questioned in that regard by the Court at the hearing, the applicants failed to substantiate such a benefit. 209 In any event, it should also be pointed out that, according to settled case-law, under Article 44(1)(c) of the Rules of Procedure, for an application for annulment to be admissible the application initiating proceedings must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must accordingly specify the nature of the grounds on which the action is based, so that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see, to that effect, judgment of 27 September 2012 in Nynäs Petroleum and Nynas Belgium v Commission, T‑347/06, ECR, EU:T:2012:480, paragraph 107). 210 In the present case, the Court considers that the line of argument relied on by the applicants in support of their application for annulment, by which they merely, (i) assert that the list of claims on hold is unlawful and should be annulled since its establishment lacks legal basis and infringes the principles of legal certainty, good administration and non-discrimination and, (ii) make reference to the pleas set out in section V of the application, is manifestly insufficient to enable the complaints made by the applicants against the Commission as the author of that list to be identified in a precise manner. 211 Consequently, the form of order sought by the applicants seeking the annulment of the list of claims on hold must be declared inadmissible. 212 It follows from the foregoing considerations that the action must be dismissed in its entirety. Costs 213 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. Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those of the Commission. 214 Under Article 87(4) of the Rules of Procedure, Member States and institutions which intervene in proceedings are to bear their own costs, and the General Court may also order another intervener to bear its own costs. In the present case, the French Republic, the Council, the Parliament, the BEUC, FederSalus, Medestea biotech and Naturando are ordered to bear their own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action; 2. Orders The Health Food Manufacturers’ Association, Quest Vitamins Ltd, Natures Aid Ltd, Natuur-& gezondheidsProducten Nederland and New Care Supplements BV to bear their own costs and those incurred by the European Commission; 3. Orders the French Republic, the European Parliament, the Council of the European Union, the Bureau européen des unions de consommateurs (BEUC), FederSalus, Medestea biotech SpA and Naturando Srl to bear their own costs. Kancheva Wetter Bieliūnas Delivered in open court in Luxembourg on 12 June 2015. [Signatures] * Language of the case: English