Action brought on 28 March 2020 — UPL Europe and Indofil Industries (Netherlands) v EFSA

(Case T-162/20)

(2020/C 201/44)

Language of the case: English

Parties

Applicants: UPL Europe Ltd (Warrington Cheshire, United Kingdom), Indofil Industries (Netherlands) BV (Amsterdam, Netherlands) (represented by: C. Mereu and S. Englebert, lawyers)

Defendant: European Food Safety Authority

Form of order sought

The applicants claim that the Court should:

— declare the application admissible and well-founded;

— annul the decision of the European Food Safety Authority (‘EFSA’) of 28 January 2020, notified to the applicants on 29 January 2020, on the assessment of the confidentiality claims made in relation to certain parts of the EFSA Conclusion on the Peer Review of the Pesticide Risk Assessment of the Active Substance Mancozeb (the ‘Contested Decision’); and

— order the defendant to pay all the costs and expenses of these proceedings.

Pleas in law and main arguments

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

1. First plea in law, alleging procedural breach of Article 12 of Commission Implementing Regulation 844/2012 (1): the contested decision was reached on the basis of procedural errors of fact and law.

2. Second plea in law, alleging substantive breach of Article 13 of Commission Implementing Regulation 844/2012: the contested decision was reached on the basis of substantive errors of fact and law.

3. Third plea in law, alleging misapplication of Articles 38, 39 and 40 of Regulation 178/2002 (2): the defendant misinterprets and misapplies the confidentiality provisions set forth under Articles 38, 39 and 40 of Regulation 178/2002.

4. Fourth plea in law, alleging infringement of Article 63 of Regulation 1107/2009 (3): the defendant has infringed Article 63 of Regulation 1107/2009 by deciding to publish the information which the applicants sought to have sanitized, which might undermine their commercial interests.

5. Fifth plea in law, alleging lack of competence: the defendant acted ultra vires since the European Chemicals Agency is the only authority legally responsible for classification or re-classification of substances, as set out in Regulation 1272/2008 (4), and not the defendant.

6. Sixth plea in law, alleging breach of fundamental principles of EU law: the principles of legality, legal certainty, legitimate expectation, sound administration and proportionality, as well as the duty of diligent, impartial examination: the contested decision was adopted in breach of fundamental principles of European Union law.

(1) 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 (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market (OJ 2012 L 252, p. 26).

(2) 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, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).

(3) 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).

(4) Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008 L 353, p. 1).