EN Official Journal of the European Union C 287/14

Appeal brought on 25 May 2016 by Dextro Energy GmbH & Co. KG against the judgment of the General Court (Fifth Chamber) delivered on 16 March 2016 in Case T-100/15 Dextro Energy GmbH & Co. KG v European Commission

(Case C-296/16 P)

(2016/C 287/18)

Language of the case: German

Parties

Appellant: Dextro Energy GmbH & Co. KG (represented by: M. Hagenmeyer and T. Teufer, lawyers)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside, in its entirety, the judgment of the General Court of the European Union of 16 March 2016 in Case T-100/15. Should the appeal be declared to be well-founded, the appellant claims that the Court should uphold, in its entirety, the form of order sought at first instance, namely: 1. annul Commission Regulation (EU) 2015/8 (1) of 6 January 2015 refusing to authorise certain health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health; 2. order the defendant to pay the costs.

Pleas in law and main arguments

First, the appellant criticises the General Court’s standard of review for being incorrect.

By assessing that, in the case of ‘highly complex scientific and technical facts’, the exercise of discretion by the defendant is subject merely to a control of fairness, the General Court from the outset dispensed with a large area of discretionary assessment which must, however, in actual fact be appreciated by the General Court and the Court of Justice. The General Court and the Court of Justice are not restricted to merely controlling the fairness of the defendant’s exercise of discretion. On the contrary, a judicial review can and must be carried out as to whether the defendant correctly interpreted the requirements set out by the European legislator in Article 18(4) of Regulation (EC) No 1924/2006 and thereby correctly exercised its discretion. In judicial examinations, every form of misuse of discretion must also be examined. That did not occur due to the erroneous weighting and evaluation of the ‘other legitimate factors relevant to the issue under consideration’.

In addition, the appellant alleges infringement of Article 18(4) of Regulation (EC) No 1924/2006 and in doing so relies on three pleas in law:

First, the non-admission of the health-related information at issue is based on errors of assessment made by the defendant. That results first of all from the hierarchy of the relevant legitimate factors provided for in Article 18(4) of Regulation (EC) No 1924/2006. Not every consideration of a legitimate and relevant factor may also justify a non-admission of factually correct and scientifically sufficiently secured health-related information. According to the appellant, pursuant to recital 17 in the preamble to the regulation, that information cannot be the ‘main aspect’ for the decision to grant authorisation. ‘Scientific substantiation’ should be ‘taken into account’ as the ‘main aspect’ in health-related information. That weighting was also reflected in Article 18(4) of Regulation (EC) No 1924/2006. The authority’s view is mentioned there in first place.

Secondly, the defendant also incorrectly exercised its discretion under Article 18(4) of Regulation (EC) No 1924/2006 because it wrongly assumed that the applicant’s information could send a ‘conflicting and confusing message to consumers’. A reference to proven effects of glucose neither means that sugar should be consumed or consumed to an increased extent, nor that there are any third party recommendations to reduce sugar consumption. A contradiction cannot therefore be in discussion — this is particularly the case in so far as the healthy, active and endurance-trained men and women specifically named in the form of order are at issue.

Thirdly, a further error of assessment committed by the defendant in the context of Article 18(4) of Regulation (EC) No 1924/2006 arises out of the fact that it wrongly assumed that the applicant’s information is ambiguous and misleading. In order to mislead a prudent average consumer, the applicant’s health-related information would have to be suited for deception. Precisely that is not the case.

In addition, the appellant alleges an infringement of the principle of proportionality:

The defendant’s non-admission of the applicant’s health-related information infringes the principle of proportionality. As an organ of the European Union, when exercising discretion, the defendant is bound by the principle of proportionality within the meaning of the first subparagraph of Article 5(4) TEU. If generally recognised nutritional and health principles constitute the only reason for the non-admission of the applicant’s health-related information, without the specific circumstances of the individual case being sufficiently observed, an infringement of the principle of proportionality lies therein. This is because general principles would not necessitate any rejection of the applicant’s form of order in the particular case, but would at best prompt specific conditions for use and labelling rules as a less restrictive measure. In addition, even from a nutritional and health point of view, an unconditional blanket ban brought about by the non-admission of the factually correct and scientifically sufficiently secured health-related information is not an appropriate measure to attain a high level of consumer protection.

Finally, the appellant alleges infringement of the principle of equal treatment:

The non-admission of the health-related information applied for also manifestly infringes the principle of equal treatment. The defendant treats the admissions in comparable cases differently although there are no objective reasons for unequal treatment.

(1) OJ 2015 L 3, p. 6.