Appeal brought on 9 November 2020 by P. Krücken Organic GmbH against the judgment of the General Court (First Chamber) delivered on 9 September 2020 in Case T-565/18, P. Krücken Organic GmbH v European Commission

(Case C-586/20 P)

(2021/C 9/17)

Language of the case: German

Parties

Appellant: P. Krücken Organic GmbH (represented by: H. Schmidt, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (First Chamber) of 9 September 2020 in Case T-565/18;

— order the European Commission to pay EUR 216 749,02 together with default interest to be calculated from the date of service of the action at the rate of 8 % per annum above the base rate of the European Central Bank (ECB);

— order the European Commission to make available, through access to the file, those documents which were drawn up in the context of ECOCERT’s activities during the organic control of the company which produced the product at issue, in particular the 2016, 2017 and 2018 inspection reports and the related evaluation statements, which are connected to ECOCERT’s findings, evaluations and decisions and formed the basis for the issuing of the certificate of inspection for the product at issue and for the subsequent withdrawal of that certificate of inspection by ECOCERT;

— require the Commission to, in turn, oblige the organic control bodies which it has tasked with carrying out certain functions in the European Union’s system of control for organic farming in third countries to notify to the importer concerned their decision concerning the withdrawal, revocation or cancellation of the certificate of inspection issued, and to receive and decide on that importer’s objections; to encourage the organic control bodies which it has appointed in third countries to make available to importers the documents of the organic control procedure on which such decisions are based, in particular the inspection reports and evaluation statements, redacting sections which are subject to data protection in favour of third parties; or, in the alternative, limit the Commission’s obligation to an obligation to the appellant.

Pleas in law and main arguments

The appellant alleges that its fundamental rights to the freedom to conduct a business and to protection of its property have been infringed. It contends that EU organic law should be interpreted in the light of the Charter of Fundamental Rights, which the General Court entirely disregarded in its judgment. As a result, companies which import organic products from non-member States are deprived of any protection of fundamental rights.

The appellant takes the view that the judgment of the General Court is based on an incorrect legal assessment of the scope of the obligations and, therefore, the responsibility of the European Commission for the conduct and the decisions of the organic control bodies. According to the appellant, the General Court erred in assuming in its judgment that there is no ‘specific provision’ which states that any wrongful act by ECOCERT through its subsidiary in the People’s Republic of China should be attributable to the European Union or the European Commission. The General Court considered that attribution would imply that organic control was transferred to the Commission itself as a public function in non-member States. The legal provisions of Regulation (EC) No 834/2007 (1) and of Regulation (EC) No 1235/2008 (2) set out for the European Commission the manner in which — through the appointment of organic control bodies as agents of the European Union — organic controls are to be carried out in non-member States.

The appellant further alleges that the General Court’s finding, that both Article 33 of Regulation No 834/2007 and the framework for assessing liability for breach of official duty have the effect of affording the European Commission a ‘wide discretion’ as regards both the finding and assessment of risks and in respect of supervision measures which are based on an established risk, is not consistent with the importance of the protection of fundamental rights. The appellant contends that such a wide discretion would have the effect that no judicial review of the European Commission’s conduct is carried out.

Finally, according to the appellant, the General Court’s reasoning in rejecting the claim that the Commission is obliged to promote transparency as regards the decisions taken by organic control bodies is not compatible with the importance of fundamental rights and the importance of the fundamental guarantee of effective judicial protection.

(1) Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1).

(2) Commission Regulation (EC) No 1235/2008 of 8 December 2008 laying down detailed rules for implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries (OJ 2008 L 334, p. 25).