Case T-746/15: Action brought on 22 December 2015 — Biofa v Commission
Date: 2015-12-22
Institutions: General Court
Subjects: chemical product, confidentiality, data protection, equal treatment, intellectual property, market approval, plant health control, plant health product, principle of subsidiarity, trade information








C_2016059EN.01004601.xml










15.2.2016   


EN


Official Journal of the European Union


C 59/46





Action brought on 22 December 2015 — Biofa v Commission
(Case T-746/15)
(2016/C 059/53)
Language of the case: German

Parties


Applicant: Biofa AG (Münsingen, Germany) (represented by: C. Stallberg and S. Knoblich, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul Commission Implementing Regulation (EU) 2015/2069 of 17 November 2015 approving the basic substance sodium hydrogen carbonate (OJ 2015 L 301, p. 42);










—


order the defendant to pay the costs of the proceedings.





Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law.






1.


First plea in law: infringement of data protection
The applicant’s data on its plant protection product VitiSan® is eligible for data protection under Article 59 of Regulation (EC) No 1107/2009 (1). The use of that data for approving sodium hydrogen carbonate as a basic substance therefore infringes the applicant’s data protection rights.










2.


Second plea in law: infringement of the subsidiarity principle in the approval procedure for basic substances
The approval of sodium hydrogen carbonate as a basic substance infringes the subsidiarity principle in matter of plant protection since, by means of the applicant’s plant protection product VitiSan®, which contains the active ingredient potassium bicarbonate, an approved plant protection product with a similar active substance is available.










3.


Third plea in law: infringement of the priority principle in the approval procedure for basic substances
According to the priority principle, the approval of sodium hydrogen carbonate as an active ingredient applied for by the applicant precludes the approval of the substance as a basic substance.










4.


Fourth plea in law: interference with the applicant’s right of ownership
The unlawful use of the applicant’s data for the approval of sodium hydrogen carbonate as a basic substance interferes with its intellectual property rights under Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’).










5.


Fifth plea in law: infringement of the protection of confidential commercial information
The unlawful use of the applicant’s data for the approval of sodium hydrogen carbonate as a basic substance also infringes the protection of confidential commercial information under Article 7 of the Charter.










6.


Sixth plea in law: infringement of the general principle of equal treatment
The unlawful use of the applicant’s data for the approval of sodium hydrogen carbonate as a basic substance also infringes the principle of equal treatment. Whereas the applicant was obliged to lay out significant investments for the data necessary for approval, the defendant used that data to the benefit of third parties, who did not bear such costs.










7.


Seventh plea in law: infringement of the general principle of the protection of legitimate expectations
Lastly, the unlawful use of the applicant’s data for the approval of sodium hydrogen carbonate as a basic substance leads to an infringement of the principle of the protection of legitimate expectations. The applicant was entitled to expect that its data on the plant protection product VitiSan® would be used only in accordance with the principles of data protection.






(1)  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).