Case T-189/18: Action brought on 15 March 2018 — Lipitalia 2000 and Assograssi v Commission
Date: 2018-03-15
Institutions: General Court
Subjects: agricultural by-product, animal product, equal treatment, export (EU), export restriction, health control, organic fertiliser, principle of proportionality, third country, veterinary inspection








C_2018166EN.01004002.xml










14.5.2018   


EN


Official Journal of the European Union


C 166/40





Action brought on 15 March 2018 — Lipitalia 2000 and Assograssi v Commission
(Case T-189/18)
(2018/C 166/52)
Language of the case: Italian

Parties


Applicants: Lipitalia 2000 SpA (Turin, Italy), Assograssi — Associazione Nazionale Produttori Grassi e Proteine Animali (Buccinasco, Italy) (represented by: M. Moretto, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:






—


declare that, by failing to put to a vote, by the Regulatory Committee, pursuant to the procedure laid down in Article 5a of Decision 1999/[468]/EC, a draft proposal to re-examine the prohibition on exporting organic fertilisers and soil improvers containing processed animal protein derived from ruminants, at present provided for in Annex IV, Chapter V, Section E, point 2, to Regulation No 999/2001, the European Commission has failed to fulfil its obligations under Regulation No 999/2001, Regulation No 178/2002 and Regulation No 1069/2009, and has infringed the general principles of non-discrimination and proportionality;










—


order the defendant to pay the costs.





Pleas in law and main arguments

The applicants submit that even though, from 1 July 2017, the Commission has authorised once again the exportation of processed animal protein (PAP) derived from ruminants in view of the marked improvement in regard to the epidemiological status of BSE (Bovine Spongiform Encephalopathy) in the European Union, the exportation of organic fertilisers and soil improvers (OFSIs) containing PAP remains inexplicably prohibited under Annex IV, Chapter V, Section E, point 2, to Regulation No 999/2001. That ban remains in force, even though almost all the Member States are now countries recognised as having a negligible BSE risk, despite the fact that the international standard determined by the OIE (Office international des épizooties) does not provide for a similar ban on OFSIs originating in countries which do have that risk status.
Moreover, according to the applicants, although the exportation of OFSIs (containing ruminant PAP) — even those originating in Member States recognised as having a negligible BSE risk — is, by contrast to the international standard determined by the OIE, prohibited, the European Union authorises the marketing of those products on its territory. What is more, it even authorises the importation of PAP from third countries, including countries recognised as having a controlled or undetermined BSE risk, including PAP derived from ruminants, and of products containing PAP, namely OFSIs.
The damage suffered by EU operators as a result of that ban on exporting OFSIs containing PAP from ruminants is, the applicants argue, enormous.
In support of their action, the applicants take the view that the Commission has an obligation under EU law to remedy the situation.
Specifically, the applicants rely on:






1.


Failure of the Commission to meet its obligations under Articles 7 and 5(1) and (3) of Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (OJ 2001 L 147, p. 1), under Articles 5(3) and 7 of 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 and laying down food safety procedures (OJ 2002 L 31, p. 1), and under Article 43(4) of Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1).










2.


Failure of the Commission to meet its obligation to act, in accordance with the principles of non-discrimination and proportionality, under Article 7(2) of Regulation (EC) No 178/2002 and under Articles 23 and 24 of Regulation (EC) No 999/2001.