Case T-560/22: Action brought on 5 September 2022 — Fachverband Eisenhüttenschlacken v Commission
Date: 2022-09-05
Institutions: General Court
Subjects: abuse of power, by-product, chromium, fertiliser, fertiliser industry, market approval, precautionary principle, principle of legal certainty, principle of proportionality, technical specification, vanadium








C_2022424EN.01004002.xml










7.11.2022   


EN


Official Journal of the European Union


C 424/40






Action brought on 5 September 2022 — Fachverband Eisenhüttenschlacken v Commission
(Case T-560/22)
(2022/C 424/53)
Language of the case: German

Parties


Applicant: Fachverband Eisenhüttenschlacken eV (Duisburg, Germany) (represented by: G. Franßen, lawyer, and Professor C. Koenig)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul Article 2(3) of Commission Delegated Regulation (EU) 2022/973 of 14 March 2022 supplementing Regulation (EU) 2019/1009 of the European Parliament and of the Council by laying down criteria on agronomic efficiency and safety for the use of by-products in EU fertilising products, and










—


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, alleging that the defendant exceeded its powers or misused its powers, in breach of EU law, by adopting Article 2(3) of Delegated Regulation (EU) 2022/973 (1) on the basis of the power conferred under the first sentence of Article 42(7) of Regulation (EU) 2019/1009. (2)

According to the applicant, pursuant to the first sentence of Article 42(7) of Regulation (EU) 2019/1009, the defendant may adopt delegated acts only for the purposes of agronomic efficiency and safety. Instead, the defendant laid down the limit values for the parameters ‘total chromium’ and ‘vanadium’ in Article 2(3)(a) and (c) of Delegated Regulation (EU) 2022/973 for the purposes of health and environmental protection. The laying down of the limit values for total chromium and vanadium is not covered by the legal basis in the first sentence of Article 42(7) of Regulation (EU) 2019/1009.










2.


Second plea in law, alleging breach of the precautionary principle pursuant to the second sentence of Article 42(7) of Regulation (EU) 2019/1009 on account of a misinterpretation of the present scientific evidence.
According to the applicant, the defendant, in adopting Article 2(3)(a) and (c) of Delegated Regulation (EU) 2022/973, failed to determine, analyse and evaluate the latest scientific evidence as well as base its decision to adopt Delegated Regulation (EU) 2022/973 on that evidence.










3.


Third plea in law, alleging breach of the principle of inquisitorial procedure, in particular the defendant’s official duty to determine and take account of the latest scientific evidence.
According to the applicant, the defendant failed sufficiently to determine the latest scientific evidence and to take account of that evidence in the adoption of Delegated Regulation (EU) 2022/973.










4.


Fourth plea in law, alleging breach of the principle of legal certainty on account of a failure to take account of the latest scientific evidence.
According to the applicant, the undertakings concerned by Delegated Regulation (EU) 2022/973 relied on the defendant laying down only those criteria that can be technically derived from the latest scientific evidence. In addition, those undertakings relied on the defendant laying down only criteria of agronomic efficiency and safety. The limit values for total chromium and vanadium do not constitute criteria of agronomic efficiency and safety. The addressees of Article 2(3) of Delegated Regulation (EU) 2022/973 were not able to predict the laying down of the limit values for total chromium and vanadium.










5.


Fifth plea in law, alleging breach of the principle of proportionality on account of the prohibition of lime-containing fertilising products from the steel industry by the adoption of Article 2(3)(a) and (c) of Delegated Regulation (EU) 2022/973.
According to the applicant, the limit values for total chromium and vanadium laid down by the defendant fail to take account of the principle of proportionality pursuant to the second sentence of Article 5(1) [and] Article 5(4) TEU, since the limit values exclude lime-containing fertilising products from the steel industry from the EU law on fertilising products, and, in the applicant’s submission, this will have, in many respects, negative effects on the environment, human, animal and plant health, the public interest in a safe and affordable supply of fertilising materials and food, and the interests of manufacturers and distributors.










6.


Sixth plea in law, alleging infringement of the defendant’s formal obligation to state reasons.
According to the applicant, the laying down of limit values for total chromium and vanadium is not sufficiently taken into consideration in the recitals of Delegated Regulation (EU) 2022/973. The defendant did not disclose the decisive (relevant) facts on the basis of which it laid down the limit values. It justified the laying down of the limit values with aspects of health and environmental protection. On the other hand, the criteria of agronomic efficiency and safety required under the legal basis in the first sentence of Article 42(7) of Regulation (EU) 2019/1009 were not addressed. Therefore, the reasoning that can be inferred from the recitals is, from a formal point of view alone, insufficient and incomplete. The considerations do not comply with the obligation to state reasons under the second paragraph of Article 296.










7.


Seventh plea in law, alleging material inaccuracy and incompleteness of the reasoning, resulting from the material inaccuracy and incompleteness of the technical derivation of the limit values for total chromium and vanadium.






(1)  Commission Delegated Regulation (EU) 2022/973 of 14 March 2022 supplementing Regulation (EU) 2019/1009 of the European Parliament and of the Council by laying down criteria on agronomic efficiency and safety for the use of by-products in EU fertilising products (OJ 2022 L 167, p. 29).

(2)  Regulation (EU) 2019/1009 of the European Parliament and of the Council of 5 June 2019 laying down rules on the making available on the market of EU fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation (EC) No 2003/2003 (OJ 2019 L 170, p. 1).