Case T-43/23: Action brought on 27 January 2023 — SCC Legal v Commission
Date: 2023-01-27
Institutions: General Court
Subjects: chemical salt, market approval, plant health control, plant health product, principle of subsidiarity, sodium








C_2023164EN.01004202.xml










8.5.2023   


EN


Official Journal of the European Union


C 164/42






Action brought on 27 January 2023 — SCC Legal v Commission
(Case T-43/23)
(2023/C 164/59)
Language of the case: German

Parties


Applicant: SCC Legal Rechtsanwaltgesellschaft mbH (Bad Kreuznach, Germany) (represented by: C. Stallberg and C. Binder, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


declare that the defendant, following completion of the consultation procedure, failed, contrary to EU law, to initiate the subsequent regulatory procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), fourth subparagraph, in conjunction with Article 79(3) of 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 (OJ 2009 L 309, p. 1);










—


in the alternative, declare that the defendant, following initiation of the formal consultation procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), second subparagraph, of Regulation (EC) No 1107/2009, upon receipt and assessment of the Member States’ comments, failed, contrary to EU law, to pursue the procedure, in particular to inform the authority and the interested party and to set a time limit for comments;










—


in the further alternative, declare that the defendant failed, contrary to EU law, to initiate the formal consultation procedure for withdrawal of the approval of the basic substance sodium hydrogen carbonate pursuant to Article 23(6), second subparagraph, of Regulation (EC) No 1107/2009;










—


order the defendant to pay the costs.





Pleas in law and main arguments

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






1.


First plea in law, alleging infringement of the obligation to initiate the withdrawal procedure for the approval of a basic substance for which the approval criteria have subsequently been removed
The applicant is the holder of an authorisation of the plant protection product NatriSan® which contains sodium hydrogen carbonate as an active substance. By authorising NatriSan®, the approval criteria for sodium hydrogen carbonate as a basic substance pursuant to Article 23(1), subparagraph 2, point (d), of Regulation (EC) No 1107/2009 have been removed, with the result that the defendant is under an obligation to withdraw the approval of the basic substance. By failing to initiate the relevant regulatory procedure for withdrawal of the approval of the basic substance despite requests to do so, the defendant infringes that obligation.










2.


Second plea in law, alleging infringement of the principle of subsidiarity in relation to the approval procedure for basic substances
Failure to initiate the regulatory procedure for withdrawal of the approval of the basic substance infringes the phytosanitary principle of subsidiarity protecting the applicant, according to which the approval of a basic substance is to be withdrawn as soon as a substance is marketed as a plant protection product.










3.


Third plea in law, alleging infringement of the priority principle during the approval procedure for basic substances
According to the priority principle, the authorisation of NatriSan® precludes the approval of that substance as a basic substance and requires the defendant to withdraw the approval of the basic substance and to initiate the relevant procedure.










4.


Fourth plea in law, alleging infringement of the principle of the protection of legitimate expectations
The applicant was entitled to rely on a legitimate expectation that, following the phytosanitary authorisation of NatriSan®, the defendant would immediately withdraw the authorisation of sodium hydrogen carbonate as a basic substance. Failure to initiate the regulatory procedure for withdrawal of the approval of the basic substance thus gives rise to an infringement of the principle of the protection of legitimate expectations under EU law.