Case T-39/23: Action brought on 2 February 2023 — Acqua & Sole v Commission
Date: 2023-02-02
Institutions: General Court
Subjects: Italy, abuse of power, agri-environmental plan, circular economy, equal treatment, fertiliser, pollution from agricultural sources, principle of proportionality, sewage sludge, waste recycling








C_2023127EN.01004301.xml










11.4.2023   


EN


Official Journal of the European Union


C 127/43






Action brought on 2 February 2023 — Acqua & Sole v Commission
(Case T-39/23)
(2023/C 127/55)
Language of the case: Italian

Parties


Applicant: Acqua & Sole Srl (Milan, Italy) (represented by: P. Ferraris, E. Robaldo and F. Trolli, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:






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Annul the implementing decision of the European Commission of 2 December 2022 C(2022) 8645 final approving the 2023-2027 CAP Strategic Plan of Italy, in so far as, in the statements concerning interventions in the field of environmental and climate commitments, the plan establishes, as a commitment which must be observed in order for contributions to be paid, a prohibition on the agricultural use of activated sludges or any other waste recovered in R10 operations within the meaning of Part IV of Decreto legislativo n. 152/2006 (Legislative Decree No 152/2006) and requires that only fertilisers approved under Regulation (EU) No 2019/1009 and/or organic fertilisers whose constituent matrices are included therein be used.





Pleas in law and main arguments

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






1.


First plea, alleging infringement of Regulation (EU) No 2021/2115 (1) and of the communication of the European Commission titled ‘Ensuring availability and affordability of fertilizers — COM (2022) 590 final’ of 9 November 2022.






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Regulation (EU) No 2021 2115, in governing the allocation of agricultural contributions, contains no provision precluding the use of activated sludges and products derived therefrom, the use of which is in fact incentivised, in the context of the CAP, by the European Commission itself, which has expressed clearly that it is in favour of the use of sludges in agriculture, most recently in the communication ‘Ensuring availability and affordability of fertilizers — COM (2022) 590 final’ of 9 November 2022.














2.


Second plea, alleging infringement of Directive 2008/98/EC (2) and of Directive EU 2018/851, (3) the principles of a circular economy and Directive EEC 86/278. (4)







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The general prohibition on using activated sludges recovered from agriculture established in the national 2023-2027 CAP Strategic Plan approved by the Commission and, therefore, the burden associated with that activity as compared with fertilisers under Regulation (EU) No 2019/1009, (5) contrasts clearly with the current development model selected at Community level, which is based on the so-called ‘circular economy’ and on using waste to produce energy, with the aim of preserving natural resources.














3.


Third plea, alleging infringement of Directive EEC 86/278 and distortion of the market and competition which is detrimental to operators in the activated sludge recovery sector.






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The general prohibition on using activated sludges recovered from agriculture causes impermissible and unjustified distortive effects on competition which, in addition to being contrary to Directive EEC 86/278, undermine the market position of other operators active in the activated sludge recovery sector, disadvantaging them as compared with producers of other organic and chemical fertilisers.














4.


Fourth plea, alleging infringement of Article 296(2) TFEU, Regulation (EU) No 2021/2115 and Directive EEC 86/278. Failure to investigate, misrepresentation of the facts, conditions not satisfied, contradiction, manifest lack of logic, difference in treatment and serious failure to state reasons.






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The national strategic plan approved by the Commission, in so far as it prohibits the use of activated sludges and other waste recovered in R10 operations and fertilisers not covered by Regulation (EU) No 2019/1009, is entirely unjustified — a circumstance which makes it clear that the relevant conditions have not been met and that the legislation on the recovery of activated sludges in agriculture is being infringed — and establishes an impermissible difference in treatment compared to other fertilisers.














5.


Fifth plea, alleging infringement of Regulation (EU) No 2021/2115 and failure to observe the principle of proportionality.






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The establishment of the objectives pursued by the contested environmental and climate interventions is in no way subject to or prejudiced by the use of activated sludges in agriculture, the use of which is, in fact, entirely irrelevant for the purpose of protecting the environment and improving agricultural practices, and therefore the burden imposed on the applicant, besides being unjustified, is disproportionate and excessively onerous as compared with the alleged protective benefit.














6.


Sixth plea, alleging a misuse of powers on the basis that they have been used for improper purposes. Conditions for the adoption of a prohibition on the use of sludges and derivatives thereof have not been satisfied.






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The choice to prohibit, in the context of the contested environmental and climate interventions, the use of sludges — which has no specific justification from a technical scientific perspective and in respect of which virtually no technical reasons have been provided — reflects the actual, distorted objective pursued, namely to preclude the agricultural re-use of activated sludges, which disadvantages, at a financial level, agricultural businesses wishing to fertilise their land in that way.














7.


Seventh plea, alleging infringement of Article 70 of Regulation (EU) No 2021/2115 of 2 December 2021 and failure to obverse the principle of proportionality.






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The national strategic plan approved by the Commission established a commitment period of 5 years for the contested environmental and climate interventions, whereas Article 70(3) of Regulation (EU) No 2021/2115 provides that the maximum duration is 24 months.










(1)  Regulation (EU) 2021/2115 of the European Parliament and of the Council of 2 December 2021 establishing rules on support for strategic plans to be drawn up by Member States under the common agricultural policy (CAP Strategic Plans) and financed by the European Agricultural Guarantee Fund (EAGF) and by the European Agricultural Fund for Rural Development (EAFRD) and repealing Regulations (EU) No 1305/2013 and (EU) No 1307/2013 (OJ 2021 L 435, p. 1).

(2)  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3).

(3)  Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018 amending Directive 2008/98/EC on waste (OJ 2018 L 150, p. 109).

(4)  Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture (OJ 1986 L 181, p. 6).

(5)  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).