Orders nº T-429/18 of Tribunal General de la Unión Europea, February 13, 2019

• Resolution Date: February 13, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-429/18

(Application for interim measures - Public health - Implementing Regulation (EU) 2018/700 - Amendment of the lists of third-country establishments from which imports of specified products of animal origin are permitted, regarding certain establishments in Brazil - No urgency - Weighing-up of competing interests)

In Case T-429/18 R,

BRF SA, established in Itajaí (Brazil),

SHB Comercio e Industria de Alimentos SA, established in Itajaí,

represented by D. Arts and G. van Thuyne, lawyers,

applicants,

v

European Commission, represented by X. Lewis, B. Eggers and B. Hofstötter, acting as Agents,

defendant,

APPLICATION under Articles 278 and 279 TFEU seeking, principally, suspension of the application of Commission Implementing Regulation (EU) 2018/700 of 8 May 2018 amending the lists of third-country establishments from which imports of specified products of animal origin are permitted, regarding certain establishments from Brazil (OJ 2018 L 118, p. 1), either until a definitive ruling has been given on the action brought by the applicants under Article 263 TFEU, or until such date as determined by the President of the General Court, and, in the alternative, suspension of the application of that regulation in so far as it concerns the applicants’ establishments included in (i) the list of establishments authorised to import meat from poultry and lagomorphs from Brazil (Section II), (ii) the list of establishments authorised to import minced meat, meat preparations and mechanically separated meat from Brazil (Section V) which have generated no more than two notifications via the rapid alert system for food and feed between 1 March 2017 and 19 April 2018 or (iii) the list of establishments authorised to import meat products from Brazil (Section VI), or an order for any other or additional measure which the President of the Court may consider necessary or appropriate,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Background to the dispute, procedure and forms of order sought by the parties

1 The applicants, BRF SA and SHB Comercio e Industria de Alimentos SA, belong to the BRF capital group (‘the BRF Group’), a group of companies active in over 150 countries. The BRF Group has 58 production plants throughout the world and maintains a global network of approximately 13 000 integrated farms.

2 The BRF Group, acting through the applicants, is active in Brazil, a country which is the largest exporter of poultrymeat and poultrymeat preparations to the European Union.

3 In March 2017, the European Commission became aware that the Brazilian federal police were investigating, under Operation ‘Carne Franca’, fraud that had taken place in Brazil affecting meat and as part of which civil servants of the Brazilian Ministry of Agriculture were suspected of corruption in respect of their dealings with 21 establishments, including one belonging to the BRF Group.

4 In May 2017, the Commission’s Directorate-General (DG) for Health and Food Safety (‘DG Health’) carried out an audit in which serious concerns were expressed that steps had not been taken in response to recommendations that shortcomings established in previous audits be remedied.

5 DG Health carried out a subsequent audit from 22 January 2018 to 5 February 2018. In that audit, published on 25 June 2018 (‘the 2018 Audit Report’), it is apparent that measures had been taken and improvements had been made.

6 However, Operation ‘Trapaça’, a part of Operation ‘Carne Franca’, became known on 5 March 2018. This time, the fraud investigations were centred on establishments belonging to the BRF Group and involved meat intended for export to countries requiring salmonella tests, such as the EU Member States. More specifically, the investigations focused on laboratory tests for salmonella that had been falsified in order to circumvent the controls carried out by the competent authorities.

7 In the light of those revelations, the Commission called on the Brazilian authorities to suspend immediately the certification of all products from the implicated establishments, to recall those consignments not yet presented for import at EU border inspection points and to prohibit export to the European Union of all consignments certified by the implicated laboratories. The Brazilian authorities complied with the Commission’s requests.

8 At the request of the Brazilian authorities, two meetings were held on 23 March and 11 April 2018. At those meetings the Commission stated to the Brazilian authorities that fraud regarding laboratory certificates was an unacceptable criminal practice and that the establishments involved had to be excluded from the EU market.

9 On 17 April 2018, the Brazilian Minister for Agriculture waived the suspension in respect of the establishments of the BRF Group, and the Brazilian authorities resumed certifying products from those establishments for export.

10 On 19 April 2018, the Commission submitted a draft implementing regulation advocating the delisting of all of the applicants’ Brazilian establishments.

11 On 8 May 2018, the Commission adopted Implementing Regulation (EU) 2018/700 amending the lists of third-country establishments from which imports of specified products of animal origin are permitted, regarding certain establishments from Brazil (OJ 2018 L 118, p. 1) (‘the contested regulation’). The applicants’ establishments were removed from the list.

12 By application lodged at the Registry of the General Court on 13 July 2018, the applicants brought an action for annulment of the contested regulation.

13 By a separate document, lodged at the Court Registry on the same date, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the Court should:

- principally, suspend application of the contested regulation, either until a definitive ruling has been given on the action brought under Article 263 TFEU, or until such date as determined by the President of the Court;

- in the alternative, suspend application of the contested regulation in so far as it concerns their establishments included in (i) the list of establishments authorised to import meat from poultry and lagomorphs from Brazil (Section II), (ii) the list of establishments authorised to import minced meat, meat preparations and mechanically separated meat from Brazil (Section V) which have generated no more than two notifications via the rapid alert system for food and feed (‘RASFF’) between 1 March 2017 and 19 April 2018 (that is to say, the establishments with approval numbers 1, 18, 103, 292, 716, 928, 1001 and 4567) and (iii) the list of establishments authorised to import meat products from Brazil (Section VI);

- order any other or additional measure which the President of the Court may consider necessary or appropriate; and

- order the Commission to pay the costs.

14 In its observations on the application for interim measures, lodged on 1 August 2018, the Commission claims that the President of the Court should dismiss the application for interim measures and reserve the costs.

Law

General considerations

15 It is apparent from a reading of Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T-131/16 R, EU:T:2016:427, paragraph 12).

16 Article 156(4) of the Rules of Procedure requires applications for interim measures to state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for.

17 The judge hearing an application for interim measures may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to...