Orders nº T-568/19 of Tribunal General de la Unión Europea, September 26, 2019

• Resolution Date: September 26, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-568/19

(Application for interim measures - Bacteriophage - Listeria - ListexTM P100 - Inadmissibility)

In Case T-568/19 R,

Micreos Food Safety BV, established in Wageningen (Netherlands), represented by S. Pappas, lawyer,

applicant,

v

European Commission, represented by B. Eggers, W. Farrell and I. Galindo Martín, acting as Agents,

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU seeking the suspension of the alleged decision by the European Commission of 17 June 2019 by which it allegedly prohibited the placing on the market of ListexTM P100 for use as a processing aid on animal derived Ready-To-Eat-Food,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Background to the dispute, procedure and forms of order sought

1 The applicant, Micreos Food Safety BV, is the producer of a number of phage products both for pharmaceutical and food safety use.

2 The product ListexTM P100 is used to reduce the pathogenic bacterium Listeria monocytogenes from Ready-To-Eat-Food (‘RTE-Food’).

3 According to the applicant, its product ListexTM P100 has been marketed in the European Union since 2006 as a non-decontamination processing aid without having been formally classified as such. Furthermore, according to the applicant, it is ‘recognised in the EU’ as a processing aid for use on fruits and vegetables.

4 In 2007, the applicant approached the European Commission seeking confirmation of the use of Listex® P100 as a non-decontaminating processing aid on animal-derived RTE-Food on the basis of Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives (OJ 2008 L 354, p. 16). However, the Commission took the view that the use of Listex® P100 on animal-derived RTE-Food should be addressed as a ‘decontaminant’ requiring approval in accordance with Article 3(2) of Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (OJ 2004 L 139, p. 55).

5 In 2009, the Netherlands approved its use as a processing aid on animal derived RTE-Food such as cheese.

6 On 19 June 2015, the applicant, despite its objections that Listex® P100 should not be considered as a ‘decontaminant’, submitted a file for approval of the use of the product under Regulation No 853/2004.

7 On 19 February 2018, the Commission informed the applicant that, due to the absence of sufficient ‘political support’ for approval of Listex® P100 under Regulation No 853/2004, it intended not to pursue the approval process further.

8 On 25 April 2019, PA International, acting on behalf of the applicant, approached the Commission and requested, among other things, the recognition of Listex® P100 as a non-decontaminating processing aid.

9 Similarly, by letter of 9 May 2019, the applicant requested the Commission to approve the use of Listex® P100 on animal-derived RTE-Food as a non-decontaminating processing aid.

10 The Commission responded by letters of 17 June 2019, sent to the applicant and to its representative, PA International (‘the contested acts’).

11 By application lodged at the Court Registry on 16 August 2019, the applicant brought an action against the Commission for annulment of the contested acts.

12 It appears, prima facie, that the applicant interprets the contested acts as ‘forming a unity’, by which the Commission ‘(a) definitively refrained from the pursuance of the relevant Comitology procedure in relation to the Commission Draft Regulation “permitting the use of Listex® P100 for the reduction of Listeria monocytogenes on Ready-To-Eat products of animal origin” as a decontaminant under Regulation (EC) 853/2004, (b) refused to examine such use of Listex® P100 as a non-decontaminating processing aid and (c) prohibited for the first time the further placing on the market of Listex® P100 being on the market since 2006 for use as a processing aid on animal-derived Ready-To-Eat food’.

13 By separate document lodged at the Court Registry on the same day, the applicant brought the present application for interim measures, in which it claims that the President of the General Court should:

- ‘order the suspension of the application of all the provisions of the [contested acts] until the Court has ruled on the application for annulment submitted by the applicant’;

- order, pursuant to Article 157(2) of the Rules of Procedure of the General Court, the immediate suspension of the ‘operation of the contested regulation pending the adoption of an order which will bring the interim proceedings to an end’;

- order the Commission to pay the costs.

14 The President of the General Court, taking the view that there was no scope for the immediate adoption of the requested measures, invited the Commission to submit its observations by 4 September 2019.

15 In its observations on the application for interim measures, lodged at the Court Registry on 3 September 2019, the Commission contends that the President of the General Court should:

- dismiss the application for interim measures;

- reserve the costs.

Law

16 It is apparent from reading 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...