Judgments nº T-429/18 of Tribunal General de la Unión Europea, July 08, 2020

• Resolution Date: July 08, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-429/18

(Public health - Specific rules for the organisation of official controls on products of animal origin intended for human consumption - Amendment of the lists of third country establishments from which imports of specified products of animal origin are permitted, regarding certain establishments from Brazil - Article 12(4)(c) of Regulation (EC) No 854/2004 - Comitology - Obligation to state reasons - Rights of defence - Powers of the Commission - Equal treatment - Proportionality)

In Case T-429/18,

BRF SA, established in Itajaí (Brazil),

SHB Comércio e Indústria de Alimentos SA, established in Itajaí,

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

applicants,

v

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

defendant,

APPLICATION under Article 263 TFEU for the annulment 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),

THE GENERAL COURT (Fifth Chamber, Extended Composition),

composed of D. Gratsias (Rapporteur), President, S. Frimodt Nielsen, J. Schwarcz, V. Valančius and R. Frendo, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written part of the procedure and further to the hearing on 21 January 2020,

gives the following

Judgment

Background to the dispute

1 The applicants, BRF SA and SHB Comércio e Indústria de Alimentos SA, belong to the BRF capital group, which is vertically integrated and active in the production and distribution of meat, including poultry meat, in more than 150 countries. In 2017, that group exported, through the applicants, 152 107 tonnes of poultry meat from Brazil to the EU market, representing approximately 38% of all Brazilian imports for that year.

2 Ten establishments belonging to the first applicant and two establishments belonging to the second applicant were, as undertakings exporting meat and meat products, including poultry meat, to the EU market, among those to appear on the lists drawn up under Article 12 of Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (OJ 2004 L 139, p. 206). The lists in question name the establishments whose products of animal origin may be imported into the European Union.

3 On 21 February 2018, the Commission submitted to the Standing Committee on Plants, Animals, Food and Feed (‘the Standing Committee’) for its opinion, pursuant to Article 12(4)(c) of Regulation 854/2004, a draft of an implementing regulation on the delisting of certain third country establishments from which products of animal origin may be imported into the European Union. All the establishments concerned were located in Brazil.

4 On 10 April 2018, the Commission submitted to the Standing Committee a first amended version of the draft implementing regulation referred to in paragraph 3 above. On 19 April 2018, the Commission submitted a second amended version of the draft. The Standing Committee discussed it at its meeting of 19 April 2018 and gave a favourable opinion on the same day.

5 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 implementing regulation’).

6 Pursuant to the contested implementing regulation, a number of Brazilian establishments, including the 12 establishments belonging to the applicants referred to in paragraph 2 above, were removed from the lists in question.

7 It is apparent from recitals 4 to 6 of the contested implementing regulation that the decision to delist the said establishments was based on the notification, through the rapid alert system (‘RASFF notification’), of a ‘significant number of serious and repeated cases’ of non-compliance with EU requirements due to the presence of salmonella in poultry meat and poultry meat preparations from those establishments. What is more, the Brazilian authorities had failed to take the requisite corrective actions to address the shortcomings identified, meaning that they could no longer be regarded as providing sufficient guarantees that imports of the products in question complied with public health rules.

8 In addition, it is also apparent from the information supplied by the Brazilian authorities that cases of fraud had been detected in March 2018 in Brazil concerning laboratory certification for meat and meat products exported to the European Union. Investigations into those cases indicated that there had been no sufficient guarantees of compliance with EU requirements in relation to the establishments belonging to the applicants.

Procedure and forms of order sought

9 By application lodged at the Court Registry on 13 July 2018, the applicants brought the present action. The defence, reply and rejoinder were lodged on 28 September 2018, 22 November 2018 and 7 January 2019, respectively.

10 By separate document lodged at the Court Registry on 13 July 2018 and registered as Case T-429/18 R, the applicants applied for suspension of the operation of the decision.

11 By letter of 9 January 2019, the parties were informed that the written part of the procedure had been closed and that they could request that a hearing be held under the conditions set out in Article 106 of the Rules of Procedure of the General Court. By letter of 30 January 2019, the applicants requested that a hearing be held.

12 By order of 13 February 2019, BRF and SHB Comércio e Indústria de Alimentos v Commission (T-429/18 R, not published, EU:T:2019:98), the President of the General Court dismissed the application to suspend the operation of the decision and costs were reserved.

13 As two members of the Fifth Chamber were unable to sit in the case, two other judges were designated to complete the Chamber.

14 On a proposal from the Fifth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to assign the case to a Chamber sitting in extended composition.

15 By way of measures of organisation of procedure, adopted on 29 January, 12 September and 21 November 2019, the Court requested the parties to reply to a series of questions and to produce certain documents. The parties complied with those requests within the periods prescribed.

16 The hearing was held on 21 January 2020.

17 The applicants claim that the Court should:

- annul the contested implementing regulation in its entirety or, in the alternative, to the extent that it concerns the establishments belonging to them;

- order the Commission to pay the costs.

18 The Commission contends that the Court should:

- dismiss the action;

- order the applicants to pay the costs.

Law

19 In support of their action, the applicants put forward six pleas in law, alleging, respectively:

- infringement of the obligation to state reasons;

- infringement of their rights of defence;

- infringement of Article 12(2) and (4)(c) of Regulation No 854/2004;

- infringement of the principle of non-discrimination;

- infringement of the principle of proportionality;

- infringement of Article 291(3) TFEU and of Articles 3, 10 and 11 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).

20 In addition to the fact that the Commission disputes the merits of all those pleas, it submits that the applicants are not entitled to seek the annulment of the contested implementing regulation in its entirety, on the ground that, apart from the 12 establishments belonging to the applicants, that regulation purports to remove from the lists drawn up in accordance with Article 12 of Regulation No 854/2004 eight other establishments which are not linked to the applicants.

21 It is therefore necessary to determine the extent to which the applicants have standing to bring an action for annulment of the contested implementing regulation.

Applicants’ standing to bring proceedings

22 In order to rule on the applicants’ standing to bring proceedings, it is necessary to assess, as a preliminary step, the nature of the contested implementing regulation. That assessment requires setting out the context in which an implementing regulation of that type was adopted.

23 In that regard, it should be noted that, according to Article 1(1) thereof, Regulation No 854/2004 lays down specific rules for the organisation of official controls on products of animal origin. Thus, Chapter II of that regulation, containing Articles 3 to 8, is dedicated to the official controls relating to establishments situated within the European Union, whereas Chapter III thereof, comprising Articles 10 to 15, deals with the procedures concerning imports.

24 As regards the procedures concerning imports, Article 11(1) of Regulation No 854/2004 provides that products of animal origin are to be imported only from a third country or a part of a third country that appears on a list drawn up and updated by the Commission pursuant to an implementing act adopted in accordance with the procedure referred to in Article 19(2) of that regulation.

25 The conditions which a third country must meet in order to appear on such a list are laid down in Article 11(2) to (4) of Regulation No 854/2004, as amended pursuant to Article 60 of Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules...