The Health Food Manufacturers' Association and Others v European Commission.

• Jurisdiction: European Union
• Celex Number: 62012TJ0296
• ECLI: ECLI:EU:T:2015:375
• Court: General Court (European Union)
• Date: 12 June 2015
• Docket Number: T-296/12
• Procedure Type: Recurso de anulación - infundado

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

12 June 2015 ( *1 )

‛Consumer protection — Regulation (EU) No 432/2012 — Health claims made on foods — Actions for annulment — Regulatory act not entailing implementing measures — Whether directly concerned — Admissibility — Infringement of Articles 13 and 28 of Regulation (EC) No 1924/2006 — Principle of good administration — Non-discrimination — Incorrect assessment criteria — Regulation No 1924/2006 — Plea of illegality — Right to be heard — Legal certainty — Unreasonable transition period — List of claims on hold’

In Case T‑296/12,

The Health Food Manufacturers’ Association, established in East Molesey (United Kingdom),

Quest Vitamins Ltd, established in Birmingham (United Kingdom),

Natures Aid Ltd, established in Kirkham (United Kingdom),

Natuur-& gezondheidsProducten Nederland, established in Ermelo (Netherlands),

New Care Supplements BV, established in Oisterwijk (Netherlands),

represented by B. Kelly and G. Castle, Solicitors, and P. Bogaert, lawyer,

applicants,

supported by

FederSalus, established in Rome (Italy),

Medestea biotech SpA, established in Turin (Italy),

and

Naturando Srl, established in Osio Sotto (Italy),

represented by E. Valenti and D. Letizia, lawyers,

interveners,

v

European Commission, represented by L. Flynn and S. Grünheid, acting as Agents,

defendant,

supported by

French Republic, represented initially by D. Colas and S. Menez, and subsequently by D. Colas and S. Ghiandoni, acting as Agents,

by

European Parliament, represented by J. Rodrigues and L. Visaggio, acting as Agents,

by

Council of the European Union, represented by I. Šulce and M. Moore, acting as Agents,

and by

Bureau européen des unions de consommateurs (BEUC), established in Brussels (Belgium), represented by S. Pappas, lawyer,

interveners,

ACTION for annulment of Commission Regulation (EU) No 432/2012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health (OJ 2012 L 136, p. 1), and the alleged decision of the Commission adopting a list of ‘on-hold’ health claims,

THE GENERAL COURT (Eighth Chamber),

composed of M. Kancheva (Rapporteur), acting as President, C. Wetter and E. Bieliūnas, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 22 October 2014,

gives the following

Judgment

Background to the dispute

1 The applicants, The Health Food Manufacturers’ Association, Quest Vitamins Ltd, Natures Aid Ltd, Natuur-& gezondheidsProducten Nederland and New Care Supplements BV, are established in the United Kingdom and in the Netherlands and are, on the one hand, undertakings which produce and market food supplements and health foods on the European market and, on the other, professional associations which represent the interests of undertakings involved in such activities. They make health claims about their products on the product labelling and in advertisements for those products on a daily basis.

2 Following the adoption of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (OJ 2006 L 404, p. 9), the applicants submitted health claims to the authorities of their respective Member States for the purposes of the procedure provided for under Article 13(1) to (3) of that regulation. The Commission of the European Communities then received a total of approximately 44000 health claims from the Member States, pursuant to Article 13(2) of that regulation. On the basis of those health claims the Commission compiled a consolidated list with a view to avoiding duplication and repetitions, and established a coding system, which it published on the internet, in order to ensure, it states, a consistent handling of the national lists and the identification of those claims by means of ‘ID’ numbers.

3 On 24 July 2008, the Commission formally transmitted to the European Food Safety Authority (‘the EFSA’) a request for a scientific opinion pursuant to Article 13(3) of Regulation No 1924/2006 (‘the request for a scientific opinion’), together with the first part of the consolidated list. The remaining parts of that list were transmitted in November and December 2008 after consultation of the Member States, then, by way of an addendum, in March 2010 which increased the final number of health claims to be examined to 4 637.

4 Between October 2009 and July 2011, the EFSA proceeded with the scientific evaluation of the health claims transmitted by the Commission.

5 On 16 May 2012, pursuant to Article 13(3) of Regulation No 1924/2006, the Commission adopted Regulation (EU) No 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health (OJ 2012 L 136, p. 1). In that regulation, it authorised a partial list of 222 health claims corresponding to 497 entries included in the consolidated list for which the EFSA had essentially concluded that a cause and effect relationship had been established between a food category, a food or one of its constituents and the claimed effect (‘the list of permitted claims’). Those claims, as well as other claims which were rejected, were also entered in the Union Register of nutrition and health claims made on foods, established by the Commission, pursuant to Article 20(2)(c) and (d) of Regulation No 1924/2006. Moreover, the Commission stipulated that Regulation No 432/2012 would be applicable six months after its entry into force, namely from 14 December 2012, in order to enable food business operators to adapt to its provisions, in particular the marketing prohibition laid down in Article 10(1) of Regulation No 1924/2006, those health claims whose evaluation by the EFSA and whose consideration by the Commission had been completed.

6 On the same date, the Commission identified a list of more than 2000 claims in respect of which the EFSA had not completed its evaluation or the Commission itself had not yet completed its consideration, and published that list on its webpage (‘the list of health claims on hold’). According to the Commission, those health claims, which concerned, inter alia, the effects of plant or herbal substances, commonly known as ‘botanical substances’, remained on hold and therefore could continue to be used in accordance with the transitional scheme provided for in Article 28(5) and (6) of Regulation No 1924/2006.

Procedure and forms of order sought by the parties

7 By application lodged at the Court Registry on 2 July 2012, the applicants brought the present action.

8 By document lodged at the Court Registry on 25 September 2012, the Czech Republic sought leave to intervene in support of the Commission.

9 By document lodged at the Court Registry on 26 September 2012, the Council of the European Union sought leave to intervene in support of the Commission.

10 By document lodged at the Court Registry on 28 September 2012, the Bureau européen des unions de consommateurs (‘the BEUC’) sought leave to intervene in support of the Commission.

11 By document lodged at the Court Registry on 28 September 2012, FederSalus, Medestea biotech SpA and Naturando Srl sought leave to intervene in support of the applicants.

12 By document lodged at the Court Registry on 2 October 2012, the European Parliament sought leave to intervene in support of the Commission.

13 By document lodged at the Court Registry on 3 October 2012, the French Republic sought leave to intervene in support of the Commission.

14 By letters received at the Court Registry on 24 October 2012, the applicants requested, pursuant to Article 116(2) of the Rules of Procedure of the General Court, that certain confidential information in the annexes to the application should not be disclosed to the interveners, in the event that they were granted leave to intervene in the proceedings. The applicants produced, for the purpose of disclosure to the interveners, a non-confidential version of the procedural documents in question.

15 By order of 16 January 2013, the President of the First Chamber of the General Court granted leave to the Czech Republic, the Council, the Parliament, the French Republic and the BEUC to intervene in support of the Commission and to FederSalus, Medestea biotech and Naturando to intervene in support of the applicants. Furthermore, the President of the First Chamber of the General Court reserved the decision as to whether the application for confidential treatment was well founded and, as a provisional measure, restricted the provision of procedural documents to those parties to a non-confidential version, pending the submission of any observations on the application for confidential treatment.

16 By letter lodged at the Court Registry on 7 February 2013, the BEUC raised objections to the applicants’ request for confidential treatment.

17 By document lodged at the Court Registry on 3 April 2013, the Czech Republic informed the General Court that it no longer wished to intervene in support of the Commission.

18 By order of 5 July 2013, the Czech Republic was removed from the register as an intervener in the present case.

19 After a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which the present case was, accordingly, assigned.

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