25.9.2010

EN

Official Journal of the European Union

C 260/25

(Case T-322/10)

()

2010/C 260/35

Language of the case: English

Parties

Applicant: Clasado Ltd. (Milton Keynes, United Kingdom) (represented by: G.C. Facenna, Barrister, M.E. Guinness and M.C. Hann, Solicitors)

Defendant: European Commission

Form of order sought

—Annul those parts of Commission Regulations (EU) No 382/2010 (1) and No 384/2010 (2) of 5 May 2010 relating to health claims submitted by the applicant in respect of Bimuno BT (BGOS) Prebiotic; and

—Order the defendant to pay the costs of the applicant.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of those parts of Commission Regulations (EU) No 382/2010 and No 384/2010 of 5 May 2010, where it has been decided that health claims submitted by the applicant in respect of Bimuno BT (BGOS) Prebiotic, a prebiotic food supplement designed to support the immune system and gastrointestinal health in humans, and reduce the risk of travellers’ diarrhoea, do not comply with the requirements of Regulation (EC) No 1924/2006 (3), and thus should not be authorised.

In support of his action, the applicant submits the following pleas in law:

Firstly, the Commission infringed an essential procedural requirement when it adopted the regulations in question, namely the procedure for comment by the applicant and public under Article 16(6) and 17 of Regulation (EC) No 1924/2006.

Secondly, in doing so the Commission also wrongly disregarded Article 38(1) of Regulation (EC) No 178/2002 (4), which is designed to ensure that the European Food Safety Agency carries out its activities with a high level of transparency.

In addition, by concluding that supplementary comments made by the European Food Safety Agency on the applicant’s applications on 4 December 2009 did not constitute an opinion, or part of the opinion, referred to in Article 16 of Regulation (EC) No 1924/2006, the regulations in question were adopted on the basis of an error of law.

Furthermore, the Commission’s regulations whose annulment is being sought were adopted in violation of Clasado’s right to be heard under Article 41 of the Charter of Fundamental Rights of the European Union (5), and its legitimate expectations.

Finally, the Commission also infringed the right to sound administration, which is one of the general principles common to the constitutional traditions of the Member States, and in particular its obligation as the decision-maker under Article 17 of Regulation (EC) No 1924/2006 to apply diligent and independent scrutiny to all the relevant material before it.

(1) Commission Regulation (EU) No 382/2010 of 5 May 2010 refusing to authorise certain health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health (OJ 2010 L 113, p. 1).

(2) Commission Regulation (EU) No 384/2010 of 5 May 2010 on the authorisation and refusal of authorisation of certain health claims made on foods and referring to the reduction of disease risk and to children’s development and health (OJ 2010 L 113, p. 6).

(3) 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).

(4) Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1).

(5) Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 389).