14.5.2018

Official Journal of the European Union

C 166/44

(Case T-201/18)

(2018/C 166/56)

Language of the case: Italian

Parties

Applicants: Diusa Rendering Srl (Piacenza, Italy), Assograssi — Associazione Nazionale Produttori Grassi e Proteine Animali (Buccinasco, Italy) (represented by: M. Moretto, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—declare that, by failing to put to a vote, by the Regulatory Committee, a draft proposal to re-examine the prohibition on exporting organic fertilisers and soil improvers derived from materials in Category 2, provided for in Article 43(3) of Regulation No 1069/2009, pursuant to the procedure laid down in Article 5a of Decision 1999/648/EC, the European Commission has failed to fulfil its obligations under Regulation No 1069/2009, Regulation No 178/2001 and Regulation No 999/2001 and breached the general principles of non-discrimination and proportionality;

—order the defendant to pay the costs.

Pleas in law and main arguments

The applicants submit that, until 2011, the export to third countries of organic fertilisers and soil improvers (OFSIs) derived from animal by-products in Category 2 (and/or 3) was permitted, the sole exception being the ban on exporting OFSIs containing processed animal protein (PAP) derived from ruminants, following the entry into force of Regulation (EC) No 1069/2009 of the European Parliament and of the Council of 21 October 2009 laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) (OJ 2009 L 300, p. 1), and because of the Commission’s failure to adopt the necessary implementation provisions the export to third countries of OFSIs derived from Category 2 materials is now prohibited. That ban is still in force, although almost all the EU Member States are now countries recognised as having a negligible BSE risk, despite the fact that the international standard determined by the Office international des épizooties (OIE) does not provide for a similar ban on OFSIs originating in countries with that risk status.

Moreover, the applicants continue, although the export of OFSIs derived from Category 2 materials — even those originating in Member States recognised as having a negligible BSE risk — is prohibited, the European Union authorises the marketing and use of those products on its territory; it thereby acknowledges that, in fact, OFSIs derived from Category 2 materials in accordance with the requirements imposed by Regulation No 1069/2009 and Commission Regulation (EU) No 142/2011 of 25 February 2011 implementing Regulation (EC) No 1069/2009 of the European Parliament and of the Council laying down health rules as regards animal by-products and derived products not intended for human consumption and implementing Council Directive 97/78/EC as regards certain samples and items exempt from veterinary checks at the border under that Directive (Text with EEA relevance) (OJ 2011 L 54, p. 1) do not represent a risk to human or animal health.

According to the applicants, although the European Union imposes a complete ban on exporting the OFSIs in the present case, it authorises imports from third countries — including from countries recognised as having a controlled or undetermined BSE risk — not only of foodstuffs and feed that may have been produced using OFSIs originating from third countries whose safety standards are not necessarily the same as those guaranteed in respect of OFSIs produced in the European Union, but also imports of live animals and fresh animal meat (pigs and poultry) that might have been directly fed with meal derived from, inter alia, ruminant materials.

The damage suffered by EU operators as a result of that ban on exporting OFSIs derived from Category 2 by-products is, in the applicants’ view, enormous.

The pleas in law and main arguments are similar to those raised in Case T-189/18, Lipitalia 2000 and Assograssi v Commission.

The applicants rely, in particular, on the infringement of Articles 43(3) and 52(4) of Regulation No 1069/2009.