The circumstances of some cases seem, well… how can it be said delicately…. a little strange. Take the recent Case T-17/12 Moritz Hagenmeyer and Andreas Hahn v Commission, for example.
The two applicants had applied for a health claim – a reduction of disease risk claim in particular – to be authorised and included in an EU list of permitted claims in accordance with Article 14, 15 and following of Regulation 1924/2006 on nutrition and health claims made on foods. What was the reduction of disease risk claim in question ? Something to the effect that drinking lots of water regularly can reduce the risk of dehydration and a concomitant reduction of performance.
Been thirsty, anyone ? And before you drown yourself in fluids, take note of the Boston Athletic Association’s warning on hyponatremia…. Trust me, you don’t want to suffer from hyponatremia. But I digress…
The two applicants applied to the competent German authority which then transmitted the file to EFSA which then sent its opinion to the Commission which in turn consulted the relevant committee on a draft regulation which then gave its opinion on it to the Commission which then adopted Regulation 1170/2011. That Regulation 1170/2011 refused to authorise the reduction of disease claim.
The two applicants sought its annulment in the General Court. Their action was dismissed by the judgment of 30 April 2014 on the grounds that the refusal to include the claim was properly founded.
There were pleas and submissions in abundance, in a manner worthy of a convoluted competition case. No need to detain you with them all.
Two of them are more general and quite interesting though. First, the applicants claimed that the German authority and EFSA had acted ultra fires by giving a legal interpretation of Regulation 1924/2006 which they had no power to give. The General Court held that even if that were so, it had no effect on the outcome of the procedure. The Court recalled that a procedural error in the adoption of a measure can only lead to its annulment if it can be shown that, are it not for that error, the measure would have had a different content (Joined Cases 209/78 to 215/78 and 218/78 van Landewyck v Commission, EU:C:1980:248, paragraph 47; Case C-142/87 Belgium v Commission EU:C:1990:125, paragraph 48 and Joined Cases C-465/02 and C-466/02 Germany and Denmark v Commission, EU:C:2005:636, paragraph 37).
The second point concerns administrative deadlines. The applicants claimed that the whole process took too long and the national authority, EFSA and the Commission had failed to keep to the deadlines set in Regulation 1924/2006.
The Court held that even when a precise deadline is not set in the Regulation, a general principle of EU law requires that a reasonable deadline be respects (Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission, EU:T:1997:157, paragraph 56). What constitutes a reasonable deadline depends on the particular circumstances of each case, the importance of the case for the interested party and the complexity of the case as well as the behaviour of the parties (by analogy, Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission, EU:C:2007:52, paragraph 116).
The Court found that the German national authority had exceeded a reasonable time to transmit the request to the EU bodies and EFSA took 29 months instead of 5 months to give its opinion. Consequently, the time taken for the process was excessive.
Nevertheless, the Court recalled that unless the Regulation lays down, expressly or impliedly, the consequences of failing to respect a deadline, exceeding it will only lead to the annulment of the measure if it is established that the measure in question would have had a different content but for the irregularity in the procedure (Case T-475/07 Dow AgroSciences and others v Commission, EU:T:2011:445, paragraph 203).
In this particular case, the Court held that the applicant had failed to show that the outcome of the procedure would have been different had it not been for the irregularities at issue. Consequently, the action was dismissed.
And even though the various bodies had not respected deadlines, the applicants are ordered to pay all the costs.