Appeal brought on 14 February 2017 by TestBioTech eV, European Network of Scientists for Social and Environmental Responsibility eV, Sambucus eV against the judgment of the General Court (Fifth Chamber) delivered on 15 December 2016 in Case T-177/13: TestBioTech eV, European Network of Scientists for Social and Environmental Responsibility eV, Sambucus eV v Commission

(Case C-82/17 P)

Language of the case: English

Parties

Appellants: TestBioTech eV, European Network of Scientists for Social and Environmental Responsibility eV, Sambucus eV (represented by: K. Smith QC, J. Stevenson, Barrister)

Other parties to the proceedings: European Commission, United Kingdom of Great Britain and Northern Ireland, European Food Safety Authority, Monsanto Europe, Monsanto Company

Form of order sought

The Appellants claim that the Court should:

annul paragraphs (1) and (2) of the Court order;

re-make the judgment granting the annulment of the Commission decisions in the manner sought before the General Court or, in the alternative, remit the case back to the General Court for a full re-hearing. The decision on this issue turns on which ground(s) of appeal are successful;

order the Commission to pay the Appellants’ costs; and

order any other measure deemed appropriate.

Pleas in law and main arguments

The Appellants invite the Court to set aside or annul the judgment of the General Court of the European Union of 15 December 2016, Testbiotech and Others v Commission (T-177/13, ECLI:EU:T:2016:736) (“the Judgment”) served on the Appellants on 19 December 2016. In the Judgment, the General Court dismissed the Appellants’ action seeking the annulment of the European Commission’s three substantively identical decisions addressed to the Appellants. Those decisions determined, in effect, that their complaints about Decision 2012/347¹ granting a market authorisation under Regulation 1829/2003² on genetically modified food and feed (“GM Regulation”) to Monsanto Europe SA for its genetically modified soybean “MON 87701 x MON 89788” (“the Soybean”) were not well-founded. These decisions will hereinafter be referred to as the “Commission Decisions”.

In summary, in rejecting the Appellants’ challenges to the Commission Decisions, the General Court erred in law by:

Declaring inadmissible certain parts of the Appellants’ applications for annulment on the basis that the requests for reconsideration submitted pursuant to Article 10 of the Aarhus Regulation³ did not contain all of the precise detail or reasons put forward in support of the grounds of appeal before the General Court and/or that other procedural requirements were not met.

Applying an incorrect and impossible burden of proof on Non-Governmental Organisations (“NGOs”) bringing challenges under Articles 10 and 12 of the Aarhus Regulation on behalf of the environment.

Failing to recognise that the Guidance issued by EFSA in accordance with its legal obligations give rise to a legitimate expectation that it will be complied with.

Determining that the two-stage safety assessment required by the GM Regulation (and EFSA’s Guidance) did not need to be complied with. Instead, the first stage only, the comparison of the genetically modified crop and its comparators, could be (and was in this case) sufficient to satisfy the obligations set out by the GM Regulation.

Relying upon Regulation (EC) No 396/2005⁴ (“the Pesticide Regulation”) in dismissing certain elements of the Appellants’ challenge to the failure to investigate adequately the potential toxicity of the Soybean and to monitor post authorisation the impact of the Soybean.

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¹ Commission Implementing Decision of 28 June 2012 authorising the placing on the market of products containing, consisting of, or produced from genetically modified soybean MON 87701 × MON 89788 (MON-87701-2 × MON-89788-1) pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council (PB 2012, L 171, p. 13).

² Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (OJ 2003, L 268, p. 1).

³ Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006, L 264, p. 13).

⁴ Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC (OJ 2005, L 70, p. 1).