Action brought on 6 October 2021 – Callaway v Commission
(Case T-653/21)
Language of the case: English
Parties
Applicant: James C. Callaway (Kuopio, Finland) (represented by: P. Hoffman, lawyer)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
annul Commission Implementing Decision (EU) 2021/1214 of 22 July 2021 authorising Poland to prohibit the marketing on its territory of the hemp variety Finola pursuant to Council Directive 2002/53/EC; 1
order the Commission to bear its own costs and to pay the costs of the applicant.
Pleas in law and main arguments
In support of the action, the applicant relies on four pleas in law.
First plea in law, concerning Poland’s application for the authorisation granted by the contested decision, and the illegality of Article 9(5) of Commission Delegated Regulation (EU) No 639/2014. 1
The contested decision has been adopted on the basis of a notification by Poland which did not constitute an application, as required by Article 18 of Council Directive 2002/53/EC, 1 and in any case such notification was made only in order to satisfy a legal obligation following from Article 9(5) of Delegated Regulation (EU) No 639/2014; the latter provision is, however, vitiated by illegality, which the applicant invokes pursuant to Article 277 TFEU. Moreover, the notification was finalised after the deadline set in Article 9(5) of Delegated Regulation (EU) No 639/2014.
Second plea in law, alleging infringement of Article 18 of Directive 2002/53, and the illegality of Article 9(5) of Delegated Regulation (EU) No 639/2014.
The contested decision was adopted even though no risk for human health, as required by Article 18 of Directive 2002/53, objectively exists and even though no such risk has been claimed by Poland, and without any explanation as to the reasoning that allowed the Commission to adopt the decision without having firmly established such a risk, insofar infringing Article 296 TFEU. Out of an abundance of caution, in case the Commission claims that, under Article 9(5) of Delegated Regulation (EU) No 639/2014, no such risk had to be established or that it could have presumed the existence of such a risk, the applicant invokes, pursuant to Article 277 TFEU, the illegality of this provision.
Third plea in law, alleging infringement of Article 32(6) of Regulation (EU) No 1307/2013, 1 and the illegality of that provision.
The calculation of the average tetrahydrocannabinol (THC) content of the Finola hemp variety by the Polish authorities, which forms the factual basis of the contested decision, infringes Article 32(6) of Regulation (EU) No 1307/2013, insofar as the result has not been rounded off to one decimal place. Moreover, and in any case, the latter provision, setting a THC content threshold at only 0.2%, is vitiated by illegality, which the applicant invokes under Article 277 TFEU.
Fourth plea in law, alleging infringement of Article 9(2-5) of, and Annex III to, Delegated Regulation (EU) No 639/2014, and the applicant’s fundamental rights.
The Polish authorities employ a definition of “end of flowering” of hemp which is inconsistent with Annex III to Delegated Regulation (EU) No 639/2014 and scientifically incorrect, and, as a result, the samples used to establish Finola’s THC content have been collected too late, in breach of Annex III. Moreover, the Polish authorities have not collected data concerning the sampling which would allow its accuracy to be verified, contrary to the requirements of Article 9(3) of Delegated Regulation (EU) No 639/2014. Finally, the applicant’s right to be heard and right to effective judicial protection have been infringed insofar as the Commission failed to hear him and failed to establish or verify the necessary facts itself, denying the applicant any real possibility of effective judicial protection, given that Poland claims that its notification made under Article 9(5) of Delegated Regulation (EU) No 639/2014 is not susceptible to review in the Polish courts.
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1 OJ 2021 L 265, p. 1.
1 Commission Delegated Regulation (EU) No 639/2014 of 11 March 2014 supplementing Regulation (EU) No 1307/2013 of the European Parliament and of the Council establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and amending Annex X to that Regulation (OJ 2014 L 181, p. 1).
1 Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species (OJ 2002 L 93, p. 1).
1 Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608).