Xeda International and Pace International v Commission

Further, it is clear that there is no provision which obliges the EFSA either to begin its review of the DAR at a precise date prior to the date of expiry of the time-limit prescribed for the withdrawal of support of the inclusion of a substance under Article 3(2) of Regulation No 1095/2007, or moreover to complete it before that date. In addition, if the EFSA, having been consulted by the Commission, had come to the conclusion that DPA did not satisfy the criteria laid down in Annex VI of Regulation No 1490/2002, for the purposes of Article 3(2)(a)(ii) of Regulation No 1095/2007, the EFSA was also not obliged to inform the notifiers of that interim conclusion, contrary to what is asserted by the applicants in their letter of 28 July 2011. In any event, the fact that the notifiers were made aware, by means of two letters, dated 8 and 18 October 2007, sent to them by the EFSA, of the consultation of experts commenced on October 2007 and of the time-limit attached to the right to request the withdrawal of support of the inclusion of DPA demonstrates that DPA was not one of the clear cases where the Commission could submit a draft decision or directive directly to the committee, under Article 12(1)(a) of Regulation No 1490/2002 as amended, but that it was probable that the Commission would ask the EFSA to carry out a review of the DAR within the meaning of Article 11c of that regulation.

It is apparent from the second subparagraph of Article 11c(1) that the EFSA was to deliver its conclusion within a period of six months after notification of the Commission's request for the full review of the DAR and, in any event, by no later than 30 September 2008.

In the present case, the EFSA delivered its Conclusion Report on that date and therefore did not infringe the time-limits prescribed by the legislation, as claimed by the applicants.

Similarly, the alleged delay in initiating the consultation on the DAR by the EFSA, which is complained of by the applicants, in no way denied to the notifiers the effective enjoyment of their 'right to withdraw'.

While the EFSA waited until 8 October 2007, in other words more than three months, to send the DAR and initiate the consultation, it is in the present case clear that, before the entry into force of Regulation No 1095/2007, no time-limit applied to that communication. From the date of the entry into force of that regulation, namely 28 September 2007, the EFSA had to communicate the report 'without delay' to the Commission, the Member States and the notifiers and to set a maximum time-limit of two months for the submission of comments by the Member States and the notifiers, which the EFSA did ten days later, in other words on 8 October 2007, setting a time-limit expiring on 7 December 2007. Even in the scenario advocated by the applicants, had the EFSA scrupulously complied with the time-limits prescribed by Regulation No 1095/2007, from the date of its entry into force, the notifiers might have had in their possession, possibly, before the expiry of the time-limit for the exercise of the 'right to withdraw', only the comments of the Member States on the DAR and, possibly, those of the EFSA.

However, according to the applicants, the question relating to the possible formation of nitrosamines was actually raised only after the experts' meeting, in June 2008. Consequently, in light of the fact that the risks associated with DPA, and therefore the probability that a negative decision would be adopted, were, according to the applicants, in reality only raised after the expiry of the prescribed time-limit for the withdrawal of support for that substance, the notifiers would not, in any event, have had in their possession information on the concern relating to the possible formation of nitrosamines within the prescribed period for the withdrawal of support for the inclusion of DPA.

Moreover, as is clear from recital 6 of the preamble to the contested decision, the Commission did inform the notifiers of the possibility of withdrawing support for the inclusion of DPA. By letters of 8 and 18 October 2007 the EFSA informed the notifiers of the possibility of withdrawing their notification, and had, in any event, drawn their attention to the entry into force of Regulation No 1095/2007, thereby enabling them to identify the provision and time-limit applicable in the present case.

It follows that the rights of defence of the notifiers, and therefore of Pace, were respected throughout the procedure prior to the adoption of the contested decision. In that regard, the applicants cannot confuse a failure to respect the rights of the defence with the failure to obtain the desired result through the exercise of those rights. The fact that the applicants consider that the comments submitted answer all concerns as to the harmfulness of DPA does not thereby demonstrate that the Commission infringed their rights of defence by taking the view, when the contested decision was adopted, that 'it [was] not possible to conclude, on the basis of the information available, that [DPA] met the criteria for inclusion in Annex I to Directive 91/414' (see, to that effect, Cheminova and Others v Commission , paragraph 58 above, paragraph 247).

Even if the EFSA had not fulfilled its obligation under Article 11(2) of Regulation No 1490/2002, as amended, to communicate the DAR without delay, that consideration would affect the legality of the contested decision only if it was established that the content of that decision would have differed if that irregularity had not occurred (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125 , paragraph 47, and Case T-279/02 Degussa v Commission [2006] ECR II-897 , paragraph 416).

To the extent that the applicants claim that the EFSA delay in initiating the consultation was attributable to the Commission, it must be observed that the fact that the Commission did not ensure that the EFSA complied with its obligation to communicate the DAR without delay, under Article 11(2) of Regulation No 1490/2002, as amended, cannot be regarded as an infringement of the principle of sound administration on the part of the Commission (see, to that effect, Cheminova and Others v Commission , paragraph 58 above, paragraph 226).

In the present case, and in light of the foregoing, it must be concluded that the alleged delay on the part of the EFSA in initiating the consultation had no effect on compliance with the time-limit for the delivery of its Conclusion Report. In any event, that delay has no impact on the contested decision.

Under those circumstances, the fourth plea must be rejected and, consequently, the action must be dismissed in its entirety.

Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants have been unsuccessful and the Commission has applied for costs, the applicants must be ordered to bear their own costs and to pay those of the Commission, including the costs relating to the proceedings for interim measures.

Dismisses the action;

Orders Xeda International SA and Pace International LLC to bear their own costs and to pay those of the European Commission, including the costs relating to the proceedings for interim measures.