Keller and Heckman’s Brussels-based partner Jean Savigny told a health claims conference in Brussels yesterday why provisions in the 2008 Lisbon Treaty (Treaty on the Functioning of the European Union) meant article 13 claim rejections could be challenged in EU courts.
Before Lisbon, Savigny suggested, this was not an option because the article 13 claims were submitted by member states and not individual entities such as ingredients of food companies.
But section 263 of the Lisbon Treaty expanded rights to challenge such rulings and so, “certain operators” could seek annulment of decisions they could prove were, “of direct concern to them”.
“There will be cases for non-appearance of claims [on the positive list of generic article 13 health claims next year],” Savigny said, noting a French case in another area that established a precedent.
More than 2000 of these article 13 claims are due to enter the EU law books at the beginning of 2012, at which point they could be subject to “actions for annulment”.
He noted the detail of article 263, which said individuals could, “institute proceedings against an act” where the act in question did not involve “implementing measures” which the nutrition and health claims regulation (NHCR) did not.
Article 267 – preliminary rulings
Savigny also said article 267 of the Treaty could be employed as a defence by operators who may themselves be challenged for making claims not published on a positive list of the NHCR.
The article permits operators to seek rulings from the European Court of Justice (ECJ) over “the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union”.
Judicial review of the enforcement, interpretation or implementation of a regulation was another option, but Savigny noted the current position of the ECJ that EFSA health claim opinions do not have an effect on stakeholders.
“So the ECJ would need to change that position,” he said. “This is doubtful but not impossible. EFSA is not out of legal reach.”
Damages - Extreme but not impossible
Article 268 of the Lisbon Treaty states that the ECJ has the power to give compensation for damages, something Savigny observed was, “extreme but not impossible”.
Another lawyer at the event, Sebastián Romero Melchor, from Food Law Consultants in Belgium, noted that the European Commission position that proprietary data is rendered non-proprietary once published in a journal will "likely be overturned" by the ECJ.