(Action for annulment— Plant protection products— Implementing Regulation (EU) 2015/2069

1The applicant, Biofa AG, is a company which produces and markets plant protection products and the holder of a marketing authorisation for a fungicide with a potassium hydrogen carbonate basis, VitiSan.

2Potassium hydrogen carbonate is an ‘active substance’ listed in the annex to Commission Implementing Regulation (EU) No540/2011 of 25May 2011 implementing Regulation (EC) No1107/2009 of the European Parliament and of the Council as regards the list of approved active substances (OJ 2011 L153, p.1).

3Following an application from the Danish Environmental Protection Agency, the European Commission adopted, on 17November 2015, Implementing Regulation (EU) 2015/2069 approving the basic substance sodium hydrogen carbonate in accordance with Regulation (EC) No1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the annex to Commission Implementing Regulation (EU) No540/2011 (OJ 2015 L301, p.42; ‘the contested regulation’).

4After receiving the technical report of the European Food Safety Authority (EFSA) on the substance in question, the Commission approved, by the contested regulation, sodium hydrogen carbonate as a ‘basic substance’ within the meaning of Regulation (EC) No1107/2009 of the European Parliament and of the Council of 21October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L309, p.1).

5Sodium hydrogen carbonate is present on the market as a food additive within the meaning of Commission Regulation (EU) No1130/2011 of 11November 2011 amending AnnexIII to Regulation (EC) No1333/2008 of the European Parliament and of the Council on food additives by establishing a Union list of food additives approved for use in food additives, food enzymes, food flavourings and nutrients (OJ 2011 L295, p.178). Approval of that substance as a ‘basic substance’ thus permits that product, which is commonly used for a wide range of purposes, to be used also for plant protection purposes.