Judgment — ECLI:EU:T:2009:299
Date: 2009-09-03
Language of the case: English
Court formation: Eighth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries
Concepts: Plant protection products;Application ratione temporis;Principle of the protection of legitimate expectations;Principle of proportionality
Procedure: Action for annulment - unfounded
Origin: Bulgaria;Denmark;Spain;France;Italy

Summary of the Order 1. Applications for interim measures – Conditions for admissibility – Prima facie admissibility of the main action (Arts 230 EC, 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(1); Council Directive 91/414; Commission Decision 2007/389) 2. Applications for interim measures – Conditions for admissibility – Application – Formal requirements (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2) and (3)) 3. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Urgency – Serious and irreparable damage (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) 1. On an application for interim measures, examination of the admissibility of the main action is necessarily summary because the proceedings for interim relief are by nature urgent. The admissibility of the main action can only be assessed on a prima facie basis, the aim being to examine whether the applicant has adduced sufficient elements which justify the a priori conclusion that the admissibility of the main action cannot be excluded. The court hearing the interim measures action should declare that action inadmissible only where the admissibility of the main action can be wholly excluded. Otherwise, to rule on admissibility at the stage of the proceedings for interim relief, when admissibility is not, prima facie, wholly excluded, would in effect prejudge the Court of First Instance’s decision in the main action. In the case of an application for interim measures attaching to an annulment action against Decision 2007/389 concerning the non-inclusion of malathion in Annex I to Directive 91/414 and the withdrawal of authorisations for plant protection products containing that substance, the possibility cannot prima facie be excluded that an applicant, in its capacity as the notifier of malathion, which participated in the procedure under the directive for the assessment of an active substance and benefits from the procedural guarantees under the relevant legislation, may be directly and individually concerned by that decision within the meaning of the fourth paragraph of Article 230 EC, and that the main application which it makes may be admissible. The other applicants cannot, prima facie, be considered to be individually concerned by Decision 2007/389, the only addressees of which are Member States, since, far from being individually distinguished by attributes peculiar to them, they are affected in the same way as all the other vendors and users of malathion in the same situation, that decision containing nothing tangible to support the conclusion that it was adopted having regard to their particular situation. It therefore appears that it is solely by reason of their objective position as economic operators covered by the contested decision that those applicants might claim to be affected by it. An effect of that kind is not sufficient for individual concern within the meaning of the fourth paragraph of Article 230 EC. Moreover, there are numerous undertakings other than the applicants which also sell and use malathion and which therefore have marketing rights in the same way as the applicants. It follows that applicants other than the notifier are not entitled to put forward their own individual situation in order to establish urgency in the context of interim proceedings, with the result that neither are they entitled to bring such an application for interim measures. (see paras 44-45, 47, 58-59, 64) 2. Under Article 104(2) and (3) of the Rules of Procedure of the Court of First Instance, an application for the adoption of interim measures is to state, inter alia, the pleas of fact and law establishing a prima facie case for the measures applied for, and is to be made by a separate document and in accordance with the provisions of Articles 43 and 44 of the Rules of Procedure. An application for interim measures must be sufficient in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where appropriate, without other supporting information, the essential elements of fact and law on which it is founded having to be set out in a coherent and comprehensible fashion in the text of the application for interim measures itself. (see paras 65-66) 3. The urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the relief. It does not have to be established with absolute certainty that the damage is imminent; it is sufficient that the damage, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability. However, the party invoking damage is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely. Damage of a purely financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty since normally it can be the subject of subsequent financial compensation. The interim measure sought is justified only if it appears that, without such a measure, the applicant would be in a position that could imperil its existence before final judgment in the main action. Since imminent disappearance from the market does constitute damage that is both irremediable and serious, adoption of the interim measure sought appears justified in such a situation. While account has also been taken of the fact that, if the measure sought were not granted, the applicant’s market share would be irremediably affected, that situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also of a serious nature. It is therefore not sufficient that a market share, however minimal, may be irremediably lost; on the contrary it is necessary for that market share to be sufficiently large. An applicant who invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of it, in particular by appropriate publicity measures, is impossible by reason of obstacles of a structural or legal nature. In that context, the seriousness of the damage pleaded must be assessed in the light, in particular, of the size and turnover of the undertaking and of the characteristics of the group to which it belongs. (see paras 97-100, 102, 115)