Order — ECLI:EU:C:2018:340
Date: 2018-05-28
Language of the case: English
Court formation: Vice-President
Subject matter: Research and technological development;Procedural provisions
Procedure: Appeal;Application for interim measures
Origin: Germany

summary of the circumstances establishing the right to intervene. 36 As regards PISC’s application, it must be noted that, in order to establish its interest in these appeal proceedings and, more specifically, to show that the result of the proceedings is such as to affect the interests of its members, PISC claims that it represents a significant number of non-profit organisations and a large number of individuals sharing a common interest, namely the reduction and ultimate elimination of animal testing. PISC therefore submits that it has a direct, existing interest in the result of the proceedings, as they would be likely to affect appreciably its legal situation. 37 In that regard, it suffices to note that the fact that PISC protects the interests of animals is not sufficient alone to show how its legal situation, or that of its members, would be affected by the Court’s decision on the appellant’s appeal concerning interim measures. 38 Moreover, the alleged harm to animals, if such harm were to be established, would be an indirect consequence only of the decision at issue and not likely in itself to establish a direct interest pursuant to the case-law referred to in paragraph 33 of this order. 39 It follows that PISC has not been able to establish the direct and specific impact of the result of these appeal proceedings on the activity of its members, with the result that its application to intervene must be dismissed. The appeal 40 The appellant relies on three grounds of appeal. The first ground of appeal 41 By its first ground of appeal, the appellant claims that the President of the General Court erred in law when he found that the decision at issue did not present a risk, both imminent and foreseeable with a sufficient degree of probability, that it would incur liability under the Cosmetics Regulation. 42 First of all, according to the appellant, the President of the General Court was wrong to find that the presumption applicable to measures of the EU institutions extends to decisions of the ECHA as an EU agency in such a way that, by complying with the decision at issue, the appellant did not run the risk that it would incur liability under another EU act such as the Cosmetics Regulation. 43 Next, according to the appellant, even if ECHA’s measures under the REACH Regulation were presumed to be lawful, that presumption would not rule out the appellant incurring liability under the Cosmetics Regulation, notwithstanding the decision at issue. 44 Lastly, the appellant alleges that the order under appeal is vitiated by a failure to state reasons, as the President of the General Court summarily dismissed the application for interim measures for lack of urgency without examining the arguments relating to the irreparable loss of its market share on account of the considerable legal and structural obstacles that it would come up against if the marketing ban provided for under the Cosmetics Regulation were implemented. 45 ECHA disputes the appellant’s arguments. 46 It should be borne in mind, first of all, that, in accordance with Article 156(4) of the Rules of Procedure of the General Court, applications for interim measures must state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for. 47 Accordingly, the judge hearing an application for interim measures may order interim relief only if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. The judge hearing the application for interim measures must, where appropriate, also weigh up the interests involved (orders of the President of the Court of 24 April 2008, Commission v Malta, C‑76/08 R, not published, EU:C:2008:252, paragraph 21, and of 10 December 2009, Commission v Italy, C‑573/08 R, not published, EU:C:2009:775, paragraph 11, and order of the Vice-President of the Court of 3 December 2014, Greece v Commission, C‑431/14 P-R, EU:C:2014:2418, paragraph 19). 48 As regards, more specifically, the examination of the condition relating to urgency, the Court emphasises that urgency must be assessed in the light of the need of an order for interim measures to avoid serious and irreparable harm to the party requesting the interim measure (order of the Vice-President of the Court of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited). 49 It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable harm (see, to that effect, order of the Vice-President of the Court of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 37 and the case-law cited). While it is not necessary, in that regard, for it to be absolutely certain that the damage will occur, a sufficient degree of probability being enough, the applicant is nonetheless required to prove the facts which are considered to found the prospect of such damage (order of the President of the Court of Justice of 20 June 2003, Commission v Laboratoires Servier, C‑156/03 P-R, EU:C:2003:368, paragraph 36). 50 In the present case, as regards, in the first place, the appellant’s claims, recalled in paragraphs 42 and 43 of this order — alleging an error committed by the President of the General Court in finding, in paragraphs 46 and 47 of the order under appeal, that ECHA decisions are presumed to be lawful with the result that, in complying with those decisions, the appellant could not incur liability under the Cosmetics Regulation — it is relevant to note that, irrespective of whether such a presumption also applies to those decisions, the President of the General Court correctly found in paragraph 48 of the order under appeal that the risk alleged by the appellant was based on the occurrence of future and uncertain events. 51 It must be observed that, even in its appeal, the appellant has confined itself to stating that the Member States could merely potentially take legal action against it under the Cosmetics Regulation, without however providing specific evidence in support of its argument. Therefore, the appellant has not proved that there is a sufficient degree of probability that it would suffer the alleged harm. 52 In those circumstances, in accordance with the case-law recalled in paragraph 49 of this order, the President of the General Court did not err in law when he found, in paragraph 48 of the order under appeal, that such — purely hypothetical — harm was not such as to justify the grant of the interim measures applied for. 53 As regards, in the second place, the argument concerning the loss of market share, referred to in paragraph 44 of this order, it suffices to note that that question, as observed by ECHA in its response, had been broadly dealt with by the President of the General Court in paragraphs 49 to 59 of the order under appeal. 54 Consequently, the first ground of appeal must be rejected as unfounded. The second ground of appeal 55 By its second ground of appeal, the appellant criticises the President of the General Court for having committed an error of law in classifying the whole of the harm it would suffer through the loss of market share as purely financial in such a way that, in order to obtain a suspension of the operation of the decision at issue, it was required to prove that it would find itself in a situation likely to endanger its very existence. 56 On the contrary, according to the appellant, it could have obtained the suspension of that decision merely by arguing that it would find itself in a situation likely to irreparably affect its market share. To that end, it would suffice to demonstrate that structural or legal obstacles would prevent it from regaining an appreciable proportion of its market share, which it had moreover proved in its application for interim measures. 57 ECHA disputes that reasoning. 58 In that regard, it must be noted that, contrary to the appellant’s claim, after identifying the harm in question as being of a financial nature, the President of the General Court correctly observed, in paragraph 55 of the order under appeal, that the interim measures sought are justified if, in the absence of those measures, the appellant would be in a position that would jeopardise its financial viability, or if its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, where appropriate, the characteristics of the group to which it belongs (see order of the Vice-President of the Court of Justice of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited). 59 Thus, having stated, in paragraph 56 of the order under appeal, that the appellant had not provided any information on, inter alia, the size of its undertaking, its turnover, whether it belongs to the BASF group, or the characteristics of that group, the President of the General Court concluded that the appellant had not established the importance that loss of the entire European market for triclosan would represent for its undertaking. 60 In those circumstances, it is clear that the President of the General Court did not err in law when he found that the appellant had not established urgency. 61 Consequently, the second ground of appeal must be rejected. The third ground of appeal 62 By its third ground of appeal, the appellant claims that the President of the General Court failed to give due consideration to the risk of the harm the appellant would be required to inflict on animals in its care in order to comply with the decision at issue. The appellant will personally suffer irreparable harm in that the tests conducted pursuant to that decision are to be carried out on those animals and would lead to their suffering or even death. 63 ECHA disputes that reasoning. 64 In that regard, it must be noted that the appellant’s reasoning is based on a misinterpretation of the duties of the judge hearing an application for interim measures when examining the condition relating to urgency and weighing up the interests involved. 65 It is settled case-law that the conditions in paragraph 47 of this order are cumulative, so that applications for interim measures must be dismissed if any one of them is not satisfied (order of the Vice-President of the Court of Justice of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 21 and the case-law cited). 66 The Court has also consistently held that, in the context of his examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of EU law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed (order of the Vice-President of the Court of Justice of 22 March 2018, Wall Street Systems UK v ECB, C‑576/17 P(R), not published, EU:C:2018:208, paragraph 31 and the case-law cited). 67 It must be noted that the appellant’s arguments concerning the death and suffering inflicted on animals are set out in paragraphs 77 to 79 of its application for interim measures, in the part concerning the weighing up of interests. 68 As the President of the General Court rejected that application on the ground that the appellant had not shown to the requisite legal standard that the condition relating to urgency had been met, he was not required to weigh up the interests involved and therefore examine the arguments raised in that respect by the appellant. 69 Consequently, the third ground of appeal must be rejected. 70 It follows from all the foregoing that the appeal must be dismissed in its entirety. Costs 71 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since ECHA has applied for costs and BASF Grenzach GmbH has been unsuccessful, the latter must be ordered to pay the costs. Since none of the parties has applied for PISC to pay the costs and PISC has been unsuccessful, it must be ordered to bear its own costs. On those grounds, the Vice-President of the Court hereby orders: 1. The appeal is dismissed. 2. BASF Grenzach GmbH shall pay the costs. 3. The application to intervene of PETA International Science Consortium Ltd is dismissed. 4. PETA International Science Consortium Ltd shall bear its own costs. Luxembourg, 28 May 2018. A. Calot Escobar A. Tizzano Registrar Vice-President * Language of the case: English.