Order — ECLI:EU:T:2011:665
Date: 2011-11-15
Language of the case: English
Court formation: President of the Chamber
Subject matter: Agriculture and Fisheries;Plant health legislation
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: France

summary proceedings would scarcely be such as to dispel doubts which may exist as to the correctness of the view that ethoxyquin is not dangerous (see, to that effect, United Phosphorous order, paragraph 61, and the order in Xeda International and Pace International v Commission, paragraph 61). In that regard, it should be noted that the applicant has not explained to what extent those statements are not relevant to this case. 43 In the second place, in the case giving rise to the order in Xeda International and Pace International v Commission, the President of the Court held that the withdrawal of a plant protection product from the market will not necessarily have an adverse effect on the reputation of the entire undertaking concerned. In that regard, it is common knowledge that many undertakings operating on the market in question have already had their products withdrawn from the market without it being possible to say that those undertakings or their products were stigmatised as a result. The regulatory authorities and businesses in the sector concerned, which are familiar with the regulatory framework, tend, rather, to view a decision that a plant protection product should not be authorised as a normal part of a regulatory procedure. Such a decision may be regarded as being simply the result of scientific developments and improvement in research methods (see, to that effect, United Phosphorous order, paragraph 60, and the order in Xeda International and Pace International v Commission, paragraph 60). In this case, the applicant submits that, since it is not a question of the imminent loss of one product but of an entire market, the contested decision’s impact on its reputation is more significant and justifies departing from those findings. 44 However, it is to be observed (i) that the negative impact of Decision 2009/859 on the applicant’s reputation was not acknowledged by the President of the Court in the order in Xeda International and Pace International v Commission, and (ii) that that order has not been appealed. It therefore cannot be claimed that the contested decision reinforces the negative effects of a previous decision on the applicant’s reputation. As it is apparent from the application for interim relief that only the cumulative effect of those prohibition decisions justifies, in the applicant’s view, departing from the findings set out above, that argument must be rejected. 45 For the sake of completeness, supposing (i) that Decision 2009/859 had had the impact claimed and (ii) that the contested decision also had negative effects on the applicant’s reputation, it cannot be presumed that those impacts would be cumulative or that the second would reinforce the first. Indeed, no evidence was adduced to show that the prohibited products are part of the same market and concern the same customers. 46 Finally, in the third place, it cannot be inferred that the adverse effect on the applicant’s reputation – assuming it to be proved – as a result of the prohibition on the placing on the market of all its antioxidant products, would lead to a loss of consumer confidence. The applicant puts forward the particularly sensitive nature of the health sector to support its argument that the stigmatisation associated with ethoxyquin and ethoxyquin-based products as a result of the contested decision is almost inevitable and that its customers would not return to a product that had been wrongly declared as unsafe, and then returned to the market. In support of its assertions, the applicant produces a newspaper article and a personal opinion published on a blog. 47 However, it must be noted, first, that those articles do not name the products or the producers. Their content is vague and concerns pesticides in general. The applicant cannot reasonably attribute any probative force whatsoever to those documents in support of its claims. Second, those articles are intended for the general public and not for professional customers. As the Commission submits in its observations, the applicant does not appear to sell to final consumers. In any event, the application for interim measures does not contain any indication to the contrary. Moreover, as is apparent from the letter from the applicant’s [Confidential] distributor annexed to the application for interim measures, that category of customers is familiar with the evaluation procedures for plant protection products and their active substances. In that context, the evidence adduced by the applicant does not allow the findings of the President of the Court, recalled in paragraph 43 above, to be called into question. 48 Therefore, the alleged impact on the applicant’s reputation as a result of two successive decisions prohibiting the placing on the market of the two antioxidant products at its disposal does not amount, in this case, to a specific circumstance allowing the alleged harm to be found to be serious. 49 Fifthly, the applicant points to the fact that it is a small family business that operates in difficult financial conditions and that is not in a position to absorb the losses incurred. In support of those claims, it provides an affidavit from the president of the board regarding the effect that the failure to grant the interim measures applied for would have on the company’s operations. 50 In the first place, for the same reasons as those noted in paragraph 31 above, it must again be noted that those claims are not supported by any documentary evidence satisfying the criteria defined by the case-law referred to above (see paragraphs 15 to 17 above). 51 In the second place, not only has the applicant been inconsistent in its assessment in its pleadings of the size of the undertaking, but that size must be placed in context inasmuch as the analysis is carried out having regard to the group as a whole (see paragraph 20 above). It is to be recalled that the taking into consideration of the turnover of the group to which the company concerned belongs is based on the idea that the objective interests of that company are not independent of those of the persons controlling it within the same group. The serious and irreparable nature of the alleged harm must thus be assessed in relation also to the group comprising those persons. That coincidence of interests is justification in particular for not assessing the seriousness of the loss of the market shares of the company concerned independently of the interest of those controlling it in supporting, or not supporting, their subsidiary (see, to that effect, order in HFB and Others v Commission, paragraph 62, and orders of the President of the General Court in Case T‑241/00 R Le Canne v Commission [2002] ECR II‑37, paragraph 40; in Case T‑192/01 R Lior v Commission [2001] ECR II‑3657, paragraph 55; and in Dow AgroSciences and Others v Commission, paragraph 79). The crucial question when assessing financial circumstances is whether the company which complains of loss of revenue has other potential sources of revenue that might help it to curb that loss. If so, that must be taken into account by the judge hearing the application for interim measures, whether what is involved is possible revenue from the sale of another product or assistance from other persons. It should be added that undertakings belonging to a group or having one or more major shareholders are in a special situation and that must therefore be taken into account by the judge hearing the application for interim relief (order of the President of the Court of Justice in Case C‑364/99 P(R) DSR‑Senator Lines v Commission [1999] ECR I‑8733, paragraph 55; and order in Dow AgroSciences and Others v Commission, paragraph 81). It must, moreover, be pointed out that the account taken of the group does not entail assessment of the seriousness of the harm suffered by that group, but serves only to assess the seriousness of the harm suffered by a company belonging to that group (order in Dow AgroSciences and Others v Commission, paragraph 82). In this case, as was previously noted, at group level, the percentage of sales is less than the thresholds laid down by the case-law for harm to be classified as serious. 52 Therefore, in the light of the information in the documents before the Court, the applicant’s financial situation does not constitute, in this case, a specific circumstance allowing the alleged harm to be found to be serious. 53 It must therefore be held that in this case there is no specific circumstance which, when assessed in light of the relevant turnover, is such as to lead the President of the Court to conclude that the alleged harm is serious. 54 It follows that the applicant has not established that the alleged harm is serious. It is therefore not necessary to examine whether that harm is irreparable. 55 It follows from all the foregoing that the application for interim measures must be rejected for lack of urgency, without it being necessary to consider whether the other conditions for granting suspension of operation are fulfilled in this case. On those grounds, THE PRESIDENT OF THE GENERAL COURT hereby orders: 1. The application for interim measures is dismissed. 2. Costs are reserved. Luxembourg, 15 November 2011. Registrar President E. Coulon M. Jaeger * Language of the case: English. 1 – Confidential information omitted.