Order — ECLI:EU:T:2005:147
Date: 2005-04-27
Language of the case: English
Court formation: President of the Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Plant health legislation
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;Definition of the institution's position
Procedure: Application for interim measures - unfounded;Action for failure to act
Origin: Germany;Spain;Greece;Netherlands

ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber) 6 September 2006 (*) (Plant protection products – Active substance endosulfan – Reexamination of authorisation for placing products on the market – Action for failure to act – No need to adjudicate) In Case T–34/05, Bayer CropScience AG, established in Monheim (Germany), Makhteshim-Agan Holding BV, established in Amsterdam (Netherlands), Alfa Georgika Efodia AEVE, established in Athens (Greece), Aragonesas Agro, SA, established in Madrid (Spain), represented by C. Mereu and K. Van Maldegem, avocats, applicants, supported by European Crop Protection Association (ECPA), established in Brussels (Belgium), represented by D. Waelbroeck, U. Zinsmeister and N. Rampal, avocats, intervener, v Commission of the European Communities, represented by B. Doherty, acting as Agent, defendant, supported by Kingdom of Spain, represented by J. Rodríguez Cárcamo, abogado del Estado, intervener, ACTION for failure to act seeking a declaration that the Commission unlawfully failed to review the data submitted by the applicants in the course of the procedure for review of the authorisation to place the active substance endosulfan on the market, laid down by Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1), THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber), composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges, Registrar: E. Coulon, makes the following Order Legal context 1 Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1) (‘Directive 91/414’) establishes, inter alia, the Community regime applicable to the authorisation and withdrawal of authorisation for the placing on the market of plant protection products. 2 Under Article 4 of Directive 91/414 ‘Member States shall ensure that a plant protection product is not authorised unless … its active substances are listed in Annex I’. However, active substances which were present on the market two years after notification of Directive 91/414 and are not included in Annex I may under certain circumstances benefit from a transitional derogatory regime. Thus, Article 8(2) of Directive 91/414 provides that ‘a Member State may, during a period of 12 years following the notification of this Directive, authorise the placing on the market in its territory of plant protection products containing active substances not listed in Annex I that are already on the market two years after the date of notification of this Directive’. That period of 12 years, which expired on 26 July 2003, was extended for certain substances until 31 December 2005 by Commission Regulation (EC) No 2076/2002 of 20 November 2002 extending the time period referred to in Article 8(2) of Council Directive 91/414 and concerning the non-inclusion of certain active substances in Annex I to that Directive and the withdrawal of authorisations for plant protection products containing these substances (OJ 2002 L 319, p. 3). Among the substances affected by that extension is endosulfan, an active substance used in particular in the manufacture of insecticides. 3 During the transitional period provided for in Article 8(2) of Directive 91/414, the active substances in question must undergo evaluation, following which they may be included in Annex I to Directive 91/414 or, conversely, not be included in Annex I if they do not satisfy the requirements laid down in Article 5 of Directive 91/414 or if the requisite information and data for evaluation purposes have not been submitted ‘within the prescribed period’. Finally, it is provided in Article 8(2) of Directive 91/414 that the provisions necessary for the implementation of the evaluation programme will be determined in a regulation to be adopted by the Commission. 4 Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Directive 91/414 (OJ 1992 L 366, p. 10) (‘Regulation No 3600/92’) lays down the procedure for evaluating several substances with a view to their possible inclusion in Annex I to Directive 91/414. Those substances include endosulfan. 5 Article 5(2)(b) of Regulation No 3600/92 provides for the designation of a rapporteur Member State to evaluate each active substance concerned. The Kingdom of Spain was designated rapporteur Member State for the examination of endosulfan in accordance with Commission Regulation (EC) No 933/94 of 27 April 1994 laying down the active substances of plant protection products and designating the rapporteur Member State for the implementation of Regulation No 3600/92 (OJ 1994 L 107, p. 8) (‘Regulation No 933/94’). 6 Annexed to Regulation No 933/94 is a list setting out for each substance to be assessed in the framework of Regulation No 3600/92, in addition to the designated rapporteur Member State, the names of the producers which have submitted notification in accordance with Article 4(1) of Regulation No 3600/92, under which ‘[a]ny producer wishing to secure the inclusion of an active substance … in Annex I to … Directive [91/414], shall so notify the Commission within six months of the date of entry into force of this Regulation’. Facts and procedure 7 Bayer CropScience AG, Makhteshim-Agan Holding BV, Alfa Georgika Efodia AEVE and Aragonesas Agro, SA are companies engaged in particular in the production and sale of endosulfan and plant protection products based on endosulfan. Aragonesas Agro is a subsidiary and distributor of Makhteshim-Agan Holding. It is the holder of authorisations for the placing on the market in Spain of certain plant protection products based on endosulfan. Alfa Georgika Efodia is a subsidiary and distributor of Makhteshim-Agan Holding. It holds authorisations for the placing on the market in Greece of certain plant protection products based on endosulfan. 8 Makhteshim Agan Intern. Coordination is one of the seven producers mentioned in Annex I to Regulation No 933/94 as having notified their intention of securing the inclusion of endosulfan in Annex I to Directive 91/414. In its objection of inadmissibility, the Commission refers to that undertaking as ‘Makhteshim Agan International Coordination Center’. The applicants state in their application that Makhteshim Agan International Coordination Center is a subsidiary of Makhteshim-Agan Holding. 9 Prior to the 31 October 1995 deadline laid down in Regulation No 933/94, as amended, only Makhteshim Agan International Coordination Center and AgrEvo GmbH, subsequently known as Bayer Cropscience AG, lodged with the Kingdom of Spain the dossiers mentioned in Article 6 of Regulation No 3600/92 concerning endosulfan. Subsequently thereto, Makhteshim Agan International Center and AgrEvo concentrated their efforts within a working group known as the ‘endosulfan task force’ (‘the task force’). 10 In February 2000, the Kingdom of Spain submitted a draft report on endosulfan to the Commission, which subsequently sent it to the Member States and to AgrEvo, as representative of the task force. 11 Between January and July 2001, acting on behalf of the Commission, the Pesticide Safety Directorate (United Kingdom) organised a number of meetings of experts from various Member States to review the draft report and the comments it elicited. On 27 June 2001, the report drafted following that review was circulated to the Member States and, on 25 August 2001, to the task force for further comments and clarifications. 12 Noting that certain additional information was necessary for the purposes of the examination of endosulfan, on 21 November 2001 the Commission adopted Decision 2001/810/EC concerning the decision on the possible inclusion of certain active substances in Annex I to Directive 91/414 (OJ 2001 L 305, p. 32) (‘Decision 2001/81’), extending the deadline for presentation of new information concerning endosulfan to 25 May 2002 and, for long-term studies, to 31 May 2003. 13 The task force submitted the studies required before the expiry of those deadlines. 14 On 22 January 2004, the task force and the Spanish authorities attended a meeting at which they were informed by an expert in environmental matters and ecotoxicology of certain concerns regarding endosulfan. 15 On 26 January 2004, the Kingdom of Spain communicated to one of the members of the task force the evaluation report on the information submitted by the task force in May 2002 and May 2003. 16 On 17 May 2004, a tripartite meeting took place which was attended by the Commission, the Spanish authorities and the representatives of the task force, in accordance with Article 6(4) of Directive 91/414. At that meeting the Commission representative indicated to the task force that the Commission was envisaging proposing to the Standing Committee on the Food Chain and Animal Health (‘the Committee’) that endosulfan should not be included in Annex I to Directive 91/414. That representative also invited the task force to submit its comments before 21 June 2004 and stated that no fresh information in support of its arguments could be accepted as the deadline of 31 May 2003 had already passed. 17 On 25 June 2004, the task force representatives sent a letter to the Commission challenging the way in which the evaluation of endosulfan had been conducted and seeking authorisation to produce certain additional technical explanations. 18 By letter of 12 July 2004, the Commission requested the Kingdom of Spain not to take into account the new studies produced by the task force. 19 On 24 September 2004, the task force sent the Commission a letter through the intermediary of its advisers. By way of introduction to that letter, the task force stated that it was writing in order ‘formally to request the Commission to intervene on grounds of sound administration in order to ensure the correct application of Community law and uphold the attendant rights and legitimate expectations of the [task force]’. Moreover, the task force requested the Commission to ‘ensure that the endosulfan evaluation [was] effected appropriately from a scientific and legal point of view and to notify it of the decision of the Commission in that regard’. In that same letter, the task force stated that ‘the Commission [had] the duty to examine impartially the matters submitted by the endosulfan task force, to intervene on grounds of sound administration and to refer examination of endosulfan to the rapporteur or to the specialised bodies established by Community law, with instructions that all the relevant information be examined on the basis of the appropriate evaluation criteria laid down in Directive 91/414’. The task force concluded its letter by putting the Commission on notice to state its position within 60 days. 20 By letter of 26 November 2004, the Commission replied that it was drawing up a proposal for a decision that endosulfan should not be included in Annex I to Directive 91/414 and that it intended to submit that proposal to the Committee at its first meeting in 2005. The Commission also stated that, in its letter of 12 July 2004, it had drawn attention to the procedure provided for in Regulation No 3600/92 and to the time-limits for finalising examination of the substances referred to in that regulation. Finally, the Commission observed that the task force’s request seeking an evaluation by the Commission of studies submitted a short time beforehand, which required detailed analysis, contradicted its request that the Commission adopt a position on the whole case within 60 days. 21 By application received at the Registry of the Court of First Instance on 31 January 2005, the applicants brought the present action. 22 By a separate document, lodged at the Registry of the Court of First Instance on 31 January 2005, Makhteshim-Agan Holding, Aragonesas Agro and Alfa Georgika Efodia brought an application for certain interim measures concerning the evaluation of endosulfan with a view to its possible inclusion in Annex I to Directive 91/414. 23 By order of 27 April 2005, the President of the Court of First Instance dismissed the application for interim measures as manifestly inadmissible or, at the very least, on the ground that, in part, there was no need to adjudicate on it and, as to the remainder, it was manifestly inadmissible. The decision on costs was reserved. On 10 June 2005, the applicants for interim measures filed a notice of appeal against that order under the second paragraph of Article 57 of the Statute of the Court of Justice, which was dismissed by the President of the Court of Justice on 28 October 2005. 24 On 16 February 2005, the European Crop Protection Association lodged at the Registry of the Court of First Instance an application for leave to intervene in the present action in support of the form of order sought by the applicants. Leave was granted by order of the President of the Third Chamber of the Court of First Instance on 13 April 2005. 25 On 26 May 2005, the Kingdom of Spain lodged with the Registry of the Court of First Instance an application for leave to intervene in the present action in support of the form of order sought by the Commission. Leave was granted by order of the President of the Third Chamber of the Court of First Instance on 27 June 2005. 26 On 13 June 2005, the applicants brought an application for measures of organisation of procedure under Article 64 of the Rules of Procedure of the Court of First Instance and for measures of inquiry under Articles 65, 66 and 70 of the Rules of Procedure which, in essence, sought an order from the Court of First Instance for the appearance of certain individuals, the commissioning of an expert’s report and a request for information. The Commission and the Kingdom of Spain lodged their observations on this application on 14 July 2005. 27 On 2 December 2005, the Commission adopted Decision 2005/864/EC concerning the non-inclusion of endosulfan in Annex I to Directive 91/414 and the withdrawal of authorisations for plant protection products containing this active substance (OJ 2005 L 317, p. 25) (‘Decision 2005/864’). 28 By separate documents lodged at the Registry on 5 and 6 December 2005, the Commission and the Kingdom of Spain applied for a declaration that there was no need to adjudicate. The Commission submitted its observations on the Kingdom of Spain’s application on 6 January 2006. The applicants submitted their observations on both those applications on 20 January 2006. 29 By application lodged at the Registry of the Court of First Instance on 27 February 2006 and registered under number T-75/06, the applicants brought an action for annulment of Decision 2005/864. Forms of order sought by the parties 30 In their application, the applicants claim that the Court of First Instance should : – declare that the action is admissible and well founded or, in the alternative, reserve consideration of the issue of admissibility until consideration of the substantive issues or, in the further alternative, reserve any decision on admissibility until judgment in the main proceedings; – declare that the Commission has failed to comply with its obligations under Community law to review scientific data submitted by the applicants for the review of endosulfan under Directive 91/414 and to grant them due process during the review; – order the Commission to comply with its obligations under Community law and act as requested by the applicants by reviewing and considering all data submitted for the review of endosulfan and by granting them due process, including the right of defence and the right to a fair hearing; – order the Commission to pay the costs. 31 In its application for a declaration that there is no need to adjudicate and its observations on the application of the Kingdom of Spain to that effect, the Commission claims that the Court of First Instance should: – declare that there is no need to adjudicate; – order the applicants to pay the costs. 32 In its application for a declaration that there is no need to adjudicate, the Kingdom of Spain claims, in essence, that the Court of First Instance should declare that there is no need to adjudicate. 33 In their observations on those applications, the applicants claim, in essence, that the Court of First Instance should dismiss them. Law 34 In accordance with Article 113 of the Rules of Procedure, the Court of First Instance may at any time, of its own motion, consider whether there exists any absolute bar to proceeding with an action or declare, after hearing the parties, that the action has become devoid of purpose and that there is no need to adjudicate on it. 35 In this instance, the Court of First Instance considers that it has sufficient information from the evidence on the file to proceed to judgment without taking further steps in the proceedings. Arguments of the parties 36 In its application for a declaration that there is no need to adjudicate, the Commission observes that Decision 2005/864, which was published in the Official Journal of the European Union on 3 December 2005, requires the substance endosulfan to be withdrawn from the market. The Commission therefore takes the view that it cannot be denied that it has adopted a position on the applicants’ request and that there is no longer any need for the court to adjudicate on the application. The Kingdom of Spain shares the Commission’s view. 37 The applicants submit that there is still need for a decision on the application, since Decision 2005/864 is materially and procedurally different from the adoption of a position in response to their request to act. 38 Materially, the two measures are different because of their content and effects. With regard to content, in their letter of 24 September 2004 the applicants clearly requested that all the information they had submitted be reviewed and that they be given the opportunity to comment on and respond to certain points. There is nothing in Decision 2005/864 not to include endosulfan in Annex I to Directive 91/414 that is capable of providing a response to their request, either in the affirmative or the negative. The only position the Commission could have adopted to cure the failure to act would have been for it to review the information the applicants submitted to the rapporteur Member State and to permit them to comment on and respond to the issues raised by the evaluators during the last stages of the review. 39 Moreover, Decision 2005/864 even acknowledges the continuing failure to act since it refers in its eighth recital to concerns that could not be sufficiently addressed with the available information. 40 Further, the effects of Decision 2005/864 are different from those that would have resulted from a position being adopted in response to the applicants’ request of 24 September 2004, since they consist, primarily, in the national authorisations granted to plant protection products containing endosulfan being withdrawn, whereas the effects of a position being adopted following the request in question would have consisted in a review being carried out of the information the applicants submitted to the evaluating authorities and the applicants being given the opportunity to comment on and respond to the points raised by the evaluators during the last stages of the review. 41 With regard to procedure, Decision 2005/864 was adopted at the end of the procedure laid down in Article 19 of Directive 91/414, in the course of which, at its meeting on 15 February 2005, the Commission submitted a proposal for a decision to the Committee, which discussed and approved it. The Commission then adopted Decision 2005/864. That procedure is not in line with the requirement for the adoption of a position to cure a failure to act, which is part of the administrative stage of the process for reviewing endosulfan for the purposes of its inclusion in Annex I to Directive 91/414. The Commission is the only body competent to adopt such a position and does not have to submit it to the committee for approval. 42 Finally, the assertion that Decision 2005/864 constitutes the adoption of a position that puts an end to any failure to act is incompatible with the arguments advanced in the Commission’s objection of inadmissibility and in the Kingdom of Spain’s application, which maintain that the Commission cured its failure to act by its letter of 24 November 2004. The Commission could not have cured its failure to act both by its letter of 26 November 2004 and by Decision 2005/864. Findings of the Court 43 It has consistently been held that the remedy provided for in Article 232 EC is founded on the premise that an unlawful inaction on the part of the institution concerned enables the matter to be brought before the Court of Justice in order to obtain a declaration that the failure to act is contrary to the Treaty, in so far as it has not been cured by the institution concerned. The effect of that declaration under Article 232 EC is that the defendant institution is required to take the necessary measures to comply with the judgment of the Court of Justice or the Court of First Instance, without prejudice to any actions to establish non-contractual liability to which that declaration may give rise. Where the act whose absence constitutes the subject-matter of the proceedings was adopted after the action was brought but before judgment, a declaration by the Community court to the effect that the initial failure to act is unlawful can no longer bring about the consequences prescribed by Article 233 EC. It follows that in such a case, as in cases where the defendant institution has responded within a period of two months after being called upon to act, the subject-matter of the action has ceased to exist and there is no longer any need for the Court to adjudicate (see the order in Case C-44/00 Sodima v Commission [2000] ECR I-11231, paragraph 83 and case-law cited). 44 In the present case, in the task force’s letter to the Commission of 24 September 2004, the applicants, in essence, requested the Commission to review the information submitted for the purposes of the review of endosulfan and, further, to intervene to ensure they were granted due process during that review. 45 It must be concluded that the Commission adopted a position on that letter, with the effect that the action for failure to act became devoid of purpose. It is undeniable that Decision 2005/864 concluded once and for all the Commission’s review of the active substance endosulfan for the purposes of determining whether it may be included in Annex I to Directive 91/414 and it therefore constitutes the adoption of a final position on the review of the information submitted in the course of the procedure for reviewing endosulfan and on the lawfulness of the conduct of such a procedure. 46 The applicants’ argument that Decision 2005/864 is different from a position adopted in response to their request to act cannot invalidate that conclusion. 47 The fact that the position adopted by the Commission does not satisfy the applicant, as far as its substance is concerned, is immaterial since, according to settled case-law, Article 232 EC refers to failure to act in the sense of a failure to take a decision or to define a position, not the adoption of a measure different from that desired or considered necessary by the applicant (see the order in Sodima v Commission, paragraph 83 and case-law cited). 48 Moreover, with regard to the applicants’ argument that the classification of Decision 2005/864 as the adoption of a position putting an end to any failure to act is incompatible with the argument put forward in the objection of inadmissibility which maintains that the failure to act was cured by the letter of 26 November 2004 (see paragraph 20 above), it is to be noted that, where a position is adopted after an action for failure to act is brought, that is sufficient for it to be concluded, in any event, that there is no longer any need for the court to adjudicate on that action and there is no need for it to consider whether the Commission had failed to act at the time when the action was brought (order in Case C-41/92 The Liberal Democrats v Parliament [1993] ECR I-3153, paragraph 4, judgment in Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [2001] ECR I-5603, paragraph 28, and order in Case T-66/02 Institouto N. Avgerinopoulou and Others v Commission [2004] ECR II-855, paragraph 35). 49 It follows that there is no need to adjudicate on the application for measures of organisation of procedure and measures of inquiry. 50 In the light of the foregoing, there is no longer any need to adjudicate on the present action. Costs 51 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court of First Instance. 52 In its application for a declaration that there is no need to adjudicate, the Commission submitted that, since it had clearly adopted a position in November 2004, before the originating application under Article 232 EC was lodged, the applicants should pay the costs. 53 Also in that application, the Commission stated that, by adopting Decision 2005/864, it defined its position, with the effect that it was no longer necessary to adjudicate on the originating application. That has been confirmed by the Court of First Instance. It follows, as was pointed out above, that the Court of First Instance is no longer required to adjudicate on whether the Commission put an end to the alleged failure to act under Article 232 EC before the application was brought (The Liberal Democrats v Parliament, paragraph 4). 54 In the present case, the Court of First Instance considers it fair that the Commission and the applicants bear their own costs. 55 With regard to the applications for interim measures, the Commission and the applicants are likewise to bear their own costs. 56 Pursuant to the first paragraph of Article 87(4) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. Accordingly, the Kingdom of Spain shall bear its own costs. 57 Pursuant to the third paragraph of Article 87(4) of the Rules of Procedure, the European Crop Protection Association, as intervener, shall also bear its own costs. On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber) hereby orders: 1. There is no need to adjudicate on the present application. 2. The Commission and the applicants shall bear their own costs. 3. With regard to costs incurred in connection with the application for interim measures, the Commission and the applicants shall bear their own costs. 4. The Kingdom of Spain and the European Crop Protection Association shall bear their own costs. Luxembourg, 6 September 2006. Registrar President E. Coulon M. Jaeger *Language of the case: English.