Order — ECLI:EU:T:2009:124
Date: 2009-04-28
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
Procedure: Action for annulment;Application for interim measures

summary proceedings would scarcely be such as to dispel doubts which may exist as to the correctness of the view that napropamide is not toxic. Finally, the applicant has not succeeded in establishing to the required legal standard that it would be impossible for it to recover its reputation in the event that the contested decision were to be annulled at the conclusion of the proceedings in the main action. 62 It follows that the alleged risks of harm which have just been examined cannot be taken into account for the purpose of establishing urgency in the present context. 63 With regard to the risk that it may lose market shares and customers, the applicant points out that, as the contested decision involves the total withdrawal of napropamide and napropamide-based products from the market in the European Union, it would lose its entire European market for the products and all of its customers who purchase them. 64 In that connection, it is necessary first to point out that, contrary to the submissions of the applicant, that category of damage is purely financial (see, to that effect, orders of the President of the Court of Justice in Cases C‑51/90 R and C‑59/90 R Comos-Tank and Others v Commission [1990] ECR I‑2167, paragraphs 30 and 31, and in Commission v Cambridge Healthcare Supplies, cited in paragraph 33 above, paragraphs 110 and 113). The market share held by a company indicates only the percentage of all the products present on the market in question which were sold by that company to customers over the course of a specified reference period. Consequently, the loss of that market share consists in the loss of the profits liable to be realised in the future on sales of the product in question. A market share can thus clearly be represented in financial terms, as the holder of that market share can benefit from it only in so far as it generates profit for him. This analysis is not brought into question by the fact that the undertaking in question has, of course, been obliged to make efforts and investments in order to establish its market position. 65 Furthermore, the applicant itself quantified the damage which the contested decision will, in its view, cause it on the market in the European Union, referring to its sales of napropamide and napropamide-based products amounting to [confidential] for the 2007/2008 financial year and adding that, for the same period, the global turnover of the group to which it belongs was [confidential]. It is thus complaining of a loss which represents approximately [confidential] % of that group’s worldwide turnover. 66 Moreover, in quantifying the alleged harm and placing it in relation to the worldwide turnover of the group to which it belongs, the applicant takes account of the case-law which states that the gravity of that harm depends on, inter alia, the scale, total turnover and characteristics of that group (see paragraph 35 above). 67 So far as concerns the figures presented by the applicant, the Commission does not contest the allegation, supported by accounting documents, that the harm on the Community market which the applicant invokes corresponds to [confidential] % of the global turnover of the UPL Group. Without its being necessary to determine whether that percentage, which is between 0% and 10%, is, in itself, sufficiently large to establish the gravity of that harm, it must be held that that harm is greater, in financial terms, than that which was classified as not serious in the orders recently made in Cases T‑326/07 R Cheminova and Others v Commission, T‑367/07 R Dow AgroSciences and Others v Commission, and T‑475/07 R Dow AgroSciences and Others v Commission (see paragraphs 56, 1 and 35 above). 68 Furthermore, that harm cannot be reduced by the sale of substitute plant protection products, as the applicant has established that it does not have such products for oil seed rape, a fact not disputed by the Commission. In addition, it is apparent from the documents submitted by the applicant that its sales of napropamide and napropamide-based products outside the European Union are not sufficient to be capable of offsetting, to any significant degree, the adverse effect suffered on the Community market. 69 It should be added that, in the evaluation of the seriousness of the harm, the judge hearing the application for interim relief cannot confine himself to having recourse, in a mechanical and rigid manner, solely to the relevant turnover – which, in this case, relates to the 2007/2008 financial year – but must also examine the circumstances of each case (order in Commission v Cambridge Healthcare Supplies, cited in paragraph 33 above, paragraph 114) and to bring them into relation, when taking his decision, with the harm occasioned in terms of turnover. 70 It is a matter of general knowledge that the world economy has, for several months, been suffering from a serious economic and financial crisis which has impacted on the value, in particular the share value, of numerous undertakings and their capacity to secure liquidity; this crisis has also now reached the Indian economy. It is obvious that an undertaking affected by this crisis will be more seriously affected by the loss of turnover achieved by a given product than will an undertaking the value of which, including its financing capacity, will not have decreased. In that connection, the applicant has stated, referring to data provided by the Mumbai stock exchange that the group to which it belongs had, at the end of March 2009, lost more than [confidential] of its value in terms of market capitalisation. 71 In those specific circumstances, the President of the Court is obliged to acknowledge that the applicant has established the gravity of the harm which it will suffer in the event of the total withdrawal of napropamide and napropamide-based products from the Community market if the interim measures sought are not granted. 72 To the extent to which the Commission take issue with the volatile and inappropriate nature of the market capitalisation criterion, suffice it to point out that it may at any time draw the attention of the President of the Court to developments in this matter and propose that he exercise the option conferred on him by Article 108 of the Rules of Procedure to vary or cancel at any time the order relating to interim measures on account of a change in circumstances (order of the President of the Court of Justice in Case C‑40/92 R Commission v United Kingdom [1992] ECR I‑3389, paragraph 33). 73 So far as concerns the irreparable nature of the financial harm invoked, that harm, in so far as it is not rectified solely by implementation of the judgment in the main action, may be made good by the means of redress provided for in Articles 235 EC and 288 EC (see order of the President in Case T-369/03 R Arizona Chemical and Others v Commission [2004] ECR II‑205, paragraph 75 and the case-law cited), given that the mere possibility of bringing an action for damages is sufficient to show that such financial harm is ‘in principle reparable’ (order of the President of the Court of Justice in Case C‑404/01 P(R) Commission v Euroalliages and Others [2001] ECR I‑10367, paragraphs 70 to 75; order of the President in Case T‑132/01 R Euroalliages and Others v Commission [2002] ECR II‑777, paragraph 52). The fact must not, however, be overlooked that such pecuniary reparation through judicial channels will be obtained only after several years, that is to say, at the conclusion of the proceedings in the main case here (followed, if appropriate, by appeal proceedings) and the proceedings in the subsequent dispute as to compensation (also followed, if appropriate, by appeal proceedings). 74 It must, however, be emphasised that the judge dealing with the application for interim measures must not apply mechanically and rigidly the condition relating to the irreparable nature of the financial harm pleaded, but must take account of the factual and legal circumstances specific to each case (order in HFB and Others v Commission, cited in paragraph 32 above, paragraph 57) and determine, in the light of those specific circumstances, the manner in which those conditions of urgency are to be examined (order in Commission v Atlantic Container Line and Others, cited in paragraph 19 above, paragraph 23). 75 Consequently, it is necessary to establish whether there are specific circumstances such as would justify the finding, notwithstanding the nature, ‘in principle reparable’, of the harm pleaded by the applicant, that there is urgency capable of justifying the granting of the interim measures sought, with a view to preventing that harm from actually arising. 76 In that regard, it should be recalled that, on 16 December 2008, the applicant resubmitted an application for assessment of napropamide pursuant to the accelerated procedure set out in Article 13 of Regulation No 33/2008 (see paragraph 12 above). In response to a question put by the President, the Commission indicated that the assessment procedure could last between 14 and 29 months at the most, but that this period could be significantly shortened if the parties and authorities involved required less time to carry out their tasks. 77 It follows that the resubmission procedure might be concluded only a few months after 7 May 2009, this date being the deadline which Article 2 of the contested decision imposes on Member States for the withdrawal of authorisations for plant protection products containing napropamide. Within the framework of that procedure, the applicant has been able to present all of the scientific data which, it claims, EFSA and the Commission improperly neglected to take into account in the procedure which led to the contested decision, thereby failing to have regard for the latest developments in science and the state of current scientific and technical knowledge (see paragraphs 23, 24 and 26 above). It cannot therefore be ruled out, at the stage of the interim-relief proceedings, that the applicant’s prospects of success will be greater, within the framework of the new, accelerated resubmission procedure, than they were in the preceding administrative procedure. It would be unreasonable to allow the prohibition of the marketing of a product in respect of which it is not improbable that its marketing will be authorised only a few months later. 78 It should be added that the applicant has established that napropamide was produced in [confidential], and that practically all of that production is used by the applicant in [confidential] (see paragraph 38 above). It follows that its supply source is heavily dependent on sales of napropamide on the Community market, to the extent that it appears sufficiently probable that the enormous fall in its production by reason of the banning of those sales would lead to the immobilisation of that plant for several years, or even to its complete closure. 79 Furthermore, the applicant has stated, without being contradicted by the Commission, that it would be impossible for it to offer substitute products to its customers during the entire period for which napropamide would be absent from the market. Finally, it demonstrated, to the required legal standard, that, in the event that that active substance were ultimately to be included in Annex I to the Directive, it would not be possible to market it immediately. With documentary evidence in support, it demonstrated that the period for obtaining the national authorisations necessary following that inclusion could exceed one year in certain Member States where it carried out the greater part of its sales. Without its being necessary to determine whether these are real (long-term) obstacles of a legal nature, it is in any event necessary to take them into account in the assessment of urgency, particularly in view of the fact that the abovementioned accelerated procedure is ongoing at the same time. 80 Furthermore, to the extent to which the Commission argues that the applicant has not demonstrated the degree of difficulty in resuming production of napropamide in the [confidential] plant and/or in obtaining that substance from other sources if it were to be included in Annex I to the Directive, the applicant cannot be required to adduce the negative evidence that, in that event, it would not be in a position to obtain napropamide from its present supply source or from other suppliers. It is sufficient in this regard to emphasise the significant role of its present Indian supply source, bearing in mind that the company [confidential], a competitor of the applicant, obtains the napropamide which it requires from the applicant and thus from the source in question (see paragraph 4 above). 81 It follows that a return of the applicant to the market in question – following annulment of the contested decision and the grant of national authorisations for the marketing of napropamide – appears problematic by reason of the fact that, at the crucial point in time, it would probably not have available to it any source for the supply of ready-to-use napropamide. 82 The conclusion must therefore be drawn that the present case is characterised by specific circumstances establishing the existence of urgency. 83 This solution is consistent with the balancing of the different interests involved, in the context of which the President of the Court must examine, inter alia, whether the applicant’s interest in obtaining the interim measures sought should or should not take precedence over the interest in immediate application of the contested decision (order of the President of the Court of Justice in Joined Cases C‑182/03 R and C‑217/03 R Belgium and Forum 187 v Commission [2003] ECR I‑6887, paragraph 142). 84 While it is true that the requirements of the protection of public health must, in principle, take precedence over economic considerations (see order of the President in Case T‑70/99 R Alpharma v Council [1999] ECR II‑2027, paragraph 152 and the case-law cited), the unavoidable conclusion is that several elements provided to the President in this case indicate that a stay on the implementation of the contested decision would not involve any serious risk to public health or to the environment. 85 Thus, first, it is in response to the head of complaint alleging a very significant failure on the part of EFSA to respect the deadline laid down in Article 11(4) of Regulation No 1490/2002 (see paragraph 28 above) that the Commission emphasised that the flexibility in the application of that deadline had allowed the applicant to benefit from close on two additional years for the purpose of marketing napropamide. It follows that the Commission does not itself see any specific and objective reason why napropamide must be withdrawn from the market as quickly as possible. 86 Second, the contested decision provides, in Article 3 and in recital 9 in its preamble, a period of grace of up to 7 May 2010 for the marketing and use of existing stocks of plant protection products containing napropamide. This constitutes a further indication that the use of the active substance in issue is hardly of such a kind as to involve serious risks to public health or to the environment. 87 Third, the same holds in regard to the fact that the Rapporteur Member State had recommended inclusion of napropamide in Annex I to the Directive. While a recommendation of this kind is conclusive neither for the proposal which EFSA is required to submit to the Commission nor for the final decision to be adopted by the Commission, the President is not prevented from taking it into account when balancing the different interests involved. 88 It follows that it is appropriate to suspend implementation of the contested decision until the conclusion of the accelerated procedure for the reintroduction of napropamide referred to in Article 13 of Regulation No 33/2008. As the date on which that procedure will be concluded cannot be predicted with precision, it appears appropriate to make the period of suspension of implementation coincide with the duration of the period of grace mentioned in paragraph 87 above, that is to say, up to 7 May 2010. 89 It is appropriate to add that the President will decide, after having received any written observations from the parties, to be lodged no later than 15 March 2010, and, if necessary, after having heard oral submissions of the parties, whether the maintenance of the suspension of implementation and the granting of additional interim measures in the present proceedings may be justified. 90 It is also appropriate to bear in mind Article 108 of the Rules of Procedure, under which the President may at any time vary or cancel the order relating to interim measures on account of a change in circumstances (see paragraph 72 above). It will therefore, if appropriate, be up to the parties to contact the Court in the event that, inter alia, the outcome of the abovementioned accelerated procedure were to have consequences for urgency in the present case (see, by way of analogy, the order of the President in Case T‑198/01 R Technische Glaswerke Ilmenau v Commission [2002] ECR II‑2153, paragraph 124). 91 Finally, Article 2 of the contested decision imposes an obligation on the national authorities to withdraw ‘by’ 7 May 2009 authorisations for plant protection products containing napropamide, which involves the risk, as the applicant has correctly pointed out, that some of those authorisations will already have been cancelled, withdrawn or refused before the present order is adopted. In that regard, it should be borne in mind that Article 243 EC, under which the judge hearing the application ‘may … prescribe any necessary interim measures’, is intended to grant sufficient powers to that judge to prescribe any measure which he deems necessary to guarantee the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection (see, to that effect, the order of the President in Case T‑411/07 R Aer Lingus Group v Commission [2008] ECR II‑411, paragraph 56). The possibility cannot therefore be ruled out that the President may enjoin the Commission, in circumstances such as those obtaining in the present case, to take whatever steps may be necessary to ensure that his order in these interim proceedings is fully effective in regard to the Member States. 92 Accordingly, the Commission is ordered to take the measures which are necessary to ensure that the present order is fully effective in regard to those Member States which, prior to 7 May 2009, will already have cancelled, withdrawn or refused, pursuant to Article 2 of the contested decision, authorisations for plant protection products containing napropamide, in the event that the applicant should so request after encountering obstacles on the part of national authorities. On those grounds, THE PRESIDENT OF THE COURT OF FIRST INSTANCE hereby orders: 1. The operation of Commission Decision 2008/902/EC of 7 November 2008 concerning the non-inclusion of napropamide in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance is suspended up to 7 May 2010 – but at the latest up to the date on which the decision in the main action is delivered. 2. That suspension is subject to the condition that the parties lodge with the Registry of the Court, by no later than 15 March 2010, observations on the course of the accelerated procedure instituted, in regard to napropamide, pursuant to Article 13 of Commission Regulation (EC) No 33/2008 of 17 January 2008 laying down detailed rules for the application of Council Directive 91/414 as regards a regular and an accelerated procedure for the assessment of active substances which were part of the programme of work referred to in Article 8(2) of that Directive but have not been included in its Annex I. 3. The Commission is ordered to take, should the applicant so request, the measures necessary to ensure that the present order is fully effective in regard to those Member States which, prior to 7 May 2009, may already have cancelled, withdrawn or refused, pursuant to Article 2 of Decision 2008/902, authorisations for plant protection products containing napropamide. 4. Costs are reserved. Luxembourg, 28 April 2009. E. Coulon M. Jaeger Registrar President * Language of the case: English. 1 Confidential data omitted.