62004TO0078_EN
Parties
Grounds
Operative part
Parties
In Case T-78/04 R,
Sumitomo Chemical (UK) plc, represented by
C. Mereu and K. Van Maldegem, lawyers,
applicant,
v
Commission of the European Communities,
represented by X. Lewis and F. Simonetti, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for suspension of the operation of Article 5(1) and (2) of and Annexes II and V to Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and the Council, concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p. 1),
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,
makes the following
Order
Grounds
Legal background
1. On 16 February 1998, the European Parliament and the Council adopted Directive 98/8/EC concerning the placing of biocidal products on the market (OJ 1998 L 23, p. 1). The purpose of the Directive is to establish Community rules for the authorisation and placing on the market of biocidal products proposed for use.
2. Under Article 16(2) of Directive 98/8, a programme of work was commenced for the evaluation of all active substances of biocidal products already on the market on 14 May 2000 (‘existing active substances’). Authorisation and placing on the market of biocidal products containing those substances is subject to their inclusion in Annexes I, IA or IB to the Directive.
3. The first phase of that programme of work was instigated by Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8 (OJ 2000 L 228, p. 6). As stated in recital 2 of that regulation, ‘[t]he first phase of the review programme is intended to enable the Commission to identify existing active substances of biocidal products and specify those which should be evaluated for a possible inclusion in Annex I, Annex IA or Annex IB to… Directive [98/8]’.
4. Under Article 3(1) of Regulation No 1896/2000, each producer of an existing active substance placed on the market for use in biocidal products is to ‘identify’ that active substance by submitting to the Commission the information on the active substance referred to in Annex I to the regulation. In addition, any formulator, that is to say, the manufacturer or his representative in the Community, may identify an existing active substance.
5. Article 4 of Regulation No 1896/2000 provides that producers, formulators and associations wishing to apply for the inclusion in Annex I or Annex IA to Directive 98/8 of an existing active substance in one or more product types are to notify that active substance to the Commission. The period prescribed for the notification of existing active substances ended on 28 March 2002. Under
Commission Regulation (EC) No 1687/2002 of 25 September 2002 on an additional period for notification of certain active substances already on the market for biocidal use as established in Article 4(1) of Regulation (EC) No 1896/2000 (OJ 2002 L 258, p. 15) that period was extended until 31 January for certain active substances.
6. Pursuant to Article 6(1)(b) of Regulation No 1896/2000, following the notification referred to in the previous paragraph, a Regulation was to be adopted, in accordance with the procedure laid down in Article 28 of the Directive, containing inter alia an exhaustive list of existing active substances for which the Commission has accepted at least one notification.
7. Commission Regulation (EC) No 2032/2003 of 4 November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8 and amending Regulation No 1896/2000 (OJ 2003 L 307, p. 1) introduces the notion of ‘participant’ which is defined in Article 2 as:
‘a producer, formulator or association which has submitted a notification that has been accepted by the Commission in accordance with Article 4(2) of Regulation (EC) No 1896/2000 … ’.
8. Article 3 of Regulation No 2032/2003 concerns ‘identified and notified existing active substances’ during the first phase. It provides, in paragraph 2:
‘Annex II contains the exhaustive list of existing active substances in respect of which:
(a) at least one notification has been accepted by the Commission in accordance with Article 4(2) of Regulation (EC) No 1896/2000;
…
That list specifies, for each notified existing active substance included, the product type(s) in respect of which notification has been accepted …’
9. Article 5 of Regulation No 2032/2003, which contains provisions on the review of notified existing active substances, provides:
‘1. The review of an active substance listed in Annex II, in respect of the product type(s) specified, shall be undertaken by the Rapporteur Member State designated for that purpose on the basis of the complete dossier for that substance and product type, provided that:
(a) the dossier complies with the requirements set out in Annex IV;
(b) the complete dossier is submitted within the time period specified in Annex V to this Regulation for the product type concerned, together with the summary dossier referred to in Article 11(1)(b) of Directive 98/8/EC and defined in Annex IV to this Regulation.
Without prejudice to Article 8 of this Regulation, an active substance listed in Annex II shall be reviewed exclusively in relation to the product type(s) in respect of which notification has been accepted.
2. The Rapporteur Member States designated to review active substances listed in Annex II in respect of product types 8 and 14 are specified in Part A of Annex V.
The Rapporteur Member States designated to review active substances listed in Annex II in respect of product types 16, 18, 19 and 21 are specified in Part B of Annex V.
A Member State which has indicated an interest in an existing active substance pursuant to Article 5(3) of Regulation (EC) No 1896/2000 shall not be designated as Rapporteur Member State in respect of that substance.
3. Without prejudice to Article 8 of this Regulation, an applicant who is not a participant and who wishes to apply, in accordance with Article 11 of Directive 98/8/EC, for the inclusion in Annex I, IA or IB thereto of an existing active substance which has been notified, or in which a Member State has indicated an interest, in relation to a product type specified in Annex V to this Regulation shall submit a complete dossier within the time period specified in that Annex for that substance/product type combination.
4. The relevant competent authorities as of 1 July 2003 are listed in Annex VI.’
10. Article 6, which lays down the rules for preparation of the complete dossier, provides:
‘1. In the preparation of the complete dossier, all reasonable efforts shall be made, inter alia, to avoid duplication of testing on vertebrate animals and, where appropriate, to establish a collective complete dossier.
2. Before commencing compilation of the complete dossier, a participant shall:
(a) inform the Rapporteur Member State of any testing on vertebrate animals that it has already carried out;
(b) contact the Rapporteur Member State for advice as to the acceptability of justifications for waiving certain studies;
(c) inform the Rapporteur Member State of any intention to carry out further testing on vertebrate animals for the purposes of the complete dossier;
(d) when informed by the Rapporteur Member State that another participant has notified plans to carry out the same tests, make all reasonable efforts to cooperate with that participant in the performance of common testing.
Advice given by Rapporteur Member States in accordance with point (b) of the first subparagraph shall not predetermine the outcome of the completeness check under Article 9(1).
3. A Rapporteur Member State may make available the reference to any test carried out on vertebrate animals in respect of an active substance listed in Annex II to this Regulation, save where that reference is to be treated as confidential in accordance with Article 19 of Directive 98/8/EC. Such reference may include the name of the active substance concerned, the end points of the tests, and the contact address of the data owner.
4. Where a Rapporteur Member State is aware that more than one participant is seeking review of a particular active substance, it shall inform those participants accordingly.
5. Participants seeking review of the same active substance for the same product type(s) shall undertake all reasonable efforts to submit a collective complete dossier, while fully respecting the Community rules on competition.
Where, in those circumstances, a collective dossier is not submitted, each individual dossier shall detail the efforts made to secure co-operation and the reasons for non-participation.
…’
11. Article 7, entitled ‘Submission of the complete dossier’, provides:
‘A participant shall submit to the Rapporteur Member State at least one paper copy of the complete dossier and one copy in electronic format. The Rapporteur Member State may require additional copies on paper or in electronic format.
The participant shall also … submit one paper copy of the summary dossier ...’
12. Article 8 lays down the rules on joining, replacing or withdrawal of participants. It provides:
‘1. If, by mutual agreement, a producer, formulator or association joins or replaces a participant in the submission of the complete dossier, all parties to the agreement shall jointly inform the Commission and the Rapporteur Member State accordingly, attaching any relevant letter of access.
The Commission shall inform accordingly any other participant seeking review of the same active substance in relation to the same product type(s).
…
3. The Commission shall inform the Member States if a situation arises where, as regards a particular existing active substance/product type combination, all the participants have withdrawn. That information shall also be made public by electronic means.
4. Within three months of the publication of the information referred to in paragraph 3, a producer, formulator, association or other person wishing to take over the role of participant as regards the existing active substance/product type combination shall inform the Commission accordingly.
Within the time period referred to in the first subparagraph, a Member State also may indicate to the Commission an interest in the inclusion in Annex I, IA or IB to Directive 98/8/EC of the existing active substance/product type combination, where there are uses which the Member State considers essential, in particular for the protection of human health, animal health or the environment. By indicating such an interest that Member State shall be deemed to have taken over the role of participant.
In the cases envisaged in the first and second subparagraphs, the relevant time period specified in Annex V may, where appropriate, be prolonged and a different Rapporteur Member State may be designated.
5. Where the Commission receives no response pursuant to paragraph 4, a decision shall be taken not to include the existing active substance in Annex I, IA or IB to Directive 98/8/EC within the framework of the review programme for the product type(s) concerned.’
Facts and procedure
13. The applicant produces and markets 18 active substances and biocidal products containing those active substances. In respect of eight of those active substances the applicant is the only notifier to have been accepted by the Commission and thereby acquired the status of ‘participant’ pursuant to Article 2 of Regulation No 2032/2003.
14. As regards the abovementioned 18 active substances, it appears from Annex II to Regulation No 2032/2003 that the notification was accepted in respect of product type 18 (insecticides). For one of those active substances, permethrin, notification was also accepted for product type 8 (wood preservatives). According to Part B of Annex V to Regulation No 2032/2003, for active substances notification of which has been accepted within product type 18, complete dossiers must be received by the competent authority of the Rapporteur Member State no earlier than 1 November 2005 and no later than 30 April 2006. According to Part A of Annex V to the regulation, for product type 8, complete dossiers must be received by the competent authority of the Rapporteur Member State no later than 28 March 2004.
15. By application lodged at the Registry of the Court of First Instance on 17 February 2004, the applicant brought an action pursuant to the fourth paragraph of Article 230 EC for annulment of Article 3, Article 4(2), Article 5(3), Article 10(2), second paragraph, Article 11(3), Article 13, Article 14(2) of and Annex II to Regulation No 2032/2003.
16. By a separate document lodged at the Registry of the Court of First Instance on 24 March 2004, the applicant sought, pursuant to Articles 242 EC and 243 EC, first, suspension of operation of Article 5(1) and (2) of and Annexes II and V to Regulation No 2032/2003 and, second, the adoption of ‘any other interim relief measures the [judge hearing the application for interim measures] deems appropriate’.
17. Pursuant to Article 105(2) of the Rules of Procedure of the Court of First Instance, the applicant asked the judge hearing the application for interim measures to grant its application as a matter of urgency before the Commission submits its observations.
18. By order of 26 March 2004 (T-78/04 R, not published in the ECR), the President of the Court of First Instance, ordered, pursuant to Article 105(2) of the Rules of Procedure, suspension of the operation of Annex V to Regulation No 2032/2003 in so far as it requires the applicant to submit a complete dossier for the active substance permethrin before 28 March 2004.
19. The Commission submitted its written observations on the application for interim measures on 1 April 2004.
20. The hearing before the judge hearing the application for interim measures was held on 14 May 2004.
Law
21. Under the provisions of Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the Court of First Instance may, if it considers that the circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.
22. Article 104(2) of the Rules of Procedure provides that an application for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President of the Court of Justice of 14 October 1996 in Case C-268/96 P(R) SCK and FNK
v Commission
[1996] ECR I-4971, paragraph 30).
The admissibility of the main application
23. According to settled case-law, the issue of the admissibility of the main application should not be examined in proceedings relating to an application for interim measures, so as not to prejudge the substance of the case. However, it may be necessary, where it is contended that the main application to which the application for interim measures relates is manifestly inadmissible, to establish whether there are any grounds for concluding prima facie that the main application is admissible (order of the President of the Court of 27 January 1988 in Case 376/87 R Distrivet
v Council
[1988] ECR 209, paragraph 21, and order of the President of the Court of First Instance of 11 April 2003 in Case T-392/02 R Solvay Pharmaceuticals
v Council
[2003] ECR II-1825, paragraph 53).
24. In the present case, the judge hearing the application for interim measures considers that it should be determined whether the action for annulment lodged by the applicant is manifestly inadmissible.
25. The Commission contends that the main action is inadmissible. It takes the view that the position of the applicant vis-à-vis Regulation No 2032/2003 is much the same as that of Bactria vis-à-vis Regulation No 1896/2000. The Court declared the action brought by that company against the latter regulation inadmissible (order of the Court of First Instance of 29 April 2002 in Case T-339/00 Bactria
v Commission
[2002] ECR II-2287, upheld on appeal by order of the Court of First Instance of 12 December 2003 in Case C-258/02 P
Bactria
v Commission
[2003] ECR I-0000). According to the Commission, Regulation No 2032/2003 is in principle liable to apply to an indeterminate number of traders and not to a closed category comprising only those who are participants on the date of adoption of that regulation. The Commission observes that, under Article 8(1) of Regulation No 2032/2003, a producer, formulator or association which is not already a participant can join a participant in the submission of the complete dossier. Similarly, under Article 8(4) of Regulation No 2032/2003, a producer, formulator or association can take over the role of participant under the conditions set out in that provision. Finally, Article 5(3) of Regulation No 2032/2003 allows an applicant who is not a participant to apply for the inclusion in Annex I, IA or IB thereto of an existing active substance. Such an applicant is subject to certain provisions of Regulation No 2032/2003, such as the time-limit set by Annex V, in accordance with Article 5(3).
26. The applicant submits that its action for annulment is admissible.
27. In that regard, it must be borne in mind that the fourth paragraph of Article 230 EC gives individuals the right to challenge a decision which, although in the form of a regulation, is of direct and individual concern to them. The particular objective of that provision is to prevent the Community institutions from being able, merely by choosing the form of a regulation, to preclude an individual from bringing an action against a decision which concerns him directly and individually and thus to make it clear that the nature of a measure cannot be changed by the form chosen (see, inter alia, Joined Cases 789/79 and 790/79 Calpak and Società Emiliana Lavorazione Frutta
v Commission
[1980] ECR 1949, paragraph 7; Case T-298/94 Roquette Frères
v Council
[1996] ECR II-1531, paragraph 35; Case T‑13/99 Pfizer Animal Health
v Council
[2002] ECR II-3305, paragraph 81; and Case T-70/99 Alpharma
v Council
[2002] ECR II-3495, paragraph 73).
28. In its order of 29 April 2002 in Bactria v Commission, upheld on appeal by the order of 12 December 2003 in Bactria
v Commission, the Court of First Instance declared inadmissible the action brought by the applicant against Regulation No 1896/2000, holding, inter alia, that that regulation was, according to its terms, in principle capable of applying to an indeterminate number of economic operators with an interest in identification and notification of existing active substances and biocidal products containing those substances.
29. In fact, Regulation No 2032/2003 imposes a series of obligations, inter alia in Articles 6 and 7, concerning the preparation and presentation of a complete dossier, on producers, formulators or associations who submitted, before 28 March 2002 or 31 January 2003 as the case may be, a notification which was accepted by the Commission pursuant to Article 4(2) of Regulation No 1896/2000.
30. Thus, unlike the case in which the order of 29 April 2002 was made, Bactria
v Commission, in the present case Regulation No 2032/2003 applies to a clearly defined category of economic operators who, under Article 2 of the regulation, are designated ‘participants’. Moreover, as the applicant observed in its application for interim measures, Regulation No 2032/2003 allows those participants to be identified given that a footnote to Annex II to the Regulation states that ‘[c]ontact details of participants are specified at http://ecb.jrc.it/biocides’.
31. In its written observations, the Commission cites Article 8(1) and (4) and Article 5(3) of Regulation No 2032/2003 to establish that the regulation does address an ‘open’ circle of economic operators.
32. Article 8(1) allows a formulator or association which is not already a participant to join or replace a participant in the submission of a complete dossier by ‘mutual agreement’ between the parties.
33. Article 8(4) of Regulation No 2032/2003 provides that a producer, formulator or association may take over the role of participant if, as regards an existing active substance/product type combination, all the participants have withdrawn.
34. The Commission’s assertion that under Article 8(1) and (4) of Regulation No 2032/2003 the number and identity of the participants may, as a rule, be changed is, therefore, correct.
35. However, as the applicant explained at the hearing, it is also apparent from those provisions that any change in the number and identity of the participants depends entirely on decisions taken by them, and they must first either agree to new undertakings joining or replacing them or decide to withdraw completely from the review programme. That being so, it cannot be ruled out that the number and identity of the traders affected by Regulation No 2032/2003 may be considered sufficiently identifiable at the time of adoption of that regulation to confer on the applicant the status of person individually concerned by the regulation.
36. According to Article 5(3) of Regulation No 2032/2003, an economic operator who is not a participant may request the inclusion in Annex I, IA or IB to Directive 98/8 of an existing active substance which has already been notified, in which case he must submit a complete dossier within the period prescribed in Annex V to that regulation. However, there is nothing to suggest that, in such a case, the economic operator in question acquires the status of ‘participant’ under Regulation No 2032/2003 nor that he is subject to the same obligations as the participants. Although it is true that such an operator must observe the same time-limits for submission of the complete dossier, Regulation No 2032/2003 imposes on participants alone a series of obligations relating, inter alia, to the preparation of the complete dossier (see Article 6 of Regulation No 2032/2003). The Commission also seems to share that view, as it points out in its written observations that the applicant is subject to ‘at least certain provisions of the Regulation, for example the deadline set in Annex V as laid down in Article 5(3)’.
37. In addition, the applicant has put forward a series of arguments to demonstrate that it is individually concerned by Regulation No 2032/2003 without those arguments being disputed by the Commission. In particular, the applicant points out that it was involved in the adoption of Regulation No 2032/2003 in that the preparation and presentation of its data in the notification dossier for each of its active substance/product type combinations was an essential precondition for the launching of the review programme under Regulation No 1896/2000. Those measures then enabled the Commission to identify the active substances and product types comprised in the review programme under Regulation No 2032/2003, which are included in Annex II thereto. Moreover, the applicant enjoys the specific protection granted under Article 12 of Directive 98/8 to data submitted in its notification and complete dossier for each of its notified active substance/product type combinations, which the Member States must respect ( Alpharma
v Council ). The applicant also pointed out that it derives certain procedural guarantees from Directive 98/8, from Regulation No 1896/2000 and from Regulation No 2032/2003 which individualise it for the purposes of the procedure in the main action ( Alpharma
v Council ). Moreover, the applicant is distinguished from all other economic operators in that it is the proprietor of pre-existing exclusive intellectual property rights which are adversely affected by Regulation
No 2032/2003 (judgment in Case C-309/89 Codorniu
v Council
[1994] ECR I-1853). Finally, according to the applicant, the Commission had an obligation to take into account the interests of all ‘participants’ since their identity and legal position was known to it and the accepted notifications were the only reason for the adoption of Regulation No 2032/2003 (judgment in Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others
v Commission
[1995] ECR II-2305).
38. Moreover, the Commission does not dispute that the applicant is directly concerned by Regulation No 2032/2003, as it directly refers to a series of active substances which it produces and in respect of which that regulation requires the observance of certain formalities.
39. In the light of the foregoing observations, it cannot be ruled out that the applicant is directly and individually concerned by Regulation No 2032/2003 and, therefore, that its application for annulment under the fourth paragraph of Article 230 EC is admissible.
The admissibility of the application for interim measures
40. The Commission contends that the application for interim measures is inadmissible because the provisions contested in the main action and those of which the suspension of operation is sought are not the same. That difference constitutes a breach of an essential procedural requirement laid down by Article 104(1) of the Rules of Procedure. According to the Commission, although the Community Court has not always strictly applied the rule requiring that the subject of the action for annulment and of the application for suspension of operation must be exactly the same measure, the fact remains that the suspension of a measure which is not the subject of an action for annulment must remain the exception.
41. At the hearing, the applicant submitted that its application for interim measures is admissible.
42. It must be remembered that the first paragraph of Article 104(1) of the Rules of Procedure provides that an application, made pursuant to Article 242 EC, to suspend the operation of any measure adopted by an institution is admissible only if the applicant is challenging that measure before the Court of First Instance.
43. It follows from the second paragraph of Article 104(1) of the Rules of Procedure that an application for the adoption of one of the interim measures referred to in Article 243 EC is admissible where there is a sufficiently close link between the interim measure sought and the subject-matter of the main action. However, the rule set out in the first paragraph of Article 104(1) applies in respect of an application for interim measures where it essentially seeks the same result as an application for suspension of operation, unless there are exceptional circumstances (see, to that effect, the order of the President of the Court of First Instance of 22 November 1995 in Case T-395/94 R II Atlantic Container Line and Others
v Commission
[1995] ECR II‑2893, paragraph 39).
44. It must be made clear, in that connection, that the purpose of proceedings for interim relief is to safeguard the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Court of Justice (see, to that effect the orders of the President of the Court of Justice of 3 May 1996 in Case C-399/95 R Germany
v Commission
[1996] ECR I-2441, paragraph 46; of 29 January 1997 in Case C-393/96 P(R) Antonissen
v Council and Commission
[1997] ECR I-441, paragraph 36; of 25 March 1999 in Case C-65/99 P(R) Willeme
v Commission
[1999] ECR I‑1857, paragraph 62, and order of the President of the Court of First Instance of 7 May 2002 in Case T-306/01 R Aden and Others v Council and Commission  [2002] ECR II‑2387, paragraph 45).
45. It must be noted that, in the present case, the main action seeks the annulment of Article 3, Article 4(2), Article 5(3), Article 10(2), second paragraph, Article 11(3), Article 13, Article 14(2) of and Annex II to Regulation No 2032/2003.
46. On the other hand, according to the introduction and the forms of order sought in the application for interim measures the applicant seeks the suspension of operation of Article 5(1) and (2) of and Annexes II and V to Regulation No 2032/2003. It is true that paragraph 54 of the application for interim measures states that ‘on this basis the applicant requests that your Court immediately suspends the application of Article 5(2) and (3) and Annexes II and V [to Regulation No 2032/2003], which impose the deadlines for the submission of the complete dossiers for the applicant’s active substance/product type combinations’. However, it is clear from the explanations and legal argument put forward by the applicant in its application and at the hearing that the reference made, at that point only, to Article 5(2) and (3) of Regulation No 2032/2003 is a clerical error and must be understood as a reference to Article 5(1) and (2) of that regulation.
47. It follows that the only provision which is contested in the main action and suspension of operation of which is sought is Annex II to Regulation No 2032/2003.
48. In accordance with the first paragraph of Article 104(1) of the Rules of Procedure, the application must be declared inadmissible in so far as it seeks suspension of the operation of Article 5(1) and (2) of and Annex V to Regulation No 2032/2003.
49. It is true that, in its application for interim measures, the applicant, citing Article 243 EC, also seeks ‘any other interim relief measures the [judge hearing the application for interim measures] deems appropriate to preserve [the] applicants’ position pending the full resolution of the dispute in the main proceedings’.
50. However, the applicant gives no explanation to elucidate this part of its application, which is vague and imprecise in nature. Without further details as to its subject-matter, such a request does not meet the criteria laid down in Article 44(1)(d) of the Rules of Procedure to which Article 104(3) of those rules refers and is thus inadmissible (see, to that effect, the order of the President of the Court of First Instance of 12 February 1996 in Case T-228/95 R Lehrfreund
v Council and Commission
[1996] ECR II-111, paragraph 58).
51. Against that background, the present analysis must be confined to the question whether an order suspending the operation of Annex II to Regulation No 2032/2003 is justified.
52. It must be pointed out, in that connection, that, in order to obtain interim measures, an applicant must establish an interest in obtaining the measures sought (see, to that effect, the order of the President of the First Chamber of the Court of Justice of 19 May 1989 in Case C-107/89 R Caturla-Poch
v Parliament
[1989] ECR 1357, and order of the President of the Court of First Instance of 17 December 1996 in Case T-164/96 R Moccia Irme v Commission
[1996] ECR II‑2261, paragraph 26). Thus, an application for interim measures must be dismissed where it could not have the effect of changing the applicant’s position and, therefore, could not be of any practical use to the applicant (see, to that effect, the order of the President of the Second Chamber of the Court of Justice of
31 July 1989 in Case C-206/89 R S.
v Commission
[1989] ECR 2841, paragraph 14; order of the President of the Court of Justice of 30 April 1997 in Case C-89/97 P(R) Moccia Irme v Commission
[1997] ECR I‑2327, paragraph 45, and order of the President of the Court of First Instance of 16 January 2004 in Case T-369/03 R Arizona Chemical and Others
v Commission
[2004] ECR II-0000, paragraph 62).
53. In the present case, it is clear from Article 3(2) of Regulation No 2032/2003 that Annex II, which is headed ‘Existing active substances and product types included in the review programme’, contains a list of existing active substances and product types for which at least one notification has been accepted by the Commission pursuant to Article 4(2) of Regulation No 1896/2000 or for which a Member State has indicated its interest pursuant to Article 5(3) of that regulation.
54. As regards the 18 active substances produced and marketed by the applicant, Annex II indicates their ‘EC’ number, their ‘CAS’ number and states that they have been notified in respect of product type 18 and, as regards permethrin, in respect of product type 8.
55. Annex II thus represents a mere statement of facts, which in itself does not impose any obligation on the applicant. It must also be observed that, at the hearing, the applicant gave no explanation to establish that suspension of the operation of Annex II would be capable of changing its position. Thus, there is nothing to suggest that suspension of the operation of that annex would be of any use to the applicant.
56. As the applicant has not established any interest in obtaining, by way of interim measure, the suspension of the operation of Annex II to Regulation No 2032/2003, the application for suspension of the operation of that annex must be dismissed.
57. It follows from the foregoing observations that this application for interim measures must be dismissed without it being necessary to consider whether the other conditions for obtaining the suspension of operation and the other interim measures sought are fulfilled.
Operative part
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.