ORDER OF THE PRESIDENT OF THE GENERAL COURT
26 September 2019
(*)
(Application for interim measures — Plant protection products — Regulation (EC) No 1107/2009 — Active substance thiram — Conditions of approval for placing on the market — Application for suspension of operation — Lack of urgency)
In Case T‑740/18 R,
Taminco BVBA, established in Ghent (Belgium), represented by
C. Mereu and S. Englebert, lawyers,
applicant,
v
European Commission, represented by
G. Koleva, A. Lewis
and I. Naglis, acting as Agents,
defendant,
APPLICATION based on Articles 278 and 279
TFEU, seeking suspension of the operation of Commission Implementing Regulation (EU) 2018/1500 of 9 October 2018 concerning the non-renewal of approval of the active substance thiram, and prohibiting the use and sale of seeds treated with plant protection products containing thiram, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending Commission Implementing Regulation (EU) No 540/2011 (OJ 2018 L 254, p. 1),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought by the parties
1        The applicant, Taminco BVBA, is a company established under Belgian law belonging to the Eastman group of companies. Taminco is, together with Arysta LifeScience Great Britain Ltd, the main proprietor of a set of toxicological data. In addition, the applicant is the holder of registrations for foliar treatments and seed treatments used to protect crops. As such, the applicant manufactures, inter alia, the active substance thiram.
2        Pursuant to Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation (EC) No 1107/2009 of the European Parliament and of the Council as regards the list of approved active substances (OJ 2011 L 153, p. 1), thiram was listed in Annex I to 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 approval of thiram is subject to the standard regulatory renewal of approval process under Article 14 et seq. of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1).
3        In accordance with Article 1 of Commission Implementing Regulation (EU) No 844/2012 of 18 September 2012 setting out the provisions necessary for the implementation of the renewal procedure for active substances, as provided for in Regulation No 1107/2009 (OJ 2012 L 252, p. 26), the renewal of approval was subject to an initial evaluation by the rapporteur Member State, the French Republic, and the co-rapporteur Member State, the Kingdom of Belgium, which concluded that there was to be no change in the classification of thiram and proposed that it be renewed for use as seed treatment.
4        The European Food Safety Authority (EFSA) received the result of the initial evaluation on 20 January 2016
and sent it to the Members States and the Thiram Task Force for comments on 15 March 2016.
5        On 1 February 2017, EFSA sent the applicant four documents (its overall conclusion report, the list of endpoints, the peer review report and the renewal assessment report) which contained, inter alia, the conclusion of the discussion of its experts on the potential carcinogenicity of thiram.
6        On 15 February 2017, the applicant sent EFSA redacted versions of the four documents in accordance with Article 63 of Regulation No 1107/2009.
7        By email of 16 February 2017, EFSA rejected the requests referred to as regards the publication of the conclusion and of the list of endpoints for thiram on the ground that it was its standard procedure to make publicly available the results of a peer review process. In addition, it specified that the conclusion clearly reports why the classification had been proposed and on what basis. On 20 July 2017, after several exchanges between the parties concerning the publication of that conclusion, EFSA notified the applicant of its decision of 18 July 2017 to publish a provisional redacted version of its conclusion on its website before publishing it in its entirety, including the reference to
thiram’s classification as a carcinogen, on the expiry of the period for bringing an action before the General Court, namely, on 20 September 2017.
8        On 14 September 2017, the applicant lodged an action for annulment against EFSA’s decision and an application for interim measures, the latter of which was dismissed (order of 12 October 2018, Taminco v EFSA, T‑621/17 R, EU:T:2018:763).
9        The EFSA conclusion was reviewed by the Commission within the Standing Committee on Pesticides, Animals, Food and Feed and a Review Report stating that the approval of the substance thiram should not be renewed was presented. This review was confirmed by the Appeal Committee on 12 July 2018.
10      On 9 October 2018, the Commission adopted Implementing Regulation (EU)
2018/1500 of 9 October 2018 concerning the non-renewal of approval of the active substance thiram, and prohibiting the use and sale of seeds treated with plant protection products containing thiram, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending Commission Implementing Regulation (EU) No 540/2011 (OJ 2018 L 254, p. 1; ‘the contested regulation’).
11      The contested regulation establishes the non-renewal of the approval of the active substance thiram and prohibits the use and sale of seeds treated with plant protection products containing thiram.
12      In accordance with Article 4 thereof, the contested regulation requires Member States to withdraw authorisations for plant protection products containing thiram as active substance by 30 January 2019 at the latest. Article 5 provides for a ‘grace period’ that was to expire by 30 April 2019 for plant protection products used for foliar application and is to expire on
30 January 2020 for other plant protection products, including those used for seed treatment, at the latest.
13      By application lodged at the Registry of the General Court on 19 December 2018, the applicant seeks the annulment of the contested regulation.
14      By separate document lodged at the Court Registry on the same day, the applicant lodged an application for interim measures, in which it claims, in essence, that the President of the General Court should:
–        suspend with immediate effect the contested regulation in accordance with Articles 156
and/or 157(2) of the Rules of Procedure of the General Court until the Court has given judgment in the main proceedings;
–        suspend the expiry date for the approval of thiram as set out in Articles 4 and 5 of the contested regulation;
–        order any other interim measures as appropriate and hold an oral hearing as needed;
–        order the Commission to pay the costs.
15      In its observations on the application for interim measures, which were lodged at the Court Registry on 14 January 2019, the Commission contends that the President of the General Court should:
–        dismiss the application for interim measures;
–        reserve the costs until judgment in the main proceedings.
Law
General considerations
16      It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 17 and the case-law cited).
17      The first sentence of Article 156(4) of the Rules of Procedure provides that 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 interim measure applied for’.
18      Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, 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 damage to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is absent. Where appropriate, the judge hearing such an application must also weigh the competing interests (see, to that effect, order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 21 and the case-law cited).
19      In the context of that overall examination, the judge hearing the application has a wide 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 law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see, to that effect, order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
20      Having regard to the material in the case file, the judge hearing the application considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
21      In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
Urgency
22      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Court. For the purpose of attaining that objective, urgency must generally be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see, to that effect, order 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).
23      In addition, according to well-established case-law, there is urgency only if the serious and irreparable damage feared by the party seeking the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such damage is likely, it being clear that purely hypothetical damage, based on future and uncertain events, cannot justify the granting of interim measures (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 24 and the case-law cited).
24      Moreover, according to the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.
25      Thus, an application for interim measures must be sufficiently clear and specific in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, where necessary, without other supporting information, the essential elements of fact and law on which it is founded being set out in a coherent and comprehensible fashion in the actual text of the application (see orders of 23 May 2019, Trifolio-M and Others v EFSA, C‑163/19 P(R) and
C‑163/19 P(R)‑R, not published, EU:C:2019:453, paragraph 38 and the case-law cited, and of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P‑R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).
26      Furthermore, in view of the rapidity which, by its nature, characterises the interim relief procedure, it is reasonable to require the party seeking interim relief to submit, save in exceptional circumstances, all the evidence available in support of the application when that application is made, so that the judge hearing the application for interim relief may assess, on that basis, the merits of the application (see order of 23 May 2019, Trifolio-M and Others v EFSA, C‑163/19 P(R) and C‑163/19 P(R)‑R, not published, EU:C:2019:453, paragraph 56 and the case-law cited).
27      A request for interim relief which fails to set out the facts and evidence which should be included as essential elements of the conditions for the grant of the interim relief sought and which could be set out in that application does not meet those requirements, since the applicant was not unable to rely on them when that application was made (see order of 23 May 2019, Trifolio-M and Others v EFSA, C‑163/19 P(R) and C‑163/19 P(R)‑R, not published, EU:C:2019:453, paragraph 57 and the case-law cited).
28      It is also settled case-law that, in order to determine whether all the conditions referred to in paragraphs
22, 23 and 25 above are fulfilled, the judge hearing the application for interim measures must have concrete and precise indications, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 27
and the case-law cited).
29      While the application for interim measures may be supplemented on specific points by references to documents annexed to it, those documents cannot compensate for the lack of essential information in that application. It is not for the judge hearing the application for interim measures to seek, in the stead of the party concerned, those matters contained in the annexes to the application for interim measures, in the main application or in the annexes to the latter that might support the application for interim measures. Such an obligation being imposed on the judge hearing the application for those measures would, moreover, render ineffective Article 156(5) of the Rules of Procedure, which requires the application for interim measures to be made by a separate document (see, to that effect, order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 28 and the case-law cited).
30      It must be recalled that the President of the General Court alone is the judge of the possible need to supplement the information which he has available to him in the cases before him (see order of 23 May 2019, Trifolio-M and Others v EFSA, C‑163/19 P(R) and C‑163/19 P(R)‑R, not published, EU:C:2019:453, paragraph 60 and the case-law cited).
31      If the fact that the President of the General Court attaches particular importance to the lack of evidence necessary for the examination of an application for interim relief were to suffice, as such, for the applicant to be able to insist that it be allowed to supplement its application, the President of the General Court would in practice be bound, whenever he had doubts as to the probative value or sufficiency of the evidence submitted in support of the urgency of an application for interim relief, to invite the applicant to respond to those doubts, which would be manifestly incompatible with both the nature of proceedings for interim relief and the discretion enjoyed by the judge hearing the application for such relief within such proceedings (see order of 23 May 2019, Trifolio-M and Others v EFSA, C‑163/19 P(R) and C‑163/19 P(R)‑R, not published, EU:C:2019:453, paragraph 62 and the case-law cited).
32      It is in the light of those criteria that it should be examined whether the applicant has managed to demonstrate urgency.
33      The applicant invokes, in essence, serious and irreparable damage due to the effects on its sales and on its market shares in the European Union — the loss of which would be irreversible mainly due to the presence of strong competitors and obstacles of a structural or legal nature — as well as
the loss of its share value, immediate damage to its manufacturing operations in Ghent and consequences for its market position and its sales in the European Union and in third countries.
Preliminary observations
34      First, as is rightly pointed out by the Commission in its observations of 14 January 2019, the present action is the sequel to Case T‑621/17 R
in which the applicant sought the suspension of a decision of EFSA taken at an intermediate stage of the assessment of the application for the renewal of the approval of thiram (see paragraph 8 above).
However, as is noted in those observations, in many salient respects, several submissions made in this case concerning urgency and the irreparable nature of the alleged loss are materially identical to those made in the application in Case T‑621/17 R, but do not engage with the order of 12 October 2018, and the applicant makes no attempt to distinguish the situation at the present time in respect of the contested regulation from the situation at the time when Case T‑621/17 R
was pending. Indeed, the order of 12 October 2018 is not mentioned in the main body of the submissions even though those submissions are similar to those already made in Case T‑621/17 R.
35      Secondly, in the context of the demonstration of a prima facie case, to support one of its grounds submitted to obtain the annulment of the contested regulation, the applicant specifies that the Commission failed to take into account the withdrawal of the application to renew the approval of thiram for use as a foliar spray. However, as is pointed out by the Commission in its observations, such a withdrawal shows the applicant’s lack of interest in pursuing the production of thiram for such uses. Despite this, when attempting to establish urgency, on multiple occasions the applicant either refers explicitly to alleged risks to its thiram business in the area of foliar uses or seems to include this activity among those allegedly negatively impacted by the contested regulation.
36      In the light of the foregoing, the application fails to comply with the criteria recalled in
paragraphs 22 to 29 and puts the judge hearing the application for interim measures in a position that necessarily leads him to adopt a strict appraisal of the evidence presented to support the present request, which means that it will be granted only in the presence of strongly convincing evidence that the applicant may suffer immediate serious and irreparable damage.
Seriousness of the damage
37      In the first place, with regard to the seriousness of the alleged damage due to the risk of adverse effects on its sales, the applicant considers that, as a result of the contested regulation, and taking into consideration the group of companies to which it belongs and the substitute products that are available, it will suffer a significant loss of turnover and profits. In that regard, it is thus appropriate to point out that the damage alleged is purely financial.
38      Regarding the seriousness of the financial damage alleged, it is settled case-law that the interim measure sought will be justified only if it appears that, without such a measure, the party seeking it would be in a position that could imperil its existence before the final decision in the main action (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 32 and the case-law cited).
39      However, in the present case, the applicant does not claim that its existence is under threat. It does, nevertheless, provide percentages of sales and profits that would allegedly be affected by the contested regulation, leading to a loss of profits that could be regarded as sufficiently serious for the purposes of interim relief. In that regard, when assessing their relevance in this context, the observations made in paragraphs 34 to 36 must be recalled, and the following developments must, therefore, be read in the light of those observations.
40      As
indicated in settled case-law, the assessment of the serious nature of such damage is carried out in the light of, inter alia, the size and turnover of the undertaking and the characteristics of the group to which it belongs (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 33 and the case-law cited; see also, to that effect, order of 15 April 1998, Camar v Commission and Council, C‑43/98 P(R), EU:C:1998:166, paragraph 36 and the case-law cited).
41      In addition, it must be recalled that, also according to settled case-law, it has been found, on the one hand, that, with regard to a loss corresponding to less than 10% of turnover of undertakings active in highly regulated markets, the financial difficulties which those undertakings risked suffering do not appear to be such as to threaten their very existence (order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 34 and the case-law cited; see also, to that effect, order of 11 April 2001, Commission v Bruno Farmaceutici and Others, C‑474/00 P(R), EU:C:2001:219, paragraph 106) and, on the other, regarding a loss representing almost two thirds of the turnover of those undertakings, while acknowledging that the financial difficulties they underwent could have been such as to threaten their very existence, it has nevertheless been underlined that, in a highly regulated sector where major investment is often required and the competent authorities may be led to intervene when public health risks become apparent, for reasons which cannot always be foreseen by the undertakings concerned, it was for those undertakings, if they were not to bear themselves the loss resulting from such intervention, to protect themselves against its consequences by adopting an appropriate policy (see, to that effect, order of 16 June 2016, ICA Laboratories and Others v Commission, C‑170/16 P(R), not published, EU:C:2016:462, paragraph 29 and the case-law cited).
42      In the case at hand, the applicant provides, inter alia, the figures reproduced in the table below:
% Group t/o
% Applicant t/o
2017
Global sales: [0-5](1)%
EU sales: [0-5]%
Global sales: [0-10]%
EU sales: [0-5]%
2016
Global sales: [0-5]%
EU sales: [0-5]%
Global sales: [0-10]%
EU sales: [0-10]%
43      In the light of this data, it is sufficient to recall that, in accordance with the case-law cited in paragraph 41 above, a loss corresponding to less than 10% of turnover does not appear to be such as to threaten the very existence of the company or of the group in question.
44      The turnover relating to the sale of the substance at issue thus represents a small part of the turnover assessed both as regards the applicant and as regards the group to which it belongs (see, to that effect and by analogy, order of 22 June 2018, Arysta Lifescience Netherlands v European Commission, T‑476/17 R,
EU:T:2018:407, paragraph 37 and the case-law cited).
45      Therefore, the loss of turnover or profit generated from the sale of thiram and thiram-based products cannot, in itself, suffice for the alleged damage to be regarded as serious within the meaning of the case-law cited above.
46      As has been highlighted by the applicant, however, it was accepted, in the order of 28 April 2009, United Phosphorus v Commission (T‑95/09 R, not published, EU:T:2009:124, paragraph 69), that, when evaluating the seriousness of the damage, the judge hearing the application for interim measures cannot confine himself to having recourse, in a mechanical and rigid manner, solely to the relevant turnover, but must also examine the circumstances of each case and bring them into relation, when taking his decision, with the damage occasioned in terms of turnover.
47      In the analysis of the seriousness of the damage in that case, therefore, account was taken of the serious economic and financial crises, which afflicted the world economy for several months and impacted the value of the group to which the applicant belonged. The judge hearing the application for interim measures thereby concluded that, in view of those ‘special circumstances’, the applicant in that case had established the gravity of the damage it would suffer if the interim measures sought were not granted.
48      It should be pointed out that the applicant does not invoke such an exceptional situation.
49      Nevertheless, the applicant puts forward three elements, which could be regarded as being an attempt to establish those specific circumstances, as they would aggravate the alleged financial damage once taken into account and put into perspective with the above figures. It claims that the publication of the contested regulation:
(i) has had an effect on its share value; (ii) will have an impact on other substances it produces; and (iii) will cause a gradual drop in the sales of the substance outside of the EU due to a ‘domino effect’.
50      However, as regards the alleged impact on the company’s share value, it should be recalled, first, that it is settled case-law that, when suspension of operation of an EU act is sought, the grant of the interim measure requested is justified only where the act at issue constitutes the decisive cause of the alleged serious and irreparable damage (see orders of 7 March 2013,
EDF
v
Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 41 and the case-law cited, and of 11 November 2013,
CSF
v
Commission, T‑337/13 R, not published, EU:T:2013:599, paragraph 32).
51      In the present case, the drop in the share price, on which the applicant relies, concerns the value of the parent company, Eastman Chemical Company, which is a large and diversified company for which the sales of the substance at stake represent [0-5]% of the group’s total turnover. Consequently, in the absence of convincing evidence and without further information in that respect, it seems highly doubtful that a fall in that share value results from the publication of the contested regulation. Similarly, although the applicant considers that the reason for the drop in the company’s share value in October 2018 lies in the publication of the contested regulation, it cannot be excluded that the change in share price was caused by exogenous factors unrelated to the adoption of the contested act, as demonstrated by the Commission in its observations.
52      Secondly, according to settled case-law, urgency must be assessed in the light of the need for an interim order in order to avoid the party requesting the interim relief personally suffering serious and irreparable damage (see, to that effect, order of 14 December 2001 in Commission v Euroalliages and Others, C‑404/01 P(R), EU:C:2001:710, paragraphs 61 and 62).
Thus, in order to establish urgency, an applicant cannot plead damage to an interest that is not personal to him, such as for example to the rights of third parties (see, to that effect,
orders of 24 March 2009, Cheminova and Others v Commission, C‑60/08 P(R), not published, EU:C:2009:181, paragraph 35; of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P‑R, EU:C:2014:1749, paragraph 51; of 10 November 2004, Wam v Commission, T‑316/04 R, EU:T:2004:333, paragraph 28; and of 25 July 2014,
Deza v ECHA, T‑189/14 R, not published, EU:T:2014:686, paragraph 71).
53      In that regard, as is pointed out by the Commission, in the absence of evidence of the number of shares that the company holds itself, loss of share value of a limited liability company is a loss suffered by shareholders,
not the applicant.
54      Thirdly, it must be pointed out that, on the one hand, contrary to the case-law cited in paragraphs 25 to 29 above, the applicant fails to explain how a suspension of operation of the contested regulation would have the effect of avoiding the envisaged adverse effect on the share value of its company. A temporary suspension of the effects of that regulation does not appear, a priori and without other elements, to be a measure such as to reassure financial markets about the potential risk of a ban on the use of thiram and thiram-based products (see, to that effect and by analogy, order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 97).
55      Fourthly and finally, as has been indicated in paragraph 41 above, in the context of a highly regulated market, such as that in the case at hand, in which the competent authorities may intervene rapidly when public health risks become apparent, for reasons which cannot always be foreseen, it is for the undertakings concerned, if they are not to bear themselves the loss resulting from such intervention, to protect themselves against its consequences by adopting an appropriate policy (see order of 16 June 2016, ICA Laboratories and Others v Commission, C‑170/16 P(R), not published, EU:C:2016:462, paragraph 29 and the case-law cited).
56      In any event, it must be noted that, even if the alleged damage resulting from a drop in the company’s share value was to be found serious, the applicant does not put forward any arguments to demonstrate that it would also be irreparable.
57      Accordingly, the alleged effect on the applicant’s share value does not constitute a special circumstance enabling a conclusion to be reached as to the seriousness of the damage.
58      Further, as regards the alleged impact on the other substances that the applicant produces, the latter claims that three other active substances in its crop protection division will be affected by the contested regulation: ziram, metam and chlormequat. However, explanations are only given with regard to the first substance, which state that, as thiram is a metabolite of ziram, the outcome of the assessment of thiram would have a direct impact on the assessment of ziram. The applicant goes on to provide examples of Member States having taken measures against ziram based on EFSA’s conclusion on thiram. It thus concludes that, if the contested regulation is not overturned, ziram will inevitably be banned as well.
59      In that regard, first,
mere assertions do not suffice to show the reality of the specific circumstances raised (see, to that effect and by analogy, order of 15 November 2011, Xeda International v Commission, T‑269/11 R, not published, EU:T:2011:665, paragraph 31 and the case-law cited). Therefore, the statements concerning metam and chlormequat should be dismissed.
60      Secondly, purely hypothetical damage, based on future and uncertain events, cannot justify the granting of interim measures (see, to that effect and by analogy, order of 28 May 2018, BASF Grenzach v ECHA, C‑565/17 P(R), not published, EU:C:2018:340, paragraphs 49 and 52 and the case-law cited). Since decisions on substances are made based on a specific procedure and scientific issues occur due to their own chemical properties and not due to the consequences of other decisions, the statement concerning ziram must be dismissed.
61      Thirdly, and for the sake of completeness, the examples taken from Member States’ decisions are without prejudice to any assessment that might be made at EU level and do not have the contested regulation as their legal basis.
62      In any event, the alleged damage that could be caused due to that potential impact on ziram remains of a pecuniary nature and, as such, does not constitute a special circumstance as envisaged by the case-law indicated in paragraph 47 above.
63      Accordingly, the alleged impact on the applicant’s other substances does not constitute a special circumstance enabling a conclusion to be reached as to the seriousness of the damage.
64      Finally, as regards the alleged impact on the sales outside of the European Union, the applicant claims that the implementation of the contested regulation will have consequences on the applicant’s market position outside the European Union. More specifically, the applicant states that the contested regulation will likely have a ‘domino effect’ in third countries, as authorities will follow the Commission’s decision. This would lead to a drop in sales outside the European Union.
65      At the outset, it must be noted that the arguments put forward in the application in that regard are materially similar
to the ones already presented, examined and dismissed in the order of 12 October 2018 in Case T‑621/17 R.
As is pointed out in paragraph 34 above, the applicant neither mentioned nor addressed the grounds for dismissal
given in respect of those submissions.
66      Consequently, it can be recalled, on the one hand, that, in general, the reduction of sales in countries not belonging to the European Union as a consequence of the adoption of a regulation banning or restricting the use of a substance, by reason of the fact that some non-member countries are likely to follow the EU rules, cannot be taken into account in the assessment of the seriousness of the alleged damage, since such measures would be the direct consequence not of the contested regulation, but of a decision taken by the authorities of each non-member country in the exercise of their absolute discretion (see, to that effect, orders of 12 October 2018, Taminco v EFSA, T‑621/17 R, EU:T:2018:763, paragraph 65, and of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 45 and the case-law cited).
67      On the other hand, it must be stated that the applicant has not established that the interim measures sought, assuming they are granted, would prevent third country authorities from ordering the withdrawal of its products from their territory. Consequently, the applicant has not demonstrated that suspension of operation of the contested regulation would be liable to prevent the alleged damage from materialising (see, to that effect, orders of 12 October 2018, Taminco v EFSA, T‑621/17 R, EU:T:2018:763, paragraph 66, and of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 46 and the case-law cited).
68      Therefore, none of the authorities is
legally bound by the contested regulation, and the applicant puts forward nothing regarding the effects of the requested measures on the decision-making process of those authorities (see, to that effect, order of 12 October 2018, Taminco v EFSA, T‑621/17 R, EU:T:2018:763, paragraph 70).
69      Accordingly, the alleged impact on the applicant’s sales outside of the European Union as a result of a supposed
‘domino effect’ caused by the implementation of the contested regulation in third countries does not constitute a special circumstance enabling a conclusion to be reached as to the seriousness of the damage (see, to that effect, order of 12 October 2018, Taminco v EFSA, T‑621/17 R, EU:T:2018:763, paragraph 71).
70      It must therefore be held that the case at hand does not exhibit any special circumstance which, assessed in the light of the relevant turnover, leads the judge hearing the application for interim measures to conclude as to the seriousness of the alleged damage due to the risk, for the applicant, of the loss of income relating to the sale of thiram and thiram-related products.
71      In the second place, so far as concerns the seriousness of the alleged damage due to the loss of market share, it should be pointed out that the alleged damage is purely financial. It is settled case-law that 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 (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 54 and the case-law cited).
72      As regards the seriousness of the alleged financial damage, it must be recalled
that the interim measure sought will be justified only if it appears that, without such a measure, the party seeking it would be in a position that could imperil its existence before final decision in the main action (see paragraph 38 above).
73      In the present case, it does not appear either from the written pleadings or the analysis of the figures provided by the applicant and referred to in paragraph 42 above that the applicant’s existence would be under threat.
74      The applicant seems to assert that, without a suspension of operation, its market share would be irreparably damaged in so far as it would face significant legal and regulatory obstacles under the applicable rules.
75      While, in the case-law, account has also been taken of the fact that, if the measure sought were not granted, the applicant’s market share would be irremediably affected, it must be pointed out that this situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also of a serious nature. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 58 and the case-law cited).
76      In that regard, it has been stated that, in the light of the specific circumstances of the case, the level of turnover allegedly affected does not appear to be of a sufficient magnitude to consider the alleged damage serious (see paragraphs 45 and 70 above).
77      In the third place, the applicant claims that the implementation of the contested regulation will notably lead to immediate damage to its
manufacturing sites in Ghent, as the implementation of the contested regulation would
cause, on the one hand, the loss of the economic
value of [confidentiel] production units as these mainly produce thiram-related products and, on the other hand, the redundancy of a large number of
employees. Furthermore, the applicant states that,
under Belgian law, it would be impossible to redeploy the impacted staff. If the application for the suspension of the contested regulation were to be dismissed by the Court, the applicant asserts that it would
have to initiate a costly collective redundancy procedure and almost immediately cease the production of thiram-based products.
78      In the present case, the alleged damage due to the expected impact of the contested regulation on the Ghent manufacturing site is pecuniary in nature.
79      In that regard, it should be recalled that, in accordance with the case-law cited in paragraph 38 above regarding the seriousness of such damage, the interim measure sought will be justified only if it appears that, without such a measure, the party seeking it would be in a position that could imperil its existence before final decision in the main action.
80      First, however, and as highlighted in the order of 12 October 2018, Taminco v EFSA (T‑621/17 R, EU:T:2018:763, paragraph 85), the applicant
does not fear that its existence may be imperilled, but has concerns for
the viability of a manufacturing site. In that regard, contrary to what is required by the case-law cited in paragraphs 25 to 29 above, the applicant provides no evidence to show that there is any threat to its survival due to the alleged risks to the site’s viability.
81      Secondly, as also highlighted in the order of 12 October 2018, Taminco v EFSA (T‑621/17 R, EU:T:2018:763, paragraph 86),
the site concerned produces the substance at issue not only for use within the European Union, but also outside the European Union. In that regard, the contested regulation bans the sale of the substance and related products within the European Union. Despite the relative importance of the data submitted with regard to EU turnover and profit derived from thiram in the context of the applicant’s global thiram business, the applicant also provides a certain number of meaningful figures concerning the value of the sales of that substance achieved outside the European Union. Therefore, a ban of the use of that substance within the European Union will not affect the production of thiram by that site for use outside the European Union. As a corollary, these assets will continue to absorb part of the site conversion cost. Contrary to the requirements set by the case-law recalled in paragraphs 25 to 29 above, the consequences of such a scenario on that site’s viability are not evident from the case files.
82      Thirdly, the estimated percentage of permanent employees’ functions which would ultimately become redundant amounts to [0-50]%. According to the applicant, due to applicable national legislation, it would be precluded from redeploying the impacted staff and, therefore, it would have to retain them on the payroll for at least several months until the end of the dismissal procedures without there being any economic return for the applicant from their employment during that time. However, this figure represents the worst-case scenario, since it cannot be excluded that the applicant could mitigate the foreseen impact with voluntary and negotiated redeployment of staff.
83      Fourthly, with regard to the alleged direct significant financial cost that the applicant would suffer as a result of a contemplated collective redundancy procedure, it must be borne in mind that the applicant belongs to the Eastman Chemical Company, which — according to the Commission — is quoted on the New York Stock Exchange, with a market capitalisation of roughly USD 10
billion and employing approximately 14 500 people around the world.
Therefore, the applicant’s claim in that regard must be severely nuanced due to the fact that, in a worst-case scenario,
[0-500]
people would be made redundant.
84      Fifthly and finally, while data are given regarding the possibility of redeploying staff,
which address the information gap previously underlined in the order of 12 October 2018, Taminco v EFSA (T‑621/17 R, EU:T:2018:763, paragraph 87), the applicant remains silent with regard to another gap that was identified in that order concerning the possibility of converting the manufacturing processes of its production chain within that site.
85      Therefore, the impact on one of its manufacturing sites cannot,
in isolation, suffice for the alleged damage to be regarded as serious within the meaning of the case-law cited in paragraph 38 above.
86      In the fourth and final place,
it should be pointed out that, while it is apparent from the case-law that it cannot be excluded that financial damage which is objectively significant and which allegedly results from the obligation to make a final commercial choice of some magnitude within a disadvantageous timescale could be considered as ‘serious’, or even that the seriousness of such damage could be considered as obvious, even in the absence of information concerning the size of the undertaking concerned (see, to that effect, order of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 33), the applicant does not put forward any specific material in that regard. It is not for the judge hearing the application for interim measures to seek, in the stead of the party concerned, that material, especially in highly regulated sectors where commercial choices and timescale are elements to be taken seriously by companies involved in these activities
when considering their developments.
87      Consequently, the alleged damage due to the risks of drops in EU and non-EU sales, the loss of market share, and impacts
on a manufacturing site, the company’s share value and other substances
cannot be categorised as financial damage which is objectively significant within the meaning of that case-law.
88      In the light of the foregoing, it must be concluded that the applicant has not established the seriousness of the alleged damage.
Irreparability of the damage
89      Neither does it appear, moreover, that the damage alleged in the present case can be categorised as irreparable.
90      In the first place, it is well-established case-law that damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even difficult to repair since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage. Any such damage could, in particular, be recouped by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see orders of 28 November 2013, EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 48 and the case-law cited, and of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 80 and the case-law cited).
91      In the event of such damage, the interim measure sought is justified if it appears that, without that measure, the party seeking the interim measures would be in a position that could imperil its existence before the final decision in the main action. Since imminent disappearance from the market does constitute damage that is both irremediable and serious, adoption of the interim measure sought appears justified in such a situation (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 81 and the case-law cited).
92      In the present case, not only does the applicant not claim that its existence is under threat, as is already noted in paragraph 39 above, but it is apparent from the analysis carried out by the judge hearing the application for interim measures in paragraphs 37 to 70 above,
which concerns the alleged damage due to the risk of adverse effects on its sales, that the applicant is not in such a situation.
93      With regard to the damage to the Ghent manufacturing site, only the applicant’s survival is relevant in the context of the assessment of the irreparable nature of the damage, in accordance with the case-law cited in paragraph 38 above. However, as has been noted in paragraph 80 above, the applicant does not fear that its existence is imperilled, but has concerns for the viability of the manufacturing site.
94      In the second place, and as is already stated in paragraph 75 above, although, in the case-law, account was also taken of the fact that, were the measure sought not granted, the market share of the party seeking the measure would be irremediably affected, it must be made clear that that situation can be placed on an equal footing with that of the risk of disappearance from the market and justify the adoption of the interim measure sought only if the irremediable effect on the market share is also serious in nature. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders. An applicant which invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of that share is impossible by reason of obstacles of a structural or legal nature (see order of 12 October 2018, Taminco v EFSA, T‑621/17 R, EU:T:2018:763, paragraph 98
and the case-law cited).
95      In the case at hand, following the analysis of the potential loss of the EU market for thiram and thiram-based products in the light of the sales generated by that business, it has been concluded that the market share, the loss of which is feared by the applicant, is not sufficiently large, as defined by the relevant case-law (see paragraph 76 above).
96      In any case, the applicant has not demonstrated to the requisite legal standard the existence of obstacles of a structural or legal nature making it impossible to regain a significant portion of that share.
97      In that regard, the applicant claims, first, that, on the one hand,
the procedure to develop plant protection products is complex, time consuming and highly expensive, and, on the other hand, it is unsure whether it will be possible to develop,
within the normal parameters, a product such as thiram, with similar
broad spectrum functionalities.
98      However, it should be noted that, having regard to the average duration of proceedings before the General Court, the decision on the substance in the present case will probably be delivered within 2 years (see, to that effect, order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU: T:2018:407, paragraph 90 and the case-law cited). Therefore, the applicant will be informed of the legality of the contested regulation well before the period required for the approval of any replacement substance. In that context, it must be pointed out that the applicant has not requested the application of the expedited procedure provided for in Article 151 et seq. of the Rules of Procedure. Furthermore, by virtue of Article 5 of the contested regulation, it can potentially enjoy a ‘grace period’ until 30 January 2020 for some plant protection products (see paragraph 12 above).
99      Secondly, the applicant considers that the loss of its market share will be irreversible in so far as its competitors can offer other products that will enable them to recoup that market share and its customers within the European Union, whereas the applicant cannot offer an alternative to thiram-based products.
100    Even if it is doubtful that such an argument would qualify as being an obstacle of a structural or legal nature, but rather seems to be purely commercial in nature, it can be noted, in any event and as underlined by the Commission, that the submissions of the applicant appear inconsistent and contradictory because, on the one hand, it claims that the competitors would steal its market share and this would be irreparable and, on the other hand, it claims that thiram is a 40-year-old, broad-spectrum substance with no single alternative available that can exhibit the same disease-control and resistance-management functionalities.
101    Moreover, according to the Commission, the other substances produced by the applicant’s competitors mentioned in the application for interim measures will be the object of a review, as it is the case of fludioxanil for instance, and it cannot be excluded that these substances will be withdrawn from the market or their uses will be restricted, as illustrated by the example of metalaxyl-m, which has been the object of a first proposal for non-renewal. In that regard, it should be added that the applicant mentions chlorothalonil as a competing substance. However, as it is apparent from the introduction of the application for annulment in Case T‑518/19, Sipcam Oxon v Commission of 22 July 2019, the Commission has adopted Implementing Regulation (EU) 2019/677 of
29 April 2019
concerning the non-renewal of the approval of the active substance chlorothalonil, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending Commission Implementing Regulation (EU) No 540/2011 (OJ 2019 L 114, p. 15), published in the Official Journal of the European Union of 30 April 2019.
102    Finally, the applicant points out that some of its competitors have considerable financial resources that would enable them to adopt an aggressive trade and pricing policy in order to retain any customers that might have switched. However, according to the information in the file, it should be noted that the applicant also belongs to a financially powerful group (see paragraphs 1, 51 and 83 above) and, as it provides no further evidence, the application is not self-explanatory as to the reason why an equally efficient commercial strategy could not be pursued by the applicant should the contested regulation be annulled by the Court.
103    Thirdly, if the applicant is successful in the main procedure, it claims, nevertheless, that a marketing campaign would not be an effective way to recover its market share. To support its argument, it relies on an example taken from an alleged failed marketing event organised to promote the substance metam after the sales restrictions imposed by the Dutch authorities were lifted following legal proceedings.
104    However, not only does this argument not appear to concern an obstacle that is of
a structural or legal nature,
but it also fails to be convincing since the parallels that the applicant tries to draw are far from evident. Among other observations in that regard, reference should be made to the fact that it is not apparent from the file that metam also displayed unique properties, as it is alleged by the applicant for thiram (see paragraph 100 above), which would allow the latter to market its substance as being the only product exhibiting such unparalleled disease-control and resistance-management functionalities.
105    Moreover, thiram would benefit from the non-renewal of the approval of other substances listed in the application as being a threat to the possibility of regaining market shares (see paragraph 101 above),
whereas such a favourable situation seems absent from the metam example or, at least, is not mentioned in the application, contrary to the requirements set out in the case-law recalled in paragraphs 25 to 29 above.
106    Finally, the applicant draws attention to the fact that it is likely that the reliance of EU agricultural producers on plant protection products to stave off the increased chances of crop disease due to the drought conditions which Europe experiences and preserve their harvests will be magnified in the years to come as a result of climate change. Therefore, it seems that such a contextual element could also benefit the applicant’s marketing campaign should it see its main action granted.
107    In the third place, it must also 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 damage pleaded, but must take account of the factual and legal circumstances specific to each case and determine, in the light of those specific circumstances, the manner in which those conditions of urgency are to be examined (order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 74
and the case-law cited). In that regard, the applicant advances two elements, which could be regarded as being an attempt to establish those specific circumstances.
108    First, the applicant claims, in essence, that, due to the public’s scrutiny of plant protection producers, the contested regulation will cause members of the public to attach a negative stigma to the substance thiram and will give the company a bad reputation.
109    It must be pointed out, in limine, that the applicant’s discussions in that respect call for similar grounds for dismissal as to the ones already indicated in the order of 12 October 2018 in Case T‑621/17 R.
However, as pointed out in paragraph 34 above, the applicant did not broach those grounds in the present application.
110    To the extent that the applicant fears the contested regulation will undermine the reputation of its thiram-based products by stigmatising the substance and call into question, more generally, its reputation and that of its other products, it should be noted that the withdrawal of a plant protection product from the market is not necessarily harmful to the reputation of the undertaking as a whole.
111    It is common knowledge that many undertakings active in the market at issue have had their products withdrawn from the market, and those undertakings or their products cannot be deemed to be stigmatised. The regulatory authorities and the operators in the sector concerned, who are familiar with the regulatory framework, tend to view a decision not to authorise a plant protection product as a normal part of the regulatory procedure. Such a decision may be regarded as being simply the result of scientific developments and improvements in research methods (see, to that effect, order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU: T:2018:407, paragraph 72 and the case-law cited). It is not apparent from the material in the case file, however, that the findings in the case referred to above would be irrelevant in the context of the implementation of the contested regulation.
112    Furthermore, the applicant mentioned that negative stigma associated with the substance at stake as a result of the contested regulation is ‘virtually unavoidable’. In that regard, it should be noted that, if damage to the applicant’s reputation actually followed from the adoption of the contested regulation, it would already have been caused the day that regulation was adopted and would endure as long as that regulation is not annulled by the decision on the main action (see, to that effect, order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU: T:2018:407, paragraph 73 and the case-law cited).
113    Finally, given that the contested regulation was adopted following a complex administrative procedure lasting a number of years, in which scientific experts and professionals working in the sector concerned participated, a suspension of the operation of that regulation ordered by the judge hearing the application for interim measures on a purely interim basis and in summary proceedings would scarcely be such as to dispel doubts which may exist as to the merits of the lack of danger of thiram (see, to that effect, order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 74 and the case-law cited). In that regard, it must be noted that, contrary to the case-law mentioned in paragraphs 25 to 29 above, the applicant does not explain how the situation at hand would make those findings irrelevant and, in particular, does not indicate how a suspension of operation of the contested regulation would put an end to the fears that have already been caused by the publication of the assessment of thiram by EFSA, which is not subject to suspension since the adoption of the order of 12 October 2018
in Case T‑621/17 R
has the force of res judicata. In that context, it should be added that, by letter lodged at the Court Registry on 25 April 2019, the applicant informed the Court, in accordance with Article 125 of the Rules of Procedure, that they wished to discontinue proceedings in Case T‑621/17. Accordingly, this case was removed from the register by the order of 18 July 2019.
114    Secondly, the applicant similarly claims that, because of the contemplated collective dismissal, its business will be perceived as a company in difficulty. It argues that such image would cause important, certain, direct and permanent damage because of the loss of skilled and trained employees who will leave to take up more secure jobs, the difficulties in hiring new skilled personnel, and the dissuasive effect it would have on essential business partners, investors and shareholders.
115    In that regard, it must be noted that case-law has established that the fact that an undertaking has to shed jobs and thus lose a trained and operational workforce may cause it direct and personal damage, independently of the separate damage suffered by its employees, to the extent that it will be more difficult subsequently to restart its activities should there be a change in economic conditions (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P‑R, EU:C:2014:1749, paragraph 52).
116    However, with regard to the alleged negative impact on the applicant’s business due to the detrimental image resulting from the initiation of a collective dismissal procedure as perceived internally by its own staff and externally by the general public, including investors, shareholders and business partners, the applicant relies on mere assertions, contrary to the required standard as set out by the case-law indicated in paragraphs 25 to 29 above.
117    Moreover, considering that the triggering event leading to the contemplated collective dismissal procedure lies in the partial discontinuance of the production of the substance, it should be envisaged that, in the event of a positive outcome in the main action, the applicant would not experience unsurmountable difficulties in explaining the situation to such a sophisticated audience (skilled and trained employees in this sector, essential business partners, investors and shareholders) in order to overcome the alleged negative perception. In any event, the application does not put forward any evidence in that regard, contrary to the requirements set by the case-law recalled in paragraphs 25 to 29 above.
118    Therefore, it must be held that the case at hand does not exhibit any specific circumstances, within the meaning of the case-law recalled in paragraph 107 above, that would lead the judge hearing the application for interim measures to find the alleged financial damage to be of an irreparable nature.
119    In the fourth
and final place, it must nevertheless be pointed out that damage of a financial nature may be considered to be serious and irreparable if the damage, even when it occurs, cannot be quantified (see orders of 28 November 2013,
EMA
v
InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 49 and the case-law cited, and of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 92).
120    It is true that the uncertainty of obtaining compensation for pecuniary damage if an action for damages is brought cannot in itself be regarded as a factor capable of establishing that such damage is irreparable within the meaning of the case-law. At the interlocutory stage, the possibility of subsequently obtaining compensation for pecuniary damage if an action for damages is brought following annulment of the contested measure is necessarily uncertain. Interlocutory proceedings are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is only to guarantee the full effectiveness of the final future decision that will be made in the main action (in this case an action for annulment), to which the interlocutory proceedings are an adjunct (see orders of 28 November 2013,
EMA
v
InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 50 and the case-law cited, and of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 93).
121    However, the situation is different where it is already clear, when the assessment is carried out by the judge hearing the application for interim measures, that, in view of its nature and the manner in which it will foreseeably occur, the damage alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good that damage by bringing an action for damages (see orders of 28 November 2013,
EMA
v
InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 51 and the case-law cited, and of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 94).
122    First, in the case at hand, it does not appear from the applicant’s submissions that that is the case, and that, in view of its nature and the manner in which it will foreseeably occur, the damage alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good that damage by bringing an action for damages. On the contrary, the applicant puts forward a certain amount of accounting information enabling, at first sight, that damage not only to be identified, but also to be quantified in an adequate manner.
123    Secondly, the applicant considers that financial compensation alone, obtained by bringing an action for damages, will not suffice to constitute
restitution in integrum since thiram’s removal from the market will constitute a sea-change in current EU agricultural practices and business strategies that cannot be compensated by money. However, first, in formulating such assumption, the applicant confines itself to making mere assertions, without adducing any evidence enabling the President of the Court to assess whether the alleged damage exists and its relevance, contrary to the criteria indicated in paragraphs 22, 23, 25 and 28 above, and, secondly, all arguments put forward in the application as regards the alleged irreparable nature of the alleged damage have been rejected.
124    In the light of the foregoing, it is apparent that the applicant has not demonstrated that the condition relating to urgency, within the meaning of the case-law set out in paragraph 23 above, is satisfied.
125    In those circumstances, as the conditions for granting suspension of operation and interim measures are cumulative, the application for interim measures must be rejected for lack of urgency, without it being necessary to examine in greater detail the condition relating to the establishment of a prima facie case, or weigh up the interests involved.
126    By virtue of Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.
2.      The costs are reserved.
Luxembourg,
26 September 2019.
E. Coulon
M. Jaeger
Registrar
President
*      Language of the case: English.
1 Confidential data omitted.