62008CO0060_EN
Parties
Grounds
Operative part
Parties
In Case C‑60/08 P(R),
APPEAL pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice, brought on 13 February 2008,
Cheminova A/S,
established in Lemvig (Denmark),
Cheminova Agro Italia Srl,
established in Rome (Italy),
Cheminova Bulgaria EOOD,
established in Sofia (Bulgaria),
Agrodan SA,
established in Madrid (Spain),
Lodi SAS,
established in Grand‑Fougeray (France),
represented by D. Vaughan QC, K. Van Maldegem and C. Mereu, avocats, V. Wakefield, Barrister, and P. Sellar, Solicitor,
appellants,
supported by:
European Crop Protection Association (ECPA),
established in Brussels (Belgium), represented by D. Waelbroeck and I. Antypas, avocats,
intervener on appeal,
the other party to the proceedings being:
Commission of the European Communities,
represented by B. Doherty and L. Parpala, acting as Agents,
defendant at first instance,
THE PRESIDENT OF THE COURT,
after hearing the Advocate General, V. Trstenjak,
makes the following
Order
Grounds
1. By their appeal, Cheminova A/S, Cheminova Agro Italia Srl, Cheminova Bulgaria EOOD, Agrodan SA and Lodi SAS ask the Court to set aside the order of the President of the Court of First Instance of the European Communities of 4 December 2007 in Case T‑326/07 R Cheminova and Others
v Commission
[2007] ECR II‑4877 (‘the order under appeal’), by which he dismissed their application for interim relief seeking suspension of the operation of Commission Decision 2007/389/EC of 6 June 2007 concerning the non‑inclusion of malathion in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 146, p. 19; ‘the contested decision’), pending the full resolution of the dispute in the main proceedings.
2. The legal context, the facts and the procedure before the Court of First Instance were summarised by the President of the Court of First Instance in paragraphs 1 to 33 of the order under appeal.
The order under appeal
3. By the order under appeal, the President of the Court of First Instance acknowledged that it could not prima facie be excluded that the contested decision is of direct and individual concern, within the meaning of the fourth paragraph of Article 230 EC, to Cheminova A/S, as the notifier of the application seeking to secure the inclusion of malathion 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), and that the main application made by it is admissible.
4. Next, he recalled the case‑law according to which, where one and the same main application is involved, there is prima facie no need to consider whether the other applicants are entitled to bring proceedings. He stated, however, that while that case-law must, where relevant, be taken into consideration in the main proceedings it cannot apply so far as concerns the issue of assessing urgency in proceedings for interim measures.
5. He thus examined whether the appellants other than Cheminova A/S appeared prima facie to be manifestly not entitled, as persons not directly and individually concerned by the contested decision, to apply to the Court for annulment, in the main proceedings, of the contested decision.
6. In that regard, the President of the Court of First Instance found that the appellants other than Cheminova A/S were not individually distinguished by attributes peculiar to them, but rather were affected in the same way as all the other vendors and users of malathion in the same situation.
7. The arguments to the contrary put forward by the appellants were held not to be such as to call that assessment into question. Thus, the President of the Court of First Instance rejected the contentions that the contested decision could be of individual concern to the appellants other than Cheminova A/S by reason of the national marketing authorisations for malathion or the letters in their possession giving access to data held by Cheminova A/S, or even because they formed part of a closed class of undertakings condemned to losing their marketing authorisations by 6 December 2007 at the latest.
8. On the basis of those factors, the President of the Court of First Instance held that the contested decision could not, prima facie, be considered to be of individual concern to the appellants other than Cheminova A/S. The President thus found that those appellants were not entitled to put forward their own individual situation in order to establish urgency, nor, therefore, were they entitled to bring the application for interim measures.
9. After excluding from his assessment of urgency the arguments relating to the appellants other than Cheminova A/S, the President of the Court of First Instance examined Cheminova A/S’s contention that, if suspension of the operation of the contested decision were not ordered, it would suffer serious and irreparable damage as a result of the irremediable loss of its market share for malathion.
10. In that regard, he stated that it is not sufficient that a market share, however minimal, may be irremediably lost; on the contrary it is necessary for that market share to be sufficiently large. An applicant who invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of it, in particular by appropriate publicity measures, is impossible by reason of obstacles of a structural or legal nature.
11. The President of the Court of First Instance determined, first of all, whether the damage pleaded might be classified as serious in the light, in particular, of the size and turnover of Cheminova A/S and of the characteristics of the group to which it belongs, and he came to the conclusion that, in addition to the fact that the figures supplied by the appellants concerning the damage suffered on the Community market did not appear sufficiently precise to establish urgency for Cheminova A/S, the annual loss caused by the contested decision could, in any event, be assessed at less than 1% of the group’s turnover.
12. Next, the President of the Court of First Instance rejected the appellants’ arguments concerning the reduction in their sales in non‑Member States, maximum residue limits and the ‘oilseed rape project’ envisaged by the appellants for supplying the oilseed rape sector with malathion.
13. The irreparable nature of the damage suffered by the appellants was also discounted. The President of the Court of First Instance found that malathion’s qualities appear to be highly appreciated by the appellants’ customers and that no perfect substitute product exists, factors which support the view that it would be possible for malathion to return to the market. That conclusion is confirmed by the results of a survey of some of the appellants’ principal customers.
Procedure before the Court
14. The Commission of the European Communities submitted its observations on the appeal on 12 March 2008.
15. By document lodged at the Court Registry on 5 May 2008, European Crop Protection Association (ECPA) applied for leave to intervene in support of the form of order sought by the appellants. Since ECPA’s arguments in support of its application for leave to intervene revealed prima facie an interest in the result of the appeal, its application was granted, a decision which was notified to ECPA by letter from the Court Registry of 6 June 2008. ECPA submitted its statement in intervention on 16 June 2008. The Commission submitted its written observations on the statement in intervention on 30 June 2008.
16. Since the parties’ written observations contain all the information required for a decision on this appeal, it is not necessary to hear oral argument.
The appeal
17. In support of their appeal, the appellants raise three pleas in law alleging, respectively, that the President of the Court of First Instance erred in law in his examination of whether the application was admissible, that he erred in law in his assessment of urgency and that there was a breach of procedure at first instance because of the failure to hold a hearing. The arguments put forward by the intervener concern the first two pleas.
The first plea, alleging that the President of the Court of First Instance erred in law in his examination of whether the application was admissible
Arguments of the parties
18. In the first place, the appellants, supported by the intervener, claim that the President of the Court of First Instance was wrong in law to consider the admissibility of the main action as if each appellant had brought it separately.
19. They explain, first of all, that the Commission did not dispute the admissibility of the main action and the application for interim relief with regard to Cheminova A/S and that it did not plead that the main action is manifestly inadmissible.
20. Next, referring to the orders of the President of the Court of First Instance in Case T‑117/05 R Rodenbröker and Others
v Commission
[2005] ECR II‑2593, paragraph 61, and Case T-31/07 R Du Pont de Nemours (France) and Others
v Commission
[2007] ECR II‑2767, paragraph 113, they indicate that, in the past, the President of the Court of First Instance has systematically held that, where admissibility must be established for one and the same application lodged by a number of applicants and the application is admissible in respect of one of them, there is no need to consider whether the other applicants are entitled to bring proceedings. Accordingly, he has found an application for interim relief to be admissible where it had been held to be prima facie admissible in respect of at least one applicant, so that it was not necessary to examine whether the other applicants were entitled to bring proceedings for interim relief.
21. However, in the present case, the President of the Court of First Instance erred in law in failing to specify why the reasoning followed in those cases, which involved a number of applicants, could not be applied to this case.
22. In addition, the appellants plead breach of Article 104(1) of the Rules of Procedure of the Court of First Instance, since each of them other than Cheminova A/S has challenged the contested decision before the Court of First Instance and is a party to the main proceedings, so that each of them is entitled to bring an application for interim relief.
23. The appellants submit that the reasoning of the President of the Court of First Instance would have catastrophic practical and legal consequences for large groups which divide up their various activities between a number of specialised legal entities, with one company, for example, dealing with administrative aspects such as notification of the application for inclusion of an active substance in Annex I to Directive 91/414 and participation in the procedure relating to that inclusion, and another company, for example, dealing with manufacture and product sales. The President’s reasoning would mean that an undertaking which conducted its business through a single company or various internal divisions would be in a preferred position compared with a company which operated through national subsidiaries or exclusive distributors.
24. Lastly, the appellants claim that, in any event, the factors which establish the admissibility of the application at first instance with regard to Cheminova A/S apply just as well to the other appellants, since the acts performed by Cheminova A/S as manufacturer, with regard to notification and participation, were done for the entire group. In support of that argument, they refer to the structure of Directive 91/414, which is designed in such a way that an application for inclusion of an active substance in Annex I to Directive 91/414 is subject only to one notification per corporate group.
25. In the second place, the appellants, supported by the intervener, claim that, even if the President of the Court of First Instance was correct in law to consider the admissibility of the action as if each appellant had brought it separately, he nevertheless erred in law in failing to apply correctly the test in accordance with which the judge hearing the application for interim measures should declare that application inadmissible only where admissibility of the main action can be wholly excluded. They submit that, for the reasons referred to below, the President of the Court of First Instance erred in holding that the contested decision was manifestly not of individual concern to the appellants other than Cheminova A/S.
26. First of all, the contested decision is of individual concern to Cheminova Agro Italia Srl, Cheminova Bulgaria EOOD and Agrodan SA by virtue of their membership of the same economic group as the notifier of the application to include malathion in Annex I to Directive 91/414, that is, Cheminova A/S. This follows from Case T‑112/97 Monsanto
v Commission
[1999] ECR II‑1277. The appellants state that, in that case, the legal entity Monsanto Europe SA/NV had performed functions analogous to those of the notifier of an application to include an active substance in Annex I to Directive 91/414 and was also the named addressee of the decision rejecting that application. However, the application for annulment had been brought by its parent company Monsanto Company. According to the appellants, Monsanto Company was held to be individually concerned by reason of its shareholding in Monsanto Europe SA/NV.
27. Next, the appellants claim that Lodi SAS is individually concerned as holder of relevant intellectual property rights, that is, a trade mark under which 16 malathion‑based insecticides are marketed. They rely in that regard on Case C‑309/89 Codorniu
v Council
[1994] ECR I‑1853, paragraphs 21 and 22, in which the Court held that the proprietor of the graphic trade mark ‘Gran Cremant de Cordorniu’ had established the existence of a situation which from the point of view of a provision of general applicability differentiated it from all other traders. By reserving the right to use the term ‘cremant’ to French and Luxembourg producers, the contested provision prevented the proprietor from using its graphic trade mark.
28. Lastly, the appellants other than Cheminova A/S claim to be individually concerned as holders of specific legal rights resulting from national marketing authorisations for malathion. Those rights are comparable to the right at issue in Codorniu
v Council . According to the appellants, the President of the Court of First Instance was wrong to rely on the order in Case T‑94/04 EEB and Others
v Commission
[2005] ECR II-4919, paragraphs 53 to 55, since that case did not relate to marketing authorisations. They claim that their situation should be distinguished from that of an operator who de facto
markets a product, but who has no specific legal rights in respect of that product.
29. The appellants add that they hold letters of access to the data held by Cheminova A/S, letters which also confer on them specific rights comparable to the right at issue in Codorniu
v Council . Accordingly, they are in a different, more favourable position compared with other undertakings in respect of the obtaining of future marketing authorisations. The appellants refer in that regard to Case T‑13/99 Pfizer Animal Health
v Council
[2002] ECR II‑3305, paragraph 98.
30. The Commission contests the arguments of the appellants and the intervener.
Findings of the Court
31. With regard to the argument that the Commission did not plead the manifest inadmissibility of the main action, that fact is not sufficient for a finding that the reasoning of th e President of the Court of First Instance is vitiated by an error in law, since inadmissibility for lack of locus standi in proceedings seeking review by the courts of a Community measure constitutes a ground involving a question of public policy which may, and even must, be raised of its own motion by the Community judicature (Case C‑298/00 P Italy
v Commission
[2004] ECR I‑4087, paragraph 35).
32. As to the argument that the President of the Court of First Instance failed to apply settled case‑law, according to which, where one and the same main application lodged by a number of applicants is involved, there is prima facie no need to consider whether the other applicants are entitled to bring proceedings where one of them is so entitled, it should be noted, first, that that principle allows the Community judicature to dispense with the examination of the locus standi of the other applicants, but does not oblige it to do so.
33. Second, the President of the Court of First Instance did not disregard the abovementioned case-law, but explained in detail the reasons why, whilst that case‑law, is, where relevant, to be taken into consideration in the main proceedings, it cannot, however, apply so far as concerns the issue of assessing urgency in proceedings for interim measures.
34. The principle stated in paragraph 32 above was introduced, for reasons of economy of procedure, in the context of main proceedings, without taking into account any application for interim relief with which that main action might be associated.
35. By contrast, where an application for interim relief is, in fact, brought with the main action, the situation is different by virtue of the specific conditions attached to interim proceedings which must be fulfilled personally by the party requesting the relief, in particular, the requirement of urgency. In order for its application for interim relief to be declared well founded, that party must furnish proof that he cannot await the conclusion of the main action without personally suffering damage which would have serious and irreparable effects for him.
36. Since urgency is thus a specific question which must be examined separately for each applicant, the President of the Court of First Instance logically concluded from this that only a party who is entitled to bring the main action to which the application for interim measures relates can be permitted to establish urgency by submitting that he would personally suffer serious and irreparable damage if the interim relief sought was not granted. Were this not to be the case, a situation might arise in which a person to whom the measure at issue was not of individual concern could take advantage of interim measures by joining in with the action brought by a person entitled to bring proceedings for the purposes of the fourth paragraph of Article 230 EC.
37. In view of the fact that the present case concerns an examination of admissibility limited to the purposes of interim proceedings, in the sense that that examination will theoretically not take place in the main proceedings because Cheminova A/S has locus standi, the President of the Court of First Instance was entitled, without erring in law, to examine in detail the evidence put forward by the appellants to establish their locus standi and not merely to find, in the light of that evidence, that the admissibility of the main action could not be considered to be wholly excluded.
38. In that regard, although it is admittedly true that, in the context of interim proceedings, the judge hearing the application for interim measures is not required, as a rule, to undertake as detailed an assessment as in the context of the main proceedings, he is clearly not precluded, where he considers it appropriate, from undertaking a more detailed assessment of that kind, provided that it does not lead to a delay which is incompatible with the urgency of interim proceedings and is not vitiated by an error of law (see, to that effect, the order of the President of the Court of 3 April 2007 in Case C‑459/06 P(R) Vischim
v Commission, paragraph 50).
39. Since the assessment undertaken by the President of the Court of First Instance did not lead to a delay which was incompatible with the urgency of the proceedings for interim measures, it is necessary to examine whether that assessment is vitiated by an error of law.
40. It should be recalled, in that regard, that the President of the Court of First Instance rejected the assertion that the contested decision is of individual concern to the appellants other than Cheminova A/S and found that, far from being individually distinguished by attributes peculiar to them, they are affected in the same way as all the other vendors and users of malathion in the same situation. He stated that the contested decision contains nothing tangible to support the conclusion that it was adopted having regard to the particular situation of the appellants other than Cheminova A/S. The President of the Court of First Instance therefore held that it is solely by reason of their objective position as economic operators covered by the contested decision that those appellants might claim to be affected by it.
41. The argument which the appellants, as well as the intervener, derive from the case‑law (Case T‑120/96 Lilly Industries
v Commission
[1998] ECR II‑2571; Monsanto
v Commission ; Joined Cases T‑125/96 and T‑152/96 Boehringer
v Council and Commission
[1999] ECR II‑3427; and order in Case T‑114/96 Biscuiterie‑confiserie LOR and Confiserie du Tech
v Commission
[1999] ECR II‑913), so far as concerns the specific nature of the marketing authorisations for malathion, cannot suffice for a finding that the assessment of the President of the Court of First Instance in that regard is vitiated by an error of law.
42. First, the fact that the order in EEB and Others v Commission, to which the President of the Court of First Instance referred, did not relate specifically to marketing authorisations cannot mean that the President was precluded from invoking it and drawing conclusions from it for the case before him. It is worth pointing out in that regard that the case‑law relied upon by the appellants and the intervener also does not relate to such authorisations or is not conclusive as to the nature of marketing rights.
43. Second, it could be validly argued, on the basis of the order in EEB and Others
v Commission, that the mere existence of marketing rights such as those in this case is not capable of individually distinguishing the holder of such a right if that right is granted, pursuant to a general and abstract rule, to objectively determined economic operators. It could also be validly inferred from the lists submitted by the Commission that numerous undertakings other than the appellants sell and use malathion and therefore have marketing rights in the same way as the appellants.
44. Nor is it possible to identify an error of law in the assessment of the President of the Court of First Instance in relation to the effect of the letters of access to data held by Cheminova A/S. In view of their purpose and content, the President was entitled to conclude that the effect of those letters of access did not exceed that of the authorisations themselves, which were not considered to be such as to distinguish individually the appellants other than Cheminova A/S and the examination of which, in the context of the appeal, has not revealed, as is apparent from paragraphs 41 to 43 above, an error of law.
45. Moreover, paragraph 105 of Pfizer Animal Health
v Council
expressly refers to a series of factors constituting a particular situation which differentiated the applicant in that case, as regards the measure in question, from all other traders concerned by that measure, so that the assessment of the President of the Court of First Instance – that the appellants other than Cheminova A/S could not validly invoke that judgment for the purpose of establishing that the contested decision was of individual concern to them by reason of the letters of access – cannot be considered to be vitiated by an error of law.
46. As regards the appellants’ argument derived from Monsanto
v Commission, it should be borne in mind that, by that judgment, the Court of First Instance held that a measure was of individual concern to a parent company where it was notified to its wholly-owned subsidiary. That status differentiated the parent company, in relation to the measure at issue, from all other persons and, in particular, from all other operators on the market in question. Unlike in that case, it is not the individual situation of the parent company which is at issue in the present case, but that of the subsidiaries. The appellants’ argument cannot thus prima facie undermine the finding of the President of the Court of First Instance that the contested decision was not of individual concern to the appellants other than Cheminova A/S.
47. The appellants’ argument derived from Codorniu
v Council, to the effect that Lodi SAS is individually concerned as the proprietor of a trade mark under which 16 malathion‑based insecticides are marketed, also cannot succeed. It does not appear at first sight that the appellants have established the existence of a situation which from the point of view of the contested decision differentiates Lodi SAS from all other traders who are proprietors of trade marks under which malathion‑based products are marketed (see Codorniu
v Council, paragraph 22).
48. As regards the alleged infringement of Article 104(1) of the Rules of Procedure of the Court of First Instance, it should be noted that, as the Commission has correctly observed, meeting the formal requirement of having challenged the Community measure in proceedings before the Court of First Instance or of being a party to a case before that Court is not sufficient to exempt the main action from any examination of whether it is admissible.
49. The appellants’ argument concerning the negative consequences for large groups of undertakings of the reasoning adopted by the President of the Court of First Instance cannot succeed, inasmuch as that argument refers to the desirability of the result to which that reasoning leads, rather than to the reasoning itself. In any event, the principle referred to in paragraph 32 above is dictated by considerations of economy of procedure and does not aim to confer on individuals rights capable of being relied on before the Community judicature.
50. With regard to the appellants’ assertion that the factors which establish the admissibility of the application at first instance with regard to Cheminova A/S apply just as well to the other appellants, since the notification by Cheminova A/S of the application for the inclusion of malathion in Annex I to Directive 91/414 was made in the name of the entire group, it is necessary to point out that, by that argument, the appellants are invoking a factual situation which was not put before the Court of First Instance, so that it cannot be raised for the first time at the appeal stage (order in Case C‑96/01 P Galileo and Galileo International
v Council
[2002] ECR I‑4025, paragraph 43).
51. In those circumstances, it is not possible to find that the assessment of the President of the Court of First Instance as to whether the appellants other than Cheminova A/S appear prima facie to be manifestly not entitled to apply to the Court of First Instance for annulment, in the main proceedings, of the contested decision is vitiated by an error of law.
The second plea, alleging that the President of the Court of First Instance erred in law in his assessment of urgency
Arguments of the parties
52. The appellants, who claimed an irremediable loss of their market shares, submit that the reasoning of the President of the Court of First Instance in respect of urgency contains errors of law which vitiate his conclusion that they have not shown that Cheminova A/S would suffer serious and irreparable damage if suspension of the contested decision were not granted.
53. In the first place, they claim that the President of the Court of First Instance wrongly excluded the evidence concerning the appellants other than Cheminova A/S. First, that error results from the President’s erroneous assessment of the admissibility of the application at first instance with regard to the appellants other than Cheminova A/S. Second, even if Cheminova A/S had lodged the interim application on its own, the figures relating to the other appellants would have had to be considered, since those companies are wholly or majority‑owned by Cheminova A/S.
54. In the second place, they claim that the reasoning of the President of the Court of First Instance is insufficient and incoherent, in that he gave insufficient weight to relevant considerations and undue weight to irrelevant considerations. That plea is divided into four parts.
55. First, the appellants claim, essentially, that the President of the Court of First Instance erred in law in taking into account the turnover of the group of companies to which Cheminova A/S belongs. They state that they do not invoke financial harm threatening their continued existence or exposing them to the risk of liquidation, harm which can potentially be offset by the financial support of a parent company. Instead, the principal head of damage suffered by the appellants is the loss of current market shares. That damage does not constitute harm of a purely financial nature and its temporary compensation is thus not dependent on the turnover of the group.
56. In that regard, the intervener contends that the seriousness of the damage cannot be measured merely by referring to a percentage of the turnover of the group to which the appellants belong, but must be based on a qualitative assessment of all the circumstances of the case. The turnover test would lead to discrimination against multi‑product undertakings to the benefit of single‑product undertakings, as in practice only small companies not belonging to a group of companies would be able to satisfy such a test.
57. In addition, according to the intervener, the size of the market share lost has never been regarded as an element indicative of the seriousness of the damage. The position adopted by the President of the Court of First Instance amounts to acknowledging that only large companies can benefit from interim relief to save their market position, but not small and medium‑sized undertakings.
58. Second, the appellants claim that, in any event, the President of the Court of First Instance, by concentrating exclusively on the turnover of the group, failed to take into proper account the size of market share held by the appellants.
59. Third, the appellants, supported by the intervener, criticise the President of the Court of First Instance for having disregarded the circumstances as a whole relied upon by the appellants – such as their presence in the malathion market for approximately 40 years or the marketing authorisations for malathion‑based plant protection products which they hold for numerous uses in 10 Member States – on the ground that these are historical considerations which disclose no economic and financial figures which could be taken into account to assess damage. The appellants refer to paragraph 205 of the order of the President of the Court of First Instance in Du Pont de Nemours (France) and Others
v Commission
and claim that it is wrong to classify as ‘historical’ considerations such as longstanding market presence, intellectual property rights or even research and development, since they are current and relevant in the context of the qualitative assessment, required by the case‑law, of the circumstances as a whole in the present case.
60. Fourth, the President of the Court of First Instance erred in law in analysing the appellants’ arguments regarding maximum residue limits, the ‘oilseed rape project’ concerning the supply of the oilseed rape sector with malathion and the losses suffered by the appellants in non‑Member States.
61. The Commission contests the arguments of the appellants and the intervener.
Findings of the Court
62. It must be borne in mind that, according to settled case‑law, the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order in order to prevent serious and irreparable damage to the party applying for those measures (see, inter alia, the order of the President in Case C‑329/99 P(R) Pfizer Animal Health
v Council
[1999] ECR I‑8343, paragraph 94).
63. Purely pecuniary damage cannot in principle be regarded as irreparable or even as difficult to repair since it may be the subject of subsequent financial compensation (order in Case 141/84 R de Compte
v Parliament
[1984] ECR 2575, paragraph 4).
64. The Court has held that, where the party applying for interim relief claims loss of its market share, it must demonstrate that obstacles of a structural or legal nature prevent it from regaining a significant proportion of that market share (order of the President in Case C-471/00 P(R) Commission
v Cambridge Healthcare Supplies
[2001] ECR I‑2865, paragraph 111).
65. In that regard, even if, on the basis of the abovementioned arguments relied on by the appellants, the damage suffered by Cheminova A/S is more serious than that acknowledged by the President of the Court of First Instance, those arguments are not liable to invalidate his finding that the damage could not be considered to be irreparable.
66. The intervener contends that the President of the Court of First Instance erred in law when assessing the irreparability of the damage, in requiring the appellants to establish that it would be impossible for them to regain the lost market shares if the interim relief applied for were not granted. The appellants are not required to demonstrate the impossibility of regaining lost market shares but must show instead the great difficulty they would face in wishing to regain them.
67. However, provided that the President of the Court of First Instance does not disregard the test referred to in paragraph 64 above, relating to the existence of obstacles of a structural or legal nature which prevent an undertaking from regaining a significant proportion of its market share, it cannot be found that he erred in law in his assessment of the irreparable nature of the damage.
68. In the present case, it does not appear that the President of the Court of First Instance applied a different test or that he failed to examine the obstacles potentially preventing Cheminova A/S from regaining a significant proportion of its market share. In fact, he took into account factors such as malathion’s substitutability, its efficacy, Cheminova A/S’s profit margin and the willingness of vendors to sell and of customers to use malathion again, even if, as appears normal, only under certain conditions.
69. Accordingly, it cannot be inferred solely from his use of the word ‘impossible’ that the President of the Court of First Instance required Cheminova A/S to prove any more than its claim that obstacles of a structural or legal nature prevented it from regaining a significant proportion of its market share (see the order of the President in Case C-236/07 P(R) Sumitomo Chemical Agro Europe
v Commission, paragraph 24).
70. Furthermore, according to the appellants, the President of the Court of First Instance erred in law in his assessment, in that he failed to give appropriate weight to the structural obstacles which are a feature of the market concerned, as explained in the Phillips McDougall report which had been submitted to him. More specifically, it follows from that report, first, that the market in malathion is a strongly competitive one in which ‘deep‑pocket’ competitors are able to offer products for all requirements. Second, the portfolio of Cheminova A/S’s products is far more limited than that of its main competitors, so that ‘pull-through’ from sales of other products from the portfolio is far less significant, making the potential retrieval of malathion sales much more difficult, were it subsequently to be authorised anew.
71. In that regard it is for the Court of First Instance alone to assess the value which should be attributed to the evidence produced to it. That assessment does not, therefore, constitute, save where the clear sense of the evidence submitted to the Court of First Instance has been distorted, a point of law which is subject to review by the Court of Justice (see, inter alia, Case C‑411/04 P Salzgitter Mannesmann
v Commission
[2007] ECR I‑959, paragraph 55).
72. In any event, the evidence upon which the appellants rely cannot establish that, in his assessment, the President of the Court of First Instance erred in law.
73. First, the fact that the market in malathion is a strongly competitive one cannot be considered, in itself, to be a structural obstacle preventing the regaining of a significant proportion of the share in that market, inasmuch as it reflects a more or less inherent factor of every market in which a number of competitors are active.
74. Second, the fact that Cheminova A/S’s ‘deep pocket’ competitors are able to offer products for all requirements and that the sales of those other products offer them ‘pull-through’ not available to Cheminova A/S by reason of its limited portfolio of products could be considered to be an obstacle of a structural nature. However, the other factors which the President of the Court of First Instance took into account suffice to support the conclusion he reached, that is, that it is not impossible that Cheminova A/S will be able to overcome those obstacles and regain a significant proportion of its market share.
75. The ‘pull-through’ from which Cheminova A/S does not benefit because of its limited portfolio of products appears capable of being offset, at least to a significant extent, by the qualities of its malathion‑based products, in particular their broad spectrum of activity and their effectiveness, which have gained Cheminova A/S a particularly high percentage share in the market for that substance. In addition, as regards prices, a return to the market could be facilitated by the relatively high profit margin on certain of the malathion‑based products. Those assessments are in fact supported by the replies provided in the survey of some of the appellants’ customers.
76. It follows from all of the foregoing considerations that the assessment of the President of the Court of First Instance of whether the damage suffered by Cheminova A/S was irreparable and, accordingly, of urgency is not vitiated by an error of law.
The third plea, alleging a breach of procedure at first instance because of the failure to hold a hearing
Arguments of the parties
77. The appellants see a contradiction in the fact that the President of the Court of First Instance found, on the one hand, that he had all the material necessary to rule on the application and, on the other, that the figures supplied by the appellants concerning the damage suffered on the Community market did not appear sufficiently precise to establish urgency for Cheminova A/S.
78. They claim that they could not reasonably have foreseen the outcome of the examination concerning the admissibility of their application for interim relief and thus could not have foreseen the need to present individualised data for each subsidiary. A hearing would have greatly assisted them in ascertaining the figures required as a result of the President’s change in legal approach to the assessment of admissibility.
79. In any event, they claim that the figures that the President of the Court of First Instance concludes are lacking from the body of the interim application can indeed be found in the documents lodged at the Court of First Instance.
80. The Commission contests the appellants’ arguments.
Findings of the Court
81. In this regard, suffice it to state that, since the Rules of Procedure of the Court of First Instance do not contain any provision on the oral procedure in the context of applications for interim relief, it is for the President of the Court of First Instance to assess whether it is necessary to hold a hearing and hear oral submissions from the parties. The President must in fact enjoy broad discretion in that regard.
82. In the present case, there is no evidence in the file to support the conclusion that the President of the Court of First Instance exceeded the limits of that discretion.
83. Accordingly, the plea based on the fact that the President of the Court of First Instance did not hold a hearing must be dismissed.
84. Having regard to all the foregoing considerations, the appeal must be dismissed.
Costs
85. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since the Commission has applied for an order for costs against the appellants and they have been unsuccessful, the appellants must be ordered to pay the costs.
86. In addition, in accordance with Article 69(4) of the Rules of Procedure, which similarly applies to appeal proceedings by virtue of Article 118 thereof, European Crop Protection Association (ECPA), which intervened in support of the appellants, must bear its own costs.
Operative part
On those grounds, the Court hereby orders:
1. The appeal is dismissed.
2. Cheminova A/S, Cheminova Agro Italia Srl, Cheminova Bulgaria EOOD, Agrodan SA and Lodi SAS shall pay the costs.
3. European Crop Protection Association (ECPA) shall bear its own costs.