ORDER OF THE VICE-PRESIDENT OF THE COURT
16 July 2021 (*)
(Appeal – Order for interim measures – Plant protection products – Implementing Regulation (EU) 2020/2087 – Non-renewal of approval of the active substance mancozeb – Application for suspension of operation of a measure – No urgency – Assessment of the facts – No distortion of the facts or evidence – Grounds included for the sake of completeness)
In Case C‑276/21 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 29 April 2021,
Indofil Industries (Netherlands) BV, established in Amsterdam (Netherlands), represented by C. Mereu, avocat, and P. Sellar, advocaat,
appellant,
the other party to the proceedings being:
European Commission, represented by A. Dawes, I. Naglis and G. Koleva, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1        By its appeal, Indofil Industries (Netherlands) BV asks the Court to set aside the order of the President of the General Court of the European Union of 19 March 2021, Indofil Industries (Netherlands) v Commission (T‑742/20 R, not published, EU:T:2021:199; ‘the order under appeal’), by which the General Court dismissed its application for suspension of the operation of Commission Implementing Regulation (EU) 2020/2087 of 14 December 2020 concerning the non-renewal of the approval of the active substance mancozeb, 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 the Annex to Commission Implementing Regulation (EU) No 540/2011 (OJ 2020 L 423, p. 50) (‘the regulation at issue’).
Background to the dispute, the proceedings before the General Court and the order under appeal
2        The appellant is a company governed by Netherlands law and is a subsidiary of Indofil Industries Ltd; the latter is highly specialised in the manufacture and development of plant protection products, including a fungicide containing the active substance mancozeb.
3        That active substance is used to counteract potato blight as well as other pathogens that affect vines, soft fruit, top fruit, carrots and onions.
4        Indofil Industries manufactures mancozeb in its Indian facilities and sells it in the European Union through the appellant.
5        Mancozeb was approved in the European Union by Commission Directive 2005/72/EC of 21 October 2005 amending Council Directive 91/414/EEC to include chlorpyrifos, chlorpyrifos-methyl, mancozeb, maneb, and metiram as active substances (OJ 2005 L 279, p. 63), which added the active substance mancozeb to 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).
6        With the entry into force 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 Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1), the active substances included in Annex I to Directive 91/414 were deemed to have been approved and were listed in the Annex to Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation (EC) No 1107/2009 as regards the list of approved active substances (OJ 2011 L 153, p. 1).
7        As the approval of the active substance mancozeb was due to expire, the appellant submitted an application for renewal of that approval, 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 (EC) No 1107/2009 (OJ 2012 L 252, p. 26).
8        On 29 November 2019, by Implementing Regulation (EU) 2019/2094 amending Implementing Regulation (EU) No 540/2011 as regards the extension of the approval periods of the active substances benfluralin, dimoxystrobin, fluazinam, flutolanil, mancozeb, mecoprop-P, mepiquat, metiram, oxamyl and pyraclostrobin (OJ 2019 L 317, p. 102), the European Commission extended the approval period of mancozeb until 31 January 2021 so that the corresponding renewal procedure could be completed before the expiry of the approval period of that active substance.
9        On 2 September 2020, the Hellenic Republic, as rapporteur Member State, sent its evaluation to the Commission in the form of an updated renewal assessment report. The evaluation was also made available to the European Food Safety Authority (EFSA), the other Member States and the applicants.
10      On 23 October 2020, in the framework of the Commission’s Standing Committee on Plants, Animals, Food and Feed, the Member States delivered their opinion by qualified majority on the draft regulation not to renew the approval of the active substance mancozeb.
11      On 14 December 2020 the Commission adopted the regulation at issue.
12      By application lodged at the Registry of the General Court on 18 December 2020, the appellant and UPL Europe Ltd brought an action for annulment of the regulation at issue.
13      By separate document lodged at the Court Registry on the same day, the appellant lodged an application for interim relief pursuant to Articles 278 and 279 TFEU, seeking, in essence, suspension of the operation of the regulation at issue and an order for the Commission to pay the costs.
14      On 19 March 2021, the President of the General Court adopted the order under appeal, by which he dismissed the application for interim relief on the ground that the condition relating to urgency was not met.
Forms of order sought and procedure before the Court of Justice
15      By its appeal, the appellant claims that the Court should:
–        set aside the order under appeal;
–        suspend the execution of the order under appeal with immediate effect pursuant to Article 39 of the Statute of the Court of Justice of the European Union;
–        suspend the operation of the regulation at issue pending the adoption of the decision on the appeal pursuant to Article 39 of the Statute of the Court of Justice of the European Union;
–        give final judgment on the application for interim relief and grant the interim measures sought;
–        suspend the operation of the regulation at issue pending delivery of the judgment in the main proceedings and grant all necessary interim measures;
–        in the alternative, refer the case back to the President of the General Court to rule on the application for interim relief; and
–        order the Commission to pay the costs.
16      The Commission contends that the Court should:
–        dismiss the appeal;
–        in the alternative, dismiss the application for interim measures; and
–        in the further alternative, refer the case back to the President of the General Court; and
–        order the appellant to pay the costs incurred by the Commission in the appeal proceedings.
17      By a separate document, lodged at the Registry of the Court of Justice on 8 June 2021, the appellant also applied for interim relief.
The appeal
18      In support of its appeal, the appellant raises five grounds.
The first ground of appeal
Arguments
19      By its first ground of appeal, the appellant claims that, in paragraphs 38 and 39 of the order under appeal, the President of the General Court manifestly distorted the facts and evidence.
20      In the first place, by finding, in paragraph 38 of that order, that [confidential], (1) the President of the General Court distorted the facts. According to the appellant, the President of the General Court did not take into account other facts set out in the application for interim relief which indicate that [confidential]. In so doing, the President of the General Court wrongly concluded that [confidential].
21      In the second place, the appellant submits that the President of the General Court distorted the evidence before him by concluding, in paragraph 39 of the order under appeal, that [confidential]. It claims that such an assessment prevented the President of the General Court from fully recognising the significance of the financial damage alleged by the appellant.
22      The Commission disputes that argument.
Findings
23      In the first place, it should be recalled that, according to settled case-law, a distortion must be obvious from the documents in the Court’s file without any need for a new assessment of the facts or the evidence (order of the Vice-President of the Court of 17 December 2020, Anglo Austrian AAB and Belegging-Maatschappij “Far-East” v ECB, C‑207/20 P(R), not published, EU:C:2020:1057, paragraph 36).
24      As regards the claim that the President of the General Court distorted the facts in paragraph 38 of the order under appeal, it is clear from the application for interim relief submitted before that court that the appellant maintained that [confidential].
25      Therefore, the President of the General Court did not distort the facts by finding, in paragraph 38 of the order under appeal, that [confidential].
26      It follows that the appellant’s arguments alleging that the President of the General Court distorted the facts in paragraph 38 of the order under appeal must be rejected as unfounded.
27      In the second place, as regards the appellant’s argument that, in paragraph 39 of the order under appeal, the President of the General Court distorted the facts and evidence, it should be noted that, according to settled case-law, arguments directed against grounds included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and are therefore ineffective (judgment of 2 October 2019, Crédit Mutuel Arkéa v ECB, C‑152/18 P and C‑153/18 P, EU:C:2019:810, paragraph 68 and the case-law cited).
28      In the context of the analysis of the seriousness of the financial damage alleged by the appellant, the President of the General Court noted, first, in paragraph 34 of the order under appeal, 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 did not appear to be such as to threaten their very existence.
29      Second, the President of the General Court noted, in paragraph 35 of that order, that the appellant claimed that [confidential].
30      Third, in paragraph 36 of that order, the President of the General Court pointed out that, according to the case-law of the General Court, the judge dealing with the application for interim relief 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 harm occasioned in terms of turnover.
31      Fourth and lastly, the President of the General Court noted, in paragraph 37 of the order under appeal, that, according to that case-law, it was for him to confirm whether, given the specific circumstances of the case, the seriousness of the financial damage ought not to be established [confidential]. In that regard, the President of the General Court pointed out, in paragraph 37 of that order, that [confidential] in itself convince the judge dealing with an application for interim relief of the seriousness of the alleged harm.
32      It was in the light of those considerations that the President of the General Court, in paragraph 38 of the order under appeal, concluded, taking into account the financial damage alleged by the appellant [confidential].
33      It was therefore only for the sake of completeness that, in paragraph 39 of the order under appeal, the President of the General Court stated that [confidential]. Moreover, the fact that paragraph 39 of that order was included for the sake of completeness is confirmed by the use of the words ‘in addition’ at the beginning of that paragraph.
34      Accordingly, the appellant’s arguments directed against paragraph 39 of that order must be rejected as ineffective.
35      In those circumstances, the first ground of appeal must be rejected.
The second ground of appeal
Arguments
36      By its second ground of appeal, the appellant claims that, in paragraph 45 of the order under appeal, the President of the General Court did not state reasons for the conclusion that the appellant had not adduced sufficient evidence in support of its claim that [confidential].
37      The Commission disputes that argument.
Findings
38      According to settled case-law, findings of the General Court to the effect that the applicant has not produced the necessary evidence to support its allegations or that it has not shown that the allegations are correct constitute findings of fact which are within the sole jurisdiction of that court and may not be challenged on appeal, unless the General Court has distorted the clear sense of the evidence put before it (order of the President of the Court of 23 January 2008, Sumitomo Chemical Agro Europe v Commission, C‑236/07 P(R), not published, EU:C:2008:31, paragraph 37).
39      By its second ground of appeal, the appellant, which does not allege any distortion, is in reality merely challenging the assessment of the facts made by the President of the General Court in paragraph 45 of the order under appeal, an assessment which does not constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.
40      Consequently, the second ground of appeal must be rejected as inadmissible.
The third ground of appeal
Arguments
41      By its third ground of appeal, the appellant claims that, in paragraphs 45 and 46 of the order under appeal, the President of the General Court incorrectly applied the test for evaluating the diversification strategy of the undertaking concerned arising from the case-law in paragraphs 108 and 109 of the order of the President of the Court of 11 April 2001, Commission v Bruno Farmaceutici and Others (C‑474/00 P(R), EU:C:2001:219).
42      According to the appellant, the test is not [confidential].
43      The appellant claims that the President of the General Court erred in his application of that test and that he did not take account of evidence showing that [confidential]. In particular, the President of the General Court did not take into account [confidential].
Findings
44      It follows from settled case-law that the General Court has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. Save where the evidence adduced before the General Court has been distorted, the appraisal of the facts therefore does not constitute a point of law which is subject to review by the Court of Justice (judgment of 13 June 2013, Versalis v Commission, C‑511/11 P, EU:C:2013:386, paragraph 66).
45      In the present case, in paragraph 45 of the order under appeal, the President of the General Court found, first, that the appellant had not adduced sufficient evidence in support of its claim that [confidential]. For the sake of completeness, in paragraph 46 of that order, the President of the General Court noted that, in so far as [confidential], there was a lack of diligence which prevents operation of the contested regulation from being suspended.
46      By its arguments in support of the third ground of appeal, the appellant, which does not allege any distortion, is in fact seeking to call into question the factual assessments made by the President of the General Court in paragraphs 45 and 46 of the order under appeal.
47      Therefore, that line of argument must be rejected as inadmissible.
48      Accordingly, the third ground of appeal must be rejected as inadmissible.
The fourth and fifth grounds of appeal
Arguments
49      By its fourth and fifth grounds of appeal, which should be examined together, the appellant claims, in the first place, that, by finding, in paragraph 53 of the order under appeal, that it had not adduced any evidence to substantiate its claim that [confidential], the President of the General Court effectively required it to adduce a probatio diabolica.
50      In the second place, the appellant criticises the President of the General Court for having found, in paragraph 57 of the order under appeal, that it had not provided any evidence in support of its claim that financial compensation would not in itself be sufficient to constitute restitutio in integrum.
51      In that regard, the appellant submits, in essence, that it did not need to provide evidence in support of that claim, since restitutio in integrum was not possible in the circumstances of the present case.
Findings
52      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 ensure that there is no lacuna in the legal protection provided by the Court. For the purpose of attaining that objective, urgency must 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 (order of 20 November 2017, Commission v Poland, C‑441/17 R, EU:C:2017:877, paragraph 43 and the case-law cited).
53      It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable harm (see, to that effect, order of 28 May 2018, BASF Grenzach v ECHA, C‑565/17 P(R), not published, EU:C:2018:340, paragraph 49).
54      Since the first, second and third grounds of appeal, concerning the President of the General Court’s examination of the seriousness of the damage alleged by the appellant, have been rejected, it must be observed that the President of the General Court did not err in law in holding, in paragraph 49 of the order under appeal, that the appellant had not established the seriousness of the damage alleged.
55      Consequently, the explanations in the order under appeal concerning the irreparable nature of the damage, set out in paragraphs 50 to 58 of that order, constitute grounds included in that order for the sake of completeness.
56      In those circumstances, the fourth and fifth grounds of appeal, in so far as they are directed against grounds of the order under appeal included for the sake of completeness, must be rejected as ineffective.
57      Having regard to all of the above considerations, the appeal must be dismissed in its entirety.
Costs
58      Under Article 184(2) of the Rules of Procedure of the Court of Justice, where an appeal is unfounded, the Court is to make a decision as to the costs.
59      In accordance with Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
60      Since the Commission has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs.
On those grounds, the Vice-President of the Court hereby orders:
1.      The appeal is dismissed.
2.      Indofil Industries (Netherlands) BV shall pay the costs.
Luxembourg, 16 July 2021.
A. Calot Escobar
R. Silva de Lapuerta
Registrar
Vice-president
*      Language of the case: English.
1      Confidential data omitted.