62008CO0391_EN
Parties
Grounds
Operative part
Parties
In Case C-391/08 P(R),
APPEAL pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice, brought on 2 September 2008,
Dow AgroSciences Ltd,
established in Hitchin, Hertfordshire (United Kingdom),
Dow AgroSciences LLC,
established in Indianapolis, Indiana (United States),
Dow AgroSciences SAS,
established in Mougins (France),
Dow AgroSciences Export SAS,
established in Mougins,
Dow AgroSciences BV,
established in Hoek (Netherlands),
Dow AgroSciences Hungary kft,
established in Budapest (Hungary),
Dow AgroSciences Italia Srl,
established in Milan (Italy),
Dow AgroSciences Polska sp. z o.o.,
established in Warsaw (Poland),
Dow AgroSciences Iberica SA,
established in Madrid (Spain),
Dow AgroSciences s.r.o.,
established in Prague (Czech Republic),
Dow AgroSciences Danmark A/S,
established in Kongens Lyngby (Denmark),
Dow AgroSciences GmbH,
established in Munich (Germany),
Dintec Agroquímica – Produtos Químicos L da,
established in Funchal, Madeira (Portugal),
Finchimica SpA,
established in Brescia (Italy),
represented by D. Vaughan QC, V. Wakefield, Barrister, K. Van Maldegem and C. Mereu, avocats, and P. Turner‑Kerr, Solicitor,
appellants,
the other party to the proceedings being:
European Commission,
represented by L. Parpala, acting as Agent,
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, Dow AgroSciences Ltd, Dow AgroSciences LLC, Dow AgroSciences SAS, Dow AgroSciences Export SAS, Dow AgroSciences BV, Dow AgroSciences Hungary kft, Dow AgroSciences Italia Srl, Dow AgroSciences Polska sp. z o.o., Dow AgroSciences Iberica SA, Dow AgroSciences s.r.o., Dow AgroSciences Danmark A/S, Dow AgroSciences GmbH (collectively ‘the Dow appellants’), Dintec Agroquímica – Produtos Químicos L da
(‘Dintec’) and Finchimica SpA (‘Finchimica’) ask the Court to set aside the order of the President of the Court of First Instance of the European Communities (now ‘the General Court’) of 18 June 2008 in Case T‑475/07 R Dow AgroSciences and Others
v Commission
(‘the order under appeal’), by which he dismissed their application for interim relief seeking suspension of the operation of Commission Decision 2007/629/EC of 20 September 2007 concerning the non-inclusion of trifluralin in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 255, p. 42; ‘the contested decision’) until delivery of the judgment in the main proceedings.
2. The legal context, the facts and the procedure at first instance were summarised in paragraphs 1 to 12 of the order under appeal.
The order under appeal
3. In paragraph 32 of the order under appeal, the President of the General Court acknowledged that it could not be excluded, at first sight, that the contested decision is of direct and individual concern, within the meaning of the fourth paragraph of Article 230 EC, to Dow AgroSciences Ltd and Dintec, as notifiers of the application seeking to secure the inclusion of trifluralin 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 them is admissible.
4. In paragraph 33 of the order under appeal, the President of the General Court 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, in paragraph 34 of the order under appeal, that while that case-law can 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, in paragraph 37 et seq. of the order under appeal, whether the appellants other than Dow AgroSciences Ltd and Dintec appeared prima facie to be manifestly not entitled, as persons not directly and individually concerned by the contested decision, to apply to the General Court for annulment, in the main proceedings, of the contested decision.
6. The President of the General Court rejected the contention that the appellants other than Dow AgroSciences Ltd and Dintec were individually concerned by the contested decision, holding that, far from being individually distinguished by attributes peculiar to them, they were affected in the same way as all the other vendors of trifluralin in the same situation. He stated that the contested decision contained nothing tangible to support the conclusion that it was adopted having regard to the particular situation of the appellants other than Dow AgroSciences Ltd and Dintec. He thus found that it was 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.
7. The President of the General Court therefore held that those appellants were not entitled to put forward their own individual situation in order to establish urgency, and nor, therefore, were they entitled to bring the application for interim measures.
8. After excluding from his assessment of urgency the arguments relating to the appellants other than Dow AgroSciences Ltd and Dintec, the President of the General Court examined the contention advanced by Dow AgroSciences Ltd and Dintec that, if suspension of the operation of the contested decision were not ordered, they would suffer serious and irreparable damage as a result of irremediable loss of their market share for trifluralin, of harm to their reputation and of loss of their trade marks.
9. So far as concerns, first of all, Dow AgroSciences Ltd, the President of the General Court determined first whether the damage linked to any loss of market share could be classified as serious in the light, in particular, of the size and turnover of Dow AgroSciences Ltd and of the characteristics of the group to which it belongs. He stated that he could not assess the gravity of the damage pleaded, in the absence of details, both in the application for interim measures and in the replies to his questions, that would enable him to assess the financial characteristics of the group to which Dow AgroSciences Ltd belongs, the issue as to whether the parent company has no interest in supporting that subsidiary or the figures relating to the sales of trifluralin and trifluralin-based products that Dow AgroSciences Ltd could lose as a result of the contested decision.
10. For the sake of completeness, he stated in paragraph 87 of the order under appeal that it was apparent from the documents that had been produced by the Commission of the European Communities from public sources and had not been contested by the appellants that the parent company of the group to which the Dow appellants belong had achieved a total turnover of USD 49.1 billion in 2006. The annual damage pleaded by reason of the loss of the Dow appellants’ sales on the trifluralin market corresponded approximately to only 0.1% of that total group turnover, a situation which evidently could not be classified as serious.
11. In paragraph 90 of the order under appeal, the President of the General Court held that that conclusion was not called into question by an assessment of the circumstances as a whole relied upon by the Dow appellants, which maintained that they had acquired a reputation with trifluralin since the beginning of the 1960s, that they had invested substantially in research and development in respect of trifluralin, that they had acquired extensive know-how, that they had built up a solid customer base over a period of years and that they had longstanding trade marks of repute relating to trifluralin whose value would be destroyed by the contested decision. These historical considerations could not be taken into consideration since they disclosed no economic and financial figures, in terms of loss of turnover, which could be taken into account to assess damage liable to justify the grant of an interim measure.
12. Next, in paragraphs 91 and 92 of the order under appeal, the President of the General Court rejected the arguments concerning the alleged loss of value of the trade marks used by the Dow appellants and concerning serious harm to the Dow appellants’ image and reputation in general and, specifically, to the reputation of their trifluralin products and the other products sold by them on the pesticides market.
13. The President of the General Court also rejected the submission that the damage suffered by Dow AgroSciences Ltd would be irreparable. He held in paragraphs 95 to 98 of the order under appeal that Dow AgroSciences Ltd had not established that it would be impossible for it to regain its lost market shares.
14. So far as concerns, second, damage suffered by Dintec, the President of the General Court stated in paragraph 105 of the order under appeal that the appellants had not provided any detail enabling the financial characteristics of the two companies holding its capital to be assessed and that, in the absence of such details, he was unable to assess the gravity of the damage pleaded.
15. For the sake of completeness, he added that, in so far as the damage claimed to be caused to Dintec was assessed in relation to the financial capability of the Dow Chemical group, to which one of its two parent companies, Dow AgroSciences BV, belongs, that damage could only be classified as insignificant.
16. Next, the President of the General Court rejected the arguments that Dintec was liable to suffer serious damage because, first, neither of its parent companies would be prepared to support it and, second, Dintec was formed to operate principally in the trifluralin market, so that it would be unable to make up for the loss of sales of that substance.
17. Finally, in paragraph 114 of the order under appeal, he held that nothing had been put forward that was capable of establishing that the damage pleaded by Dintec was irreparable.
18. Third and last, in paragraphs 116 and 117 of the order under appeal the President of the General Court examined for the sake of completeness the situation of Finchimica, which had been declared not to be entitled to make an application for interim measures, and he reached the conclusion that the damage allegedly suffered by it should be attributed to a lack of diligence on its part.
Procedure before the Court of Justice
19. The Commission submitted its observations on the appeal on 17 October 2008.
20. The parties presented oral argument on 28 January 2009.
The appeal
21. In support of their appeal, the appellants raise two pleas in law alleging, respectively, that the President of the General Court erred in law in his examination of whether the application was admissible and that he erred in law in his assessment of urgency.
The first plea, alleging that the President of the General Court erred in law in his examination of whether the application was admissible
Arguments of the parties
22. The first plea relied upon by the appellants is divided into three parts.
23. By the first part of the first plea, the appellants submit that the President of the General Court should have refrained from examining the issue of admissibility, given that the Commission did not expressly plead that the main action is manifestly inadmissible.
24. By the second part of the first plea, the appellants contend that the President of the General Court erred in law by examining the admissibility of the main application as if each applicant had brought it separately.
25. Referring in particular to the orders of the President in Case T‑117/05 R Rodenbröker and Others
v Commission
[2005] ECR II‑2593, paragraph 61, and in Case T-31/07 R Du Pont de Nemours (France) and Others
v Commission
[2007] ECR II‑2767, paragraph 113, the appellants state that, in the past, the President of the General Court 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 was 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.
26. In the case in point, the President of the General Court erred in law in not setting out the reasons why he did not observe the above case-law.
27. The appellants further contend that, if there were a concern that in some cases applicants could join forces to unite one party with locus standi and another party who would suffer damage without having locus standi, in order somehow to misuse the interim relief provisions, it would be appropriate to deal with such a case not in the light of the admissibility of each of the applicants but by a finding of abuse of process. On the other hand, the reasoning adopted by the President of the General Court in the order under appeal would mean that an undertaking that conducts its business through a single company is in a preferred position vis-à-vis a company that conducts its business through subsidiaries, an outcome which would represent a radical disconnect from business reality.
28. In the third part of their first plea, the appellants rely on three arguments.
29. They submit first of all that the President of the General Court erred in law in carrying out a detailed examination of admissibility rather than simply a prima facie analysis, as any examination of admissibility in proceedings for interim measures is necessarily summary.
30. Next, the appellants contend that the President of the General Court breached his obligation to apply the rule that, even where an examination of admissibility in interim proceedings is appropriate, the judge hearing the application for interim measures should declare that application inadmissible only where admissibility of the main action can be wholly excluded. In their submission, this is a strict condition and it will be satisfied only in very exceptional circumstances, which are clearly not present in this case.
31. Finally, the appellants maintain that the President of the General Court erred in finding that the appellants other than Dow AgroSciences Ltd and Dintec were not directly and individually concerned by the contested decision. This argument is expanded upon under five heads.
32. First, they submit that the notification of the application seeking to secure the inclusion of trifluralin in Annex I to Directive 91/414 was made by Dow AgroSciences Ltd and Dintec on behalf of the Dow AgroSciences corporate group, to which they all belong. They state that the notification document, dated 25 August 2000, refers to ‘Dow AgroSciences’. The address given in that document is that of Dow AgroSciences’ European development centre, by which all Directive 91/414 dossiers are prepared and coordinated on behalf of the Dow AgroSciences corporate group. In addition, Commission Regulation (EC) No 703/2001 of 6 April 2001 laying down the active substances of plant protection products to be asse ssed in the second stage of the work programme referred to in Article 8(2) of Council Directive 91/414/EEC and revising the list of Member States designated as rapporteurs for those substances (OJ 2001 L 98, p. 6), which lists the producers which gave notification of an application seeking to secure the inclusion of an active substance in Annex I to Directive 91/414, refers to ‘Dow AgroSciences’ in general terms, rather than to any one specific Dow AgroSciences legal entity.
33. Furthermore, the appellants infer from the structure of Directive 91/414 that there should only be one notification per corporate group. They state that Commission Regulation (EC) No 451/2000 of 28 February 2000 laying down the detailed rules for the implementation of the second and third stages of the work programme referred to in Article 8(2) of Council Directive 91/414/EEC (OJ 2000 L 55, p. 25) confirms their analysis.
34. Second, the appellants other than Dow AgroSciences Ltd and Dintec are individually concerned by the contested decision because they belong to the same economic group as the notifiers of the application seeking to secure the inclusion of trifluralin in Annex I to Directive 91/414. The appellants submit that this follows from Case T‑112/97 Monsanto
v Commission
[1999] ECR II‑1277. They state that in that judgment the General Court accepted that the parent company was individually concerned solely on the basis of its status as parent company of the group to which the applicant company belonged. On the basis of that judgment alone, the appellants other than Dow AgroSciences Ltd and Dintec, by virtue solely of their status as members of the same corporate group as Dow AgroSciences Ltd, should all be considered individually concerned by the contested decision.
35. Third, the appellants other than Dow AgroSciences Ltd and Dintec claim to be individually concerned as holders of specific rights resulting from national marketing authorisations for trifluralin. Those rights are stated to be comparable to the right at issue in Case C-309/89 Codorniu
v Council
[1994] ECR I-1853. According to these appellants, the President of the General Court 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 contend that their situation should be distinguished from that of an operator who de facto
markets a product, but who holds no specific rights in respect of that product.
36. Fourth, the appellants add that the data protection granted pursuant to Article 13 of Directive 91/414 puts the holders of national marketing authorisations for trifluralin which are members of the Dow AgroSciences corporate group in an objectively different situation from, and therefore distinguishes them from, other holders of national marketing authorisations at the date of the contested decision. They refer in this connection to Case T-13/99 Pfizer Animal He alth v Council
[2002] ECR II‑3305, paragraph 98, and Case T-70/99 Alpharma
v Council
[2002] ECR II‑3495, paragraph 90.
37. Fifth, the appellants other than Dow AgroSciences Ltd and Dintec are individually concerned as holders of trade mark rights, which, in the same way as their marketing authorisations, are pre-existing rights specifically granted to them.
38. The Commission contests the appellants’ arguments.
Findings of the Court
39. So far as concerns the first part of the first plea, regarding the Commission’s failure to plead that the main action is manifestly inadmissible, that fact is not sufficient for a finding that the reasoning of the President of the General Court is vitiated by an error of 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 (see Case C‑298/00 P Italy
v Commission
[2004] ECR I‑4087, paragraph 35, and the order of the President of the Court of 24 March 2009 in Case C-60/08 P(R) Cheminova and Others
v Commission, paragraph 31).
40. As to the second part of the first plea, concerning failure by the President of the General Court 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 ( Cheminova and Others
v Commission, paragraph 32).
41. Second, the President of the General Court 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 ( Cheminova and Others
v Commission, paragraph 33).
42. The principle stated in paragraph 40 above was introduced, for reasons of economy of procedure, in the context of main proceedings, without taking into account the existence of any application for interim relief with which the main action might be coupled ( Cheminova and Others
v Commission, paragraph 34).
43. 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 his 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 ( Cheminova and Others
v Commission, paragraph 35).
44. Since urgency is thus a specific question which must be examined separately for each applicant, the President of the General Court 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 were 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 ( Cheminova and Others
v Commission, paragraph 36).
45. 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 Dow AgroSciences Ltd and Dintec have locus standi, the President of the General Court was entitled, without erring in law – contrary to what the appellants have submitted in the second argument in the third part of their first plea – 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 ( Cheminova and Others
v Commission, paragraph 37).
46. 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, the fact remains that he is not precluded – contrary to what the appellants have submitted in the first argument in the third part of their first plea – from undertaking, where he considers it appropriate, 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 this 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, and Cheminova and Others
v Commission, paragraph 38).
47. Since the assessment undertaken by the President of the General Court 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, as the appellants contend in the third argument in the third part of their first plea ( Cheminova and Others
v Commission, paragraph 39).
48. As regards, in the first place, the appellants’ contention that the notification of the application seeking to secure the inclusion of trifluralin in Annex I to Directive 91/414 was made on behalf of the group to which they belong, it is to be observed that, effectively, that argument, in so far as the appellants appear to assert, on the basis of the matters set out in paragraph 32 above, that the notifier is the ‘Dow AgroSciences’ group, contests a finding of fact made by the General Court, which, save where the clear sense of the evidence adduced before it has been distorted, does not constitute a question of law subject to review by the Court of Justice on appeal (see the order of the President of the Court of 23 January 2008 in Case C‑236/07 P(R) Sumitomo Chemical Agro Europe
v Commission, paragraph 37, and Cheminova and Others
v Commission, paragraph 50).
49. It is not in dispute that, in their appeal, the appellants have not pleaded that the General Court distorted the clear sense of the evidence.
50. In so far as that argument advanced by the appellants may be understood as meaning that, by virtue of Directive 91/414 and Regulation No 451/2000, the notification of an application seeking to secure the inclusion of an active substance in Annex I to that directive which is made by an undertaking also applies in respect of the other undertakings in the same group, it must be stated, first of all, that the appellants have not identified any provision confirming expressly, or at least unequivocally, their contention that the directive is clearly designed to ensure that there is only one notification per corporate group.
51. Next, so far as concerns the argument derived from the fact that Article 6(1) of Regulation No 451/2000 encourages collective presentation of the dossiers to be submitted by the producers making such a notification, it should be pointed out that that provision could properly be interpreted as referring to collective presentation by undertakings which are entirely separate and independent from one another and not to collective presentation by undertakings belonging to the same group.
52. Also, contrary to the appellants’ contentions, the President of the General Court did not conclude that the fact that Regulation No 451/2000 ‘encourages’ rather than ‘prescribes’ collective presentation of dossiers is sufficient in itself to reject their argument that the dossier was presented on behalf of the corporate group, but deduced from that fact that a producer notifying an application seeking to secure the inclusion of an active substance in Annex I to Directive 91/414 must demonstrate, where relevant, that the dossiers are in fact presented on behalf of such a group.
53. Finally, in response to the appellants’ argument that, if the reasoning of the President of the General Court were followed, then in the future, in order for the rights of producers to be protected, all notifications of such an application would have to be made by them individually and not collectively, with the result that the objectives of Regulation No 451/2000 would not be achieved, it need merely be stated that the option set out by the appellants should certainly not be regarded as the only possible option, as it can also be envisaged that an undertaking will submit a notification of an application seeking to secure the inclusion of an active substance in Annex I to Directive 91/414 on behalf of the group to which it belongs, setting out the specific details of the undertakings in the group that are covered by that notification.
54. As regards, in the second place, the argument derived from Monsanto
v Commission
that the appellants other than Dow AgroSciences Ltd and Dintec are individually concerned by the contested decision because they belong to the same economic group as the notifiers of the application seeking to secure the inclusion of trifluralin in Annex I to Directive 91/414, it should be noted that, by that judgment, the General Court held that a measure was of individual concern to a parent company where it was notified to its wholly-owned subsidiary. In addition to the reasons which led the Court of Justice in Cheminova and Others
v Commission
to reject this argument in relation to subsidiaries, it is to be observed that, in contrast to Monsanto
v Commission, the contested measure in the present case is a measure of general application with regard to which the parent company Dow AgroSciences LLC is in the same position as the other operators present on the market selling trifluralin.
55. In the third place, the argument which the appellants derive from the case-law ( Codorniu
v Council ; Joined Cases C-260/06 and C-261/06 Escalier and Bonnarel
[2007] ECR I-9717; Case C-125/06 P Commission
v Infront
[2008] ECR I-1451; order in Case T‑114/96 Biscuiterie‑confiserie LOR and Confiserie du Tech
v Commission
[1999] ECR II‑913; Case T-177/01 Jégo-Quéré
v Commission
[2002] ECR II-2365; and Pfizer Animal Health
v Council ) so far as concerns the specific nature of the marketing authorisations for trifluralin cannot suffice for a finding that the assessment of the President of the General Court in that regard is vitiated by an error of law.
56. First of all, the fact that the order in EEB and Others v Commission, to which the President of the General Court referred, did not relate specifically to marketing authorisations cannot mean that he was precluded from invoking it and drawing conclusions from it for the case before him. It is worth pointing out in that regard that almost all the case‑law relied upon by the appellants also does not relate to such authorisations or is not conclusive as to the nature of marketing rights ( Cheminova and Others
v Commission, paragraph 42).
57. Next, the appellants have not proved satisfactorily why the holding of a specific and/or personal right would be capable of invalidating the finding made in paragraph 48 of the order under appeal and of individually distinguishing them from the other operators present on the market who sell trifluralin and have marketing rights in the same way as the appellants (see, to this effect, Cheminova and Others
v Commission, paragraph 43).
58. As regards, more specifically, the appellants’ contention that the President of the General Court erred in finding, in paragraph 58 of the order under appeal, that they do not possess specific rights by virtue of their national marketing authorisations, it should be stated that this complaint fails to have regard to the fact that, in that finding made by the President of the General Court, the stress is placed on the circumstance that, unlike the decision at issue in Codorniu
v Council, the contested decision does not seek to restrict a specific intellectual property right regarding trifluralin to certain operators to the detriment of the appellants.
59. Finally, the President of the General Court could soundly hold that the appellants cannot profitably plead the judgment in Commission
v Infront, given that that judgment relates to exclusive rights, which is not the case here.
60. Nor, in the fourth place, is it possible to identify an error of law in the assessment of the President of the General Court concerning the data protection granted pursuant to Article 13 of Directive 91/414, protection which, in the appellants’ submission, amounts to a specific right in the same way as the marketing authorisations held by the appellants. Those authorisations were not considered by the President of the General Court to be capable of individually distinguishing the appellants other than Dow AgroSciences Ltd and Dintec and, as is apparent from paragraphs 55 to 59 above, the examination of them in the context of the appeal has not disclosed an error of law ( Cheminova and Others
v Commission, paragraph 44).
61. 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 General Court – that the appellants other than Dow AgroSciences Ltd and Dintec 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 data protection rights – cannot be considered to be vitiated by an error of law ( Cheminova and Others
v Commission, paragraph 45).
62. In the fifth place, the appellants’ argument derived from Codorniu
v Council, to the effect that Dow AgroSciences LLC and Finchimica are individually concerned as the proprietors of trade marks under which trifluralin‑based products are marketed, also cannot succeed. It does not appear that the appellants have established the existence of a situation analogous to the situation in that case that would differentiate Dow AgroSciences LLC and Finchimica, from the point of view of the contested decision, from all other traders who are proprietors of trade marks under which such products are marketed (see Codorniu
v Council, paragraph 22, and Cheminova and Others
v Commission, paragraph 47).
63. In those circumstances, it is not possible to find that the assessment of the President of the General Court as to whether the appellants other than Dow AgroSciences Ltd and Dintec appeared prima facie to be manifestly not entitled to apply to the General Court for annulment, in the main proceedings, of the contested decision is vitiated by an error of law. The first plea must therefore necessarily be rejected.
The second plea, alleging that the President of the General Court erred in law in his assessment of urgency
Arguments of the parties
64. The second plea relied upon by the appellants is in four parts.
65. In the first place, the appellants state that the President of the General Court wrongly excluded the evidence concerning the appellants other than Dow AgroSciences Ltd and Dintec. First, that error results from his erroneous assessment of the admissibility of the application at first instance. Second, the figures relating to those other appellants should be assessed, under the concept of the enterprise considered as an entity, in the sense that Dow AgroSciences Ltd and Dintec must be able to rely on the full extent of loss and damage suffered by their group.
66. In the second place, the appellants contend that the President of the General Court wrongly equated the damage resulting from the loss of their shares of the trifluralin market with financial loss. In their submission, the loss of the market shares, which have been built up over a considerable length of time, does not amount to pure financial loss and cannot be quantified purely in financial terms.
67. In the third place, the appellants maintain that, as a result of equating the damage resulting from the loss of their market shares with pure financial loss, the President of the General Court wrongly assessed the seriousness of that loss. Given that they were not pleading pure financial loss or a risk of liquidation as a result of the contested decision, but rather the serious and irredeemable effects of that decision on their market shares and customers, and generally on market conditions and their position on the market, the economic position of the appellants and, in particular, of the group of undertakings to which they belong should not be the determinative factor.
68. In any event, in the appellants’ submission, the seriousness of damage cannot be measured simply as a percentage of the turnover of the group to which an applicant belongs, but must be appraised on the basis of a proper qualitative assessment of all the factual circumstances of the case. Those circumstances include, in the present case, the cumulative effect of the recent loss of various products as a result of Commission decisions similar to the contested decision but in respect of active substances other than trifluralin, the risk of the appellants losing a market position which has been built up owing to their know-how, their investment in research and development and the building up of a customer base over a number of years, and the devaluation of intellectual property rights or potential damage to the appellants’ reputation.
69. According to the appellants, the President of the General Court rejected all of those considerations on the basis, simply, that they disclosed no economic and financial figures, in terms of loss of turnover, which could be taken into account to assess damage liable to justify the grant of an interim measure, whereas similar considerations of that kind were accepted by the President of the General Court in Du Pont de Nemours (France) and Others
v Commission .
70. The appellants submit that, even if the turnover of the overall group is relevant, the President of the General Court in any event gave undue weight to that factor. He treated his calculation that the damage caused by the contested decision would constitute approximately 0.1% of group turnover as a key consideration. The elevation of that consideration effectively debars any large organisation with a mixed portfolio of products from claiming interim relief.
71. In the fourth place, the appellants contend that the President of the General Court 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 demonstrate instead the risk that they would run of suffering harm resulting from irreparable damage to their market shares.
72. The Commission contests the appellants’ arguments.
Findings of the Court
73. 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 in Case C‑329/99 P(R) Pfizer Animal Health
v Council
[1999] ECR I‑8343, paragraph 94, and Cheminova and Others
v Commission, paragraph 62).
74. 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, and Cheminova and Others
v Commission, paragraph 63).
75. 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 in Case C-471/00 P(R) Commission
v Cambridge Healthcare Supplies
[2001] ECR I‑2865, paragraph 111, and Cheminova and Others
v Commission, paragraph 64).
76. In that regard, even if, on the basis of the abovementioned arguments relied on by the appellants, the damage suffered by Dow AgroSciences Ltd and Dintec is more serious than the President of the General Court acknowledges, those arguments are not liable to invalidate his finding that the damage could not be considered to be irreparable.
77. Provided that the President of the General Court does not depart from the test referred to in paragraph 75 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 (see Cheminova and Others
v Commission, paragraph 67).
78. In the present case, it does not appear that the President of the General Court applied a different test or that he failed to examine the obstacles invoked by Dow AgroSciences Ltd and Dintec that might prevent them from regaining a significant proportion of their market shares.
79. In paragraphs 98 to 100 of the order under appeal, he examined the replaceability of trifluralin, the consequences of the lengthy waiting period which, in the appellants’ submission, would necessarily precede any return by them to the trifluralin market, and the effect on the reputation of the appellants themselves, taking all products together.
80. Accordingly, it cannot be inferred solely from his use of the word ‘impossible’ that the President of the General Court required Dow AgroSciences Ltd and Dintec to prove any more than their claim that obstacles of a structural or legal nature prevented them from regaining a significant proportion of their market shares (see Sumitomo Chemical Agro Europe
v Commission, paragraph 24, and Cheminova and Others
v Commission, paragraph 69).
81. So far as concerns, finally, the appellants’ contention that the President of the General Court did not take sufficient account of the evidence adduced before him, it is to be recalled that it is for the General Court alone to assess the value which should be attached to the evidence produced to it. That assessment does not, therefore, constitute – save where the clear sense of that evidence is distorted, which is not pleaded here – a question 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).
82. It follows from all of the foregoing considerations that the assessment by the President of the General Court of whether the damage suffered by Dow AgroSciences Ltd and Dintec would be irreparable and, accordingly, of urgency is not vitiated by an error of law. The second plea must therefore necessarily be rejected and, consequently, the appeal must be dismissed.
Costs
83. 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 costs and the appellants have been unsuccessful, the appellants must be ordered to pay the costs.
Operative part
On those grounds, the President of the Court hereby orders:
1. The appeal is dismissed.
2. Dow AgroSciences Ltd, Dow AgroSciences LLC, Dow AgroSciences SAS, Dow AgroSciences Export SAS, Dow AgroSciences BV, Dow AgroSciences Hungary kft, Dow AgroSciences Italia Srl, Dow AgroSciences Polska sp. z o.o., Dow AgroSciences Iberica SA, Dow AgroSciences s.r.o., Dow AgroSciences Danmark A/S, Dow AgroSciences GmbH, Dintec Agroquímica – Produtos Químicos L da
and Finchimica SpA shall pay the costs.