ORDER OF THE PRESIDENT OF THE GENERAL COURT
26 May 2021 (*)
(Application for interim relief – Environment – Fluorinated greenhouse gases – Regulation (EU) No 517/2014 – Placing of hydrofluorocarbons on the market – Decision imposing a penalty on an undertaking that exceeded the quota allocated to it – Application for interim measures – No urgency)
In Case T‑92/21 R,
Darment Oy, established in Helsinki (Finland), represented by C. Ginter, lawyer,
applicant,
v
European Commission, represented by B. De Meester and K. Talabér-Ritz, acting as Agents,
defendant,
APPLICATION under Article 279 TFEU seeking, first, an order requiring the Commission to cease applying to the applicant, as regards the year 2021 and subsequent allocation periods, a penalty under Article 25(2) of Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 (OJ 2014 L 150, p. 195), and, secondly, an order requiring the Commission to allocate to the applicant a quota for the bulk import of hydrofluorocarbons for the 2021 allocation period and subsequent allocation periods,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1        The applicant, Darment Oy, is a company incorporated under Finnish law that is active in the hydrofluorocarbons (HFCs) sector.
2        HFCs are a category of fluorinated greenhouse gas used, in particular, in refrigeration and air-conditioning systems, aerosols and the manufacture of insulating foam.
3        In the fight against greenhouse gas emissions, the European Parliament and the Council of the European Union adopted Regulation (EU) No 517/2014 of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 (OJ 2014 L 150, p. 195).
4        Gradually reducing the quantities of HFCs that can be placed on the EU market has been identified as the most effective and cost-efficient way of reducing emissions of those substances in the long term.
5        In order to implement that gradual reduction, Regulation No 517/2014 provides that the European Commission is to determine every year, inter alia, a maximum quantity of HFCs that may be placed on the Union market and HFC quotas which producers or importers are permitted to place on the market.
6        Undertakings that have exceeded the quota for placing HFCs on the market which was allocated or transferred to them are, under Article 25(2) of Regulation No 517/2014, to be allocated only a reduced quota for the allocation period subsequent to the detection of the excess; that reduction corresponding to 200% of the amount by which the quota was exceeded.
7        In that context, the Commission set up, in accordance with Article 17 of Regulation No 517/2014, an electronic registry for quotas for placing HFCs on the market (‘the HFC registry’) and ensures its operation. Producers and importers that may be allocated a quota for the placing of HFCs on the market are to register in that registry.
8        On 4 June 2015, the applicant registered in the HFC registry as an importer of equipment pre-charged with HFCs and as an undertaking, within the meaning of Article 2(30)(c) of Regulation No 517/2014, placing bulk HFCs on the market.
9        In accordance with Article 16(5) of Regulation No 517/2014, the Commission allocated a quota to the applicant for the placing on the market of HFCs for the years 2016 to 2018. The applicant’s available quota for 2017 was 34 060 tonnes of CO2 equivalent.
10      On 10 August 2017, the undertakings Arctica Ref OÜ and Arctica Solutions OÜ, authorised, under Article 18(2) of Regulation No 517/2014, the applicant to use their quotas of 14 929 and 762 tonnes of CO2 equivalent, respectively. Those two quota usage authorisations were entered in the HFC registry.
11      On 28 March 2018, a representative of Arctica Ref and Arctica Solutions sent the Commission an email in which he mentioned that those two companies had intended to transfer to the applicant quotas for placing bulk HFCs on the market in 2017 but, because of an ‘issue’, they had authorised the applicant to use their quotas for placing equipment pre-charged with HFCs on the market. In that email, the representative of those two undertakings asked the Commission whether it would be possible to resolve that issue by converting the authorisations granted to the applicant into transfers of HFCs in bulk so as to enable the applicant to use that quota for bulk imports.
12      The Commission replied to the representative of Arctica Ref and Arctica Solutions by email of the same date, noting, in particular, the difference between the transfer of a quota and the authorisation to use a quota and stating that it would examine ‘in depth’ the reports relating to the placing of HFCs on the market in 2017.
13      By email of the same date, the applicant, for its part, explained that it had accepted, in 2017, two authorisations to use the quotas of Arctica Ref and Arctica Solutions. However, it became clear that the applicant could not make use of those quotas because they had not been authorised for placing bulk HFCs on the market but only for placing equipment pre-charged with HFCs on the market. It therefore asked the Commission to take its explanations into account during the verification process of the report.
14      By email of 10 April 2018, the Commission replied to the applicant that it would examine that matter more thoroughly during the verification period.
15      On 19 June 2018, the applicant submitted the report on its 2017 activities, in accordance with Article 19 of Regulation No 517/2014. According to the data provided, during 2017, the applicant placed 49 745 tonnes of CO2 equivalent of bulk HFCs on the market.
16      By letter of 16 October 2018, the Commission informed the applicant that it had exceeded the quota allocated to it for placing HFCs on the market in 2017. In addition, it stated that, in accordance with Article 25(2) of Regulation No 517/2014, for the subsequent quota allocation period it would reduce by 31 370 tonnes of CO2 equivalent the total quotas allocated to the applicant which, in accordance with Article 19 of Regulation No 517/2014, was equivalent to 200% of the amount by which the quota was exceeded pursuant to the applicant’s report (‘the decision of 16 October 2018’).
17      By judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court annulled the decision of 16 October 2018.
18      By letter of 22 July 2020, the Commission informed the applicant that it was considering adopting one or more new decisions concerning penalties or the allocation of quotas. To that end, the Commission asked the applicant to confirm the correction of the established facts that it had made in relation to the quota allocated for 2017 being exceeded and to provide any additional information considered relevant.
19      On 14 August 2020, the applicant submitted its observations, asking the Commission to omit certain facts contained in the annex to the letter of 22 July 2020.
20      By letter of 14 October 2020, the Commission informed the applicant that the reduction in the quota allocated to it was equivalent to 31 370 tonnes of CO2 equivalent and concerned the quota allocation period or periods from 2019. It also informed the applicant that, in accordance with the second subparagraph of Article 25(2) of Regulation No 517/2014, no quota could be allocated for the 2019 and 2020 allocation periods or for the subsequent quota allocation periods until the total reduction of 31 370 tonnes had been deducted.
21      On 15 December 2020, the applicant was informed by the HFC registry that the Commission had reduced its bulk HFCs import quota for 2021 to zero.
22      By email of 12 January 2021, the Commission confirmed, in response to the applicant’s request for clarification of 17 December 2020, that there was no error in the quota allocated to the applicant for the years 2019, 2020 and 2021.
Procedure and forms of order sought
23      By application lodged at the Court Registry on 12 February 2021, the applicant brought an action seeking, inter alia, annulment of the Commission’s decision reducing the quota for placing HFCs on the market allocated to the applicant for 2021, of which the applicant was informed on 15 December 2020 via the Commission’s HFC register and by email of 12 January 2021.
24      By a separate document, lodged at the Court Registry on the same date, the applicant brought the present application for interim measures, in which it claims that the President of the General Court should:
–        order the Commission to cease applying to it, as regards the year 2021 and subsequent allocation periods, a penalty pursuant to Article 25(2) of Regulation No 517/2014 and on the basis of Commission Decision Ares (2018) 5306174 of 16 October 2018, which was annulled by the Court in Case T‑739/18, pending the determination of the main application;
–        order the Commission to allocate to the applicant a quota for the bulk import of HFCs for the 2021 allocation period and subsequent allocation periods, pending the determination of the main application, equivalent to the quota that it would have been allocated if no penalty had been imposed on it;
–        in the alternative, order the Commission to allocate to the applicant a quota for the bulk import of HFCs for the 2021 allocation period and subsequent allocation periods at least equal to the total penalty, pending the determination of the main application.
25      In its observations on the application for interim measures, which were lodged at the Registry of the General Court on 3 March 2021, the Commission contends that the President of the General Court should:
–        reject the application for interim measures;
–        order the applicant to pay the costs.
Law
26      It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
27      The judge hearing an application for interim measures may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
28      In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
29      Having regard to the documents in the case file, the President of the Court considers that he has all the information necessary to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
30      In the circumstances of the present case, and without it being necessary to rule on the admissibility of the present application for interim measures, it is appropriate to examine first whether the condition relating to urgency is satisfied.
31      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim measures is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts (order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27).
32      To attain that objective, urgency must, generally, be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
33      It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.
34      In the present case, for the purposes of establishing the serious and irreparable nature of the alleged damage, the applicant claims, first, that the penalty imposed by the Commission, on the basis of the second subparagraph of Article 25(2) of Regulation No 517/2014, which reduces to zero the quota allocated to it for the bulk import of HFCs, caused it to suffer significant financial losses. In that regard, it claims that its profits decreased by 33.4% in 2019 and that it continued to suffer damage in 2020. It adds that, at the present time, its solvency will be seriously threatened if that reduction continues to be applied during the proceedings before the Court.
35      In the second place, the applicant claims that, if the interim measure sought is not granted, its fundamental right to effective judicial protection and the right to an effective remedy will be illusory. This is evidenced by the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), in which the Court found, according to the applicant, that the applicant had not exceeded its quota for placing HFCs on the market in 2017 and, consequently, annulled the decision of 16 October 2018, and the procedure following that judgment, at the end of which the applicant was not restored to the legal position that it was in before the adoption of the annulled decision.
36      In the first place, as regards the applicant’s argument that its profits have fallen sharply and its solvency is currently seriously threatened, it must be noted at the outset that the alleged damage is of a financial nature.
37      In accordance with settled case-law, damage of a pecuniary nature cannot, other than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he suffered the damage (see order of 11 September 2020, Datax v REA, T‑381/20 R, not published, EU:T:2020:414, paragraph 37 and the case-law cited). Any such damage could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risks & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and case-law cited).
38      However, where the damage referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the applicant would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, as the case may be, the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited).
39      In order to determine whether these conditions are fulfilled, the judge hearing the application for interim measures must, according to well-established case-law, have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 10 July 2018, Synergy Hellas v Commission, T‑244/18 R, not published, EU:T:2018:422, paragraph 27 and the case-law cited). Furthermore, Article 156(4) of the Rules of Procedure expressly provides that an application for interim measures must contain all the evidence and offers of evidence available to justify the grant of the interim measures requested.
40      In that regard, it should be noted that the applicant’s financial statements for 2018 and 2019 show relatively stable economic activity and even a slight increase in turnover for 2019 compared with that for 2018. According to those financial statements, the applicant’s profits did indeed fall by one third in 2019. However, there is nothing to indicate that there was a causal link between the penalty imposed by the Commission and the reduction in profits.
41      Moreover, it is apparent from those financial statements that the applicant was able to pursue its economic activities in 2019 and 2020. According to the extracts from the applicant’s website, produced by the Commission as an annex to its observations, those activities appear to be more varied and significant than the placing on the market of bulk HFCs, as the applicant claims.
42      Furthermore, as regards the financial damage alleged by the applicant as regards 2020, it must be noted that it has not produced any financial information relating to that year.
43      Lastly, as regards the damage alleged by the applicant concerning the threat to its solvency, it must be noted that, in accordance with the case-law referred to in paragraph 39 above, in order to demonstrate a risk to its financial viability, the applicant should have produced, with supporting documents, an accurate overall picture of its financial situation.
44      However, in so far as the applicant confines itself to mere assertions, unsupported by any evidence, it must be concluded that the applicant has failed to demonstrate urgency based on a risk to its financial viability.
45      In the second place, as regards the applicant’s argument that, if the interim measure requested is not granted, its fundamental right to effective judicial protection and the right to an effective remedy will be illusory, since the Commission has maintained the penalty imposed on it despite the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), it should be noted, first, that the court hearing an application for interim measures cannot apply the condition relating to the irreparable nature of the harm – or, for that matter, the condition relating to the serious nature of the harm – in a rigid and mechanical manner, but must take into account the circumstances of each case (see, to that effect, order of 25 July 2014, Deza v ECHA, T‑189/14 R, not published, EU:T:2014:686, paragraph 105 and the case-law cited), particularly since that condition, which arises solely from the case-law and is set out in neither the Treaties nor the Rules of Procedure, must not be applied if it is irreconcilable with the need to provide effective provisional protection (see, to that effect, order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 30).
46      Secondly, the possibility of ordering a suspension of operation or adopting interim measures on the sole basis of the manifest illegality of the contested measure is not ruled out, for example where it lacks even the appearance of legality and should therefore be suspended immediately (see, to that effect, orders of 7 July 1981, IBM v Commission, 60/81 R and 190/81 R, EU:C:1981:165, paragraphs 7 and 8, and of 26 March 1987, Hoechst v Commission, 46/87 R, EU:C:1987:167, paragraphs 31 and 32).
47      Thirdly, however, although, as is apparent from the order of 23 February 2001, Austria v Council (C‑445/00 R, EU:C:2001:123, paragraph 110), a particularly serious prima facie case is not without relevance for the assessment of urgency, they are, nevertheless, pursuant to Article 156(4) of the Rules of Procedure, two separate conditions which govern the obtaining of a suspension of operation of measures. It is therefore for the applicant to demonstrate the imminence of serious harm which is difficult to repair or irreparable, and the mere fact that there is a prima facie case, even a particularly serious one, cannot compensate for a complete failure to demonstrate urgency, other than in very specific circumstances (see, to that effect, order of 2 May 2007, IPK International – World Tourism Marketing Consultants v Commission, T‑297/05 R, not published, EU:T:2007:118, paragraph 52 and the case-law cited).
48      In the present case, it should be noted that, in the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), the Court annulled the Commission’s decision of 16 October 2018 on the ground that, in the circumstances of the case, the Commission could not, without infringing Article 25(2) of Regulation No 517/2014 interpreted in the light of the principle of sound administration, impose a penalty on the applicant without carefully and impartially examining all of the information brought to its attention. The Court did not therefore rule on whether or not the substantive conditions for the imposition of such a correction were met, contrary to the claims of the applicant.
49      During the administrative procedure following the judgment of 28 May 2020, Darment v Commission (T‑739/18, not published, EU:T:2020:218), it is common ground that the Commission requested the applicant to cooperate with it by reviewing the statement of facts it had drawn up and confirming its accuracy. In particular, it asked the applicant to provide any clarifications, objections or additional information relating to the list of relevant facts annexed to the letter regarding the resumption of the administrative procedure. Furthermore, in its letter of 14 October 2020, the Commission assessed, prima facie, the arguments raised by the applicant, it examined in depth all the information brought to its attention and duly substantiated and motivated its position that it was not possible to correct the data contained in the HFC registry as requested by the applicant.
50      Consequently, it appears, prima facie, that, in the particular circumstances of the present case, the Commission endeavoured to comply with the principle of sound administration by applying Article 25(2) of Regulation No 517/2014 when it adopted its decision of 14 October 2020, which, as regards the 2021 allocation period, was implemented on 15 December 2020.
51      It follows from all of the foregoing that the application for interim measures must be dismissed, as the applicant has failed to establish urgency, without it being necessary to rule on the prima facie case or to weigh up the interests.
52      Under Article 158(5) of the Rules of Procedure, the costs must be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.
2.      The costs are reserved.
Luxembourg, 26 May 2021.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.