ORDER OF THE PRESIDENT OF THE COURT

17 July 2008 ( )

(Appeal – Application for interim measures – Applications for interim measures and for suspension of operation – Directive 91/414/EEC – Inadmissibility)

In Case C‑277/07 P(R),

APPEAL pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice, brought on 8 June 2007,

Makhteshim-Agan Holding BV, established in Amsterdam (Netherlands),

Makhteshim-Agan Italia Srl, established in Bergamo (Italy),

Magan Italia Srl, established in Bergamo,

represented by K. Van Maldegem and C. Mereu, avocats,

appellants,

the other party to the proceedings being:

Commission of the European Communities, represented by B. Doherty and L. Parpala, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE PRESIDENT OF THE COURT,

after hearing Advocate General V. Trstenjak,

makes the following

Order

1 By their appeal, Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl and Magan Italia Srl seek to have set aside the order of the President of the Court of First Instance of the European Communities of 30 March 2007 in Cases T‑393/06 R I, T-393/06 R II and T-393/06 R III Makhteshim-Agan Holding and Others v Commission (not published in the ECR) (‘the order under appeal’), by which the Court of First Instance dismissed their applications for interim measures seeking suspension of operation of a decision alleged to be contained in a letter from the Commission of 12 October 2006 (‘the contested measure’) concerning the evaluation of the active substance azinphos-methyl, in accordance with 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 corrigendum OJ 1992 L 170, p. 40), as amended by Council Regulation (EC) No 806/2003 of 14 April 2003 (OJ 2003 L 122, p. 1), (‘Directive 91/414’), and for other interim measures.

Legal context

2 Directive 91/414 establishes, inter alia, the Community system of authorisation and withdrawal of authorisation for placing plant protection products on the market.

3 Article 4 of that directive provides that ‘Member States shall ensure that a plant protection product is not authorised unless … its active substances are listed in Annex I’.

4 Active substances which are not listed in Annex I to Directive 91/414 may, under certain conditions, benefit from derogating transitional rules. Article 8(2) of that directive thus provides that ‘a Member State may, during a period of 12 years following the notification of this Directive, authorise the placing on the market in its territory of plant protection products containing active substances not listed in Annex I that are already on the market two years after the date of notification of this Directive’.

5 Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market (OJ 1992 L 366, p. 10), as amended by Commission Regulation (EC) No 1199/97 of 27 June 1997 (OJ 1997 L 170, p. 19) (‘Regulation No 3600/92’), organises the procedure for evaluating a number of substances with a view to their possible listing in Annex I to Directive 91/414. Those substances include azinphos-methyl.

6 Article 1 of Commission Regulation (EC) No 2076/2002 of 20 November 2002 extending the time period referred to in Article 8(2) of Directive 91/414/EEC and concerning the non-inclusion of certain active substances in Annex I to that Directive and the withdrawal of authorisations for plant protection products containing these substances (OJ 2002 L 319, p. 3), as amended by Commission Regulation (EC) No 1335/2005 of 12 August 2005 (OJ 2005 L 211, p. 6) (‘Regulation No 2076/2002’), provides:

‘The time period of 12 years referred to in Article 8(2) of Directive 91/414/EEC is extended until 31 December 2006 for the active substances which are assessed in the framework of Regulation (EEC) No 3600/92 … [Until that date], Member States may continue to authorise or authorise again the placing on the market of plant protection products containing those active substances, in accordance with the provisions of Article 8(2) of Directive 91/414/EEC’.

7 Article 19 of Directive 91/414 provides that ‘[t]he Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002 [of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1)]’ (‘the Standing Committee’). The procedure for that committee is governed by Articles 5 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ 2006 L 200, p. 11) (‘Decision 1999/468’).

8 Article 7(3A) of Regulation No 3600/92 provides that, after the assessment procedure, the Commission is to present to the Standing Committee a draft directive to include the active substance in Annex I to Directive 91/414, or a draft decision to withdraw the authorisations of plant protection products containing the active substance, or a draft decision to suspend plant protection products containing the active substance from the market, with the option, however, of reconsidering the inclusion of the active substance in Annex I after submission of the results of additional trials or of additional information, or, last, a draft decision to postpone inclusion of the active substance in that annex pending the submission of the results of additional trials or information.

9 Article 5 of Decision 1999/468 states:

‘...

2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft …

...

4. If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken and shall inform the European Parliament.

...

6. ...

If ... the Council has indicated by qualified majority that it opposes the proposal, the Commission shall re-examine it. It may submit an amended proposal to the Council, re-submit its proposal or present a legislative proposal on the basis of the Treaty.’

The facts giving rise to the dispute and the procedure before the Court of First Instance

10 At paragraphs 10 to 14 of the order under appeal, the President of the Court of First Instance summarised the facts giving rise to the dispute as follows:

‘10 Makhteshim‑Agan Holding BV is a distributor of azinphos-methyl in the European Union. Makhteshim‑Agan Italia Srl is the holder of authorisations for the marketing in Italy of plant protection products based on azinphos-methyl and it distributes under licence other products for which Magan Italia Srl is the holder of marketing authorisations.

11 On a date not specified in the file but in any event before 31 July 1993, Makhteshim-Agan International Co-ordination Center, subsequently replaced by Makhteshim-Agan Holding BV, notified the Commission that it wished to obtain the inclusion of azinphos-methyl in Annex I to Directive 91/414.

12 On 3 March 2006 the Commission submitted to the Standing Committee a draft directive to include azinphos-methyl in Annex I to Directive 91/414.

13 As the Standing Committee issued an unfavourable opinion on that draft directive, the Commission, in accordance with Article 5(4) of Decision 1999/468, submitted the draft directive to the Council. On 18 September 2006 the Council opposed it.

14 On 12 October 2006, the Commission sent to the Federal [Republic of Germany] as the rapporteur Member State for azinphos-methyl, a letter containing the following conclusion:

“The Commission sees no possibility of changing the Council’s mind on this substance. Thus, it would serve no useful purpose for the Commission to resubmit the same proposal or an amended one (for example by proposing a directive including the substance in Annex I [to Directive 91/414] with even further conditions). For the same reasons, it would be pointless for the Commission to submit a legislative proposal under Article 37 EC: the Council’s position would remain the same, and it would be unrealistic to imagine that such a text could be adopted before the deadline of 31 December 2006.

Therefore the Commission considers that the Council’s opposition means that no further steps can be taken to approve azinphos-methyl. In the absence of any approval at Community level by the date laid down in Article 8(2) of Directive 91/414, there would no longer be any legal basis for keeping the substance on the market. That date is 31 December 2006 (see Article 1 of … Regulation [No] 2076/2002…).

Member States should therefore ensure that authorisations for plant protection products containing this substance are withdrawn by 31 December 2006. I would be grateful if you could make this known to interested parties (manufacturers, vendors and farmers etc.) in your Member State, and also to the notifiers with whom you had contact as rapporteur Member State.”’

11 By application lodged at the Registry of the Court of First Instance on 18 December 2006, the appellants brought an action under the fourth paragraph of Article 230 EC for annulment of the contested measure and an action under Article 232 EC for a declaration that the Commission had failed to act. By separate documents lodged at the Registry on 21 and 22 December 2006, the appellants each lodged an application for interim measures.

12 In the three sets of interlocutory proceedings, the appellants claimed that the President of the Court of First Instance should:

– declare the applications admissible and well-founded;

– suspend the contested measure pending the outcome of the main case in so far as it amounts in fact and in law to a failure to include azinphos-methyl in Annex I to Directive 91/414;

– suspend the time-limit referred to in Article 8(2) of Directive 91/414 as concerns azinphos-methyl pending the outcome of the main case and until a decision has been adopted in respect of the inclusion of azinphos-methyl in Annex I to that directive, order an extension of that time-limit, or order the Commission to establish such an extension, in order to allow Member States to continue to grant authorisations for plant protection products based on azinphos-methyl after 31 December 2006 and to authorise the marketing and sale of such products on their territory; and

– order the Commission to pay the costs.

13 The Commission contended that the President of the Court of First Instance should dismiss the applications for interim measures as inadmissible or unfounded and order the appellants to pay the costs.

The order under appeal

14 In the order under appeal, the President of the Court of First Instance pointed out that, while the admissibility of the main action should not, in principle, be examined in proceedings relating to an application for interim measures, it may, however, be necessary, where it is contended that the main action from which the application for interim measures is derived is manifestly inadmissible, to establish certain grounds supporting the conclusion that such an action is prima facie admissible. Accordingly, he ascertained whether the appellants had established certain grounds supporting the conclusion that the main actions for annulment and for failure to act were not prima facie manifestly inadmissible.

15 In that context, he examined the appellants’ argument that, in so far as it expresses a definitive position adopted by the Commission in the context of the assessment procedure provided for in Directive 91/414, the contested measure is a measure which produces its own legal effects, namely the ban on the marketing of azinphos-methyl and plant protection products based on that substance, and which, therefore, can be regarded as a measure open to challenge for the purposes of Article 230 EC.

16 The President of the Court of First Instance stated that, according to settled case-law, measures against which proceedings for annulment may be brought under Article 230 EC are measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by having a significant effect on his legal position. Subsequently, he found, first, that the contested measure reflected only the Commission’s intention to follow a particular line of conduct and could not be regarded as intended to produce legal effects. Second, it was not the interpretation of Directive 91/414 set out by the Commission in the contested measure that was capable of producing legal effects, but its application to a given situation. In those circumstances, the President of the Court of First Instance held that the appellants had not demonstrated to the requisite legal standard that the contested measure was capable of having legal effects of such a kind as to have a significant effect on their legal position.

17 Furthermore, in response to the appellants’ argument that the contested measure amounts to a decision not to include the product in Annex I to Directive 91/414, the President of the Court of First Instance observed that that measure does not appear, by its form, by its content or by its context, to be a Commission decision adopted under Article 7(3A) of Regulation No 3600/92.

18 From the foregoing considerations, the President of the Court of First Instance drew the conclusion that the appellants had not established to the requisite legal standard that the action for annulment, on which their applications for interim measures were based, was not prima facie manifestly inadmissible.

19 Even though that finding would have been sufficient to dismiss the applications for interim measures, since they were based solely on the main action for annulment of the contested measure, the President of the Court of First Instance also examined the arguments put forward by the Commission seeking to demonstrate that the main action for failure to act was also inadmissible. In that regard, he observed that, contrary to the requirement in the second paragraph of Article 232 EC, the appellants had not called upon the Commission to act. Furthermore, he held that there was sufficient evidence to support the conclusion that the Commission had adopted a position within the meaning of Article 232 EC. Consequently, the President of the Court of First Instance held that the applicants had not demonstrated that the main action for failure to act was not prima facie manifestly inadmissible.

The appeal

20 In support of their appeal, the appellants submit three pleas in law alleging, respectively, mischaracterisation of the contested measure; a manifest error of interpretation and/or a distortion of the facts and evidence; and incorrect application of Community law.

21 They claim that the Court should set aside the order under appeal, declare their applications at first instance admissible and well-founded and, on that basis, grant the requested forms of interim relief.

22 The Commission lodged its observations on the appeal on 4 July 2007. It contends that the appeal should be dismissed.

Consideration of the appeal

23 Irrespective of the issue of the nature and the classification of the contested measure, it should be noted in the first place that, by their first claim, the applicants request the President to suspend the contested measure pending the outcome of the main case, in so far as it amounts in fact and in law to a failure to include azinphos-methyl in Annex I to Directive 91/414, in order that products based on that substance may continue to be marketed and sold.

24 In that regard, even if the operation of the contested measure were suspended, the marketing and the sale of the products based on azinphos-methyl could continue only until the expiry of the period, laid down in Article 8(2) of Directive 91/414 for inclusion of that substance in Annex I to that directive. According to Article 1 of Regulation No 2076/2002 that period expired on 31 December 2006.

25 As the President of the Court of First Instance correctly points out, at paragraph 41 of the order under appeal, after the expiry of that period and in the absence of any decision to include the substance in Annex I to Directive 91/414 and, therefore, of any authorisation at Community level before the deadline of 31 December 2006, there was no longer any legal basis for maintaining azinphos-methyl on the market and the Member States were required, under Article 4 of Directive 91/414, to withdraw their marketing authorisations for that substance.

26 Consequently, given that, even in the event that their application for suspension of operation of the contested measure were granted, the appellants would not be able to obtain the continuation of the marketing and sale of products based on azinphos-methyl, their pleas in law in support of that application must be rejected as redundant.

27 In the second place, as regards the appellants’ application for the suspension or extension of the time-limit referred to in Article 8(2) of Directive 91/414 in respect of azinphos-methyl, pending the outcome of the main proceedings and until a decision has been adopted with regard to the inclusion of that substance in Annex I to that directive, it should be borne in mind that, under the first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance, an application to suspend the operation of any measure adopted by an institution, made pursuant to Article 242 EC, is to be admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance.

28 Even allowing that it lies within the jurisdiction of a judge hearing an application for interim measures to order the suspension of operation of an act other than the act challenged in the main action (see, to that effect, order in Case 18/65 R Gutmann v Commission [1966] ECR p. 135), it is none the less apparent from the very essence of proceedings for interim measures that such jurisdiction may not as a matter of principle be exercised unless both the acts in question emanate from the same institution and that institution is a party to the proceedings (see order of the President of the Court in Case 133/87 R Nashua Corporation v Commission [1987] ECR 2883, paragraph 7).

29 In the present case, the measure which is challenged in the main action was adopted by the Commission, while the Directive, of which suspension of operation is sought as an interim measure, emanates from the Council. It does not therefore lie within the jurisdiction of the judge hearing the application for interim measures to grant, where appropriate, such a request for an interim measure given that granting it would have the effect of suspending an act of a legislative nature emanating from an institution which is not a party to the present proceedings.

30 Moreover, it must be borne in mind that the Council has been absolutely opposed to the listing of azinphos-methyl in Annex I to Directive 91/414, even under the very strict conditions proposed by the Commission.

31 It follows that the appeal, in so far as it seeks suspension of operation or extension of the time-limit referred to in Article 8(2) of Directive 91/414, must be dismissed as inadmissible.

32 Having regard to all of the foregoing considerations, the appellants’ pleas in law cannot succeed and the appeal must therefore be dismissed.

Costs

33 In accordance with Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal under Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs against the appellants, and the appellants have been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the President of the Court hereby orders:

1. The appeal is dismissed.

2. Makhteshim-Agan Holding BV, Makhteshim-Agan Italia Srl and Magan Italia Srl shall pay the costs.

[Signatures]