Order of the President of the Court of First Instance of 28 April 2009 – United Phosphorus v Commission

(Case T-95/09 R)

Application for interim relief – Directive 91/414/EEC – Decision concerning the non-inclusion of napropamide in Annex I to Directive 91/414 – Application for suspension of operation and for interim measures – Prima facie case – Urgency – Balance of interests

1. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Urgency – Serious and irreparable damage – Cumulative nature – Order of examination and method of verification – Discretion of the judge dealing with the application for interim relief (Arts 225 EC, 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) (see paras 17-19)

2. Application for interim measures – Suspension of operation of a measure – Conditions for granting – Prima facie case – Prima facie examination of the pleas raised in support of the main action – Action against a Commission decision in the context of a procedure for entering a substance in Annex I of Directive 91/414 (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Directive 91/414; Commission Decision No 2008/902) (see paras 21, 30-31)

3. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Burden of proof – Financial loss (Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) (see paras 32-35, 67-71)

4. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Financial loss capable of subsequent financial compensation (Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) (see paras 73-82)

5. Application for interim measures – Suspension of operation of a measure – Conditions for granting – Balancing of all the interests involved – Protection of public health outweighing economic considerations (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) (see paras 83-88)

6. Application for interim measures – Suspension of operation of a measure – Interim measures – Amendment or setting aside (Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 108) (see paras 89-90)

7. Application for interim measures – Jurisdiction of the Court hearing the application for interim relief – Issuing of directions in order to prevent lacunae in the legal protection arising from a decision to suspend operation (Art. 243 EC) (see paras 91-92)

Re:

APPLICATION, first, for suspension of operation of Commission Decision 2008/902/EC of 7 November 2008 concerning the non‑inclusion of napropamide in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2008 L 326, p. 35), until delivery of the judgment in the main action, and, second, for interim relief.

Operative part

1. The operation of Commission Decision 2008/902/EC of 7 November 2008 concerning the non-inclusion of napropamide in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance is suspended up to 7 May 2010 – but at the latest up to the date on which the decision in the main action is delivered.

2. That suspension is subject to the condition that the parties lodge with the Registry of the Court, by no later than 15 March 2010, observations on the course of the accelerated procedure instituted, in regard to napropamide, pursuant to Article 13 of Commission Regulation (EC) No 33/2008 of 17 January 2008 laying down detailed rules for the application of Council Directive 91/414 as regards a regular and an accelerated procedure for the assessment of active substances which were part of the programme of work referred to in Article 8(2) of that Directive but have not been included in its Annex I.

3. The Commission is ordered to take, should the applicant so request, the measures necessary to ensure that the present order is fully effective in regard to those Member States which, prior to 7 May 2009, may already have cancelled, withdrawn or refused, pursuant to Article 2 of Decision 2008/902, authorisations for plant protection products containing napropamide.