Case T-346/06 R

Industria Masetto Schio Srl (IMS)

v

Commission of the European Communities

‛Applications for interim measures — Application for suspension of operation of a measure — Directive 98/37/EC — Admissibility — Prima facie case — Urgency — Balancing of interests’

Order of the President of the Court of First Instance, 7 June 2007 II-1786

Summary of the Order

In order for an application for suspension of the operation of an measure to be declared admissible, the applicant must prove the existence of certain matters permitting the prima facie conclusion that the main action to which his application for interim relief relates is admissible, so as to prevent him from obtaining, by way of proceedings for interim relief, the suspension of the operation of a measure which the Community judicature may subsequently refuse to annul, his main action having been ruled inadmissible. Such an examination of the admissibility of the main action is necessarily summary because the proceedings for interim relief are by nature urgent. In the context of proceedings for interim relief, the admissibility of the main action can only be assessed on a prima facie basis, the aim being to examine whether the applicant has adduced sufficient elements which justify the prima facie conclusion that the admissibility of the main action cannot be excluded. The judge hearing the application for interim relief should only declare that application inadmissible where admissibility of the main action can be wholly excluded. To rule, at the stage of the proceedings for interim relief, on the admissibility of the main action, when its admissibility is not, prima facie, wholly excluded, would be tantamount to prejudging the Court of First Instances decision in respect of that action. (see paras 31-33)

Having regard to the scheme and purpose of Directive 98/37 on the approximation of the laws of the Member States relating to machinery, the Commission seems, prima facie, to have an obligation and not merely a discretionary power, under the provisions of Article 7 of the directive, to rule on the national measure which has been notified to it. It also seems, at first sight, that the Commission is required to rule, not on a draft measure, but on a national measure which, having been adopted by a Member State, has the effect of restricting the free movement of the machinery concerned. Moreover, pursuant to the provisions of Article 2(1) of the same directive, Member States are to take all appropriate measures to ensure that machinery or safety components covered by that directive may not be placed on the market and put into service if they endanger the health or safety of persons and, where appropriate, domestic animals or property. The Courts hearing an application for interim relief cannot therefore exclude the possibility that the Commissions finding that a national measure adopted by a Member State under Article 7(1) of the directive is justified and the sending of that information to the other Member States, in accordance with Article 7(2) of that directive, may bring about a distinct change in the legal position of the producer of the machinery concerned by the Commissions measure by prohibiting that machinery from being put into circulation or into service on the market of the Member States to which that measure is addressed. Consequently, the possibility remains, prima facie, that the Commissions measure may give rise to binding legal effects for the producer of the machinery covered by that measure. (see paras 39, 40, 42)

Where a Community measure is addressed to a Member State by an institution, if the action to be taken by the Member State to implement that measure is automatic or is a foregone conclusion, it is of direct concern to any person affected by that action. If, on the other hand, the measure leaves the Member State free to act or not to act, or does not require it to act in a certain way, it is the Member States action or inaction which is of direct concern to the person affected, and not the measure itself. When the Member States are addressees of a measure by which the Commission informs them, pursuant to Article 7(2) of Directive 98/37 on the approximation of the laws of the Member States relating to machinery, that a national measure prohibiting the placing on the market or putting into circulation of certain machines is justified or partially justified, the Member States seem, prima facie, able only to prevent the placing on the market or putting into service of the machines covered by the Commissions measure declaring the national measure justified. Indeed, it seems, at first sight, that it is the Commission which assesses the need to adopt such measures, the Member States being then, it seems, obliged to take the appropriate measures dictated by such an assessment, namely, to withdraw the machines from the market and not to permit the placing on the market or putting into service of those machines if they endanger the health and safety of persons, in accordance with Article 2(1) of the directive. It is therefore possible that the Member States do not have, prima facie, any freedom of action when they are the addressees of such a measure. Moreover, although persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of a factual situation which differentiates them from all other persons and thereby distinguishes them individually in the same way as the addressee of the decision would be, it is possible, prima facie, that that Commission measure concerns an applicant individually when it concerns expressly and exclusively the machines it produces. (see paras 50-52, 56, 57)