ORDER OF THE PRESIDENT OF THE COURT

27 October 2011 ( )

(Appeal – Order for interim measures – Animal protection – Regulation (EC) No 1007/2009 – Trade in seal products – Restrictions on import and marketing of those products – No need to adjudicate)

In Case C‑605/10 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 14 December 2010,

Inuit Tapiriit Kanatami, established in Ottawa (Canada),

Nattivak Hunters and Trappers Organization, established in Qikiqtarjuaq (Canada),

Pangnirtung Hunters’ and Trappers’ Organization, established in Pangnirtung (Canada),

Jaypootie Moesesie, resident in Qikiqtarjuaq,

Allen Kooneeliusie, resident in Qikiqtarjuaq,

Toomaasie Newkingnak, resident in Qikiqtarjuaq,

David Kuptana, resident in Ulukhaktok (Canada),

Karliin Aariak, resident in Iqaluit (Canada),

Canadian Seal Marketing Group, established in Quebec (Canada),

Ta Ma Su Seal Products Inc., established in Cap-aux-Meules (Canada),

Fur Institute of Canada, established in Ottawa,

NuTan Furs Inc., established in Catalina (Canada),

GC Rieber Skinn AS, established in Bergen (Norway),

Inuit Circumpolar Council Greenland (ICC), established in Nuuk, Greenland (Denmark),

Johannes Egede, resident in Nuuk,

Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK), established in Nuuk,

represented by H. Viaene and J. Bouckaert, advocaten,

appellants,

the other parties to the proceedings being:

European Parliament, represented by I. Anagnostopoulou and L. Visaggio, acting as Agents,

Council of the European Union, represented by M. Moore and K. Michoel, acting as Agents,

defendants at first instance,

European Commission, represented by P. Oliver, E. White and K. Mifsud-Bonnici, acting as Agents,

intervener at first instance,

THE PRESIDENT OF THE COURT,

after hearing the First Advocate General, J. Mazák,

makes the following

Order

1 By their appeal, the appellants seek the setting aside of the order of the President of the General Court of the European Union of 25 October 2010 in Case T‑18/10 R II Inuit Tapiriit Kanatami and Others v Parliament and Council; ‘the order under appeal’), by which he dismissed their application for interim measures seeking suspension of operation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (OJ 2009 L 286, p. 36).

2 The facts and the procedure before the President of the General Court are set out, in paragraphs 1 to 13 of the order under appeal, in the following terms:

‘1 The purpose of [Regulation No 1007/2009], according to Article 1 thereof, is to establish harmonised rules concerning the placing on the market of seal products.

2 In order to prevent disturbance of the internal market in the products concerned while taking into account animal-welfare considerations, Article 3(1) of Regulation No 1007/2009 provides:

“The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence. These conditions shall apply at the time or point of import for imported products.”

3 Recital 14 in the preamble to Regulation No 1007/2009 states in that regard that the fundamental economic and social interests of Inuit communities engaged in the hunting of seals as a means to ensure their subsistence should not be adversely affected. …

4 It follows from Article 3(4) and Article 5(3) of Regulation No 1007/2009 that measures for, inter alia, the implementation of the authorisation in favour of Inuit communities have to be adopted by the European Commission.

5 Article 8 of Regulation No 1007/2009 provides that, although that regulation is to enter into force on the 20th day following its publication in the Official Journal of the European Union, Article 3 is to apply from 20 August 2010.

6 By application lodged at the Court Registry on 11 January 2010, [the applicants] brought an action seeking the annulment of Regulation No 1007/2009.

7 By separate document lodged at the Court Registry on 11 February 2010, [the applicants] made an initial application for interim measures, in which they requested that the President of the Court should, in essence, order suspension of the operation of Regulation No 1007/2009 until the Court has given judgment in the action for annulment brought against that regulation (“the first application for interim measures”).

8 By order of 30 April 2010 in Case T-18/10 R Inuit Tapiriit Kanatami and Others v Parliament and Council, not published in the ECR (“the order of 30 April 2010”), the President of the Court rejected the first application for interim measures. After finding that, first, the admissibility of the main action could not be excluded … and, secondly, that the pleas in law put forward by the applicants appeared, at first view, to be sufficiently relevant and serious as to constitute a prima facie case capable of justifying the grant of the interim measures requested …, he concluded that there was no urgency …

9 There was no appeal against the order of 30 April 2010.

10 On the other hand, by application lodged at the Court Registry on 28 July 2010, [the applicants] made a second application for interim measures based on Articles 278 TFEU and 279 TFEU and Article 109 of the Rules of Procedure of the General Court.

11 In support of that second application for interim measures, the applicants submit that they became aware, on 2 June 2010, in the course of the main proceedings, of the draft of a Commission regulation containing the measures for the implementation of the authorisation in favour of Inuit communities (“the Inuit exception”) pursuant to Article 3(4) of Regulation No 1007/2009. According to them, it is apparent from that document that the future implementing regulation of the Commission will be completely inappropriate in so far as it will render the Inuit exception meaningless.

…

13 Consequently, the applicants claim that the President of the Court should:

– declare the second application for interim measures admissible on account of the new facts which support the arguments in the first application for interim measures;

– order suspension of the operation of Regulation No 1007/2009 until the Court has given judgment in the action for annulment brought against that regulation;

– order the European Parliament and the Council of the European Union to pay the costs.’

3 After the second application for interim measures was made, Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation No 1007/2009 (OJ 2010 L 216, p. 1; ‘the implementing regulation’) was adopted. That regulation was published in the Official Journal of the European Union on 17 August 2010. The implementing regulation introduced a mechanism by which ‘recognised bodies’ issue documents attesting that seal products are compliant with the requirements laid down in Article 3(1) of Regulation No 1007/2009. In addition, in accordance with Article 9(1)(a) thereof, Member States are to designate one or several competent authorities responsible inter alia for verification of attesting documents for seal products imported from non-member States.

4 By order of 19 August 2010, made pursuant to Article 105(2) of the Rules of Procedure of the General Court, the President of the General Court granted the suspension of operation of the conditions set out in Article 3(1) of Regulation No 1007/2009 restricting the placing on the market of seal products, as regards the applicants, until the order terminating the proceedings for interim measures was made.

5 On 7 September 2010, the Parliament, the Council and the Commission lodged their written observations at the Registry of the General Court, seeking dismissal of the application for interim measures and an order that the applicants pay the costs.

The order under appeal

6 By the order under appeal, the President of the General Court first considered the admissibility of the application for interim measures before him. Following that examination, he took the view, in paragraph 23 of that order, that the application had to be declared admissible, since it was based on a new fact, namely the publication of the draft implementing regulation, capable of calling into question the assessments which had led the President of the General Court to dismiss, by the order of 30 April 2010, the first application for interim measures.

7 In the context of the assessment of urgency and, in particular, the serious and irreparable nature of the harm suffered by the applicants, the President of the General Court took the view, in paragraphs 53 and 54 of the order under appeal, that, since no entity governed by public law such as a State or territorial infra-State body was among the applicants, the applicants could not, in those proceedings for interim measures, rely on the general economic, social and cultural interests of the Inuit.

8 Accordingly, he considered whether the applicants had shown, to the requisite legal standard, that they could personally suffer serious and irreparable harm because of the impracticable nature of the implementing regulation, if no suspension of operation were granted.

9 As regards both the pecuniary and non-pecuniary damage alleged by the applicants, the President of the General Court, after having divided the applicants into three different categories, namely natural persons, commercial companies and non-profit-making organisations and associations, took the view, in paragraph 73 of the order under appeal, that none of those three categories of applicant had established the seriousness of the damage alleged as regards each of the applicants taken individually, even if their claims relating to the impracticable nature of the implementing regulation were to be well founded.

10 In any event, the President of the General Court also examined the overall and general figures as regards the Inuit communities in Canada and Greenland. As regards, firstly, the Canadian Inuits, he held that, having regard to their minimal participation in the ‘seal industry’ in Canada, the overall figures relating to the economy in question were not such as to demonstrate urgency, even were it to be accepted that the claims concerning the impracticable nature of the implementing regulation were well founded. Secondly, as regards the Greenlandic Inuits, although the applicants did not supply exact figures showing the development of the ‘seal economy’ in Greenland, the President of the General Court, taking into account the fact that that economy constituted, in essence, an Inuit economy liable to suffer serious harm if the implementing regulation were to prove to be impracticable, assessed whether that regulation was impracticable as regards the implementation of the Inuit exception in Greenland. In that regard, he concluded, in paragraph 86 of the order under appeal, that the applicants did not establish that the implementing regulation was objectively impracticable. The arguments raised to that effect constituted, in his view, mere unsubstantiated general assertions, whereas the applicants should have provided specific evidence and proved the facts alleged to form the basis of the likelihood of the impracticability alleged, since damage of a purely hypothetical nature could not justify the ordering of the suspension of operation sought.

11 On the basis of those considerations, in paragraph 94 of the order under appeal the President of the General Court, taking the view that urgency had not been established, dismissed the application for interim measures.

The appeal

12 By their appeal, the applicants (now the appellants) seek the setting aside of the order under appeal and referral of the case back to the President of the General Court and, in the alternative, the grant of the suspension of operation of Article 3 of Regulation No 1007/2009. Accordingly, they seek an order that the Parliament and the Council pay the costs.

13 In support of their appeal, the appellants raise a single plea in law, alleging incorrect assessment of urgency by the President of the General Court. In particular they submit, firstly, that the President erred in classifying certain of the appellants as ‘non-profit-making organisations’ when they are entities governed by public law. Secondly, they state that the President of the General Court committed a manifest error of assessment as regards the level of the serious and irreparable harm suffered by the Inuit economy and society.

14 Without it being necessary to rule on the merits of the single plea in law, it must be noted that, by order of 6 September 2011 in Case T‑18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council, not yet published in the ECR, the General Court ruled on the main action. In particular, in paragraphs 61 and 66 of that order, the General Court held, firstly, that Regulation No 1007/2009 was not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU. Secondly, it examined the possible direct effect of that regulation on the applicants’ situation, concluding, in paragraphs 85 and 86 of the order, that, with the exception of Ta Ma Su Seal Products Inc., NuTan Furs Inc., GC Rieber Skinn AS and the Canadian Seal Marketing Group, which were active in the processing and/or marketing of seal products, the other applicants were not directly concerned by the regulation. Finally, the General Court examined the possible effect of the regulation on the individual situation of those four applicants and found, in paragraph 93 of the order, that they were not individually concerned by the regulation. On those grounds, the General Court, in paragraph 94 of the order in Case T‑18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council, dismissed the applicants’ action as inadmissible.

15 In that regard, it must be borne in mind that, in accordance with its settled case-law, the Court of Justice may of its own motion raise the objection that a party has no interest in bringing or in maintaining an appeal on the ground that an event subsequent to the judgment of the General Court removes the prejudicial effect thereof as regards the appellant, and declare the appeal inadmissible or devoid of purpose for that reason. For an appellant to have an interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage to the party bringing it (Case C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, paragraph 13, and Case C‑519/07 P Commission v Koninklijke FrieslandCampina [2009] ECR I‑8495, paragraph 63).

16 In the present case, by the order in Case T‑18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council, the General Court dismissed the main action as inadmissible.

17 It follows that, even if the form of order sought by the appellants in the present appeal were to be upheld, setting aside the order under appeal would not be capable of bringing them any advantage given that, by their application for interim measures before the General Court, they had sought the suspension of operation of Regulation No 1007/2009 until that Court had ruled on the action for annulment.

18 In those circumstances, it must be held that the present appeal has become devoid of purpose, and there is thus no need to adjudicate on it.

Costs

19 Under Article 69(6) of the Rules of Procedure of the Court of Justice, which applies to appeals by virtue of Article 118 of those Rules, where a case does not proceed to judgment the costs are to be in the discretion of the Court.

20 In the present case, the appeal has become devoid of purpose not due to the conduct of one of the parties, but due to the fact that, in the meantime, the General Court has ruled on the main action.

21 Consequently, it is appropriate to order the parties to bear their own costs.

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

1. There is no need to adjudicate on the appeal.

2. The appellants, the European Parliament, the Council of the European Union and the European Commission shall bear their own costs.

[Signatures]