CELEX: 62003TO0422(01)
Language: en
Date: 2004-07-02 00:00:00
Title: Order of the President of the Court of First Instance of 2 July 2004. # Enviro Tech Europe Ltd and Enviro Tech International Inc. v Commission of the European Communities. # Interim Measures - Directives 67/548 and 2004/73 - Conditions of admissibility. # Case T-422/03 R II.

Case T-422/03 R II
      Enviro Tech Europe Ltd and Enviro Tech International Inc.
      v
      Commission of the European Communities
      (Interim measures – Directives 67/548/EEC and 2004/73/EC – Conditions of admissibility)
      Order of the President of the Court of First Instance, 2 July 2004 
      Summary of the Order
      1.     Interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting 
      (Arts  242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))
      2.     Interim measures – Conditions of admissibility – Application – Formal requirements – Precise indication of the subject-matter
            of the application – Condition a matter of public policy
      (Rules of Procedure of the Court of First Instance, Arts 44(1)(d) and 104(3))
      1.     Article 104(2) of the Rules of Procedure of the Court of First Instance provides that an application for interim measures
         must state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing
         a prima facie case (fumus boni juris) for the interim measures applied for.
      
      (see para. 34)
      2.     An application which, without details as to its subject-matter, is vague and imprecise does not meet the criteria laid down
         in Article 44(1)(d) of the Rules of Procedure of the Court of First Instance to which Article 104(3) of those rules refers
         and is thus inadmissible.
      
      Compliance with Article 44 and the other provisions of the Rules of Procedure, and in particular those laying down conditions
         as to the admissibility of applications for interim relief, is a matter of public policy.
      
      (see paras 48, 59)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE2 July 2004(1)
            
            
         
            (Interim Measures  –  Directives 67/548/EEC and 2004/73/EC  –  Conditions of admissibility)
            
          In Case T-422/03 R II,
         
         
         Enviro Tech Europe Ltd, established in Surrey (United Kingdom),Enviro Tech International Inc., established in Chicago (United States of America),
         applicants, represented by C. Mereu and K. Van Maldegem, lawyers,
         
         
         
         
         v
         Commission of the European Communities, represented by X. Lewis and F. Simonetti, acting as Agents, with an address for service in Luxembourg,
         
         defendant,
         
          APPLICATION seeking, first, ‘suspension of the nPB entry’ in the 29th adaptation to technical progress of Council Directive
         67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification,
         packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234); secondly, suspension of the entry
         for nPB in Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the 29th time Directive 67/548
         (OJ 2004 L 152, p. 1); and, thirdly, that other interim measures be ordered,
         
         
         
         
         
         THE PRESIDENT OF THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES,
         
         
         
         
         
         
         makes the following
         
         
         Order
            
               Legal framework
            General legal framework
         
         1
            
          Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating
         to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234), as amended
         by Council Directive 92/32/EEC of 30 April 1992 amending for the seventh time Directive 67/548 (OJ 1992 L 154, p. 1), lays
         down rules concerning the marketing of substances, defined as ‘chemical elements and their compounds in the natural state
         or obtained by any production process, including any additive necessary to preserve the stability of the products and any
         impurity deriving from the process used, but excluding any solvent which may be separated without affecting the stability
         of the substance or changing its composition’.
         
         
         
         2
            
          Directive 67/548 has been amended several times since its adoption and, most recently, by Commission Directive 2004/73/EC
         of 29 April 2004 adapting to technical progress for the 29th time Council Directive 67/548 (OJ 2004 L 152, p. 1). 
         
         
         
         3
            
          Article 4 of Directive 67/548, as amended, provides that substances are to be classified on the basis of their intrinsic properties
         according to the categories of danger laid down in Article 2(2). Classification of a chemical as ‘dangerous’ requires appropriate
         labelling on the package, including a danger symbol, standard phrases indicating the special risks arising from the dangers
         involved in using the substance (‘R-phrases’) and standard phrases relating to the safe use of the substance (‘S-phrases’).
         
         
         
         4
            
          Article 2(2) of Directive 67/548, as amended, provides that substances and preparations which are, inter alia, ‘extremely
         flammable’, ‘highly flammable’, ‘flammable’ or ‘toxic for reproduction’ are ‘dangerous’ within the meaning of the Directive.
         
         
         
         5
            
          Article 4(2) of Directive 67/548, as amended, provides that the general principles of the classification and labelling of
         substances and preparations are to be applied according to the criteria set out in Annex VI, save where contrary requirements
         for dangerous preparations are specified in separate directives.
         
         
         
         6
            
          Annex VI, Point 4.2.3, to Directive 67/548, as amended, contains the criteria applicable for reproductive toxicity and divides
         reproductive toxicant substances into three categories:
         
         
         
          
         –
            Category 1: ‘substances known to impair fertility in humans’ and ‘substances known to cause developmental toxicity in humans’;
         
         
         
         
          
         –
            Category 2: ‘substances which should be regarded as if they impair fertility in humans’ and ‘substances which should be regarded
               as if they cause developmental toxicity in humans’;
            
         
         
         
         
          
         –
            Category 3: ‘substances which cause concern for human fertility’ and ‘substances which cause concern for humans owing to possible
               developmental toxic effects’.
            
         
         
         
         Adaptation of Directive 67/548 to technical progress
         
         7
            
          Pursuant to Article 28 of Directive 67/548, as amended:
         ‘The amendments necessary for adapting the Annexes to technical progress shall be adopted in accordance with the procedure
         laid down in Article 29.’
         
         
         
         8
            
          In its observations, the Commission explained that, as a matter of practice, when it works on an initial draft of measures
         adapting Directive 67/548 to technical progress, it consults the Commission Working Group on Classification and Labelling
         (‘the CMR Working Group’), a group comprised of experts in toxicology and classification sent by the Member States, representatives
         of the chemical industry and representatives of the particular sector of the industry concerned by the products under discussion.
         After consulting with the CMR Working Group, the Commission submits the draft measures to the committee established by Article
         29 of Directive 67/548 (‘the Regulatory Committee’).
         
         
         
         9
            
          Article 29 of  Directive 67/548, as amended by Council Regulation (EC) No 807/2003 of 14 April 2003 adapting to Decision 1999/468/EC
         the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in
         Council instruments adopted in accordance with the consultation procedure (unanimity) (OJ 2003 L 122, p. 36), states:
         
         ‘1.
            The Commission shall be assisted by a committee.
         
         
         2.
            Where reference is made to this article, Articles 5 and 7 of Decision 1999/468/EC shall apply.
         
         
               The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.’
                  
               
         
         
         
         
         
         10
            
          Article 5 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) reads as follows:
         
         ‘1.
            The Commission shall be assisted by a regulatory committee composed of the representatives of the Member States and chaired
               by the representative of the Commission.
            
         
         
         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 within a time-limit which the chairman may lay down according to the urgency of the matter.
               The opinion shall be delivered by the majority laid down in Article 205(2) of the Treaty in the case of decisions which the
               Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within
               the committee shall be weighted in the manner set out in that article. The chairman shall not vote.
            
         
         
         3.
            The Commission shall, without prejudice to Article 8, adopt the measures envisaged if they are in accordance with the opinion
               of the committee.
            
         
         
               …’
                  
               
         
         
         
         Facts and procedure
         
         11
            
          N-propyl-bromide (‘nPB’) is a volatile organic solvent used inter alia for industrial cleaning.
         
         
         
         12
            
          Enviro Tech Europe Ltd and Enviro Tech International Inc. (‘the applicants’) are companies engaged solely in the production
         and sale of the nPB-based product ‘Ensolv’. Enviro Tech Europe is the European subsidiary of Enviro Tech International, and
         its exclusive licensee in Europe for Ensolv.
         
         
         
         13
            
          Pursuant to Commission Directive 91/325/EEC of 1 March 1991 adapting to technical progress for the 12th time Council Directive
         67/548 (OJ 1991 L 180, p. 1), nPB was included in Annex I to Directive 67/548 and was classified as an irritant and flammable
         substance.
         
         
         
         14
            
          At the meeting of the CMR Working Group of 16 to 18 January 2002, the United Kingdom’s Health & Safety Executive (‘the HSE’)
         proposed classifying nPB as a category 2 reproductive toxicant.
         
         
         
         15
            
          Subsequently, in April 2002, the HSE proposed the classification of nPB as a highly flammable substance, based on a new test
         result.
         
         
         
         16
            
          Since that date, the applicants have made submissions to the HSE, the European Chemical Bureau and the CMR Working Group objecting
         to the proposed classification and providing scientific data and arguments in support of their position.
         
         
         
         17
            
          At its January 2003 meeting, the CMR Working Group decided to recommend the classification of nPB as highly flammable and
         as a category 2 reproductive toxicant. After that decision was made, the applicants unsuccessfully tried to convince the CMR
         Working Group to re-open its discussions on nPB.
         
         
         
         18
            
          On 29 August and 29 September 2003 respectively, the applicants sent two letters to the Commission requesting inter alia that
         it take such measures as necessary to correct the errors which they considered to underlie the CMR Working Group’s recommendations
         on nPB.
         
         
         
         19
            
          In two letters of 3 November 2003, the Commission informed the applicants that the arguments presented in their letters of
         29 August and 29 September 2003 did not provide appropriate reasons to modify the classification of nPB recommended by the
         CMR Working Group (‘the contested acts’).
         
         
         
         20
            
          By application lodged at the Registry of the Court of First Instance on 23 December 2003, the applicants brought an action
         seeking the annulment of the contested acts and an action for damages.
         
         
         
         21
            
          Shortly after their application was filed, the applicants were informed that the Regulatory Committee was scheduled to meet
         on 15 January 2004 in order to formally adopt the 29th adaptation of Directive 67/548 to technical progress.
         
         
         
         22
            
          By separate application lodged at the Court Registry on 30 December 2003, the applicants, in accordance with Articles 242
         EC and 243 EC, brought a first application for interim measures, by which they requested the President of the Court of First
         Instance to suspend the operation of the contested acts and to order the Commission not to propose the reclassification of
         nPB under the 29th adaptation to technical progress of Directive 67/548 at the next Regulatory Committee meeting, scheduled
         for 15 January 2004, and thereafter, until such time as the Court of First Instance has given judgment in the main action.
         
         
         
         23
            
          In its observations, the Commission specified that the Regulatory Committee meeting was never fixed to take place on 15 January
         2004 and that it had been postponed sine die.
         
         
         
         24
            
          An order made on 3 February 2004 dismissed the first application for interim measures (Case T-422/03 R Enviro Tech and Another v Commission, not yet published in the ECR) (‘the Order of 3 February 2004’). In that order, the President of the Court of First Instance
         essentially held that there was no need to rule on the admissibility of the  main action, since suspension of the operation
         of the contested acts could not be of any use to the applicants as it could not prevent the Commission from proposing the
         reclassification of nPB. The President of the Court took the view that it was not necessary to examine the serious and irreparable
         harm invoked by the applicants, as the premisses on which it was based were in any event too hypothetical to justify granting
         interim measures. 
         
         
         
         25
            
          By a separate document lodged at the Court Registry on 9 February 2004, the defendant put forward in the main action a plea
         of inadmissibility pursuant to Article 114 of the Rules of Procedure of the Court of First Instance.
         
         
         
         26
            
          By a document dated 5 April 2004 and lodged at the Registry of the Court of First Instance on the same day, the applicants
         filed a second application for interim measures under Articles 242 EC and 243 EC, seeking inter alia that the President of
         the Court order the suspension of ‘the inclusion by the Commission of nPB in the 29th adaptation to technical progress of
         Directive 67/548’. In their application, the applicants stated that the meeting of the Regulatory Committee to adopt the proposed
         29th adaptation to technical progress of Directive 67/548 was scheduled for 14 April 2004. They also asked the President of
         the Court, pursuant to Article 105(2) of the Rules of Procedure, to grant the application before the Commission had submitted
         its observations.
         
         
         
         27
            
          On 7 April 2004, at the request of the President of the Court, the Commission confirmed that the meeting of the Regulatory
         Committee to adopt the draft text of the 29th adaptation to technical progress of Directive 67/548 was to take place on 14
         April 2004.
         
         
         
         28
            
          On 13 April 2004, the applicants on their own initiative lodged at the Registry of the Court of First Instance certain documents
         which they said had come to their knowledge only after their application for interim measures had been lodged. The President
         of the Court decided to add those documents to the file.
         
         
         
         29
            
          On 23 April 2004, the Commission submitted its observations concerning those documents. The Commission also informed the President
         of the Court that on 14 April 2004 the Regulatory Committee  had approved the proposed reclassification of nPB as, first,
         a highly flammable substance (R 11) and, secondly, as a reproductive toxicant under categories 2 (R 60) and 3 (R 63). 
         
         
         
         30
            
          On 14 May 2004, the applicants submitted new documents to the President of the Court and informed him that, on 29 April 2004,
         the Commission had formally adopted Directive 2004/73 adapting to technical progress for the 29th time Council Directive 67/548
         (OJ 2004 L 152, p. 1) and classifying nPB under categories R 11 and R 60. On the basis of that information,  the applicants
         sought new forms of order, seeking suspension of the entry for nPB in Directive 2004/73. On 17 May 2004, the President of
         the Court decided to add those new documents to the file. On 26 May 2004, the Commission submitted its observations on those
         new documents and forms of order sought.
         
         Forms of order sought
         
         31
            
          In the present application, the applicants ask the President of the Court:
         
         
         
          
         –
            ‘to declare the present application admissible and well founded’ (‘the first request’);
         
         
         
         
          
         –
            ‘to declare that interim relief is necessary to prevent irreparable harm to the applicants’ (‘the second request’);
         
         
         
         
          
         –
            ‘to suspend the inclusion by the Commission of nPB in the 29th adaptation to technical progress of Directive 67/548 pending
               the full resolution of the dispute in the main proceedings’ (‘the third request’);
            
         
         
         
         
          
         –
            ‘to adopt any other interim relief measures the President of the Court deems appropriate to prevent the reclassification of
               nPB as R 11 and R 60’ (‘the fourth request’);
            
         
         
         
         
          
         –
            to order the Commission to pay the costs.
         
         
         
         
         
         32
            
          In their letter of 14 May 2004, the applicants also request the President of the Court to:
         
         
         
          
         –
            ‘suspend the nPB entry in the 29th adaptation to technical progress’ of Directive 67/548 (‘the fifth request’);
         
         
         
         
          
         –
            ‘order the Commission to give immediate notice to the Member States that such entry is suspended pending the full outcome
               of’ the dispute in the main action (‘the sixth request’);
            
         
         
         
         
          
         –
            ‘issue such other order as necessary to effectively achieve interim relief for the applicants’ (‘the seventh request’).
         
         
         
         
         
         33
            
          The Commission claims that the President of the Court should:
         
         
         
          
         –
            dismiss the application for interim measures;
         
         
         
         
          
         –
            order the applicants to pay the costs.
         
         
         
         Law
         
         34
            
          Article 104(2) of the Rules of Procedure provides that an application for interim measures must state the subject-matter of
         the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case (fumus
         boni juris) for the interim measures applied for. Those conditions are cumulative, so that an application for interim measures
         must be dismissed if any one of them is absent (order of the President of the Court of Justice of 14 October 1996 in Case
         C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30). Where appropriate, the judge hearing such an application must also weigh up the interests
         involved (order of the President of the Court of Justice of 23 February 2001 in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
         
         
         
         35
            
          Furthermore, in the context of that overall examination, the judge hearing the application enjoys broad discretion and is
         free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions
         are to be examined, there being no rule of Community law imposing a pre-established scheme of analysis within which the need
         to order interim measures must be analysed and assessed (order of the President of the Court of Justice of 19 July 1995 in
         Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 23).
         
         Arguments of the parties Admissibility
         
         
         36
            
          In its observations, the Commission, while pointing out that the applicants seek the suspension of a measure different from
         that which they sought to have annulled in the main action, states that it is not necessary to examine that question, inasmuch
         as the main action for annulment and, in consequence, the application for interim measures, are manifestly inadmissible. In
         particular, as regards the admissibility of the main action, the Commission maintains that the action for annulment is manifestly
         inadmissible because the applicants purport to impugn acts which do not affect their legal position. 
         
         
         
         37
            
          The applicants, for their part, maintain that they are entitled to bring proceedings against the contested acts pursuant to
         the fourth paragraph of Article 230 EC, inasmuch as those acts are Commission decisions signed by a director and directly
         addressed to them. The applicants are therefore not required to demonstrate that the contested acts are of direct and individual
         concern to them, since that criterion applies only to decisions addressed to third parties. The applicants also state that
         they are entitled to act on the sole basis of the reasoning followed by the Court of  First Instance in Case T‑54/99 max.mobil v Commission [2002] ECR II‑313, paragraph 71.
         
          Prima facie case
         
         
         38
            
          The applicants are of the opinion that their action against the contested acts is not manifestly unfounded. The main points
         of the applicants’ arguments concerning fumus boni juris are set out in greater detail in paragraphs 36 to 40 of the order
         of 3 February 2004. 
         
          Urgency
         
         
         39
            
          In their application of 5 April 2004, the applicants submit that interim measures are necessary because there is an urgent
         need to prevent the adoption, at that time scheduled for 14 April 2004, of the 29th adaptation to technical progress of Directive
         67/548. In particular, the applicants claim that the adoption and implementation of the Commission decision to reclassify
         nPB, which ensures its reclassification under the 29th adaptation to technical progress of Directive 67/548, produces three
         adverse consequences resulting in damage for the applicants which is severe, irreversible and can be established with a sufficient
         degree of certainty.
         
         
         
         40
            
          First, the applicants submit that the new classification of nPB as highly flammable and as a category 2 reproductive toxicant
         nullifies their patent on Ensolv, inasmuch as it is based on the non-flammable and non-hazardous properties of nPB.
         
         
         
         41
            
          Next, according to the applicants, the new classification of nPB as highly flammable requires them, first, to identify that
         product as such and to modify their safety data sheet; secondly, to alter their transport, handling and storage practices;
         and thirdly, to advise their clients to do the same, as a result of the provisions of Directive 67/548 in conjunction with
         Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws,
         regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of
         dangerous preparations (OJ 1999 L 200, p. 1). In the light of those constraints, the applicants’ clients would no longer differentiate
         between Ensolv and other products. Inasmuch as the applicants’ activities rest solely on that product, their survival would
         therefore be at risk.
         
         
         
         42
            
          Finally, the applicants stress that the new classification of nPB as a reproductive toxicant of category 2 requires them immediately
         to propose and within the shortest possible time implement the replacement of nPB with ‘safer’ alternatives under Council
         Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic
         solvents in certain activities and installations (OJ 1999 L 85, p. 1). That new classification would also entail changing
         the authorisation system for nPB under the future ‘REACH’ regulation.
         
         
         
         43
            
          The applicants add that if nPB is phased out or is no longer purchased by customers owing to regulatory and financial constraints,
         the applicants will cease to operate, so that the amount of future loss and damage is neither quantifiable nor reparable.
         
          Balance of interests
         
         
         44
            
          As regards the balance of interests, the applicants point out in their application that the orders requested would do no more
         than maintain the current situation until the final resolution of the matter in the main proceedings.
         
         
         
         45
            
          Rejecting the premiss that nPB can be classified as flammable without this being supported by adequate test results, the applicants
         consider that the current classification is sufficient to warn users of nPB about its alleged flammable properties. Classification
         as a highly flammable substance would achieve no further purpose but would drive the applicants out of business before the
         full resolution of the matter in the main proceedings. The applicants further note that since the introduction of nPB in Europe
         and in the rest of the world there has never been any reported incident due to the alleged flammable properties of this substance.
         
         
         
         46
            
          According to the applicants, the same reasoning could be applied to the proposed reclassification of nPB as a reproductive
         toxicant of category 2, as in the absence of interim relief the applicants would have to present immediately and implement
         within the shortest possible time a phase-out plan for nPB under Directive 1999/13. In the alternative, the applicants would
         be prepared temporarily to classify their nPB product as a category 3 reproductive toxicant pending the final resolution of
         the matter in the main proceedings.  
         
         
         
         47
            
          Finally, the applicants note that the granting of a suspension order is all the more important in the present case as there
         is also a need to clarify, first, that the Commission cannot classify substances without using the testing methods and classification
         criteria specifically provided for in Directive 67/548; second, that the precautionary principle cannot be applied in hazard-based
         classification decisions; and third, the role and powers of the CMR Working Group to adopt policy decisions.
         
         Findings of the President
         
         48
            
          First of all, compliance with the Rules of Procedure and, in particular, the conditions as to the admissibility of applications
         for interim relief are a matter of public policy (see, to that effect, the order of the President of the Court of First Instance
         of 7 May 2002 in Case T‑306/01 R Aden and Others  v Council andCommission [1996] ECR II‑2387, paragraphs 43 to 46).
         
         
         
         49
            
          The President takes the view that since the file as it stands provides all the information needed to give judgment on the
         application for interim measures, there is no need to hear oral argument from the parties.
         
         
         
         50
            
          The President considers that in the present case the requests made by the applicants, set out in paragraphs 31 and 32 above,
         should be analysed in turn, and there is no need to rule on whether the main action is prima facie manifestly inadmissible.
         
         
         
         
         51
            
          First, without its being necessary to determine whether the first and second requests could in themselves be of use to the
         applicants, it is clear that the question as to whether the aforesaid requests should be granted depends on the admissibility
         and merits of the other requests.  
         
         
         
         52
            
          Secondly, it must be noted from the outset that the wording of the third request, which seeks the suspension of ‘the inclusion
         by the Commission of nPB in the 29th adaptation to technical progress of Directive 67/548’, is particularly ambiguous. Since
         ‘the inclusion … of nPB in the 29th adaptation to technical progress of Directive 67/548’ can only occur, literally, on the
         final adoption of that text, it appears that the third request must be interpreted as seeking the suspension of the implementation
         of the final text adopted by the Commission. Nevertheless, certain passages of the application for interim measures also seem
         to indicate that the applicants are in fact asking the President to prevent the Commission and/or the Regulatory Committee
         from exercising their legislative powers for the purpose of the 29th adaptation to technical progress of the Directive. That
         is the case in particular for the passages where the applicants state that they seek to prevent the adoption of the Commission’s
         proposal to the Regulatory Committee. 
         
         
         
         53
            
          It appears that the third request must in any event be rejected, without any need to rule on whether its lack of clarity is
         sufficient to render it inadmissible. 
         
         
         
         54
            
          First, inasmuch as the third request must be interpreted as seeking to prevent the Commission and/or the Regulatory Committee
         from exercising their legislative powers for the purpose of including nPB in the 29th adaptation to technical progress of
         Directive 67/548, it must be considered together with the fourth request, which asks the President to ‘adopt any other interim
         relief measures … appropriate to prevent the reclassification of nPB as R 11 and R 60’.
         
         
         
         55
            
          It is not necessary to examine whether those two requests are admissible and, in particular, whether it is contrary to the
         principles of the division of powers among the various Community institutions to order interim measures which prevent the
         Commission and the Regulatory Committee, even provisionally, from exercising their powers as regards legislation (see, by
         analogy, the orders of the President of the Court of First Instance of 12 July 1996 in Case T-52/96 R Sogecable v Commission [1996] ECR II-797, paragraphs 39 to 41, and of 5 December 2001 in Case T-216/01 R Reisebank v Commission [2001] ECR II-3481, paragraph 52), since those requests are henceforth devoid of purpose inasmuch as the Commission adopted
         Directive 2004/73 on 29 April 2004.
         
         
         
         56
            
          Secondly, if the third request should be interpreted as seeking the suspension of the nPB entry in the 29th adaptation to
         technical progress of Directive 67/548 it must be considered together with the fifth request, which seeks to have the entry
         for nPB in Directive 2004/73 suspended. It is clear, however, that those two requests seek suspension of the operation of
         an act which the applicants did not challenge in the main action, contrary to the first paragraph of Article 104(1) of the
         Rules of Procedure.
         
         
         
         57
            
          The third, fourth and fifth requests must therefore be rejected.
         
         
         
         58
            
          Consequently, the sixth request, which asks the President to order the Commission immediately to notify the Member States
         that that inclusion is suspended pending the full resolution of the dispute in the main proceedings, must also be rejected.
         
         
         
         59
            
          Finally, it must be observed that the applicants do not provide sufficient clarification of the seventh request in their application,
         which asks the President to ‘issue such other order as necessary to effectively achieve interim relief for the applicants’
         and which is vague and imprecise. Without further details as to its subject-matter, such a request does not meet the criteria
         laid down in Article 44(1)(d) of the Rules of Procedure to which Article 104(3) of those rules refers and is thus inadmissible
         (see, to that effect, the order of the President of the Court of First Instance of 12 February 1996 in Case T-228/95 R Lehrfreund  v Council andCommission [1996] ECR II-111, paragraph 58).
         
         
         
         60
            
          Accordingly, in the light of all the foregoing considerations, the requests put forward by the applicants must in any event
         be rejected. Consequently, the application for interim measures must be dismissed in its entirety.
         
         
         On those grounds,
         
         
         
            
            THE PRESIDENT OF THE COURT OF FIRST INSTANCE
         
         
          hereby orders:
         
            
            
             
               1.
                  The application for interim measures is dismissed.
               
            
            
            
             
               2.
                  Costs are reserved.
               
            
             Luxembourg, 2 July 2004.
         
         
         
                  H. Jung
               
               
                  B. Vesterdorf
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
            Language of the case: English.