CELEX: 62008CO0060
Language: en
Date: 2009-03-24 00:00:00
Title: Order of the President of the Court of 24 March 2009. # Cheminova A/S and Others v Commission of the European Communities. # Appeal - Application for interim measures - Withdrawal of marketing authorisations for plant protection products containing malathion - Admissibility - Urgency. # Case C-60/08 P(R).

ORDER OF THE PRESIDENT OF THE COURT
      24 March 2009 (*)
      
      (Appeal – Application for interim measures – Withdrawal of marketing authorisations for plant protection products containing malathion – Admissibility – Urgency)
      In Case C‑60/08 P(R),
      APPEAL pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice, brought on 13 February 2008,
      Cheminova A/S, established in Lemvig (Denmark),
      
      Cheminova Agro Italia Srl, established in Rome (Italy),
      
      Cheminova Bulgaria EOOD, established in Sofia (Bulgaria),
      
      Agrodan SA, established in Madrid (Spain),
      
      Lodi SAS, established in Grand‑Fougeray (France),
      
      represented by D. Vaughan QC, K. Van Maldegem and C. Mereu, avocats, V. Wakefield, Barrister, and P. Sellar, Solicitor,
      appellants,
      supported by:
      European Crop Protection Association (ECPA), established in Brussels (Belgium), represented by D. Waelbroeck and I. Antypas, avocats,
      
      intervener on appeal,
      the other party to the proceedings being:
      Commission of the European Communities, represented by B. Doherty and L. Parpala, acting as Agents,
      
      defendant at first instance,
      THE PRESIDENT OF THE COURT,
      after hearing the Advocate General, V. Trstenjak,
      makes the following
      Order
      1        By their appeal, Cheminova A/S, Cheminova Agro Italia Srl, Cheminova Bulgaria EOOD, Agrodan SA and Lodi SAS ask the Court
         to set aside the order of the President of the Court of First Instance of the European Communities of 4 December 2007 in Case
         T‑326/07 R Cheminova and Others v Commission [2007] ECR II‑4877 (‘the order under appeal’), by which he dismissed their application for interim relief seeking suspension
         of the operation of Commission Decision 2007/389/EC of 6 June 2007 concerning the non‑inclusion of malathion in Annex I to
         Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance
         (OJ 2007 L 146, p. 19; ‘the contested decision’), pending the full resolution of the dispute in the main proceedings.
      
      2        The legal context, the facts and the procedure before the Court of First Instance were summarised by the President of the
         Court of First Instance in paragraphs 1 to 33 of the order under appeal.
      
       The order under appeal
      3        By the order under appeal, the President of the Court of First Instance acknowledged that it could not prima facie be excluded
         that the contested decision is of direct and individual concern, within the meaning of the fourth paragraph of Article 230
         EC, to Cheminova A/S, as the notifier of the application seeking to secure the inclusion of malathion in Annex I to 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 that the main application made by it is admissible.
      
      4        Next, he recalled the case‑law according to which, where one and the same main application is involved, there is prima facie
         no need to consider whether the other applicants are entitled to bring proceedings. He stated, however, that while that case-law
         must, where relevant, be taken into consideration in the main proceedings it cannot apply so far as concerns the issue of
         assessing urgency in proceedings for interim measures.
      
      5        He thus examined whether the appellants other than Cheminova A/S appeared prima facie to be manifestly not entitled, as persons
         not directly and individually concerned by the contested decision, to apply to the Court for annulment, in the main proceedings,
         of the contested decision.
      
      6        In that regard, the President of the Court of First Instance found that the appellants other than Cheminova A/S were not individually
         distinguished by attributes peculiar to them, but rather were affected in the same way as all the other vendors and users
         of malathion in the same situation.
      
      7        The arguments to the contrary put forward by the appellants were held not to be such as to call that assessment into question.
         Thus, the President of the Court of First Instance rejected the contentions that the contested decision could be of individual
         concern to the appellants other than Cheminova A/S by reason of the national marketing authorisations for malathion or the
         letters in their possession giving access to data held by Cheminova A/S, or even because they formed part of a closed class
         of undertakings condemned to losing their marketing authorisations by 6 December 2007 at the latest.
      
      8        On the basis of those factors, the President of the Court of First Instance held that the contested decision could not, prima
         facie, be considered to be of individual concern to the appellants other than Cheminova A/S. The President thus found that
         those appellants were not entitled to put forward their own individual situation in order to establish urgency, nor, therefore,
         were they entitled to bring the application for interim measures.
      
      9        After excluding from his assessment of urgency the arguments relating to the appellants other than Cheminova A/S, the President
         of the Court of First Instance examined Cheminova A/S’s contention that, if suspension of the operation of the contested decision
         were not ordered, it would suffer serious and irreparable damage as a result of the irremediable loss of its market share
         for malathion.
      
      10      In that regard, he stated that it is not sufficient that a market share, however minimal, may be irremediably lost; on the
         contrary it is necessary for that market share to be sufficiently large. An applicant who invokes the loss of such a market
         share must demonstrate, furthermore, that regaining a significant proportion of it, in particular by appropriate publicity
         measures, is impossible by reason of obstacles of a structural or legal nature.
      
      11      The President of the Court of First Instance determined, first of all, whether the damage pleaded might be classified as serious
         in the light, in particular, of the size and turnover of Cheminova A/S and of the characteristics of the group to which it
         belongs, and he came to the conclusion that, in addition to the fact that the figures supplied by the appellants concerning
         the damage suffered on the Community market did not appear sufficiently precise to establish urgency for Cheminova A/S, the
         annual loss caused by the contested decision could, in any event, be assessed at less than 1% of the group’s turnover.
      
      12      Next, the President of the Court of First Instance rejected the appellants’ arguments concerning the reduction in their sales
         in non‑Member States, maximum residue limits and the ‘oilseed rape project’ envisaged by the appellants for supplying the
         oilseed rape sector with malathion.
      
      13      The irreparable nature of the damage suffered by the appellants was also discounted. The President of the Court of First Instance
         found that malathion’s qualities appear to be highly appreciated by the appellants’ customers and that no perfect substitute
         product exists, factors which support the view that it would be possible for malathion to return to the market. That conclusion
         is confirmed by the results of a survey of some of the appellants’ principal customers.
      
       Procedure before the Court 
      14      The Commission of the European Communities submitted its observations on the appeal on 12 March 2008.
      
      15      By document lodged at the Court Registry on 5 May 2008, European Crop Protection Association (ECPA) applied for leave to intervene
         in support of the form of order sought by the appellants. Since ECPA’s arguments in support of its application for leave to
         intervene revealed prima facie an interest in the result of the appeal, its application was granted, a decision which was
         notified to ECPA by letter from the Court Registry of 6 June 2008. ECPA submitted its statement in intervention on 16 June 2008.
         The Commission submitted its written observations on the statement in intervention on 30 June 2008.
      
      16      Since the parties’ written observations contain all the information required for a decision on this appeal, it is not necessary
         to hear oral argument.
      
       The appeal
      17      In support of their appeal, the appellants raise three pleas in law alleging, respectively, that the President of the Court
         of First Instance erred in law in his examination of whether the application was admissible, that he erred in law in his assessment
         of urgency and that there was a breach of procedure at first instance because of the failure to hold a hearing. The arguments
         put forward by the intervener concern the first two pleas.
      
       The first plea, alleging that the President of the Court of First Instance erred in law in his examination of whether the
            application was admissible
       Arguments of the parties
      18      In the first place, the appellants, supported by the intervener, claim that the President of the Court of First Instance was
         wrong in law to consider the admissibility of the main action as if each appellant had brought it separately.
      
      19      They explain, first of all, that the Commission did not dispute the admissibility of the main action and the application for
         interim relief with regard to Cheminova A/S and that it did not plead that the main action is manifestly inadmissible.
      
      20      Next, referring to the orders of the President of the Court of First Instance in Case T‑117/05 R Rodenbröker and Others v Commission [2005] ECR II‑2593, paragraph 61, and Case T-31/07 R Du Pont de Nemours (France) and Others v Commission [2007] ECR II‑2767, paragraph 113, they indicate that, in the past, the President of the Court of First Instance has systematically
         held that, where admissibility must be established for one and the same application lodged by a number of applicants and the
         application is admissible in respect of one of them, there is no need to consider whether the other applicants are entitled
         to bring proceedings. Accordingly, he has found an application for interim relief to be admissible where it had been held
         to be prima facie admissible in respect of at least one applicant, so that it was not necessary to examine whether the other
         applicants were entitled to bring proceedings for interim relief.
      
      21      However, in the present case, the President of the Court of First Instance erred in law in failing to specify why the reasoning
         followed in those cases, which involved a number of applicants, could not be applied to this case.
      
      22      In addition, the appellants plead breach of Article 104(1) of the Rules of Procedure of the Court of First Instance, since
         each of them other than Cheminova A/S has challenged the contested decision before the Court of First Instance and is a party
         to the main proceedings, so that each of them is entitled to bring an application for interim relief.
      
      23      The appellants submit that the reasoning of the President of the Court of First Instance would have catastrophic practical
         and legal consequences for large groups which divide up their various activities between a number of specialised legal entities,
         with one company, for example, dealing with administrative aspects such as notification of the application for inclusion of
         an active substance in Annex I to Directive 91/414 and participation in the procedure relating to that inclusion, and another
         company, for example, dealing with manufacture and product sales. The President’s reasoning would mean that an undertaking
         which conducted its business through a single company or various internal divisions would be in a preferred position compared
         with a company which operated through national subsidiaries or exclusive distributors.
      
      24      Lastly, the appellants claim that, in any event, the factors which establish the admissibility of the application at first
         instance with regard to Cheminova A/S apply just as well to the other appellants, since the acts performed by Cheminova A/S
         as manufacturer, with regard to notification and participation, were done for the entire group. In support of that argument,
         they refer to the structure of Directive 91/414, which is designed in such a way that an application for inclusion of an active
         substance in Annex I to Directive 91/414 is subject only to one notification per corporate group.
      
      25      In the second place, the appellants, supported by the intervener, claim that, even if the President of the Court of First
         Instance was correct in law to consider the admissibility of the action as if each appellant had brought it separately, he
         nevertheless erred in law in failing to apply correctly the test in accordance with which the judge hearing the application
         for interim measures should declare that application inadmissible only where admissibility of the main action can be wholly
         excluded. They submit that, for the reasons referred to below, the President of the Court of First Instance erred in holding
         that the contested decision was manifestly not of individual concern to the appellants other than Cheminova A/S.
      
      26      First of all, the contested decision is of individual concern to Cheminova Agro Italia Srl, Cheminova Bulgaria EOOD and Agrodan SA
         by virtue of their membership of the same economic group as the notifier of the application to include malathion in Annex I
         to Directive 91/414, that is, Cheminova A/S. This follows from Case T‑112/97 Monsanto v Commission [1999] ECR II‑1277. The appellants state that, in that case, the legal entity Monsanto Europe SA/NV had performed functions
         analogous to those of the notifier of an application to include an active substance in Annex I to Directive 91/414 and was
         also the named addressee of the decision rejecting that application. However, the application for annulment had been brought
         by its parent company Monsanto Company. According to the appellants, Monsanto Company was held to be individually concerned
         by reason of its shareholding in Monsanto Europe SA/NV.
      
      27      Next, the appellants claim that Lodi SAS is individually concerned as holder of relevant intellectual property rights, that
         is, a trade mark under which 16 malathion‑based insecticides are marketed. They rely in that regard on Case C‑309/89 Codorniu v Council [1994] ECR I‑1853, paragraphs 21 and 22, in which the Court held that the proprietor of the graphic trade mark ‘Gran Cremant
         de Cordorniu’ had established the existence of a situation which from the point of view of a provision of general applicability
         differentiated it from all other traders. By reserving the right to use the term ‘cremant’ to French and Luxembourg producers,
         the contested provision prevented the proprietor from using its graphic trade mark.
      
      28      Lastly, the appellants other than Cheminova A/S claim to be individually concerned as holders of specific legal rights resulting
         from national marketing authorisations for malathion. Those rights are comparable to the right at issue in Codorniu v Council. According to the appellants, the President of the Court of First Instance was wrong to rely on the order in Case T‑94/04
         EEB and Others v Commission [2005] ECR II-4919, paragraphs 53 to 55, since that case did not relate to marketing authorisations. They claim that their
         situation should be distinguished from that of an operator who de facto markets a product, but who has no specific legal rights in respect of that product.
      
      29      The appellants add that they hold letters of access to the data held by Cheminova A/S, letters which also confer on them specific
         rights comparable to the right at issue in Codorniu v Council. Accordingly, they are in a different, more favourable position compared with other undertakings in respect of the obtaining
         of future marketing authorisations. The appellants refer in that regard to Case T‑13/99 Pfizer Animal Health v Council [2002] ECR II‑3305, paragraph 98.
      
      30      The Commission contests the arguments of the appellants and the intervener.
      
       Findings of the Court
      31      With regard to the argument that the Commission did not plead the manifest inadmissibility of the main action, that fact is
         not sufficient for a finding that the reasoning of the President of the Court of First Instance is vitiated by an error in
         law, since inadmissibility for lack of locus standi in proceedings seeking review by the courts of a Community measure constitutes
         a ground involving a question of public policy which may, and even must, be raised of its own motion by the Community judicature
         (Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 35).
      
      32      As to the argument that the President of the Court of First Instance failed to apply settled case‑law, according to which,
         where one and the same main application lodged by a number of applicants is involved, there is prima facie no need to consider
         whether the other applicants are entitled to bring proceedings where one of them is so entitled, it should be noted, first,
         that that principle allows the Community judicature to dispense with the examination of the locus standi of the other applicants,
         but does not oblige it to do so.
      
      33      Second, the President of the Court of First Instance did not disregard the abovementioned case-law, but explained in detail
         the reasons why, whilst that case‑law, is, where relevant, to be taken into consideration in the main proceedings, it cannot,
         however, apply so far as concerns the issue of assessing urgency in proceedings for interim measures.
      
      34      The principle stated in paragraph 32 above was introduced, for reasons of economy of procedure, in the context of main proceedings,
         without taking into account any application for interim relief with which that main action might be associated.
      
      35      By contrast, where an application for interim relief is, in fact, brought with the main action, the situation is different
         by virtue of the specific conditions attached to interim proceedings which must be fulfilled personally by the party requesting
         the relief, in particular, the requirement of urgency. In order for its application for interim relief to be declared well
         founded, that party must furnish proof that he cannot await the conclusion of the main action without personally suffering
         damage which would have serious and irreparable effects for him.
      
      36      Since urgency is thus a specific question which must be examined separately for each applicant, the President of the Court
         of First Instance logically concluded from this that only a party who is entitled to bring the main action to which the application
         for interim measures relates can be permitted to establish urgency by submitting that he would personally suffer serious and
         irreparable damage if the interim relief sought was not granted. Were this not to be the case, a situation might arise in
         which a person to whom the measure at issue was not of individual concern could take advantage of interim measures by joining
         in with the action brought by a person entitled to bring proceedings for the purposes of the fourth paragraph of Article 230 EC.
      
      37      In view of the fact that the present case concerns an examination of admissibility limited to the purposes of interim proceedings,
         in the sense that that examination will theoretically not take place in the main proceedings because Cheminova A/S has locus
         standi, the President of the Court of First Instance was entitled, without erring in law, to examine in detail the evidence
         put forward by the appellants to establish their locus standi and not merely to find, in the light of that evidence, that
         the admissibility of the main action could not be considered to be wholly excluded.
      
      38      In that regard, although it is admittedly true that, in the context of interim proceedings, the judge hearing the application
         for interim measures is not required, as a rule, to undertake as detailed an assessment as in the context of the main proceedings,
         he is clearly not precluded, where he considers it appropriate, from undertaking a more detailed assessment of that kind,
         provided that it does not lead to a delay which is incompatible with the urgency of interim proceedings and is not vitiated
         by an error of law (see, to that effect, the order of the President of the Court of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, paragraph 50).
      
      39      Since the assessment undertaken by the President of the Court of First Instance did not lead to a delay which was incompatible
         with the urgency of the proceedings for interim measures, it is necessary to examine whether that assessment is vitiated by
         an error of law.
      
      40      It should be recalled, in that regard, that the President of the Court of First Instance rejected the assertion that the contested
         decision is of individual concern to the appellants other than Cheminova A/S and found that, far from being individually distinguished
         by attributes peculiar to them, they are affected in the same way as all the other vendors and users of malathion in the same
         situation. He stated that the contested decision contains nothing tangible to support the conclusion that it was adopted having
         regard to the particular situation of the appellants other than Cheminova A/S. The President of the Court of First Instance
         therefore held that it is solely by reason of their objective position as economic operators covered by the contested decision
         that those appellants might claim to be affected by it.
      
      41      The argument which the appellants, as well as the intervener, derive from the case‑law (Case T‑120/96 Lilly Industries v Commission [1998] ECR II‑2571; Monsanto v Commission; Joined Cases T‑125/96 and T‑152/96 Boehringer v Council and Commission [1999] ECR II‑3427; and order in Case T‑114/96 Biscuiterie‑confiserie LOR and Confiserie du Tech v Commission [1999] ECR II‑913), so far as concerns the specific nature of the marketing authorisations for malathion, cannot suffice
         for a finding that the assessment of the President of the Court of First Instance in that regard is vitiated by an error of
         law.
      
      42      First, the fact that the order in EEB and Others v Commission, to which the President of the Court of First Instance referred, did not relate specifically to marketing authorisations
         cannot mean that the President was precluded from invoking it and drawing conclusions from it for the case before him. It
         is worth pointing out in that regard that the case‑law relied upon by the appellants and the intervener also does not relate
         to such authorisations or is not conclusive as to the nature of marketing rights.
      
      43      Second, it could be validly argued, on the basis of the order in EEB and Others v Commission, that the mere existence of marketing rights such as those in this case is not capable of individually distinguishing the
         holder of such a right if that right is granted, pursuant to a general and abstract rule, to objectively determined economic
         operators. It could also be validly inferred from the lists submitted by the Commission that numerous undertakings other than
         the appellants sell and use malathion and therefore have marketing rights in the same way as the appellants.
      
      44      Nor is it possible to identify an error of law in the assessment of the President of the Court of First Instance in relation
         to the effect of the letters of access to data held by Cheminova A/S. In view of their purpose and content, the President
         was entitled to conclude that the effect of those letters of access did not exceed that of the authorisations themselves,
         which were not considered to be such as to distinguish individually the appellants other than Cheminova A/S and the examination
         of which, in the context of the appeal, has not revealed, as is apparent from paragraphs 41 to 43 above, an error of law.
      
      45      Moreover, paragraph 105 of Pfizer Animal Health v Council expressly refers to a series of factors constituting a particular situation which differentiated the applicant in that case,
         as regards the measure in question, from all other traders concerned by that measure, so that the assessment of the President
         of the Court of First Instance – that the appellants other than Cheminova A/S could not validly invoke that judgment for the
         purpose of establishing that the contested decision was of individual concern to them by reason of the letters of access – cannot
         be considered to be vitiated by an error of law.
      
      46      As regards the appellants’ argument derived from Monsanto v Commission, it should be borne in mind that, by that judgment, the Court of First Instance held that a measure was of individual concern
         to a parent company where it was notified to its wholly-owned subsidiary. That status differentiated the parent company, in
         relation to the measure at issue, from all other persons and, in particular, from all other operators on the market in question.
         Unlike in that case, it is not the individual situation of the parent company which is at issue in the present case, but that
         of the subsidiaries. The appellants’ argument cannot thus prima facie undermine the finding of the President of the Court
         of First Instance that the contested decision was not of individual concern to the appellants other than Cheminova A/S.
      
      47      The appellants’ argument derived from Codorniu v Council, to the effect that Lodi SAS is individually concerned as the proprietor of a trade mark under which 16 malathion‑based insecticides
         are marketed, also cannot succeed. It does not appear at first sight that the appellants have established the existence of
         a situation which from the point of view of the contested decision differentiates Lodi SAS from all other traders who are
         proprietors of trade marks under which malathion‑based products are marketed (see Codorniu v Council, paragraph 22).
      
      48      As regards the alleged infringement of Article 104(1) of the Rules of Procedure of the Court of First Instance, it should
         be noted that, as the Commission has correctly observed, meeting the formal requirement of having challenged the Community
         measure in proceedings before the Court of First Instance or of being a party to a case before that Court is not sufficient
         to exempt the main action from any examination of whether it is admissible.
      
      49      The appellants’ argument concerning the negative consequences for large groups of undertakings of the reasoning adopted by
         the President of the Court of First Instance cannot succeed, inasmuch as that argument refers to the desirability of the result
         to which that reasoning leads, rather than to the reasoning itself. In any event, the principle referred to in paragraph 32
         above is dictated by considerations of economy of procedure and does not aim to confer on individuals rights capable of being
         relied on before the Community judicature.
      
      50      With regard to the appellants’ assertion that the factors which establish the admissibility of the application at first instance
         with regard to Cheminova A/S apply just as well to the other appellants, since the notification by Cheminova A/S of the application
         for the inclusion of malathion in Annex I to Directive 91/414 was made in the name of the entire group, it is necessary to
         point out that, by that argument, the appellants are invoking a factual situation which was not put before the Court of First
         Instance, so that it cannot be raised for the first time at the appeal stage (order in Case C‑96/01 P Galileo and Galileo International v Council [2002] ECR I‑4025, paragraph 43).
      
      51      In those circumstances, it is not possible to find that the assessment of the President of the Court of First Instance as
         to whether the appellants other than Cheminova A/S appear prima facie to be manifestly not entitled to apply to the Court
         of First Instance for annulment, in the main proceedings, of the contested decision is vitiated by an error of law.
      
       The second plea, alleging that the President of the Court of First Instance erred in law in his assessment of urgency
       Arguments of the parties
      52      The appellants, who claimed an irremediable loss of their market shares, submit that the reasoning of the President of the
         Court of First Instance in respect of urgency contains errors of law which vitiate his conclusion that they have not shown
         that Cheminova A/S would suffer serious and irreparable damage if suspension of the contested decision were not granted.
      
      53      In the first place, they claim that the President of the Court of First Instance wrongly excluded the evidence concerning
         the appellants other than Cheminova A/S. First, that error results from the President’s erroneous assessment of the admissibility
         of the application at first instance with regard to the appellants other than Cheminova A/S. Second, even if Cheminova A/S
         had lodged the interim application on its own, the figures relating to the other appellants would have had to be considered,
         since those companies are wholly or majority‑owned by Cheminova A/S.
      
      54      In the second place, they claim that the reasoning of the President of the Court of First Instance is insufficient and incoherent,
         in that he gave insufficient weight to relevant considerations and undue weight to irrelevant considerations. That plea is
         divided into four parts.
      
      55      First, the appellants claim, essentially, that the President of the Court of First Instance erred in law in taking into account
         the turnover of the group of companies to which Cheminova A/S belongs. They state that they do not invoke financial harm threatening
         their continued existence or exposing them to the risk of liquidation, harm which can potentially be offset by the financial
         support of a parent company. Instead, the principal head of damage suffered by the appellants is the loss of current market
         shares. That damage does not constitute harm of a purely financial nature and its temporary compensation is thus not dependent
         on the turnover of the group.
      
      56      In that regard, the intervener contends that the seriousness of the damage cannot be measured merely by referring to a percentage
         of the turnover of the group to which the appellants belong, but must be based on a qualitative assessment of all the circumstances
         of the case. The turnover test would lead to discrimination against multi‑product undertakings to the benefit of single‑product
         undertakings, as in practice only small companies not belonging to a group of companies would be able to satisfy such a test.
      
      57      In addition, according to the intervener, the size of the market share lost has never been regarded as an element indicative
         of the seriousness of the damage. The position adopted by the President of the Court of First Instance amounts to acknowledging
         that only large companies can benefit from interim relief to save their market position, but not small and medium‑sized undertakings.
      
      58      Second, the appellants claim that, in any event, the President of the Court of First Instance, by concentrating exclusively
         on the turnover of the group, failed to take into proper account the size of market share held by the appellants.
      
      59      Third, the appellants, supported by the intervener, criticise the President of the Court of First Instance for having disregarded
         the circumstances as a whole relied upon by the appellants – such as their presence in the malathion market for approximately
         40 years or the marketing authorisations for malathion‑based plant protection products which they hold for numerous uses in
         10 Member States – on the ground that these are historical considerations which disclose no economic and financial figures
         which could be taken into account to assess damage. The appellants refer to paragraph 205 of the order of the President of
         the Court of First Instance in Du Pont de Nemours (France) and Others v Commission and claim that it is wrong to classify as ‘historical’ considerations such as longstanding market presence, intellectual
         property rights or even research and development, since they are current and relevant in the context of the qualitative assessment,
         required by the case‑law, of the circumstances as a whole in the present case.
      
      60      Fourth, the President of the Court of First Instance erred in law in analysing the appellants’ arguments regarding maximum
         residue limits, the ‘oilseed rape project’ concerning the supply of the oilseed rape sector with malathion and the losses
         suffered by the appellants in non‑Member States.
      
      61      The Commission contests the arguments of the appellants and the intervener.
      
       Findings of the Court
      62      It must be borne in mind that, according to settled case‑law, the urgency of an application for interim measures must be assessed
         in relation to the necessity for an interim order in order to prevent serious and irreparable damage to the party applying
         for those measures (see, inter alia, the order of the President in Case C‑329/99 P(R) Pfizer Animal Health v Council [1999] ECR I‑8343, paragraph 94).
      
      63      Purely pecuniary damage cannot in principle be regarded as irreparable or even as difficult to repair since it may be the
         subject of subsequent financial compensation (order in Case 141/84 R de Compte v Parliament [1984] ECR 2575, paragraph 4).
      
      64      The Court has held that, where the party applying for interim relief claims loss of its market share, it must demonstrate
         that obstacles of a structural or legal nature prevent it from regaining a significant proportion of that market share (order
         of the President in Case C-471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, paragraph 111).
      
      65      In that regard, even if, on the basis of the abovementioned arguments relied on by the appellants, the damage suffered by
         Cheminova A/S is more serious than that acknowledged by the President of the Court of First Instance, those arguments are
         not liable to invalidate his finding that the damage could not be considered to be irreparable.
      
      66      The intervener contends that the President of the Court of First Instance erred in law when assessing the irreparability of
         the damage, in requiring the appellants to establish that it would be impossible for them to regain the lost market shares
         if the interim relief applied for were not granted. The appellants are not required to demonstrate the impossibility of regaining
         lost market shares but must show instead the great difficulty they would face in wishing to regain them.
      
      67      However, provided that the President of the Court of First Instance does not disregard the test referred to in paragraph 64
         above, relating to the existence of obstacles of a structural or legal nature which prevent an undertaking from regaining
         a significant proportion of its market share, it cannot be found that he erred in law in his assessment of the irreparable
         nature of the damage.
      
      68      In the present case, it does not appear that the President of the Court of First Instance applied a different test or that
         he failed to examine the obstacles potentially preventing Cheminova A/S from regaining a significant proportion of its market
         share. In fact, he took into account factors such as malathion’s substitutability, its efficacy, Cheminova A/S’s profit margin
         and the willingness of vendors to sell and of customers to use malathion again, even if, as appears normal, only under certain
         conditions.
      
      69      Accordingly, it cannot be inferred solely from his use of the word ‘impossible’ that the President of the Court of First Instance
         required Cheminova A/S to prove any more than its claim that obstacles of a structural or legal nature prevented it from regaining
         a significant proportion of its market share (see the order of the President in Case C-236/07 P(R) Sumitomo Chemical Agro Europe v Commission, paragraph 24).
      
      70      Furthermore, according to the appellants, the President of the Court of First Instance erred in law in his assessment, in
         that he failed to give appropriate weight to the structural obstacles which are a feature of the market concerned, as explained
         in the Phillips McDougall report which had been submitted to him. More specifically, it follows from that report, first, that
         the market in malathion is a strongly competitive one in which ‘deep‑pocket’ competitors are able to offer products for all
         requirements. Second, the portfolio of Cheminova A/S’s products is far more limited than that of its main competitors, so
         that ‘pull-through’ from sales of other products from the portfolio is far less significant, making the potential retrieval
         of malathion sales much more difficult, were it subsequently to be authorised anew.
      
      71      In that regard it is for the Court of First Instance alone to assess the value which should be attributed to the evidence
         produced to it. That assessment does not, therefore, constitute, save where the clear sense of the evidence submitted to the
         Court of First Instance has been distorted, a point of law which is subject to review by the Court of Justice (see, inter
         alia, Case C‑411/04 P Salzgitter Mannesmann v Commission [2007] ECR I‑959, paragraph 55).
      
      72      In any event, the evidence upon which the appellants rely cannot establish that, in his assessment, the President of the Court
         of First Instance erred in law.
      
      73      First, the fact that the market in malathion is a strongly competitive one cannot be considered, in itself, to be a structural
         obstacle preventing the regaining of a significant proportion of the share in that market, inasmuch as it reflects a more
         or less inherent factor of every market in which a number of competitors are active.
      
      74      Second, the fact that Cheminova A/S’s ‘deep pocket’ competitors are able to offer products for all requirements and that the
         sales of those other products offer them ‘pull-through’ not available to Cheminova A/S by reason of its limited portfolio
         of products could be considered to be an obstacle of a structural nature. However, the other factors which the President of
         the Court of First Instance took into account suffice to support the conclusion he reached, that is, that it is not impossible
         that Cheminova A/S will be able to overcome those obstacles and regain a significant proportion of its market share.
      
      75      The ‘pull-through’ from which Cheminova A/S does not benefit because of its limited portfolio of products appears capable
         of being offset, at least to a significant extent, by the qualities of its malathion‑based products, in particular their broad
         spectrum of activity and their effectiveness, which have gained Cheminova A/S a particularly high percentage share in the
         market for that substance. In addition, as regards prices, a return to the market could be facilitated by the relatively high
         profit margin on certain of the malathion‑based products. Those assessments are in fact supported by the replies provided
         in the survey of some of the appellants’ customers.
      
      76      It follows from all of the foregoing considerations that the assessment of the President of the Court of First Instance of
         whether the damage suffered by Cheminova A/S was irreparable and, accordingly, of urgency is not vitiated by an error of law.
      
       The third plea, alleging a breach of procedure at first instance because of the failure to hold a hearing
       Arguments of the parties
      77      The appellants see a contradiction in the fact that the President of the Court of First Instance found, on the one hand, that
         he had all the material necessary to rule on the application and, on the other, that the figures supplied by the appellants
         concerning the damage suffered on the Community market did not appear sufficiently precise to establish urgency for Cheminova A/S.
      
      78      They claim that they could not reasonably have foreseen the outcome of the examination concerning the admissibility of their
         application for interim relief and thus could not have foreseen the need to present individualised data for each subsidiary.
         A hearing would have greatly assisted them in ascertaining the figures required as a result of the President’s change in legal
         approach to the assessment of admissibility.
      
      79      In any event, they claim that the figures that the President of the Court of First Instance concludes are lacking from the
         body of the interim application can indeed be found in the documents lodged at the Court of First Instance.
      
      80      The Commission contests the appellants’ arguments.
      
       Findings of the Court
      81      In this regard, suffice it to state that, since the Rules of Procedure of the Court of First Instance do not contain any provision
         on the oral procedure in the context of applications for interim relief, it is for the President of the Court of First Instance
         to assess whether it is necessary to hold a hearing and hear oral submissions from the parties. The President must in fact
         enjoy broad discretion in that regard.
      
      82      In the present case, there is no evidence in the file to support the conclusion that the President of the Court of First Instance
         exceeded the limits of that discretion.
      
      83      Accordingly, the plea based on the fact that the President of the Court of First Instance did not hold a hearing must be dismissed.
      
      84      Having regard to all the foregoing considerations, the appeal must be dismissed.
      
       Costs
      85      Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful
         party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since the Commission
         has applied for an order for costs against the appellants and they have been unsuccessful, the appellants must be ordered
         to pay the costs.
      
      86      In addition, in accordance with Article 69(4) of the Rules of Procedure, which similarly applies to appeal proceedings by
         virtue of Article 118 thereof, European Crop Protection Association (ECPA), which intervened in support of the appellants,
         must bear its own costs.
      
      On those grounds, the Court hereby orders:
      1.      The appeal is dismissed.
      2.      Cheminova A/S, Cheminova Agro Italia Srl, Cheminova Bulgaria EOOD, Agrodan SA and Lodi SAS shall pay the costs.
      3.      European Crop Protection Association (ECPA) shall bear its own costs.
      [Signatures]
      * Language of the case: English.