Sygn. akt T-467/07
ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
March 2008 (*)
(Application for interim relief – Directive 91/414/EEC – Application for suspension of operation of a measure – Admissibility – No urgency)
In Case T‑467/07 R,
Du Pont de Nemours (France) SAS, established in Puteaux (France),
Du Pont Portugal – Serviços, Sociedada Unipessoal, Lda, established in Lisbon (Portugal),
Du Pont Ibérica, SL, established in Barcelona (Spain),
E. I. du Pont de Nemours & Co. USA, established in Wilmington, Delaware (United States),
Du Pont de Nemours Italiana Srl, established in Milan (Italy),
Du Pont De Nemours (Nederland) BV, established in Dordrecht (Netherlands),
Du Pont de Nemours (Deutschland) GmbH, established in Bad Homburg von der Höhe (Germany),
DuPont Poland sp. z o.o., established in Warsaw (Poland),
DuPont Romania Srl, established in Bucharest (Romania),
DuPont International Operations SARL, established in Le Grand-Saconnex (Switzerland),
Du Pont de Nemours International SA, established in Le Grand-Saconnex,
DuPont Solutions (France) SAS, established in Puteaux,
Du Pont Agro Hellas AE, established in Khalandri (Greece),
represented by D. Waelbroeck and I. Antypas, lawyers,
applicants,
v
Commission of the European Communities, represented by L. Parpala and B. Doherty, acting as Agents,
defendant,
APPLICATION for suspension of the operation of Commission Decision 2007/628/EC of 19 September 2007 concerning the non-inclusion of methomyl in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 255, p. 40), until delivery of the judgment in the main proceedings,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Background
The present interim order falls within a complex legal framework, laid down by 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; ‘the Directive’), and by Commission Regulation (EC) No 451/2000 of 28 February 2000 laying down the detailed rules for the implementation of the second and third stages of the work programme referred to in Article 8(2) of the Directive (OJ 2000 L 55, p. 25) as amended by Commission Regulation (EC) No 1490/2002 of 14 August 2002 laying down further detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of the Directive (OJ 2002 L 224, p. 23) (see, for an exposition of the provisions concerned, the order of the President of the Court of First Instance of 17 December 2007 in Case T-367/07 R Dow AgroSciences and Others v Commission, not published in the ECR, paragraphs 1 to 8 and 10 to 20).
Du Pont de Nemours (France) SAS, Du Pont Portugal – Serviços, Sociedada Unipessoal, Lda, Du Pont Ibérica, SL, E. I. du Pont de Nemours & Co. USA, Du Pont de Nemours Italiana Srl, Du Pont De Nemours (Nederland) BV, Du Pont de Nemours (Deutschland) GmbH, DuPont Poland sp. z o.o., DuPont Romania Srl, DuPont International Operations SARL, Du Pont de Nemours International SA, DuPont Solutions (France) SAS and Du Pont Agro Hellas AE, the applicants in the present case, produce and market methomyl and methomyl-based plant protection products under the trade name ‘Lannate’. Methomyl is used in broad spectrum insecticides which combat insect species harmful to fruit and vegetables. While the active substance is manufactured in the United States, the plant protection products are manufactured in Cernay (France) for Europe, the Middle East and Africa. Products containing methomyl are currently authorised in 14 Member States.
On 7 July 2000 Du Pont de Nemours (France), through a contact person attached to Du Pont de Nemours (Deutschland), notified the Commission of its wish to secure the inclusion of methomyl in Annex I to the Directive. The Commission accepted the notification, from which time Du Pont de Nemours (France) participated in the review of methomyl, and the latter submitted a dossier to the United Kingdom of Great Britain and Northern Ireland, the rapporteur Member State, which was evaluated by that State pursuant to Article 8 of Regulation No 451/2000.
In the course of the evaluation procedure, the rapporteur Member State requested the notifier on a number of occasions to provide additional information.
The United Kingdom of Great Britain and Northern Ireland forwarded its draft assessment report to the European Food Safety Authority (EFSA) on 28 April 2004. This draft assessment report was the subject of peer review by the Member States and EFSA. The review lasted from 28 June 2004 to 23 June 2006, EFSA and the Member States having agreed in February 2005 at the first evaluation meeting on the need to have additional data.
The notifier maintains that it was never officially informed of the outcome of the meetings organised in the context of the peer review and was accordingly never formally requested to address the outstanding points. However, it claims that, having become aware thereof, it immediately put together the necessary information and sent a revised assessment of the relevant risks to the rapporteur Member State. These scientific documents relating to the assessment of methomyl were nevertheless not examined by EFSA.
On 23 June 2006 EFSA submitted to the Commission its report ‘Conclusion regarding the peer review of the pesticide risk assessment of the active substance methomyl’. The Member States and the Commission then examined the issue within the Standing Committee on the Food Chain and Animal Health. After receiving comments from Du Pont de Nemours (France) on the EFSA report in August 2006, the Commission prepared a first proposal for a decision in September 2006, providing that methomyl not be included in Annex I to the Directive. This was followed in March 2007 by a revised proposal for a decision, still providing that methomyl not be included, but it did not obtain a qualified majority in the Standing Committee.
Since the Standing Committee on the Food Chain and Animal Health had not delivered an opinion within the period laid down, in June 2007 the Commission submitted to the Council a proposal for a decision concerning the non-inclusion of methomyl in Annex I to the Directive. On the expiry of the period laid down in the second subparagraph of Article 19(2) of the Directive, the Council had not adopted the proposed implementing measure, succeeded in reaching a common position or indicated its opposition to the proposal. In accordance with the comitology procedure, it was thus for the Commission to adopt the relevant measures.
Thus, on 19 September 2007 the Commission adopted Decision 2007/628/EC concerning the non-inclusion of methomyl in Annex I to the Directive and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 255, p. 40; ‘the contested decision’), the operative part of which is worded as follows:
‘Article 1
Methomyl shall not be included as an active substance in Annex I to [the] Directive ...
Article 2
Member States shall ensure that:
(a) authorisations for plant protection products containing methomyl are withdrawn by 19 March 2008;
(b) no authorisations for plant protection products containing methomyl are granted or renewed from the date of publication of this Decision.
Article 3
Any period of grace granted by Member States in accordance with the provisions of Article 4(6) of [the] Directive … shall be as short as possible and shall expire on 19 March 2009.
Article 4
This Decision is addressed to the Member States.’
The justification given in the contested decision for not including methomyl as an active substance in Annex I to the Directive was that, during the evaluation of that active substance, a number of concerns were identified. Thus, the contested decision stated that, on the basis of the available information, the operator exposure would exceed the acceptable operator exposure level and it had not been demonstrated that the worker and bystander exposure was acceptable. It added that, with regard to ecotoxicology, there were concerns due to a high risk for birds and mammals, aquatic organisms, bees and non-target arthropods (recital 5).
Despite the arguments put forward by the notifier, the Commission took the view that the concerns remained unsolved. It considered that assessments made on the basis of the information submitted and evaluated during the EFSA expert meetings had not demonstrated that it could be expected that, under the proposed conditions of use, plant protection products containing methomyl satisfied in general the requirements laid down by the Directive (recital 6).
Procedure and forms of order sought
By application lodged at the Registry of the Court of First Instance on 21 December 2007, the applicants brought an action seeking, in particular, annulment of the contested decision.
By separate document, lodged at the Court Registry on the same day, they brought the present application for interim measures, in which they claim that the President of the Court of First Instance should:
– suspend, until the date of entry into force of a directive for the inclusion of methomyl in Annex I to the Directive or, at the latest, until the delivery of the judgment of the Court in the main proceedings, the implementation of the contested decision;
– order the Commission to pay the costs.
In its written observations lodged at the Court Registry on 18 January 2008, the Commission contends that the President of the Court should:
– dismiss the application for interim measures as inadmissible in part and unfounded as to the remainder;
– order the applicants to pay the costs.
On 23 January 2008 the President of the Court asked the applicants certain questions. The applicants replied in writing within the time-limit set.
Law
Under Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the Court of First Instance may, if it considers that circumstances so require, order that application of the act contested before it be suspended or prescribe any necessary interim measures.
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 for the interim measures applied for. Thus, the judge hearing the application may order suspension of operation of an act and interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is not satisfied (order in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). Where appropriate, the judge hearing the application must also weigh up the interests involved (see the order in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73, and the case cited).
In addition, in the context of that overall examination, the judge hearing the application has a wide 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 in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of the President of the Court of Justice of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
Having regard to the documents in the case, and in particular the applicants’ replies to the questions asked, the President of the Court considers that he has all the material needed in order to rule on the present application for interim measures and that it is not expedient first to hear oral argument from the parties.
Admissibility
Arguments of the parties
The Commission submits that none of the applicants other than the notifier of methomyl is individually concerned, for the purposes of the fourth paragraph of Article 230 EC, by the contested decision. As is apparent from three lists annexed to the Commission’s observations, there are numerous companies apart from those other applicants which are authorised to sell products containing methomyl. Consequently the main action and, therefore, the application for interim measures should be declared inadmissible so far as concerns those applicants.
In the applicants’ submission, the main action is admissible under the fourth paragraph of Article 230 EC because it is directed against a measure which produces binding legal effects that are of direct and individual concern to the applicants. First, Du Pont de Nemours (France), as the notifier of methomyl, is without doubt entitled to bring the main proceedings.
Second, as regards the applicants other than Du Pont de Nemours (France), they all hold national marketing authorisations for methomyl-based plant protection products, granted to them by the competent Member State authorities. Holders of marketing authorisations for pharmaceutical products can claim individual concern where they are effectively deprived through the contested measure of such authorisations which were previously granted specifically to them (Case T‑120/96 Lilly Industries v Commission [1998] ECR II‑2571; Case T-112/97 Monsanto v Commission [1999] ECR II-1277; and Joined Cases T-125/96 and T‑152/96 Boehringer v Council and Commission [1999] ECR II‑3427).
In the present case, the applicants other than Du Pont de Nemours (France) hold marketing authorisations for methomyl-based products in 14 Member States, which were awarded to each of them specifically following the submission of an extensive dossier on the basis of which the national authority authorised the sale of the product in question. In addition to the submission of a dossier for the authorisation, each of those applicants was involved in the authorisation procedure. As a result of the contested decision, the applicants other than Du Pont de Nemours (France) are thus deprived of specific rights awarded to them alone through national marketing authorisation procedures. The case-law recognises an applicant’s individual concern where he has a specific right that deserves protection so that the institution is under a duty to take account of the consequences of the measure it envisages adopting for that right and hence for the situation of the individuals concerned when it deprives them of that right (Case C‑309/89 Codorníu v Council [1994] ECR I‑1853 and Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II‑2305).
Nor do the applicants other than Du Pont de Nemours (France) need to be the only holders of a marketing authorisation for a given product in order to be individually concerned. If other companies also have marketing authorisations, they too are individually concerned by an act depriving them of their own specific right. Thus, a distinction should be drawn between, on the one hand, a system where marketing authorisations are not linked to specific manufacturers so that any person who meets the criteria can market the product in question and, on the other hand, situations where, as here, the rules link the authorisations for the product to the persons responsible for putting it into circulation – who are individually concerned by a measure depriving them of such authorisations (Case T-13/99 Pfizer Animal Health v Council [2002] ECR II‑3305, paragraphs 92 and 93). The applicants refer finally to the judgment in Case T-70/99 Alpharma v Council [2002] ECR II‑3495, at paragraph 90, according to which data protection rights of an applicant that closely resembled a specific right comparable to the right on which the applicant undertaking could rely in Codorníu v Council, cited in paragraph 23 above, were accepted as individually distinguishing the applicant for the purposes of the fourth paragraph of Article 230 EC. In none of those cases was it required that only one person be individually concerned by the contested act.
Findings of the President of the Court
By virtue of Article 104(1) of the Rules of Procedure, an application for interim measures is admissible only if it is made by a party to a case that is before the Court. This rule implies that the main action, to which the application for interim measures relates, can in fact be examined by the Court.
It is settled case-law that in principle the admissibility of the main action should not be examined in proceedings for interim measures so as not to prejudge the case in the main proceedings. Nevertheless, where it is contended that the main action to which the application for interim measures relates is manifestly inadmissible, it may prove necessary to establish whether there are any grounds for concluding prima facie that the main action is admissible (orders in Case C‑300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council and Commission [2000] ECR I-8797, paragraph 34; in Case T-236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 42; and in Case T‑155/02 R VVG International and Others v Commission [2002] ECR II‑3239, paragraph 18).
Such examination of the admissibility of the main action is necessarily summary because proceedings for interim measures are by nature urgent (Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council and Commission, cited in paragraph 26 above, paragraph 35).
In the context of an application for interim measures, the admissibility of the main action can be assessed only on a prima facie basis, the aim being to examine whether the applicant has adduced sufficient evidence or arguments justifying the prima facie conclusion that the admissibility of the main action cannot be excluded. The judge hearing the application for interim measures should declare that application inadmissible only where admissibility of the main action can be wholly excluded. To rule, at the stage of the proceedings for interim measures, on the admissibility of the main action when its admissibility is not, prima facie, wholly excluded would be tantamount to prejudging the Court of First Instance’s decision in respect of that action (orders in Case T-342/00 R Petrolessence and SG2R v Commission [2001] ECR II-67, paragraph 17; in Joined Cases T-195/01 R and T-207/01 R Government of Gibraltar v Commission [2001] ECR II-3915, paragraph 47; and in Case T-37/04 R Região autónoma dos Açores v Council [2004] ECR II‑2153, paragraph 110).
In the present case, the Commission contends that the main action is partly inadmissible.
It is to be noted first of all that the Commission, while contesting that the applicants other than Du Pont de Nemours (France) are entitled to bring the main proceedings, expressly acknowledges that Du Pont de Nemours (France) is so entitled. Indeed, since Du Pont de Nemours (France), in its capacity as notifier of methomyl, did participate in the procedure for the assessment of an active substance provided for by the Directive and benefits from the procedural guarantees provided for by the relevant legislation, it cannot be excluded, at first sight, that the contested decision is of direct and individual concern, within the meaning of the fourth paragraph of Article 230 EC, to Du Pont de Nemours (France) and that the main application made by it is admissible (see, to this effect, the order of the President of the Court of First Instance of 19 July 2007 in Case T‑31/07 R Du Pont de Nemours (France) and Others v Commission, not yet published in the ECR, paragraph 112).
In those circumstances, since 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 (see, to this effect, Case C-313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraph 31; Joined Cases T-447/93 to T‑449/93 AITEC and Others v Commission [1995] ECR II‑1971, paragraph 82; and Case T-374/00 Verband der freien Rohrwerkeand Others v Commission [2003] ECR II‑2275, paragraph 57). That case-law, founded on considerations relating to economy of procedure, is justified by the fact that, even if one or other of those applicants were not entitled to bring proceedings, the Court should nevertheless consider the substance of the pleas for annulment put forward in their entirety (see, to this effect, the judgment of the Court of First Instance of 9 July 2007 in Case T-282/06 Sun Chemical Group and Others v Commission, not yet published in the ECR, paragraph 52).
It must be stated, however, that while the case-law referred to in the preceding paragraph is, where relevant, to be taken into consideration in the main proceedings, it cannot apply in proceedings for interim measures.
The grant of interim relief is subject to specific conditions, in particular the condition relating to the urgency of the relief sought. In accordance with settled case-law, urgency must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the relief. 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 (orders in Case 142/87 R Belgium v Commission [1987] ECR 2589, paragraph 23, and in Case C-356/90 R Belgium v Commission [1991] ECR I‑2423, paragraphs 20 and 23).
It follows 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 were not granted. In the absence of such a restriction it would be sufficient, in order to obtain interim relief, for undertakings concerned by a Community measure to join forces and collectively bring an action for annulment – accompanied by an application for interim measures – which would be brought by applicants only one of whom would be entitled to bring proceedings for the purposes of the fourth paragraph of Article 230 EC while the others could only show themselves to be the victim of serious and irreparable damage.
In the present context, it must therefore be examined whether the applicants other than Du Pont de Nemours (France) appear prima facie to be manifestly not entitled to apply to the Court for annulment, in the main proceedings, of the contested decision.
The applicants other than Du Pont de Nemours (France) must satisfy the criteria laid down by the fourth paragraph of Article 230 EC, according to which any natural or legal person may institute proceedings against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
It must be stated at the outset that, while the applicants submit that the system of notification was designed in such a way to take advantage of the fact that a notifier may effectively represent an entire corporate group, there is nothing in the case file to permit the conclusion that Du Pont de Nemours (France) notified methomyl not only in its own name, but also for and on behalf of the other companies belonging to the Du Pont de Nemours group.
Also, the contested decision constitutes prima facie an act of general application in that it applies to objectively determined situations and entails legal effects in respect of categories of persons envisaged in a general and abstract manner. Articles 1 to 3 of the contested decision concern an active substance, methomyl, and economic operators who hold marketing authorisations that are referred to in a general and abstract manner. Accordingly, in light of those provisions and subject to the existence of characteristics which are peculiar to them, those economic operators are prima facie affected by the contested decision in the same manner and placed in an identical situation.
The possibility remains however that, in certain circumstances, the provisions of this measure of general application may be of individual concern to some of them (Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501, paragraph 13; Codorníu v Council, cited in paragraph 23 above, paragraph 19; and Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 36).
In accordance with settled case-law, natural or legal persons other than the person to whom a measure is addressed can claim that the measure is of individual concern to them, within the meaning of the fourth paragraph of Article 230 EC, only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee would be (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Codorníu v Council, cited in paragraph 23 above, paragraph 20; Unión de Pequeños Agricultores v Council, cited in paragraph 39 above, paragraph 36; and Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 45).
The possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them, as long as such application takes effect by virtue of an objective legal or factual situation defined by the measure in question (order in Case C-131/92 Arnaudand Others v Council [1993] ECR I-2573, paragraph 13; order in Case C‑409/96 P Sveriges Betodlares and Henrikson v Commission [1997] ECR I‑7531, paragraph 37; and Case T‑138/98 ACAV and Others v Council [2000] ECR II‑341, paragraph 64).
In the present case, it seems that, far from being individually distinguished by attributes peculiar to them, the applicants other than Du Pont de Nemours (France) are affected in the same way as all the other vendors of methomyl in the same situation. The contested decision contains nothing tangible to support the conclusion that it was adopted having regard to the particular situation of the applicants other than Du Pont de Nemours (France). It seems therefore that it is solely by reason of their objective position as economic operators covered by the contested decision that those applicants might claim to be affected by it. An effect of that kind is not sufficient for individual concern within the meaning of the fourth paragraph of Article 230 EC. None of the arguments to the contrary put forward by the applicants allows this assessment to be called into question.
So far as concerns the fact that the applicants other than Du Pont de Nemours (France) hold national marketing authorisations for methomyl, the mere existence of such marketing rights, which is potentially called into question by the contested decision, is not capable of individually distinguishing the holder of the right where the right is granted, pursuant to a general and abstract rule, to objectively determined economic operators (see, to this effect, the order in Case T-94/04 EEB and Others v Commission [2005] ECR II‑4919, paragraphs 53 to 55). The Commission has demonstrated, by adducing three lists annexed to its observations, that a number of undertakings other than the applicants exist which sell methomyl too and which therefore have marketing rights in the same way as the applicants. The applicants have not disputed that those undertakings referred to by the Commission are present on the market.
While the applicants submit that their marketing rights were granted following a long assessment procedure and on the basis of an extensive and costly dossier, suffice it to state that all the holders of such rights, including holders not belonging to the Du Pont de Nemours group, necessarily had to meet the same conditions. Consequently, those requirements are not capable of individually distinguishing the applicants other than Du Pont de Nemours (France). As the Commission has rightly pointed out, the matter at issue here is a consequence of the general national rules implementing Article 4 of the Directive, which requires the Member States to examine plant protection products before allowing them to be placed on the market.
The applicants submit however that, pursuant to Article 13 of the Directive, inclusion in Annex I thereto confers on the notifier data protection rights covering the registration dossier; any person wishing to obtain a national marketing authorisation is required to have obtained a right to refer to that dossier. Since they belong to the same group as the notifier, all the applicants other than Du Pont de Nemours (France) enjoy automatic access to the protected data, a fact which distinguishes them from the other holders of a marketing authorisation.
As to those submissions, only the notifier holds the data protection rights conferred by the Directive. It follows that all holders of a national marketing authorisation for methymol, including those not belonging to the Du Pont de Nemours group, necessarily had to obtain the right to refer to the protected data of Du Pont de Nemours (France). The mere fact that companies belonging to the group could gain access to those data more easily than other economic operators – access which they could be granted in particular in the form of agreement of the notifier for use of its data pursuant to Article 13(3)(a) and (4)(a) of the Directive – is not sufficient to confer upon them the specific legal position that was held by Du Pont de Nemours (France). Since this circumstance involves no more than facilitating the grant of national marketing authorisations for methomyl to them, it is not capable of individually distinguishing the applicants other than Du Pont de Nemours (France).
Nor can the case-law relied upon by the applicants be interpreted as meaning that the applicants other than Du Pont de Nemours (France), as holders of national marketing authorisations for methomyl, are individually concerned by the contested decision.
First, in Lilly Industries v Commission, cited in paragraph 22 above (paragraphs 53, 58 and 63), the applicant applied to the competent national authorities for marketing authorisation in respect of a pharmacological substance, prompting them to initiate the Community procedure laid down for that purpose. In the course of the procedure the Commission contacted the applicant directly, informing it that the authorisation applied for would be granted very soon. After waiting in vain for several months, the applicant formally requested the Commission to grant it authorisation, following which the Commission, by a decision addressed to the applicant amongst others, rejected the application for authorisation. While the action for annulment of that decision was declared admissible, the reason for this was therefore, in particular, the applicant’s special procedural position. By rejecting its application, the decision at issue brought to a close a procedure commenced by the applicant itself. In the present case that is clearly not the procedural position of the applicants other than Du Pont de Nemours (France).
Second, the same is true of Boehringer v Council and Commission, cited in paragraph 22 above (paragraphs 165, 168 and 169). While the action for partial annulment of a Commission regulation establishing maximum residue limits (‘MRLs’) for a veterinary medicinal product was declared admissible, the applicant had formally applied to the Commission for the establishment of such MRLs and the contested regulation was adopted in response to that request and on the basis of the applicant’s dossier. The regulation laying down a Community procedure for the establishment of MRLs expressly provided that, as the undertaking responsible for the marketing of the medicinal product concerned, the applicant should be involved in the procedure for establishing MRLs, a fact which led the Court to accept that the applicant was in a particular situation differentiating it from all other traders.
Third, in Pfizer Animal Health v Council and Alpharma v Council, cited in paragraph 24 above, the Court declared actions for the annulment of a Council regulation withdrawing the authorisation of a number of antibiotics to be admissible, not solely because the applicants had the status of holders of a marketing authorisation but in the light of a series of factors constituting a particular situation.
The withdrawal occurred in the course of the procedure for re-evaluating the authorisation of the substances in question, which had been initiated by the applicants. Also, each of the two applicants was, respectively, the only producer of the substance, and the only person in a legal position which would have enabled it to obtain, under the relevant procedural rules, authorisation to market the substance as the person first responsible for putting it into circulation. Moreover, each of the applicants had, by virtue of having made an application for a further authorisation, obtained a position that was legally safeguarded because the scientific data in the dossier submitted by it could not be used for the benefit of other applicants; it could therefore rely on elements closely resembling a specific right comparable to the right at issue in Codorníu v Council, cited in paragraph 23 above. Finally, the applicants had the benefit of procedural guarantees which were such as to distinguish them (Pfizer Animal Health v Council, cited in paragraph 24 above, paragraphs 91, 97, 98, 104 and 105, and Alpharma v Council, cited in paragraph 24 above, paragraphs 83, 89, 90, 96 and 97).
The applicants other than Du Pont de Nemours (France) are all unable to invoke a series of factors as set out above. The position of the applicants Pfizer Animal Health and Alpharma seems rather to be similar to that of Du Pont de Nemours (France) alone as the notifier of methymol.
Even if the contested decision were capable of producing different effects depending on the particular holder of a national marketing authorisation for methomyl, that fact would not be sufficient to demonstrate that the applicants other than Du Pont de Nemours (France) have attributes peculiar to them or are in a factual situation which differentiates them from the economic operators referred to in the lists adduced by the Commission. The applicants have not explained in the application for interim measures to what extent their marketing rights would be specially affected by the adverse consequences of the contested decision in a manner that would distinguish them from any other operator in the category in question (see, to this effect, the order of the Court of First Instance of 11 September 2007 in Case T-28/07 Fels-Werke and Others v Commission, not published in the ECR, paragraph 63).
So far as concerns the argument based on the applicants other than Du Pont de Nemours (France) being part of the same undertaking as the notifier of methomyl by virtue of their status as wholly-owned subsidiaries of the parent company of the same group, the applicants do not plead case-law of the Court of Justice stating that a decision of individual concern to a subsidiary automatically concerns individually the other subsidiaries and the parent company belonging to the same group. Nor does it appear from the case-law of the Court of First Instance relied upon by the applicants that the Court of First Instance has accepted that companies in the same group are individually distinguished in this way.
First, in Boehringer v Council and Commission, cited in paragraph 22 above (paragraphs 174 and 175), the Court of First Instance, after declaring admissible the action for annulment brought by the subsidiary Boehringer Ingelheim Vetmedica which had been found to be individually concerned (see paragraph 49 above), expressly left open the question whether, in so far as the action had been brought by the parent company C.H. Boehringer Sohn too, it was admissible for the sole reason that the two companies belonged to the same group. Referring in particular to CIRFS and Others v Commission, cited in paragraph 31 above, the Court decided that, as a single action was involved, it was not necessary to examine whether the parent company had the capacity to bring proceedings since the action brought by its subsidiary was admissible in any event.
Second, while it is true that in Monsanto v Commission, cited in paragraph 22 above (paragraph 58), the Court found that a parent company (Monsanto Company) was individually concerned by a measure notified to its wholly-owned subsidiary (Monsanto Europe), it appears that this reasoning can be explained only by the very specific circumstances of that case. Such circumstances do not obtain in the present case.
The contested decision in the present case is a measure of general application which is addressed to the Member States alone and concerns Du Pont de Nemours (France) solely as an interested third party, whereas the measure at issue in Monsanto v Commission, cited in paragraph 22 above, was formally addressed by the Commission under Article 2 thereof to ‘Monsanto Company’ and rejected the application which had been made by Monsanto Europe for authorisation of a veterinary medicinal product. Furthermore, Monsanto Company had invented the product in question, developed it and was the worldwide coordinator of its commercial exploitation. In the present case, it is not apparent from the application for interim measures that the applicants other than Du Pont de Nemours (France) play such a role in relation to methomyl.
As regards the applicants’ assertion of specific rights in accordance with Codorníu v Council, cited in paragraph 23 above, which they claim to possess as holders of national marketing authorisations, it is true that the Court of Justice held in that judgment (at paragraph 21) that the Spanish proprietor of the trade mark Gran Cremant de Codorniu, which had traditionally used that mark, was individually concerned by a provision of a general nature under which only French and Luxembourg producers were entitled to use the term ‘crémant’, given that the provision prevented that proprietor from using its mark. The proprietor was therefore, in a way, ‘expropriated’ by that provision, since use of the designation in question was restricted to other economic operators (see, to this effect, the order in Case T-196/03 EFfCI v Parliament and Council [2004] ECR II‑4263, paragraph 58). However, that is not the case here, as the contested decision does not seek in the slightest to restrict a specific intellectual property right regarding methomyl to certain operators to the detriment of the applicants.
It is true that in Pfizer Animal Health v Council and Alpharma v Council, cited in paragraph 24 above, the Court of First Instance found elements closely resembling a specific right comparable to the right at issue in Codorníu v Council, cited in paragraph 23 above, upon which the applicants were able to rely because the scientific data in their dossiers could not be used by other economic operators. However, that particular legal situation of the applicants was recognised because they had taken all the steps necessary in order in particular to acquire the status of person first responsible for putting the substance at issue into circulation, for the purposes of the relevant Community legislation (Pfizer Animal Health v Council, cited in paragraph 24 above, paragraph 99, and Alpharma v Council, cited in paragraph 24 above, paragraph 91). In the present case, the applicants other than Du Pont de Nemours (France) cannot invoke a comparable legal position by putting forward solely their national marketing authorisations for methomyl.
In any event, such a national marketing authorisation constitutes only a derogation, granted by the competent authority, from the prohibition on placing potentially hazardous substances on the market and cannot, as such, come under industrial and commercial property rights or intellectual property rights (trade marks, patents and so forth), which confer an exclusive marketing right.
The applicants further submit, in support of their being individually distinguished for the purposes of the fourth paragraph of Article 230 EC, that it would be paradoxical that judicial protection should lessen as the number of persons affected by a measure increases. In so far as they refer, in this regard, to the judgment in Case T-177/01 Jégo-Quéré v Commission [2002] ECR II‑2365, at paragraph 51, according to which ‘the number and position of other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard’, it need merely be observed that this judgment of the Court of First Instance was set aside by the Court of Justice (Commission v Jégo-Quéré, cited in paragraph 40 above) specifically because that provision of the Treaty was misinterpreted.
Finally, the line of argument concerning the Commission’s alleged duty to take account of the consequences of the contested decision for the situation of the applicants other than Du Pont de Nemours (France) should also be rejected. It is settled case-law that the institution which adopts a measure is obliged to take the specific situation of the individuals concerned into account only if a rule of law superior to the measure in question has required it to take account of the specific situation of those individuals as compared with that of any other person concerned by the same measure (see EFfCI v Parliament and Council, cited in paragraph 58 above, paragraph 53, and the order in Joined Cases T-54/00 and T‑73/00 Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2001] ECR II-2691, paragraph 53). Here, no such obligation was imposed on the Commission for the adoption of the contested decision.
It follows from the foregoing that the contested decision cannot, prima facie, be considered to be of individual concern to the applicants other than Du Pont de Nemours (France). These applicants are thus not entitled to bring the present application for interim measures.
On the other hand, the application for interim measures is admissible so far as concerns Du Pont de Nemours (France).
Urgency
In the applicants’ submission, the urgency for granting the present application stems from the fact that the contested decision will cause them serious and irreversible damage consisting of an irreparable and serious loss of market share.
All sales in the Community of methomyl-based products will be prohibited by the contested decision from 19 March 2008. In particular, that decision obliges Member States to withdraw all existing national marketing authorisations for products containing methomyl by 19 March 2008 at the latest. The damage to the applicants caused by the immediate implementation of the contested decision is thus imminent.
With regard to principles, the applicants state that the gravity of the irreversible losses should not be measured in the light of the financial resources of the whole group of companies to which they belong. A purely quantitative and arithmetical approach of that kind to the seriousness of the damage conflicts with the case-law. Thus, in the order in Joined Cases 76/89 R, 77/89 R and 91/89 R RTE and Others v Commission [1989] ECR 1141, the potential loss of even a small proportion of an undertaking’s market share was held capable of giving rise to urgency. The same can be said of the orders in Case T-41/96 R Bayer v Commission [1996] ECR II‑381 and in Case T-65/98 R Van den Bergh Foods v Commission [1998] ECR II‑2641.
The applicants make quite particular reference to the order in Du Pont de Nemours (France) and Others v Commission, cited in paragraph 30 above (paragraphs 202 and 205), where the President of the Court of First Instance held that an assessment of the gravity of the irreversible loss of market share had to take into account all the (qualitative) circumstances of the case in point, and cannot be based only on the accounting value of the business which generates the market shares and on the loss of such value to the group. In the applicants’ submission, to decide otherwise in the present case would constitute a serious reversal of the case-law that would seriously affect the fundamental right to effective appeals. Furthermore, by defending the position that the smaller the loss of market share in absolute terms, the less serious the damage, the Commission is arguing that only significant market players can receive interim relief to save their market position. Such an approach infringes the principle of non-discrimination and the principles founded on free competition.
The applicants further submit with regard to principles that the gravity of a business loss should not be assessed differently for multi-product companies as compared to single-product companies on the ground that the loss of just one product endangers only the latter. Such favourable treatment of single-product undertakings clearly violates the principle of non-discrimination. In Joined Cases 140/82, 146/82, 221/82 and 226/82 Walzstahl-Vereinigung and Thyssen v Commission [1984] ECR 951, the Court of Justice made it clear that giving all single-product undertakings a competitive advantage over integrated undertakings was irreconcilable with the basic requirements of Community law.
In any event, it is not only the damage to the notifier that has to be taken into account but also the damage to all the other applicants. The President of the Court cannot, on the one hand, assess the gravity of the damage by relating sales to those of the whole group to which the applicants belong and, on the other, limit its assessment to the damage suffered by the notifier only. This would indeed constitute a serious internal contradiction in the reasoning.
The applicants contend, next, that their products containing methomyl, marketed under the name Lannate, face fierce competition from much larger and more powerful competing suppliers of replacement products, such as BASF, Dow AgroSciences, Syngenta and Bayer CropScience, who together have more than 95% of the key national markets where the applicants compete with Lannate. These competing products would immediately fill the gap left by Lannate if the contested decision were implemented immediately. It is accordingly to be expected that those competitors will irrevocably take over the applicants’ existing market shares even if the contested decision were to be annulled.
The applicants add that they do not have any replacement product for methomyl so that their customers will be forced to switch to alternative products supplied by competitors. The applicants cannot reasonably be required to conclude distribution or licence agreements for competing products from other manufacturers in order to maintain or recover market shares.
According to the applicants, the even temporary withdrawal of Lannate will also lead to an irreparable loss of confidence in the applicants’ products and oblige them to reallocate their production and packaging lines that handle methomyl-based products at the production site in Cernay. Furthermore, the applicants will suffer irreparable damage to their methomyl business outside the Community.
As regards the gravity of the loss suffered, the applicants state that sales of methymol (Lannate) represent around [confidential] (1) and [confidential] respectively of their insecticide sales at global and Community level. On the Community market, Lannate generates an estimated sales revenue of around EUR [confidential] million per year. At a global level, insecticides produced by the Du Pont de Nemours group were expected to generate revenue of USD [confidential] million in 2007. At Community level, Du Pont de Nemours expected revenue from insecticide sales of USD [confidential] million in 2007, with USD [confidential] million, or [confidential] %, of this coming from the methomyl product group. In fact, this group is the most important group in its ‘Crop Protection’ business unit.
In this connection, the applicants explain that the Du Pont de Nemours group has five strategic business growth platforms that are individually judged and report their financial performance separately from one another. All the platforms and each individual business unit, such as the ‘Crop Protection’ business unit in the ‘Agriculture and Nutrition’ platform, need to be profitable and to produce acceptable returns for shareholders if they are not to face the prospect of being restructured, closed or even sold.
The applicants draw the conclusion that it is not the overall revenue of the Du Pont de Nemours group which is relevant when assessing the severity of potential damage following the loss of the right to sell a product. It is, on the contrary, the revenue generated by the ‘Crop Protection’ business unit and the ‘Agriculture and Nutrition’ strategic growth platform that should be taken into account.
As regards, more specifically, the gravity of the loss of share on the Community market, the applicants assert that, even if Lannate were to be authorised again, they would suffer permanently a reduction of at least [confidential] % of their estimated annual sales of Lannate on that market; the total value of lost revenue would amount to around EUR [confidential] million, taking into account the 10 years necessary for obtaining fresh national authorisations. Accordingly, the applicants will suffer, as a result of the immediate implementation of the contested decision, a permanent loss of gross margin in respect of their methomyl business on the Community market representing a net present value of EUR [confidential] million.
Outside the European Union, they will suffer a total revenue loss of around EUR [confidential] million – with a net present value loss of around EUR [confidential] million – reflecting the negative impact on the applicants’ methomyl business, calculated by taking into account the 10 years necessary for obtaining fresh national authorisations. Sales of methomyl to growers and distributors in countries outside the European Union – in Europe, the Middle East and Africa – will be significantly reduced since a large number of growers located in those countries export their produce to the European Union and will therefore refrain from treating their products with Lannate. Furthermore, growers from outside the European Union are expected to be faced with restrictions imposed by major retail chains which source products from farmers for sale in the European Union only if the products have not been treated with substances which are not included in Annex I to the Directive.
In addition, the applicants will suffer an estimated total loss of around EUR [confidential] million as a result of the reduced manufacture of products containing methymol for sales outside the European Union. This means that fixed costs related to the manufacture of products containing methomyl – which amount to approximately EUR [confidential] million per year – will need to be shared across the applicants’ remaining production at the Cernay plant. Nineteen jobs at that plant are directly concerned by the manufacture of methomyl and therefore endangered by the loss of the methomyl business.
Ultimately, the applicants consider that, in terms of gross margin, they will suffer a total loss of around EUR [confidential] million worldwide.
The applicants contend that the interim relief sought will not prejudice the outcome of the main proceedings. In reality it will merely maintain for a brief period the status quo in respect of plant protection products which have duly been on the market now for 30 years in the European Union. The suspension of operation of the contested decision will merely amount to a slightly extended withdrawal period which will allow Lannate to remain on the market until the Commission has adopted a directive for the inclusion of methomyl or, at the latest, until judgment has been delivered in the main proceedings.
By contrast, if the contested decision were to operate immediately, the applicants would suffer an irreversible loss of market shares, which have been obtained thanks to their know-how and to investment in research and development, and by building up a customer base over a number of years on a market characterised by fierce competition.
The Commission contends that the damage pleaded by the applicants is purely financial. Such damage generally cannot be regarded as irreparable since it can be the subject of subsequent financial compensation.
So far as concerns the gravity of the damage alleged, the Commission acknowledges that the contested decision will result in a reduction of sales, income and market share for the applicants. However, market share is not an end in itself: it can be of benefit to undertakings only in so far as it brings them profits. In order to assess whether or not the loss of a market share is serious, it should, therefore, be translated into money terms, taking account of the size of the undertaking as a whole.
In the present case, as the applicants form part of the Du Pont de Nemours group whose total turnover amounted to USD 27.4 billion in 2006, the damage caused to them on the Community market by the contested decision can only be classified as minimal because it represents less than 1% of that group’s turnover. So far as concerns the damage allegedly suffered outside the Community, the applicants provide no quantitative information enabling the figures pleaded to be verified.
The Commission draws the conclusion that urgency is not established in the present case.
Finally, the balance of interests is in favour of protecting human health over economic interests. Suspending the contested decision would increase a risk to health which could not be remedied if the main action were subsequently dismissed. The judgment of the Court of First Instance of 11 July 2007 in Case T‑229/04 Sweden v Commission, not yet published in the ECR, set a high standard for the authorisation of active substances under the Directive. That judgment would be deprived of meaning if economic operators whose substances are withdrawn from the market could obtain interim measures too easily.
In accordance with settled case-law, urgency must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the relief. It does not have to be established with absolute certainty that the damage is imminent; it is sufficient that the damage, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability (see the order of the President of the Court of First Instance of 7 June 2007 in Case T-346/06 R IMS v Commission, not yet published in the ECR, paragraphs 121 and 123, and the case-law cited). However, the party invoking damage is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (orders in Case C-335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; in Case T-151/01 R Duales System Deutschland v Commission [2001] ECR II-3295, paragraph 188; and in Case T-34/02 R B v Commission [2002] ECR II‑2803, paragraph 86).
It is also well-established case-law that damage of a purely financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty since normally it can be the subject of subsequent financial compensation (orders in Case C-471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, paragraph 113, and in Case T-339/00 R Bactria v Commission [2001] ECR II‑1721, paragraph 94).
The interim measure sought is justified only if it appears that, without such a measure, the applicant would be in a position that could imperil its existence before final judgment in the main action (order in Case T-181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 84). Since imminent disappearance from the market does constitute damage that is both irremediable and serious, adoption of the interim measure sought appears justified in such a situation.
While account has also been taken of the fact that, if the measure sought were not granted, the applicant’s market share would be irremediably affected (orders in Case T-13/99 R Pfizer Animal Health v Council [1999] ECR II‑1961, paragraph 138; in Case T-392/02 R Solvay Pharmaceuticals v Council [2003] ECR II-1825, paragraph 107; and in Du Pont de Nemours (France) and Others v Commission, cited in paragraph 30 above, paragraph 175), it must be pointed out that this situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also of a serious nature. It is therefore 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 (see, to this effect, the order in Case T-369/03 R Arizona Chemical and Others v Commission [2004] ECR II-205, paragraphs 83 and 84). 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 (see, to this effect, Commission v Cambridge Healthcare Supplies, cited in paragraph 89 above, paragraphs 110 and 111, and the order of the President of the Court of First Instance of 26 February 2007 in Case T-416/06 R Sumitomo Chemical Agro Europe v Commission, not published in the ECR, paragraphs 59 and 60).
It is in the light of those considerations that examination is required of the reasons put forward by the applicants to establish that Du Pont de Nemours (France) will suffer serious and irreparable damage if suspension of the operation of the contested decision is not ordered. It is to be remembered that the arguments relating to the applicants other than Du Pont de Nemours (France) must be excluded from that examination (see paragraph 63 above). In addition, it is clear that the damage invoked by the applicants is of a purely financial nature in that it consists in the loss of the income from methomyl sales, a loss which has indeed been quantified in the application for interim measures.
It should be determined, first of all, whether the damage pleaded in the present case may be classified as serious in the light, in particular, of the size and turnover of the undertaking and of the characteristics of the group to which it belongs (see the orders in Case C-43/98 P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36 and the case-law cited, and in Du Pont de Nemours (France) and Others v Commission, cited in paragraph 30 above, paragraph 196 and the case-law cited).
While the applicants criticise such an approach, describing it as purely quantitative and arithmetical, it is based on the idea that the objective interests of the company concerned are not independent of those of the persons controlling it within the same group. The gravity and irreparability of the purported damage must therefore be assessed in relation also to the group made up of those persons. That coincidence of interests is justification in particular for not assessing the gravity of the loss of the market shares of the company concerned independently of the interest of those controlling it in supporting, or not supporting, their subsidiary (see, to this effect, the orders in HFB and Others v Commission, cited in paragraph 88 above, paragraph 62; in Case T-241/00 R LeCanne v Commission [2001] ECR II‑37, paragraph 40; and in Case T-192/01 R Lior v Commission [2001] ECR II‑3657, paragraph 55).
Moreover, in pleading that their business units need to be profitable and to produce returns, failing which they risk being closed, the applicants themselves apply the logic of the company group. In so doing, they implicitly acknowledge that financial requirements prevail over considerations relating to the presence of methomyl on the Community market for the past 30 years and to the acquisition of a faithful customer base thanks to investment in research and development. They must therefore expect the President of the Court to take account also of the characteristics of the group to which Du Pont de Nemours (France) belongs.
Referring to Walzstahl-Vereinigung and Thyssen v Commission, cited in paragraph 69 above, the applicants further submit that to take financial account of the group to which they belong would amount to according preferential treatment to single-product undertakings to the detriment of integrated undertakings manufacturing a number of products. In this regard, it is sufficient to point out, first, that the reference to the abovementioned case is irrelevant, as in its judgment the Court of Justice expressly left open the question whether there may have been discrimination between single-product undertakings and integrated undertakings (paragraphs 29 and 30 of the judgment). Second, the assessment of the gravity and irreparability of the damage alleged must be carried out with regard to the particular features of each individual case and not along general lines, on the basis of abstract categories. Undertakings belonging to a group or having one or more major shareholders are in a special situation and that must therefore be taken into account by the judge hearing an application for interim measures (order in Case C-364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I-8733, paragraph 55).
Furthermore, as is apparent from the case-law cited in paragraph 33 above, the question whether serious and irreparable damage might occur is to be examined in the light of the personal situation of the party requesting the interim relief, which requires an assessment on a case-by-case basis having regard to the facts of each case and the legal issues involved (see, to this effect, HFB and Others v Commission, cited in paragraph 88 above, paragraph 57). In the light of this case-law, the claim concerning breach of the principle of non-discrimination in that only significant market players can obtain interim relief to save their market position must be rejected as it is general in nature and not supported by evidence or arguments relating to the circumstances of the case in point.
In any event, as the Commission has rightly observed, the crucial question when assessing financial circumstances is whether the company which complains of losses of income has alternative potential sources of income that might help it to stem those losses. If so, this must be taken into account by the judge hearing the application for interim measures, whether it is possible income from the sale of another product that is involved or, as in the present case, assistance from other persons.
As regards the data produced by the applicants in order to establish serious damage, it must be stated that they have not provided any detail enabling the financial characteristics of the group to which Du Pont de Nemours (France) belongs to be assessed, or indeed any detail such as to show that the parent company has no interest in supporting that subsidiary. In the absence of such detail, the President of the Court is unable to assess the gravity of the damage pleaded by the applicants that is linked to any loss of market share (see, to this effect, Sumitomo Chemical AgroEurope v Commission, cited in paragraph 91 above, paragraphs 71 and 72), since the figures which the applicants have in fact produced do not enable that loss to be related to total group turnover.
Such information should have been set out in the text of the application for interim measures itself (orders in Case T-306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 52; in Case T-175/03 R Schmitt v EAR [2003] ECR‑SC I‑A‑175 and II‑883, paragraph 18; and in Case T-85/05 R Dimos Ano Liosion and Others v Commission [2005] ECR II‑1721, paragraph 37), particularly as the Commission has stated that the parent company of the group to which the applicants belong achieved a substantial total turnover in 2006.
In their replies to the President of the Court’s questions, the applicants still did not provide information, in particular financial information, concerning their membership of that group.
Consequently, the arguments presented in the application for interim measures do not enable the President of the Court to assess the gravity of the damage pleaded by the applicants.
The same is true of the claims that implementation of the contested decision would threaten the survival of the plant in Cernay and the jobs of the staff working there. The President of the Court is not in a position to assess the financial impact of its possible closure on the situation of the applicants and the group to which they belong.
With regard to the risk of a loss of jobs in that plant, the damage caused to the employees concerned cannot profitably be relied upon in order to show the urgency of the suspension of operation applied for, as harm to the personal interests of Du Pont de Nemours (France) is not involved (see, to this effect, the order of the President of the Court of First Instance of 2 August 2006 in Case T‑69/06 R Aughinish Alumina v Commission, not published in the ECR, paragraph 81, and Du Pont de Nemours (France) and Others v Commission, cited in paragraph 30 above, paragraphs 147 and 168).
Accordingly, the applicants have not proved to the required legal standard that they would be liable to suffer serious damage by reason of the loss of their market shares that is invoked (see, to this effect, Sumitomo Chemical Agro Europe v Commission, cited in paragraph 91 above, paragraph 73).
It should be added that – as is apparent from the documents which the Commission has produced from public sources and have not been contested by the applicants – the parent company of the group to which the applicants belong achieved a total turnover of USD 27.4 billion in 2006.
With regard to comparing this turnover with the damage pleaded by the applicants, it is to be noted that the data presented in the application for interim measures relate to the sales made by all the applicants and do not enable the pertinent figures for Du Pont de Nemours (France) to be identified, although only the figures concerning the latter applicant can be taken into account in order to establish urgency (see paragraphs 63 and 92 above) and those figures should have been set out in the text of the application for interim measures itself (see paragraph 100 above).
In this context, it is necessary to reject the argument alleging an internal contradiction in the President of the Court’s limiting his examination to the damage suffered by Du Pont de Nemours (France) alone while assessing the gravity of that damage on the basis of the sales made by the entire group to which that applicant belongs. Such an approach is dictated by the simultaneous application of two different concepts, namely the concept – of a strictly legal nature – under the procedural rules relating to the admissibility of the application for interim measures and the concept – rather of an economic nature – requiring the assessment of the damage to take account of all the circumstances liable to reflect the actual financial situation of the applicant entitled to bring the main action and make the application for interim measures. Moreover, the account taken of the group does not entail assessment of the gravity of the damage suffered by the group but serves only to assess the gravity of the damage suffered by a company belonging to it.
It follows that the figures supplied by the applicants concerning the damage suffered on the Community market do not, for this additional reason, appear sufficiently specific to establish the urgency of the suspension of operation sought as regards Du Pont de Nemours (France).
In any event, even the figures actually provided by the applicants to prove the damage which they as a whole would suffer – that is to say including the applicants which are not entitled to apply for suspension of the operation of the contested decision – are not capable of establishing that that damage is serious.
The applicants set out a mixture of several categories of figures.
They refer to sales revenue from Lannate on the Community market of EUR [confidential] million, revenue amounting to USD [confidential] million generated by the methomyl product group in 2007, revenue to be lost on the Community market amounting to EUR [confidential] million in the period from 2008 until 2018, and a permanent loss of gross margin on the same market in respect of their methomyl business representing a net present value of EUR [confidential] million. They submit that they would, in respect of the same business, also suffer a total revenue loss of EUR [confidential] million, with a net present value loss of EUR [confidential] million, on markets outside the Community. They assert that they will suffer an estimated total loss of EUR [confidential] million, in terms of net present value, as a result of the reduced manufacture, at the plant in Cernay, of methomyl-based products for markets outside the Community, the fixed costs related to this production amounting to EUR [confidential] million per year. At a global level, the applicants indicate sales amounting to USD [confidential] million and refer to a total loss of EUR [confidential] million in terms of gross margin.
However, most of those figures are not useful in the present context.
First, those which are not expressed in terms of turnover or revenue cannot be compared with the total turnover of the Du Pont de Nemours group. Consequently they cannot serve to measure the gravity of the damage invoked. This is especially true of the figures expressed in terms of net present value, in particular as the applicants failed to present figures showing the net present value of their entire business, so as to permit a useful comparison.
Second, in so far as the applicants plead that a reduction in their sales in countries that are not members of the Community will result from the contested decision, it is to be pointed out that a prohibition on the marketing of methomyl laid down by the authorities of a third country would be the direct consequence not of the contested decision, but of a decision taken by those authorities in the exercise of their absolute discretion (see, to this effect, the order in Pfizer Animal Health v Council, cited in paragraph 91 above, paragraph 160). Similar reasoning is valid with regard to the applicants’ line of argument that farmers operating on markets outside the Community would tend to refuse products containing unauthorised substances for treating their crops. These economic operators, first, are not bound to comply with the contested decision and, second, would not even be prevented by suspension of that decision’s operation from continuing to refuse to market products treated with methomyl.
Third, so far as concerns reliance on the loss of the sales which the applicants would achieve over the next 10 years, suffice it to state that this loss could be usefully relied upon only in a comparison with the expected sales of the entire Du Pont de Nemours group over the same period. However, the applicants have not provided any information demonstrating that, from this angle, they would suffer serious damage.
It follows from the foregoing that the comparison with the total turnover of the Du Pont de Nemours group, that is to say USD 27.4 billion, must be limited to the figures concerning the Community market in respect of loss of the annual revenue achieved by the applicants with methomyl-based products, namely the figures of EUR [confidential] million and USD [confidential] million, together with EUR [confidential] million in respect of fixed costs for the plant at Cernay. It is clear that the damage to the applicants calculated in this way remains considerably below 1% of that total turnover. It cannot therefore be regarded as serious, and it is not even necessary to rule on the extent to which that damage could be reduced by the sale of replacement products.
This conclusion is not called into question by an assessment of the circumstances as a whole relied upon by the applicants, in particular the fact that they have enjoyed a reputation with methomyl for 30 years and that they have built up their customer base and market shares thanks to their know-how and to investment in research and development. These historical considerations cannot be taken into consideration since they disclose no economic and financial figures which could be taken into account to assess damage liable to justify the grant of an interim measure.
Furthermore, the applicants have not proved to the required legal standard that the damage assessed approximately above can be regarded as irreparable.
While the applicants contend that they are liable to lose the market shares acquired by methomyl in the Community, they have not established that it would be impossible for them to regain those lost market shares, should the contested decision be annulled on conclusion of the main proceedings. On the contrary, the applicants themselves envisage a return to the market and fresh national marketing authorisations, which would take 10 years to obtain (application, paragraph 187 and footnote 205). Moreover, in so far as the financial damage invoked by the applicants is not made good by simply giving effect to the judgment in the main proceedings, it may be made good by the means of redress provided for in Articles 235 EC and 288 EC (see ArizonaChemical and Others v Commission, cited in paragraph 91 above, paragraph 75 and the case-law cited). In the main action, the applicants have indeed set out a claim for compensation.
As regards the alleged harm to the commercial reputation enjoyed by the applicants’ products, the Commission rightly observed that withdrawal of a plant protection product from the market is not necessarily harmful to the reputation of the entire undertaking concerned and noted that Bayer, BASF and Syngenta, described by the applicants as ‘much larger and more powerful competing suppliers’, have already had their products withdrawn from the market. In reply to a question from the President of the Court, the applicants accepted that regulators and businesses in the sector concerned, who are familiar with the regulatory framework, tend to view a decision that a pesticide should not be authorised as a normal part of a regulatory procedure. Such a decision may be regarded by the public as being simply the result of scientific developments and improvement in research methods.
In so far as the applicants refer to farmers who have used methomyl for more than 30 years and are suddenly faced with the withdrawal of products hitherto considered safe, there is nothing to suggest that, taking all products together, the reputation of the applicants themselves would be affected. It therefore appears probable that this harm to reputation will be limited to methomyl-based products alone. Furthermore, that reputation could be restored if the contested decision were annulled, where appropriate by means of a publicity campaign organised by the applicants that would be aimed at the circles concerned.
It follows that, while recapture of the market shares lost because of the contested decision may, financially and economically, be quite onerous, such a return to the market, including restoration of methomyl’s reputation, does not appear impossible (see, to this effect, the order in Pfizer Animal Health v Council, cited in paragraph 91 above, paragraphs 161 to 165).
The damage allegedly caused in the present case on account of the contested decision cannot therefore be regarded as irreparable.
It follows from all of the foregoing that the applicants have not shown, as matters now stand, that Du Pont de Nemours (France) – or indeed the applicants taken as a whole – would suffer serious and irreparable damage if suspension of operation of the contested decision were not granted.
Consequently, the application for interim measures must be dismissed for lack of urgency, without any need to examine whether the other conditions governing suspension of the contested decision’s operation are met.
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, 14 March 2008.
E. Coulon
M. Jaeger
Registrar
President
* Language of the case: English.
– Confidential data omitted.
