ORDER OF THE PRESIDENT OF THE GENERAL COURT
30 April 2010 (*)
(Applications for interim measures – Regulation (EC) No 1007/2009 – Trade in seal products – Ban on import and sale – Exception in favour of Inuit communities – Application for suspension of operation of a measure – Admissibility – Prima facie case – No urgency)
In Case T‑18/10 R,
Inuit Tapiriit Kanatami, established in Ottawa (Canada),
Nativak Hunters and Trappers Association, established in Qikiqtarjuaq (Canada),
Pangnirtung Hunters’ and Trappers’ Association, established in Pangnirtung (Canada),
Jaypootie Moesesie, residing in Qikiqtarjuaq,
Allen Kooneeliusie, residing in Qikiqtarjuaq,
Toomasie Newkingnak, residing in Qikiqtarjuaq,
David Kuptana, residing in Ulukhaktok (Canada),
Karliin Aariak, residing in Iqaluit (Canada),
Efstathios Andreas Agathos, residing in Athens (Greece),
Canadian Seal Marketing Group, established in Quebec (Canada),
Ta Ma Su Seal Products, established in Cap‑aux‑Meules (Canada),
Fur Institute of Canada, established in Ottawa,
NuTan Furs, Inc., established in Catalina (Canada),
GC Rieber Skinn AS, established in Bergen (Norway),
Inuit Circumpolar Conference Greenland (ICC), established in Nuuk, Greenland (Denmark),
Johannes Egede, residing in Nuuk,
Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK), established in Nuuk,
represented by J. Bouckaert, M. van der Woude and H. Viaene, lawyers,
applicants,
v
European Parliament, represented by I. Anagnostopoulou and L. Visaggio, acting as Agents,
and
Council of the European Union, represented by M. Moore and K. Michoel, acting as Agents,
defendants,
APPLICATION for suspension of the operation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (OJ 2009 L 286, p. 36),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Legal context
1 The purpose of Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (OJ 2009 L 286, p. 36), according to Article 1 thereof, is to establish harmonised rules concerning the placing on the market of seal products. The legal basis of that regulation is Article 95 EC.
2 As is apparent from the recitals in the preamble to Regulation No 1007/2009, in response to concerns of citizens and consumers about the animal-welfare aspects of the killing and skinning of seals and the possible presence on the market of products obtained from animals killed and skinned in a way that causes pain, distress, fear and other forms of suffering, several Member States have adopted, or intend to adopt, legislation regulating trade in seal products by prohibiting the import and production of such products, while no restrictions are placed on trade in those products in other Member States (recital 5 in the preamble to Regulation No 1007/2009).
3 There are therefore differences between national provisions governing the trade, import, production and marketing of seal products, which adversely affect the operation of the internal market in products which contain or may contain seal products, and constitute barriers to trade in such products (recital 6 in the preamble to Regulation No 1007/2009).
4 The existence of such diverse provisions may further discourage consumers from buying products not made from seals, but which may not be easily distinguishable from similar goods made from seals, or products which may include elements or ingredients obtained from seals without this being clearly recognisable, such as furs, Omega-3 capsules and oils and leather goods (recital 7 in the preamble to Regulation No 1007/2009).
5 In order to prevent disturbance of the internal market in the products concerned while taking into account animal-welfare considerations (recitals 8 to 10 in the preamble to Regulation No 1007/2009), Article 3(1) of Regulation No 1007/2009 provides:
‘The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence. These conditions shall apply at the time or point of import for imported products.’
6 Recital 14 in the preamble to Regulation No 1007/2009 states in that regard that the fundamental economic and social interests of Inuit communities engaged in the hunting of seals as a means to ensure their subsistence should not be adversely affected. The hunt is an integral part of the culture and identity of the members of Inuit society and, as such, is recognised by the United Nations Declaration on the Rights of Indigenous Peoples. Therefore, the placing on the market of seal products which result from hunts traditionally conducted by Inuit and other indigenous communities and which contribute to their subsistence should be allowed.
7 It follows from Article 3(4) and Article 5(3) of Regulation No 1007/2009 that measures for, inter alia, the implementation of the authorisation in favour of Inuit communities have to be adopted by the European Commission in accordance with the regulatory procedure with scrutiny set out in Article 5a of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23).
8 Lastly, Article 8 of Regulation No 1007/2009 provides that, although that regulation is to enter into force on the 20th day following its publication in the Official Journal of the European Union, Article 3 is to apply from 20 August 2010.
Procedure and forms of order sought
9 By application lodged at the Court Registry on 11 January 2010, the applicants, Inuit Tapiriit Kanatami, Nativak Hunters and Trappers Association, Pangnirtung Hunters’ and Trappers’ Association, Mr Jaypootie Moesesie, Mr Allen Kooneeliusie, Mr Toomasie Newkingnak, Mr David Kuptana, Ms Karliin Aariak, Mr Efstathios Andreas Agathos, Canadian Seal Marketing Group, Ta Ma Su Seal Products, Fur Institute of Canada, NuTan Furs, Inc., GC Rieber Skinn AS, Inuit Circumpolar Conference Greenland (ICC), Mr Johannes Egede and Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK), brought an action seeking the annulment of Regulation No 1007/2009.
10 By separate document lodged at the Court Registry on 11 February 2010, the applicants made the present application for interim measures, in which they claim that the President of the Court should:
– declare the application for interim measures admissible;
– order suspension of the operation of Regulation No 1007/2009 until the Court has given judgment in the action for annulment brought against that regulation;
– order the European Parliament and the Council of the European Union to pay the costs.
11 In their written observations, lodged at the Court Registry on 8 March 2010, the Parliament and the Council contend that the President of the Court should:
– dismiss the application for interim measures;
– order the applicants to pay the costs.
12 By separate document lodged at the Court Registry on 8 March 2010, the Council made an application for the removal from the case-file of Annex A-4 to the application for interim measures, consisting of the opinion of the Council’s Legal Service of 18 February 2009 (‘the opinion in question’) on the Proposal for a Regulation of the European Parliament and of the Council concerning trade in seal products (COM(2008) 469 final of 23 July 2008) (‘the proposal for a regulation’), and for the removal of the part of the opinion in question quoted in paragraph 16 of the application for interim measures.
13 The applicants and the Parliament submitted their observations on that application by the Council within the prescribed period.
14 Pursuant to the second paragraph of Article 24 of the Statute of the Court of Justice of the European Union, the Commission was requested to inform the President of the General Court of the timetable envisaged for the adoption of the measures for the implementation of Regulation No 1007/2009, provided for in Article 3(4) thereof, and to produce any relevant document concerning those measures. The Commission complied with that request within the prescribed period.
Law
The application for the removal from the case-file of Annex A-4 to the application for interim measures and of the extract from that document quoted in that application
Arguments of the parties
15 The Council, supported by the Parliament, submits that the opinion in question should be removed from the case-file as the applicants were not permitted to have access to that document and less still to use it in judicial proceedings. It states that the applicants submitted, on 4 March 2009, a request for access to the opinion in question under Regulation (EC) No 1049/2001 of the Parliament and of the Council of 30 May 2001 regarding public access to Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) and that that request was granted only in part, with no submission on the applicants’ part of a confirmatory application pursuant to Article 7(2) of that regulation.
16 First, the applicants maintain that, since they already have the opinion in question and do not therefore request access to it, the question of whether that document should be removed from the case-file should not be decided on the basis of Regulation No 1049/2001 or on the basis of Council Decision 2006/683/EC, Euratom of 15 September 2006 adopting the Council’s Rules of Procedure (OJ 2006 L 285, p. 47).
17 In that regard they submit that, in any event, the opinion in question is not covered by the exceptions, referred to in Article 4(1) to (3) of Regulation No 1049/2001, to the principle, laid down in that regulation, that documents of the institutions should be accessible to the public, which corresponds, more generally, to the principle of transparency which should guide the actions of the institutions.
18 Secondly, the applicants maintain that the confidential nature of the opinion in question should be assessed on the basis of the case-law relating to legal professional privilege. The officials of the legal service of an institution should, they submit, be regarded as being in-house lawyers within the meaning of the judgment in Joined Cases T‑125/03 and T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑3523, with the result that the opinions which they draft are not confidential.
Findings of the President of the Court
19 According to settled case-law, it is contrary to public policy, which requires that the institutions should be able to receive the advice of their legal service, given in full independence, to allow such internal documents to be produced by persons other than the services at whose request they have been prepared in proceedings before the Court, unless their production has been authorised by the institution concerned or ordered by the Court (order in Case C‑445/00 Austria v Council [2002] ECR I‑9151, paragraph 12; Case T‑44/97 Ghignone and Others v Council [2000] ECR‑SC I‑A‑223 and II‑1023, paragraph 48; and order in Case T‑357/03 Gollnisch and Others v Parliament [2005] ECR II-1, paragraph 34).
20 Furthermore, the President of the Court points out that it follows from the case-law that, if an applicant has not obtained from a European Union institution an opinion of its legal service and annexes that opinion to a document which he submits to the Courts of the European Union after having obtained it without the permission of the defendant institution, Article 4(2) of Regulation No 1049/2001, which relates to the possibility of refusing access to a document where disclosure would undermine, inter alia, the protection of court proceedings and legal advice, is not directly applicable. However, Regulation No 1049/2001 and, more specifically, Article 4(2) thereof, has a certain indicative value in view of the balancing of interests necessary for a ruling on the application for the removal of that legal opinion. It is necessary to take into account the objective of transparency of the European Union decision-making process, recognised in the second paragraph of Article 1 TEU, which, inter alia, guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see, to that effect, order of the Court of Justice of 29 January 2009 in Case C-9/08 Donnici v Parliament, not published in the ECR, paragraph 17 and the case-law cited).
21 However, in the present case, through the submission in the case-file of the opinion in question without the Council’s permission, the applicants are confronting the Council, in proceedings calling into question the validity of Regulation No 1007/2009, with an opinion given by its own legal service in the course of the drafting of that regulation. In those circumstances, the President of the Court takes the view that to permit the applicants to retain in the case-file a legal opinion of the Council, disclosure of which was not authorised by the Council, would run counter to the requirements of a fair hearing and would be tantamount to circumventing the procedure by which application is made for access to such a document, as established by Regulation No 1049/2001 (see, to that effect, Donnici v Parliament, paragraph 18).
22 As regards the analogy which the applicants seek to establish with the case-law to the effect that opinions drafted by in-house lawyers are not confidential, the President of the Court finds that it is not necessary to rule on that point, in so far as the reasoning set out above justifies the conclusion that the issue in this case must be assessed on the basis of the criteria applicable in the context of Regulation No 1049/2001.
23 In those circumstances, the Council’s application for removal from the case-file of the opinion in question and to have the extract from that document quoted in paragraph 16 of the application for interim measures disregarded must be upheld.
The application for interim measures
24 It is apparent from Articles 278 TFEU and 279 TFEU, read in conjunction with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he considers that circumstances so require, order that application of the act contested before the Court be suspended or prescribe any necessary interim measures.
25 Article 104(2) of the Rules of Procedure of the Court 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, suspension of the operation of an act or interim measures may be ordered 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 it must, in order to avoid serious and irreparable harm to the applicant’s interests, be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, with the result that applications for interim measures must be dismissed if any one of them is absent (order of the President of the Court of Justice in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
26 Furthermore, 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 law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed and assessed (order of the President of the Court of Justice 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). Where appropriate, the judge hearing such an application must also weigh up the interests involved (order of the President of the Court of Justice in Case C‑445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
27 Having regard to the documents on the file, the President of the Court considers that he has all the material necessary in order to rule on the present application for interim measures and that no purpose would be served by first hearing oral argument from the parties.
Admissibility
– Arguments of the parties
28 In support of the argument that the application for interim measures is admissible, the applicants elaborate on a number of arguments relating to the admissibility of the main proceedings.
29 The applicants submit that the fourth paragraph of Article 263 TFEU allows any natural or legal person to institute proceedings against a regulatory act which is of direct concern to that person and does not entail implementing measures.
30 Those conditions, they argue, are fulfilled in the present case, inasmuch as there is a direct causal link between Regulation No 1007/2009 and the situation of each of the applicants, since the Member States have no discretion as regards its application and it is not necessary to adopt implementing measures in order for the prohibition set out in Article 3(1) of that regulation to be applicable.
31 If the Court were to take the view that Regulation No 1007/2009 is a regulatory act requiring implementing measures, the applicants submit that they are directly and individually concerned by that act on account of, inter alia, their status as Inuit or associations representing Inuit and of the fact that the ‘circle of Inuit’ is a closed circle expressly addressed by that regulation.
32 In response to the arguments developed by the applicants, the Parliament and the Council submit that the main action is inadmissible, in view of the fact that Regulation No 1007/2009 is a legislative act, inasmuch as it was adopted by the co-decision procedure referred to in Article 251 EC. It must therefore be considered as coming within the same category as acts adopted in accordance with Article 294 TFEU, which, according to the terms of Article 289(1) and (3) TFEU, are indeed legislative acts.
33 According to the Parliament and the Council, the regulatory acts referred to in the fourth paragraph of Article 263 TFEU cannot include legislative acts.
34 Furthermore, the Parliament and the Council maintain that the admissibility of the main action cannot be justified by the fourth paragraph of Article 263 TFEU also on the ground that Regulation No 1007/2009 requires implementing measures, in particular with regard to the definition of the conditions under which the placing on the market of seal products resulting from hunts traditionally conducted by Inuit is to be allowed.
35 In any event, the Parliament and the Council submit that the applicants are not individually concerned by Regulation No 1007/2009.
36 Furthermore, the Parliament maintains that, according to the case-law, in proceedings for interim measures the admissibility of the main action must be assessed in regard to each of the applicants in order to prevent applicants who are not individually concerned by the contested measure from nevertheless being able to take advantage of the interim measures by participating in the action brought by other applicants who do fulfil the requisite conditions.
– Findings of the President of the Court
37 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 proceedings before the Court. This rule implies that the main action, from which the application for interim measures is derived, can in fact be examined by the Court.
38 It is settled case-law that the admissibility of the main action should not, as a rule, be examined in proceedings involving an application for interim measures so as not to prejudge the case in the main proceedings. However, where it is contended that the main action from which the application for interim measures is derived is manifestly inadmissible, it may be necessary to establish certain grounds for the conclusion that such an action is prima facie admissible (order of the President of the Court of Justice in Case C‑300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR I‑8797, paragraph 34; order of the President in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 42; and order of the President of 27 January 2009 in Case T‑457/08 R Intel v Commission, not published in the ECR, paragraph 46).
39 Such an examination of the admissibility of the main action is necessarily brief, because of the characteristics and, in particular, the urgent nature of the proceedings for interim relief, and the question of admissibility can be considered only on the basis of the facts adduced by the parties in the proceedings for interim relief. The decision of the judge hearing an application for interim relief does not, however, prejudge the decision to be made by the Court on hearing the main action (orders in Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council, paragraph 35, and Intel v Commission, paragraph 47).
40 Indeed, in the context of proceedings for interim relief, the admissibility of the main action can be assessed only on a prima facie basis, the purpose being to examine whether the applicant has adduced sufficient elements which justify the prima facie conclusion that the admissibility of the main action cannot be excluded. The judge hearing the application for interim measures should declare that application inadmissible only where the admissibility of the main action can be wholly excluded. To rule, at the stage of the proceedings for interim relief, on the admissibility of the main action, when its admissibility is not prima facie wholly excluded, would be tantamount to prejudging the Court’s decision (orders of the President in Case T‑342/00 R Petrolessence and SG2R v Commission [2001] ECR II‑67, paragraph 17, and Intel v Commission, paragraph 48).
41 Furthermore, where the contention is that the main action is manifestly inadmissible, it is for the judge hearing the application for interim measures to establish whether there is a prima facie case for finding that there is a certain probability that the main application is admissible (orders of the President of the Court of Justice in Case 160/88 R Fedesa and Others v Council [1988] ECR 4121, paragraph 22, and Case C‑117/91 R Bosman v Commission [1991] ECR I‑3353, paragraph 7).
42 In the present case, it follows from several elements that the President of the Court cannot exclude the admissibility of the main action without prejudging the examination which has to be carried out by the Court.
43 First, although neither the applicants nor the defendant institutions have raised the issue, the President observes, of his own motion, that the present case raises the question as to which provision must form the basis for the assessment of the admissibility of the main action. Regulation No 1007/2009 was adopted before the entry into force of the Treaty of Lisbon on 1 December 2009, whereas the action was brought after that date. Therefore, it is not inconceivable, even though all of the parties appear to take the view that the only relevant provision is Article 263 TFEU, that the examination of admissibility in the present case may still have to be carried out on the basis of Article 230 EC.
44 Secondly, should Article 263 TFEU be applicable to the present case, the admissibility of the main action could depend on the interpretation of the concept of ‘regulatory act’ in the fourth paragraph of that provision. In that regard, as the Parliament and the Council point out, that category of act would probably have to be defined in relation to that of ‘legislative acts’, subject to the particular circumstance, in the present case, that Regulation No 1007/2009 was not adopted in accordance with the legislative procedure laid down in Article 294 TFEU.
45 Thirdly, in the context of the interpretation of the fourth paragraph of Article 263 TFEU, the question would arise as to the circumstances in which a regulatory act does not require implementing measures.
46 Clearly, the Courts of the European Union have not, as yet, had the opportunity to rule on any of the three issues referred to above, which are, moreover, of some legal complexity.
47 As the possible application of the fourth paragraph of Article 263 TFEU to the present case cannot, at this stage, be ruled out, and would render an assessment of whether the applicants are individually concerned by Regulation No 1007/2009 redundant, there is no need to carry out such an assessment at the present stage.
48 Accordingly, it must be concluded that, as the President of the Court cannot exclude the admissibility of the main action, he must examine whether the substantive conditions necessary to order the suspension of operation of Regulation No 1007/2009 have been met.
Prima facie case
– Arguments of the parties
49 In support of the existence of a prima face case justifying the interim measures applied for, the applicants submit, first, that Article 95 EC, the provision on the basis of which Regulation No 1007/2009 was adopted, does not constitute a valid legal basis for such a measure.
50 A mere finding of disparities between national rules is not, they argue, sufficient to justify recourse to that provision. It is only where the differences between the laws, regulations or administrative provisions of the Member States are such as to obstruct the fundamental freedoms, and thus to affect directly the functioning of the internal market, that Article 95 EC can be used. In the present case, the applicants state that only the Kingdom of Belgium and the Kingdom of the Netherlands have adopted legislation banning trade in seal products and that the Federal Republic of Germany is preparing to do likewise.
51 Whilst acknowledging that Article 95 EC can serve as a legal basis if the purpose is to prevent the emergence of future obstacles to trade resulting from the divergent development of national laws, the applicants submit that the emergence of such obstacles must be likely and the measure in question must be designed to prevent them.
52 In the present case, it follows from the explanatory memorandum to the proposal for a regulation and from the recitals in the preamble to Regulation No 1007/2009 that the primary objective of that regulation is the protection of animal welfare and not the functioning of the internal market.
53 The applicants submit, in the alternative, that Article 95 EC is an insufficient legal basis for the adoption of Regulation No 1007/2009, because, as the ban essentially affects trade with third countries, it would also have been necessary to refer to Article 133 EC. That necessity is confirmed by the fact that the proposal for a regulation referred to both provisions and there are no differences between the proposal for a regulation and the wording finally approved which justify the reference to Article 95 EC alone.
54 The applicants further submit that Regulation No 1007/2009 infringes the principle of proportionality, in so far as, first, it is a measure which is not suited for achieving the objective which its adoption purports to achieve, namely the protection of animal welfare. Since most seal products present in the Union originate in third countries, the prohibition set out in Article 3(1) of Regulation No 1007/209 will not lead to an improvement in animal welfare.
55 Secondly, that prohibition has disproportionate effects on the Inuit people, even though, according to the applicants, a less restrictive and more effective measure was available for protecting animals whilst respecting Inuit traditions, namely the labelling of seal products to inform potential purchasers of the fact that they are derived from animals hunted by the Inuit. That possibility, which was contemplated in the proposal for a regulation, was wrongly discarded by the Parliament and the Council in recital 12 in the preamble to Regulation No 1007/2009.
56 In the second place, the applicants submit that Regulation No 1007/2009 infringes Articles 8 to 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), as well as Article 1 of the First Additional Protocol to the ECHR.
57 First, since Regulation No 1007/2009 impacts seriously on the living conditions of the applicants, it should be assessed in the light of Article 8 ECHR, which guarantees the right to respect for private life. In that regard, the applicants point out that policy measures of Member States which have a serious impact on the living conditions of individuals must be regarded as coming within the scope of that article.
58 Secondly, the hunting practised by the Inuit forms part of their ‘moral convictions’ and beliefs about the relationship between mankind and the natural world, more particularly wild animals. Those convictions and beliefs come under the protection of freedom of thought, conscience and religion and of freedom of expression provided for in Articles 9 and 10 ECHR.
59 Thirdly, Regulation No 1007/2009 fails to take account of the right to property enshrined in Article 1 of the First Additional Protocol to the ECHR, which is also a general principle of European Union law. The prohibition set out in Article 3(1) of that regulation ‘seriously impacts’ on the health and well-being of the Inuit people, and, more particularly, on the right of the applicants to engage in the commercial exploitation of seal products, which constitute an important source of their income in the Union. Such a restriction of the exercise of the applicants’ property rights can be justified only when it is proportionate to the aim pursued.
60 That is not the case here because, according to the applicants, the Parliament and the Council, in adopting Regulation No 1007/2009, did not strike the right balance in weighing the interests of the Inuit and those pursued by that regulation.
61 Furthermore, the Inuit people were not given any reasonable opportunity to put their case to the Union legislature prior to the adoption of Regulation No 1007/2009, even though their property rights are significantly restricted by that regulation.
62 Lastly, the applicants submit that rights guaranteed by the ECHR and the First Additional Protocol to the ECHR must be construed in the light of the provisions on the protection of indigenous peoples under international law.
63 In response to the arguments put forward in the first place by the applicants, the Parliament and, in essence, the Council, submit, first, that it is not necessary for a minimum number of Member States to have adopted, or to be about to adopt, legislation in a given area in order for it to be possible to use Article 95 EC as the legal basis for a regulation. What matters is that, following an overall assessment of the situation, the European Union institutions conclude that market fragmentation has occurred, or may occur, as a result of disparities between national legislation. The present case is comparable to those in which the Court of Justice held that, since the public’s awareness of the dangers to health posed by the consumption of certain tobacco products was growing, more Member States were likely to adopt measures discouraging the consumption of those products (Case C‑434/02 Arnold André [2004] ECR I-11825, paragraph 38, and Case C‑210/03 Swedish Match [2004] ECR I-11893, paragraph 37).
64 Secondly, the Parliament submits that the fact that there is a low volume of trade between Member States in seal products does not affect the possibility of having recourse to Article 95 EC. That is particularly so because, in the present case, other products are also concerned, in so far as, as stated in recital 7 in the preamble to Regulation No 1007/2009, the existence of diverse national provisions may further discourage consumers from buying products not made from seals, but which may not be easily distinguishable from similar goods made from seals, or products which may include elements or ingredients obtained from seals, without this being clearly recognisable.
65 The Parliament and the Council also dispute the applicants’ claim that the primary objective of Regulation No 1007/2009 is the protection of animal welfare and maintain that, on the contrary, the regulation seeks to ensure the smooth functioning of the internal market while taking into consideration animal welfare. As is apparent from recital 9 in the preamble to Regulation No 1007/2009, the reference to animal welfare is in accordance with the Protocol on protection and welfare of animals (‘the Protocol’) annexed to the EC Treaty, under which the Union is required to pay full regard to the welfare requirements of animals when formulating and implementing, inter alia, its internal market policy.
66 In that regard, the Council states that Article 4 of Regulation No 1007/2009, entitled ‘Free movement’, provides that Member States are not to impede the placing on the market of seal products which comply with that regulation. Therefore, by analogy with the judgment in Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paragraph 74, such an act must be regarded as having the objective of improving the conditions for the functioning of the internal market.
67 So far as concerns the applicants’ argument that Regulation No 1007/2009 should also have had Article 133 EC as a legal basis, the Parliament and the Council submit that recourse to that second legal basis was not necessary because the restriction on imports of seal products is not the objective of that regulation, but a merely incidental consequence thereof. The Council states, first, that no conclusion can be drawn from the fact that the proposal for a regulation was also based on Article 133 EC, in so far as that proposal, unlike the version of the regulation which was ultimately approved, refers explicitly to imports, transit and exports, and, secondly, that Article 133 EC cannot be used where purely internal situations are concerned. In any event, according to the Council, the fact that that article was not mentioned is merely a purely formal defect.
68 As regards the alleged infringement of the principle of proportionality, the Parliament and the Council submit that the legislative choices made by the legislature in areas in which it has a wide discretion may be challenged only if they appear to be manifestly incorrect. In that regard, they note that, under the Protocol, the legislature had to take animal welfare into consideration and that it was entitled to prohibit the placing on the market of seal products on the ground that such a measure was best suited to countering barriers to the free movement of the goods concerned and at the same time indirectly reducing the demand driving the commercial hunting of seals.
69 As regards the alleged alternative represented by labelling, the Parliament and the Council maintain that it was, and still is, unclear whether this would have been a feasible solution, having regard inter alia to the difficulties which it would have involved for the traders concerned. In that regard, the Parliament states that labelling might nevertheless be chosen by the Commission to make it possible to market seal products deriving from, inter alia, the hunting practised by the Inuit, in so far as it involves attesting to the Inuit provenance of the products and not compliance with a given level of animal welfare.
70 As regards the allegedly disproportionate nature of the effects of Regulation No 1007/2009 on the Inuit, the Parliament and the Council note that the exception provided for by that regulation in favour of those populations addresses precisely the applicants’ concerns and that the applicants have not shown that that is not the case.
71 With regard to the arguments put forward in the second place by the applicants, the Parliament and the Council submit, first, that, even if the applicants were individually concerned by Regulation No 1007/2009, that would still not mean that the legislature ought to have let them set out their views before adopting that regulation as the legal basis for the latter does not impose any such obligation. In any event, the Inuit had the opportunity to set out their views during the legislative process.
72 Secondly, the Parliament and the Council submit that the applicants have not even sought to demonstrate that Regulation No 1007/2009 would adversely affect their private lives, their religious beliefs and their freedom of expression, and they argue that such an effect must, in any event, be discounted because Regulation No 1007/2009 provides that the prohibition which it entails does not relate to seal products which derive from the hunting practised by the Inuit.
73 Lastly, the Parliament and the Council submit that seals cannot be considered to be the property of the Inuit. For that reason, there is no property right on which Regulation No 1007/2009 imposes a restriction.
– Findings of the President of the Court
74 According to settled case-law, while a mere finding of disparities between national rules is not sufficient to justify recourse to Article 95 EC, the position is otherwise where there are differences between the laws, regulations or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market (see Case C‑380/03 Germany v Parliament and Council [2006] ECR I‑11573, paragraph 37 and the case-law cited).
75 It is also settled case-law that, although recourse to Article 95 EC as a legal basis is possible if the aim is to prevent the emergence of future obstacles to trade resulting from the divergent development of national laws, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them (see Germany v Parliament and Council, paragraph 38 and the case-law cited).
76 It has also been held that, provided that the conditions for recourse to Article 95 EC as a legal basis are fulfilled, the legislature cannot be prevented from relying on that legal basis on the ground that other considerations, such as those relating to public health protection, are a decisive factor in the choices to be made (see, to that effect, Germany v Parliament and Council, paragraph 39 and the case-law cited).
77 The same reasoning applies, prima facie, with regard to the protection and welfare of animals, in so far as it is apparent from the Protocol that, in formulating and implementing, inter alia, the Union’s internal market policies, the Union and the Member States must have full regard for the welfare requirements of animals as sentient beings, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
78 It follows, at first sight, from the foregoing that when there are obstacles to trade, or where it is likely that such obstacles will emerge in the future, by reason of the fact that the Member States have taken, or are about to take, divergent measures with respect to a product or a class of products, which bring about different levels of protection and thereby prevent the product or products concerned from moving freely within the Union, Article 95 EC authorises the legislature to intervene by adopting appropriate measures, in compliance with Article 95(3) EC and with the legal principles mentioned in the Treaty or identified in the case-law, in particular the principle of proportionality (see Germany v Parliament and Council, paragraph 41 and the case-law cited).
79 It must, however, be borne in mind that recourse to Article 95 EC is not justified where the measure to be adopted has only incidentally the effect of harmonising internal market conditions (see Case C‑209/97 Commission v Council [1999] ECR I‑8067, paragraph 35 and the case-law cited).
80 It must also be observed that, by using the words ‘measures for the approximation’ in Article 95 EC, the authors of the Treaty intended to confer on the legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features (see Germany v Parliament and Council, paragraph 42 and the case-law cited).
81 Depending on the circumstances, those measures may consist in requiring all the Member States to authorise the marketing of the product or products concerned, subjecting such an obligation of authorisation to certain conditions, or even provisionally or definitively prohibiting the marketing of a product or products (see Germany v Parliament and Council, paragraph 43 and the case-law cited).
82 It is in the light of those principles that it is necessary to determine whether the arguments put forward by the applicants with regard to the legal basis of Regulation No 1007/2009 allow the President of the Court to find that the prima facie case requirement is satisfied.
83 In that regard, the President of the Court finds that the fact that the legislature took animal welfare into account does not, in itself, support the conclusion, prima facie, that Article 95 EC cannot constitute a valid legal basis for Regulation No 1007/2009.
84 It is, however, necessary to examine whether the primary objective of Regulation No 1007/2009 is, as the applicants submit, the welfare of animals and whether, therefore, the harmonisation of the internal market is merely an incidental effect of that regulation.
85 The President of the Court points out that the principles referred to above were formulated primarily in cases relating to trade in, and advertising of, tobacco products and that the disputed acts related both to the manufacture within and the import into the Union of the goods in question (British American Tobacco (Investments) and Imperial Tobacco, paragraph 16). The Court of Justice was therefore able to point out that measures prohibiting or restricting the advertising of tobacco products were liable to impede access to the market by products from other Member States more than they impede access by domestic products (Germany v Parliament and Council, paragraph 56) and that tobacco advertising by means of radio broadcasts and information society services had a cross-border character which enabled undertakings engaged in the production and sale of tobacco products to develop marketing strategies for the widening of their customer base outside the Member State from which they come (Germany v Parliament and Council, paragraph 63).
86 Furthermore, when the Court of Justice held that national prohibitions of marketing contributed to a divergent development of that market and were therefore such as to constitute obstacles to the free movement of goods, it pointed out in particular that the market in those products was one in which trade between Member States represented a relatively large part (Swedish Match, paragraph 38).
87 It must, however, be borne in mind that the Court of Justice has also held that recourse to Article 95 EC as a legal basis did not presuppose the existence of an actual link with free movement between the Member States in every situation covered by the measure founded on that basis. In order to justify recourse to Article 95 EC as the legal basis, what appears to matter is that the measure adopted on that basis must actually be intended to improve the conditions for the establishment and functioning of the internal market (Germany v Parliament and Council, paragraph 80).
88 In the present case, it is common ground that the manufacture of seal products in the Union is rare. For that reason, it cannot be entirely ruled out, prima facie, that the objective of Regulation No 1007/2009 is that of prohibiting imports of seal products from third countries, with the exception of some of those products, including those resulting from Inuit hunting. The harmonisation of the internal market relates only to those products.
89 It is true that, according to recitals 7 and 8 in the preamble to Regulation No 1007/2009, the existence of diverse national provisions may further discourage consumers from buying products not made from seals, but which may not be easily distinguishable from similar goods made from seals, or products which may include elements or ingredients obtained from seals, without this being clearly recognisable, such as furs, Omega-3 capsules and oils and leather goods. Therefore, the harmonisation measures provided for by that regulation should prevent the disturbance of the internal market in the products concerned, including products equivalent to, or substitutable for, seal products. However, the question of the extent to which seal products and the other products referred to by those recitals are liable to be confused appears to merit an in-depth analysis in the context of the examination of the main action.
90 Furthermore, contrary to what the Council maintains, it does not, at first sight, appear to be certain that Regulation No 1007/2009 contains purely internal measures, with the result that recourse to Article 133 EC as a legal basis could not be contemplated (see, to that effect, Case C-281/01 Commission v Council [2002] ECR I-12049, paragraph 46).
91 Accordingly, the President of the Court cannot completely reject, a priori, the argument that, during the examination of the main action, the Court may take the view that the points set out in recitals 7 and 8 in the preamble to Regulation No 1007/2009 are not sufficient to justify the adoption of Regulation No 1007/2009 on the basis of Article 95 EC.
92 While accepting that what is merely Council practice cannot derogate from the rules laid down in the Treaty and cannot therefore create a precedent binding on the European Union institutions with regard to the choice of the correct legal basis (Opinion 1/08 of the Court of Justice [2009] ECR I-0000, paragraph 172, and Case C-414/04 Parliament v Council [2006] ECR I‑11279, paragraph 37), the President of the Court points out that, at first sight, the argument referred to in paragraph 91 above may be supported by the fact that Council Directive 83/129/EEC of 28 March 1983 concerning the importation into Member States of skins of certain seal pups and products derived therefrom (OJ 1983 L 91, p. 30), which is cited in recital 2 in the preamble to Regulation No 1007/2009, was not adopted on the basis of a Treaty provision relating to the internal market, but on the basis of Article 235 of the EEC Treaty. That directive provides that Member States are to take or maintain all necessary measures to ensure that skins of certain seal pups and products derived therefrom are not commercially imported into their territories, although the directive states that it is to apply only to products which do not result from traditional hunting by the Inuit people.
93 As regards the Council’s argument that, even if Regulation No 1007/2009 should also have had Article 133 EC as a legal basis, the defect would be purely formal, the President of the Court points out that, while it is true that, as stated in British American Tobacco (Investments) and Imperial Tobacco (paragraph 98), an incorrect reference to Article 133 EC as a second legal basis for an act which is also based on Article 95 EC does not of itself mean that that act is invalid, the Court of Justice pointed out on the same occasion that such an error had to be regarded as a purely formal defect, unless it gave rise to irregularity in the procedure applicable to the adoption of that act.
94 Since the act at issue in the case which gave rise to the judgment in British American Tobacco (Investments) and Imperial Tobacco had as a legal basis both Article 95 EC and Article 133 EC and the Court of Justice concluded that only the former article should have been used, it was able to confine itself to declaring that the co-decision procedure required by Article 95 EC had, in any event, been followed and that there was no need to rule on the argument that application of the co-decision procedure in the adoption of a measure concerning the common commercial policy was contrary to the separation of powers between institutions intended by the Treaty (paragraph 110). In the present case, in so far as the dispute relating to legal bases arises in different terms, it cannot a priori be ruled out that, in the main action, the Court will arrive at a different solution.
95 It follows from the foregoing that the pleas in law put forward by the applicants show that there is a major legal disagreement, the solution to which is not immediately obvious, with the result that the action is not prima facie without reasonable substance (see order of the President of the Court of Justice in Case C‑39/03 P‑R Commission v Artegodan and Others [2003] ECR I‑4485, paragraph 40 and the case-law cited). The action in the main proceedings raises a priori complex and delicate issues calling for a detailed examination, which cannot be carried out in the context of proceedings for interim measures but must be the subject of the proceedings in the main action. Without in any way prejudging the position to be taken by the Court in the main action, the President cannot therefore, at the present stage, regard the heads of complaint invoked by the applicants as being manifestly lacking in any merit. Consequently, those heads of complaint appear, at first view, to be sufficiently relevant and serious as to constitute a prima facie case capable of justifying the grant of the interim measures requested (see, to that effect, order of the President of the Court of Justice in Case C‑296/93 R France v Commission [1993] ECR I‑4181, paragraph 17, and order in Case C‑120/94 R Commission v Greece [1994] ECR I‑3037, paragraphs 69 and 70; order of the President in Joined Cases T‑79/95 R and T‑80/95 R SNCF and British Railways v Commission [1995] ECR II‑1433, paragraph 35, and order of the President of 28 April 2009 in Case T‑95/09 R United Phosphorus v Commission, not published in the ECR, paragraph 31), without there being any need to rule on the applicants’ other pleas.
Urgency
– Arguments of the parties
96 The applicants claim that, as a result of the prohibition laid down in Article 3(1) of Regulation No 1007/2009, they will suffer serious and irreparable harm.
97 First, seal hunting, which is necessary for the Inuit to procure supplies of the meat of those animals, which constitutes a fundamental part of their diet and of their culture, gives rise to very high costs that can be borne only as a result of the sale of seal skins, which are by-products of hunting. With few sources of income, a very high unemployment rate and a large number of households living below the poverty line, hunting is an essential source of nutrition for Inuit families.
98 Secondly, if hunting were no longer profitable, the Inuit would be faced with a very difficult situation due not only to the scarcity of other economic activities but also to the fact that the social and cultural aspects of seal hunting are vital to their health and well-being. Those aspects are related to the close link between the Inuit and the land, sea and ice, a link which has traditionally sustained, and continues to sustain, Inuit culture, identity and self-reliance. Post-hunting sharing and use of seals, based on kinship practices, are crucial to sustaining Inuit social, familial and community relationships.
99 Thirdly, according to the applicants, the European Union market has always been very important for the Inuit economy and the seal processing industry in general. It is apparent from the impact assessment attached as an annex to the proposal for a regulation that imports into the Union in 2006 amounted to EUR 720 039 from Canada and to EUR 1 419 042 from Greenland and that the Inuit earn approximately 1 million Canadian dollars (CAD) (that is to say, approximately EUR 650 000) as a result of exports, which are not, however, destined exclusively for Member States. According to an estimate by the Department of Environment of the Inuit province of Nunavut in 2005, the total sealing industry contributed approximately CAD 800 000 annually to Nunavut’s economy. It follows that application of Regulation No 1007/2009 will result in serious and irreparable harm as – even on the most cautious assumptions – it will wipe out at least half of the Inuit revenue.
100 Fourthly, the applicants state that it is unlikely that current trade relationships with the European Union could be restored were Regulation No 1007/2009 to be annulled by the Court. It is probable that users of seal products would in the meantime have switched to alternative products.
101 Fifthly, according to the applicants, implementation of Regulation No 1007/2009 would lead, for the Inuit, to a wide range of new social, environmental and health problems, comparable to, but on a greater scale that, those noted after the seal pups trade ban provided for by Directive 83/129.
102 Sixthly, Regulation No 1007/2009 will likely result in the loss of, inter alia, the market in infrastructure such as auction houses and tanneries, which are mostly owned by non-Inuit commercial corporations. The loss of this market will result in demoralisation and loss of confidence in the future of sealing activity.
103 Lastly, the applicants maintain that, since the Inuit people do not export seal products themselves, the derogation for which Regulation No 1007/2009 provides in favour of the Inuit will remain an ‘empty box’. In that regard, it is apparent from the impact assessment accompanying the proposal for a regulation that the ban relating to the importation into Member States of the skins of seal pups laid down by Directive 83/129 did not prevent the Inuit from suffering, in the 1980s, from the adverse impacts of that directive on the image of seal products in general.
104 The Parliament and the Council dispute the applicants’ arguments.
– Findings of the President of the Court
105 According to settled case-law, the urgency of an application for interim relief must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering damage of that kind (order of the President in Case T-151/01 R Duales System Deutschland v Commission [2001] ECR II-3295, paragraph 187, and order of the President of 25 April 2008 in Case T-41/08 R Vakakis v Commission, not published in the ECR, paragraph 52), which presupposes that he must provide specific evidence allowing the judge hearing the application to determine the precise consequences which the absence of the measures applied for would in all probability entail (order of the President of the Court of Justice in Case 378/87 R Top Hit Holzvertrieb v Commission [1988] ECR 161, paragraph 18, and order of the President in Case T‑196/01 R Aristoteleio Panepistimio Thessalonikis v Commission [2001] ECR II‑3107, paragraph 32).
106 In addition, the alleged damage must be certain, or at least shown with a sufficient degree of probability, and the applicant is required to prove the facts alleged to form the basis of the likelihood of the damage. Damage of a purely hypothetical nature, in that it is based on the occurrence of future and uncertain events, cannot justify the ordering of interim measures (see, to that effect, order of the President of the Court of Justice in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; order of the President in Joined Cases T‑195/01 R and T‑207/01 R Government of Gibraltar v Commission [2001] ECR II‑3915, paragraph 101; and order of the President of 10 July 2009 in Case T‑196/09 R TerreStar Europe v Commission, not published in the ECR, paragraph 54).
107 It is also settled case-law that damage of a purely pecuniary 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 (order of the President of the Court of Justice in Case C‑471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, paragraph 113; order of the President in Case T‑339/00 R Bactria v Commission [2001] ECR II‑1721, paragraph 94).
108 In the present case, in respect of the pecuniary damage alleged, the President of the Court points out that, as regards applicants who are natural persons, the serious and irreparable nature of that damage cannot be ruled out and that it is necessary to ascertain, having regard to the individual circumstances of each applicant, that he has an amount of money which under normal circumstances should enable him to meet all the expenditure necessary for satisfying his own basic needs and those of his family until judgment is given on the substance of the action (see, to that effect, order of the President in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 94).
109 However, the analysis necessary to establish that there is such damage is to a large extent the same as that relating to the other damage alleged by the applicants, namely the alleged impossibility of continuing to live according to their culture and traditions on account of the prohibition laid down in Regulation No 1007/2009. Such damage, were it to be proved, could be regarded as capable of justifying the grant of the interim measure requested.
110 In that regard, it must be pointed out that, if it were to be proved that such damage stemmed from Regulation No 1007/2009, the President of the Court would have to assess whether the abandonment of the economic activities referred to by that regulation in the context of the main proceedings might already occur before a ruling on that action had been given, without there being any possibility of resuming those activities if the act at issue were to be annulled (see, to that effect, order of the President of the Court of Justice of 28 February 2008 in Case C‑479/07 R France v Council, not published in the ECR, paragraph 28).
111 In the present case, it is clear from recitals 14 and 17 in the preamble and from Article 3(1) and (4) and Article 5 of Regulation No 1007/2009, that the legislature, not wishing adversely to affect the fundamental economic and social interests of Inuit communities engaged in seal hunting as a means to ensure their subsistence, allowed the placing on the market of seal products which result from such hunting and that, to that end, it entrusted the Commission with the task of defining, inter alia, the conditions under which those products may be placed on the market. According to the Commission’s response to the question which the President of the Court addressed to it, the measures to implement Regulation No 1007/2009 in respect of, inter alia, that issue could be adopted in May 2010.
112 The President of the Court accordingly finds that the applicants’ argument that the exception in their favour provided for in Article 3(1) of Regulation No 1007/2009 will be an ‘empty box’ cannot, at this stage, be accepted in so far as, the Commission not yet having adopted or even formulated a proposal concerning the implementing measures relating to that exception, the scope and effects of that exception cannot be assessed.
113 That finding also applies to the fear expressed by the applicants with regard to the fact that Inuit hunters do not themselves export seal products but use intermediaries who are not necessarily Inuit. As Article 3(1) of Regulation No 1007/2009 allows the placing on the market of products which ‘result’ from, inter alia, hunts conducted by Inuit, the Commission is not under any obligation to define the implementing measures in such a way as to exclude products of Inuit origin which are imported into the Union by intermediaries who are not Inuit.
114 As regards the applicants’ argument that the exception in favour of the Inuit provided for by Directive 83/129 has been ineffective, it must be pointed out, first, that, until the implementing measures relating to the exception to the prohibition provided for by Regulation No 1007/2009 have been adopted, it is impossible to make a comparison and, secondly, that the applicants themselves admit that the negative effects of that directive with regard to the Inuit did not stem from the prohibition which it introduced, as such, but from the psychological effect which it had on potential purchasers with regard to the need to respect animals.
115 Such negative reactions on the part of potential purchasers cannot be considered to be consequences of Regulation No 1007/2009 because that regulation does not provide any new information in respect of the fact that seals are sentient beings that can experience pain, distress, fear and other forms of suffering. Therefore, those negative reactions, assuming they have been shown to exist, would amount to an independent choice made by potential purchasers, which would constitute the decisive cause of the damage pleaded (see, to that effect, order of the President of 26 March 2010 in Case T‑1/10 R SNF v ECHA, not published in the ECR, paragraph 66).
116 It follows from the foregoing that the applicants have not proved the existence of circumstances giving rise to urgency such as to justify the grant of interim measures.
117 Since the existence of urgency has not been established, the present application must be dismissed, without it being necessary to examine whether the condition relating to the weighing up of the interests involved has been satisfied.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The opinion of the Legal Service of the Council of the European Union of 18 February 2009 on the proposal for a Regulation of the European Parliament and of the Council concerning trade in seal products, submitted by the Commission of the European Communities (COM(2008) 469 final of 23 July 2008), set out in Annex A-4 to the application for interim measures, and the extract from that opinion contained in paragraph 16 of that application are removed from the file in Case T‑18/10 R.
2. The application for interim measures is dismissed.
3. The costs are reserved.
Luxembourg, 30 April 2010.