ORDER OF THE GENERAL COURT (First Chamber)
21 October 2014 (*)
(Intervention — Interest in the result of the case — Representative associations whose object is the protection of their members’ interests — Confidentiality)
In Case T‑429/13,
Bayer CropScience AG, established in Monheim am Rhein (Germany), represented by K. Nordlander, lawyer, and P. Harrison, Solicitor,
applicant,
v
European Commission, represented by P. Ondrůšek and G. von Rintelen, acting as Agents,
defendant,
APPLICATION for annulment of Commission Implementing Regulation (EU) No 485/2013 of 24 May 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substances clothianidin, thiamethoxam and imidacloprid, and prohibiting the use and sale of seeds treated with plant protection products containing those active substances (OJ 2013 L 139, p. 12),
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,
Registrar: E. Coulon,
makes the following
Order (1)
Facts and procedure
1 On 19 August 2013, the applicant, Bayer CropScience AG, brought an action under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) No 485/2013 of 24 May 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substances clothianidin, thiamethoxam and imidacloprid, and prohibiting the use and sale of seeds treated with plant protection products containing those active substances (OJ 2013 L 139, p. 12).
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Law
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The applications for leave to intervene submitted by the UNAF, the AGPM, the NFU, the DBEB, Mellifera, the ÖEB, the ESA and the AIC
22 It is established case-law that intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (orders of the President of the Court of Justice in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraph 66, and Case C‑151/98 P Pharos v Commission [1998] ECR I‑5541, paragraph 6; order of the President of the General Court in Case T‑201/04 R Microsoft v Commission [2004] ECR II‑2977, paragraph 37). In particular, an association may be granted leave to intervene in a case if it represents a significant number of undertakings active in the sector concerned, if its objects include the protection of the interests of its members, if the case may raise questions of principle affecting the functioning of the sector concerned and if the interests of its members may therefore be affected significantly by the forthcoming judgment (orders in Case T‑87/92 Kruidvat v Commission [1993] ECR II‑1375, paragraph 14, and Case T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2004] ECR II‑1603, paragraph 21; and the judgment of 18 October 2012 in Case T‑245/11 ClientEarth and International Chemical Secretariat v ECHA, not published in the ECR, paragraph 12).
23 The Court of Justice has stated that the adoption of a broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of cases, whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (orders in National Power and PowerGen, paragraph 66, and ClientEarth and International Chemical Secretariat v ECHA, paragraph 13).
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55 It follows from all the foregoing that the applications for leave to intervene submitted by the AGPM, the NFU, the ESA and the AIC in support of the form of order sought by the applicant and the application submitted by the UNAF as well as the joint application for leave to intervene submitted by the DBEB and the ÖEB in support of the form of order sought by the Commission must be allowed. The application for leave to intervene submitted by Mellifera must be rejected.
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The applications for leave to intervene submitted by Makhteshim-Agan Italia and KWS Saat
65 It is apparent from the documents before the Court that the company Makhteshim‑Agan Italia is a member of the Association européenne pour la protection des cultures (ECPA) and that the company KWS Saat is a member of the ESA.
66 In the present case, the ESA is granted leave to intervene in its capacity as association representing the interests of its members (see paragraph 55 above). Similarly, the ECPA is granted leave to intervene by separate order of the Court today. In such a situation, if additional applications for leave to intervene having the same objective on the part of their members are granted, that presupposes that those members have demonstrated that they have an interest in the outcome of the dispute that is different from the interests of the associations granted leave to intervene of which they are members (see, by analogy, the order of the President of the Court of Justice of 5 February 2009 in Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, not published in the ECR, paragraphs 12 to 14).
67 In its observations of 21 August 2014 in response to the written question put by the Court, Makhteshim‑Agan Italia contends, in essence, that its interest in intervening derives from its particular situation. It held a marketing authorisation for a product in liquid form based on one of the substances referred to in the contested regulation, which was issued by the Italian authorities and subsequently withdrawn as a result of the adoption of the regulation. In its view, that will not have been the case for all ECPA members, in particular with regard to the liquid as opposed to the solid form of its product. Accordingly, its interest could not be adequately taken into account by the intervention of the ECPA.
68 In its observations of 21 August 2014 in response to the written question put by the Court, KWS Saat contends, in essence, that its interest in intervening derives from its particular situation. It used the specific substances referred to in the contested regulation, sourcing its supplies from the applicant. In its view, as long as the contested regulation remains in force, it will be unable to dispose of its stock of seed that has already been treated with the substances in question, it will be unable to maintain its supply agreement with the applicant, it will suffer losses in its seed production activities, and its investment in the production of seed treated with the substances at issue will be diminished. Those circumstances distinguish its situation from that of other ESA members. Accordingly, its interest could not be adequately taken into account by the intervention of the ESA.
69 In that regard, it should be recalled that, in accordance with the case-law cited at paragraph 23 above, the objective pursued by the adoption of a broad interpretation of the right of associations to intervene is to avoid multiple individual interventions which would compromise the effectiveness and proper course of the procedure.
70 While it is possible that the particular situations referred to by Makhteshim‑Agan Italia and KWS Saat are not shared by all the members of the ECPA and the ESA, respectively, the interests they claim do not, in any event, go beyond those generally protected by the ECPA and the ESA as associations representing the interests of producers of plant protection products and seed producers.
71 Therefore, the Court considers that the interests of Makhteshim-Agan Italia and KWS Saat in the result of the present case are already represented by the associations which have been granted leave to intervene of which they are members.
72 In the light of the foregoing and having regard to the objective pursued by the case-law cited at paragraph 23 above, the applications for leave to intervene submitted by Makhteshim-Agan Italia and KWS Saat must therefore be rejected.
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On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The Association générale des producteurs de maïs et autres céréales cultivées de la sous-famille des panicoïdées (AGPM), the National Farmers’ Union (NFU), Rapool-Ring GmbH, the European Seed Association (ESA) and the Agricultural Industries Confederation (AIC) are granted leave to intervene in Case T‑429/13 in support of the form of order sought by Bayer CropScience AG.
2. The Union nationale de l’apiculture française (UNAF), the Deutscher Berufs- und Erwerbsimkerbund eV (DBEB), the Österreichischer Erwerbsimkerbund (ÖEB), Stichting Greenpeace Council, Pesticide Action Network Europe (PAN Europe), BeeLife European Beekeeping Coordination (BeeLife) and Buglife – The Invertebrate Conservation Trust (Buglife) are granted leave to intervene in Case T‑429/13 in support of the form of order sought by the European Commission.
3. The applications for leave to intervene submitted by Makhteshim-Agan Italia Srl, KWS Saat AG, Mellifera eV — Vereinigung für wesensgerechte Bienenhaltung, ClientEarth, SumOfUs, the OÖ Landesverband für Bienenzucht (OÖL) and the Österreichischer Imkerbund (ÖIB) are dismissed.
4. The Registrar will furnish the intervening parties with a non-confidential version of each of the procedural documents served on the parties.
5. A date shall be fixed by which the intervening parties may lodge their observations on the application for confidential treatment. A decision on the merits of that application is reserved.
6. A date shall be fixed by which the intervening parties may lodge a statement in intervention, without prejudice to their right to lodge a supplementary statement following a decision on the merits of the application for confidential treatment.
7. Makhteshim-Agan Italia, KWS Saat, Mellifera, ClientEarth, SumOfUs, the OÖL, the ÖIB, Bayer CropScience and the Commission shall each bear their own costs relating to the unsuccessful applications for leave to intervene.
8. With regard to the successful applications for leave to intervene, the costs are reserved.
Luxembourg, 21 October 2014.