ORDER OF THE GENERAL COURT (Fourth Chamber)
20 October 2011(*)
(Plant protection products – Active substance napropamide – Non-inclusion in Annex I to Directive 91/414/EEC – Adoption of a subsequent directive – No need to adjudicate)
In Case T‑95/09,
United Phosphorus Ltd, established in Warrington, Cheshire (United Kingdom), represented by C. Mereu and K. Van Maldegem, lawyers,
applicant,
v
European Commission, represented initially by L. Parpala and N.B. Rasmussen, and subsequently by L. Parpala, acting as Agents, and by J. Stuyck, lawyer,
defendant,
APPLICATION for annulment of Commission Decision 2008/902/EC of 7 November 2008 concerning the non-inclusion of napropamide in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2008 L 326, p. 35),
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, United Phosphorus Ltd, is engaged in the development, manufacture and distribution of plant protection products. In particular it manufactures and markets the active substance napropamide and products containing napropamide. Napropamide is a herbicide which is principally used to prevent the growth of germinating weeds in fields of oil seed rape.
2 On 21 May 2003, in accordance with the procedure 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), 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 Directive 91/414 (OJ 2000 L 55, p. 25) and 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 Directive 91/414 and amending Regulation No 451/2000 (OJ 2002 L 224, p. 23), the applicant notified its wish to secure the inclusion of napropamide in Annex I to Directive 91/414. Only plant protection products the active substance of which is included in Annex I to that directive may be marketed in a Member State. The requisite dossiers for the evaluation of the active substance napropamide were submitted by the applicant on 27 November 2003.
3 At the end of the procedure laid down by Directive 91/414, Regulation No 451/2000 and Regulation No 1490/2002, the Commission of the European Communities adopted Decision 2008/902/EC of 7 November 2008 concerning the non-inclusion of napropamide in Annex I to Directive 91/414 and the withdrawal of authorisations for plant protection products containing that substance (OJ 2008 L 326, p. 35; ‘the contested decision’), the operative part of which reads as follows:
‘Article 1
Napropamide shall not be included as active substance in Annex I to Directive 91/414 …
Article 2
Member States shall ensure that:
(a) authorisations for plant protection products containing napropamide are withdrawn by 7 May 2009;
(b) no authorisations for plant protection products containing napropamide 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 Directive 91/414 … shall be as short as possible and shall expire on 7 May 2010 at the latest.
Article 4
This Decision is addressed to the Member States.’
4 In the contested decision the Commission explained that the information supplied by the applicant had not led to the conclusion that napropamide met the requisite criteria for inclusion in Annex I to Directive 91/414. It stated that that information had failed to allay a number of concerns identified during the evaluation of this active substance.
5 Following the adoption of the contested decision, on 16 December 2008 the applicant lodged a new request for evaluation of napropamide pursuant to the accelerated procedure referred to in Article 13 of Commission Regulation (EC) No 33/2008 of 17 January 2008 laying down detailed rules for the application of Directive 91/414 as regards a regular and an accelerated procedure for the assessment of active substances which were part of the programme of work referred to in Article 8(2) of that Directive but have not been included into its Annex I (OJ 2008 L 15, p. 5). The applicant submitted new information and data in connection with that request.
6 At the end of the accelerated procedure, the Commission adopted Directive 2010/83/EU of 30 November 2010 amending Directive 91/414 to include napropamide as active substance (OJ 2010 L 315, p. 29). In recital 6 in the preamble to that directive, the Commission stated that the additional data and information provided by the applicant during the accelerated procedure had enabled the specific concerns which had led to non-inclusion to be eliminated. In recital 7, the Commission concluded that it was appropriate to include napropamide in Annex I to Directive 91/414.
7 The operative part of Directive 2010/83 is worded as follows:
‘Article 1
Annex I to Directive 91/414 is amended as set out in the Annex to this Directive.
Article 2
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 2011 at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
…
Article 3
This Directive shall enter into force on 1 January 2011.
Article 4
This Directive is addressed to the Member States.’
Procedure and forms of order sought
8 By application lodged at the Registry of the General Court on 26 February 2009, the applicant brought the present action.
9 By separate document lodged at the Registry of the General Court on 9 March 2009, the applicant applied for suspension of operation of the contested decision.
10 By order of 28 April 2009 in Case T‑95/09 R United Phosphorus v Commission, not published in the ECR, the President of the General Court granted the applicant’s application for interim relief and ordered that operation of the contested decision be suspended up to 7 May 2010.
11 By document lodged at the Registry of the General Court on 15 December 2009 the applicant sought an extension of the period of suspension of operation.
12 By order of 15 January 2010 in Case T‑95/09 R II United Phosphorus v Commission, not published in the ECR, the President of the General Court extended the suspension of operation until 30 November 2010, but specified that that suspension of operation was not to extend beyond the date of the formal conclusion of the accelerated evaluation procedure.
13 By document lodged at the Registry of the General Court on 2 November 2010 the applicant requested a further extension of the period of suspension of operation.
14 By order of 25 November 2010 in Case T‑95/09 R III United Phosphorus v Commission, not published in the ECR, the President of the General Court extended the suspension of operation until 31 December 2011 or until the date of adoption of the decision in the main proceedings at the latest, if that decision were to be adopted earlier.
15 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs;
– take such other or further measures as justice may require.
16 The Commission contends that the Court should:
– dismiss the application as unfounded;
– order the applicant to pay the costs.
Law
17 Under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it. In the present case the Court considers that it has sufficient information from the documents in the file to give a decision without taking further steps in the proceedings.
18 It must be borne in mind that, according to established case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which the action will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, otherwise there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42 and the case-law cited).
19 Thus, it has been held that there is no longer any need to adjudicate on the action in the event that an applicant who initially had a legal interest in bringing proceedings has lost all personal interest in having the contested decision annulled on account of an event occurring after that application was lodged (Case T‑301/01 Alitalia v Commission [2008] ECR II‑1753, paragraph 37). This might, for example, be the case where the act sought to be annulled has been repealed (see, to that effect, order in Case T‑26/97 Antillean Rice Mills v Commission [1997] ECR II‑1347, paragraph 15).
20 Nevertheless, it is important to make clear that, according to the case-law, the applicant may retain an interest in the annulment of a measure withdrawn in the course of proceedings if the annulment of that measure may in itself have legal consequences (orders in Case T‑25/96 Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1997] ECR II‑363, paragraph 16, and in Case T‑184/01 IMS Health v Commission [2005] ECR II‑817, paragraph 38).
21 Indeed, the act could have produced legal effects during the period when it was in force and those effects are not necessarily eradicated by its repeal. An action for annulment is also admissible if it allows future repetition of the alleged illegality to be avoided. The institution concerned may thus be required to take adequate steps to restore the applicant to its original situation or to avoid the adoption of an identical measure (Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission, cited in paragraph 20 above, paragraph 17). Furthermore, the applicant retains an interest in securing the annulment of an act that has been repealed if the repealing act is the subject of an action for annulment, with the result that the first act might become applicable again in the event of the annulment of the second (see, to that effect, Antillean Rice Mills v Commission, cited in paragraph 19 above, paragraph 14).
22 In the present case, the Commission decided, by the contested decision, not to include napropamide in Annex I to Directive 91/414 and consequently ordered the withdrawal of authorisations for plant protection products containing that substance and prohibited the grant of new authorisations. The Commission explained in the contested decision that the non-inclusion decision was consequent on the insufficiency of the information provided by the applicant, which had failed to allay a number of concerns identified during the evaluation of this active substance.
23 As has been stated in paragraph 5 above, following the adoption of the contested decision the applicant requested the re-evaluation of napropamide by means of the accelerated procedure provided for by Regulation No 33/2008. For the purposes of that re-evaluation it submitted data and information which succeeded in allaying concerns regarding napropamide, as described in the contested decision.
24 The re-evaluation procedure led to the adoption by the Commission of Directive 2010/83, including napropamide in Annex I to Directive 91/414. In recital 3 in Directive 2010/83, the Commission stated that the supported uses of napropamide indicated in the re-evaluation request were the same as those that had been the subject of the contested decision. In recital 6 in Directive 2010/83, it stated that the additional data and information provided by the applicant had permitted the specific concerns that had led to the non-inclusion to be eliminated. Finally, in recital 7 in that directive, it concluded that napropamide should be included in Annex I to Directive 91/414 in order to ensure that the authorisations of plant protection products containing this active substance may be granted in all Member States.
25 Although Directive 2010/83 does not contain any provision expressly repealing the contested decision, it must be held, having regard to the terms of that directive, in particular recitals 3, 6 and 7 as described in paragraph 24 above, that its repeal of the contested decision was implicit. The terms of Directive 2010/83 are irreconcilable with those of the contested decision, in so far as Directive 2010/83 provides for the inclusion of napropamide in Annex I to Directive 91/414 whereas the contested decision provides, in relation to the same uses, for its non-inclusion.
26 It must be noted in that regard that although the act that was repealed is not, from a procedural aspect, the same kind of act as that which repealed it, both acts were adopted by the same institution and represent the two possible outcomes of the evaluation procedure for active substances of plant protection products that was established by Directive 91/414, Regulation No 451/2000 and Regulation No 1490/2002. Article 8(8) of Regulation No 451/2000, as amended by Article 20 of Regulation No 1490/2002, provides in essence that, at the end of the evaluation procedure, the Commission is to propose either a draft directive to include the active substance in Annex I to Directive 91/414 or a draft decision addressed to the Member States to withdraw the authorisations of plant protection products containing the active substance and not to include that active substance in Annex I to Directive 91/414.
27 Furthermore, contrary to the Commission’s assertion in response to the questions put by the Court as a measure of organisation of procedure, the fact that Directive 2010/83 was adopted after the accelerated procedure provided for by Article 13 of Regulation No 33/2008 has no bearing on whether that directive repealed the contested decision. That provision is strictly procedural in that it provides for the possibility of a re-evaluation of the active substance by means of an accelerated procedure. Moreover, the decision adopted by the Commission following that accelerated procedure is the same kind of act as the contested decision, in so far as they both conclude the evaluation procedure in respect of an active substance, as envisaged by Directive 91/414.
28 That being the case, it is necessary to determine whether the applicant retains an interest in securing the annulment of the contested decision.
29 In that respect, first of all, it is important to note that the contested decision has never been applied by the Member States. By the order of 28 April 2009 in United Phosphorus v Commission, cited in paragraph 10 above, the President of the General Court ordered that operation of the contested decision be suspended until 7 May 2010. That suspension was extended twice: first, by the order of 15 January 2010 in United Phosphorus v Commission, cited in paragraph 12 above, until 30 November 2010; then, by the order of 25 November 2010 in United Phosphorus v Commission, cited in paragraph 14 above, until 31 December 2011 or until the date of adoption of the decision in the main proceedings at the latest, if that decision were to be adopted earlier. Furthermore, in the order of 28 April 2009 in United Phosphorus v Commission, cited in paragraph 10 above, the President of the General Court ordered the Commission to take the measures necessary to ensure that that order was fully effective in regard to those Member States which, at the date of adoption of that order, had already cancelled, withdrawn or refused authorisations for plant protection products containing napropamide. Therefore, the contested decision did not produce any legal effect while it was in force.
30 Second, it must be pointed out that even if it had to be concluded that the contested decision was repealed only in part by Directive 2010/83, that decision is no longer capable of producing legal effects. The view might be taken that Directive 2010/83 repealed the contested decision with regard to the question of the inclusion of napropamide in Annex I to Directive 91/414 but not with regard to the obligation of the Member States to withdraw authorisations for plant protection products and to refrain from granting new authorisations. In that case, on expiry of the suspension of operation on delivery of a decision dismissing the main action, the part of the contested decision concerning the action to be taken by the Member States with regard to the authorisations for plant protection products would again become applicable.
31 However, according to the case-law, the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 249 EC and by the directive itself. That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States (Case C‑106/89 Marleasing [1990] ECR I‑4135, paragraph 8, and Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 40).
32 Since, in the contested decision, the duty imposed on the Member States to withdraw authorisations for plant protection products or to refrain from granting further authorisations is based on the non-inclusion of napropamide in Annex I to Directive 91/414, it must be concluded that the Member States would be acting contrary to the outcome required by Directive 2010/83 – namely the inclusion of napropamide in that annex in order to ensure that authorisations for plant protection products containing that substance can be issued – if they withdrew the authorisations for plant protection products although that directive has come into force and has been transposed.
33 It follows from this that the Member States must provide for procedures that enable them to maintain the benefit of the authorisations for plant protection products containing napropamide already issued, for as long as the evaluation of new applications for authorisation, under the specific provisions referred to in the annex to Directive 2010/83, remains incomplete.
34 Third, it must be noted that the time-limit for bringing an action against Directive 2010/83 expired on 24 February 2011 without any action having been brought. Consequently, the contested decision is no longer capable of becoming applicable again in the event of the annulment of that directive, and the applicant retains no interest in bringing proceedings in that regard.
35 Fourth, the parties have not put forward any other evidence to show that the applicant has an interest in securing the annulment of the contested decision.
36 Therefore, taking into account the fact that the contested decision has not produced any legal effect since its entry into force and that it is, in any event, no longer capable of doing so, it must be concluded that its repeal has provided the applicant with the outcome that it sought to obtain by means of the present action.
37 It follows from this that the applicant retains no interest in securing the annulment of the contested decision and that the action has become devoid of purpose (see order in Case T‑145/95 Proderec v Commission [1997] ECR II‑823, paragraph 27 and the case-law cited).
38 It follows from all of the foregoing considerations that there is no need to adjudicate on the present action.
Costs
39 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
40 The Court considers that the proper application of the above provision, in the specific circumstances of this case, requires each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. There is no need to adjudicate on the action.
2. Each party shall bear its own costs.
Luxembourg, 20 October 2011.