ORDER OF THE PRESIDENT OF THE GENERAL COURT
15 January 2010 (*)
(Application for interim measures – Directive 91/414/EEC – Decision concerning the non‑inclusion of napropamide in Annex I to Directive 91/414 – Extension of suspension of operation)
In Case T‑95/09 R II,
United Phosphorus Ltd, established in Warrington, Cheshire (United Kingdom), represented by C. Mereu and K. Van Maldegem, lawyers,
applicant,
v
European Commission, represented by L. Parpala and N. Rasmussen, acting as Agents,
defendant,
APPLICATION for the extension of the suspension of operation 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 PRESIDENT OF THE GENERAL COURT
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 By order of 28 April 2009 in Case T‑95/09 R United Phosphorus v Commission, not published in the ECR (‘the order of 28 April 2009’), the President of the Court granted the application for interim relief brought by the applicant, United Phosphorus Ltd, and ordered the suspension of operation, until 7 May 2010, 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 contested decision’). In the order of 28 April 2009, the parties were required to lodge, by no later than 15 March 2010, observations on the course of the accelerated procedure instituted, in regard to napropamide, pursuant to Article 13 of Commission Regulation (EC) No 33/2008 of 17 January 2008 laying down detailed rules for the application of Council 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 in its Annex I (OJ 2008 L 15, p. 5, ‘the accelerated assessment procedure’).
2 By document lodged at the Registry of the Court on 15 December 2009, the applicant applied for the suspension of operation to be extended ‘until November 2010, or at the earliest the date of entry into force of the ... Directive [establishing the inclusion of napropamide]’. The applicant is concerned that the suspension of operation may expire before the conclusion of the accelerated assessment procedure and that the uncertainty surrounding the marketing ban on napropamide may have a negative impact on its sales of the product in 2010.
3 By written observations lodged at the Registry of the Court on 18 December 2009, the European Commission opposes that application in principle, while requesting that, should the President of the Court grant the application, the suspension of operation should immediately cease in the case that the accelerated assessment procedure results in a negative decision for the applicant. In addition, the Commission seeks an order for costs against the applicant.
Law
4 In the order of 28 April 2009 (paragraph 31), the President of the Court found that a prima facie case existed on the ground that the questions raised in the main action call for detailed examination, which must be the subject of the proceedings in the main action. That assessment is not called into question either by the applicant’s application of 15 December 2009 or by the Commission’s observations of 18 December 2009.
5 In addition, the President of the Court examined the condition of urgency (order of 28 April 2009, paragraphs 67 to 82) with regard to the specific circumstances of the present case.
6 Accordingly, with regard to the seriousness of the financial harm alleged, consisting of the loss of market share and customers, he took account of the serious economic and financial crisis from which the world economy had been suffering for several months and which had affected the value of the group to which the applicant belongs.
7 With regard to the irremediable nature of that loss, the President of the Court took into account the fact that the napropamide was manufactured in only one of the applicant’s plants and considered that, in the event that that plant were to be closed as a result of the implementation of the contested decision, a return by the applicant to the market after any annulment of the contested decision, would be very difficult. He considered to be conclusive the fact that, following the adoption of the contested decision, the applicant had instituted the accelerated assessment procedure – in the framework of which its chances of success appeared to be greater than they had been in the framework of the proceedings resulting in the contested decision – and that the accelerated assessment procedure was liable to be concluded only a few months after the date prescribed for the withdrawal from the market of products containing napropamide. He thus concluded that it would be unreasonable to allow the prohibition of the marketing of a product in respect of which it was not improbable that its marketing would be authorised only a few months later.
8 It was stated, in paragraphs 83 to 87 of the order of 28 April 2009, that that conclusion was supported, on a balance of interests, by the finding that the Commission did not itself see any particular reason why napropamide should be withdrawn from the market as quickly as possible and by the circumstance that the contested decision provided for a period of 13 months for the sale of existing stocks, which indicated that the use of napropamide was hardly such as to involve serious risks to public health.
9 In its application of 15 December 2009, the applicant claims that the factors justifying urgency are still valid. It claims, essentially, that by the order of 28 April 2009 the President of the Court intended to suspend the operation of the contested decision until the conclusion of the accelerated assessment procedure, the date of 7 May 2010 being no more than an estimate. In view of the state of advancement of the accelerated assessment procedure, it considers it highly unlikely that that procedure will be concluded by 7 May 2010.
10 Referring to the relevant provisions of Regulation No 33/2008, the applicant, in that context, claims, without being contradicted by the Commission, that on 26 June 2009 the rapporteur Member State issued its additional report – which was favourable to the inclusion of napropamide in Annex I to Directive 91/414 – to the European Food Safety Authority (EFSA) and to the other Member States, that on 29 September 2009 the Commission requested that EFSA prepare a conclusive report within six months, and that thus, in its view, the Commission has a six‑month period in which to draw up a draft review report which should be presented around September 2010. Consequently, the applicant is of the view that the accelerated evaluation procedure will probably be concluded towards mid‑Autumn 2010.
11 In that regard, it should be pointed out that, in paragraph 88 of the order of 28 April 2009, the date on which the suspension of operation of the contested decision ends was expressly linked to the conclusion of the accelerated assessment procedure. The deadline of 7 May 2010, coinciding with the period of grace provided for in the contested decision for the marketing and use of existing stocks of plant protection products containing napropamide, was fixed in that way because it was not possible to predict the precise date of the conclusion of the accelerated assessment procedure. It is apparent, in the context of the present proceeding, that the accelerated assessment procedure will not, in all probability, be concluded by 7 May 2010. It follows that, provided the factors which justified the grant of the suspension of operation remain unchanged, that suspension – linked to the progress of the accelerated assessment procedure – must be extended beyond that date.
12 In that regard, referring to an issue of ‘AGROW World Crop Protection News’ of 28 August 2009, the Commission contends, essentially, that those factors have changed in the meantime, the applicant’s economic situation having improved considerably. It is clear, however, that the figures analysed in that issue concern only 2008, whilst the order of 28 April 2009 was already based on more recent figures, concerning March 2009 (paragraph 70) and showing the seriousness of the harm relied on. Consequently, the Commission’s argument cannot be upheld.
13 Nothing thus precludes, at this stage, the finding – in the light of the foregoing considerations and, in particular, the fact that it appears that in all likelihood the accelerated assessment procedure will not be concluded by 7 May 2010 – that the Court is justified in extending, beyond 7 May 2010, the suspension of operation granted, without needing to decide on the applicant’s arguments, contested by the Commission, concerning the commercial pressures to which it is exposed and which require that it be capable of planning, as quickly as possible, the amount of raw materials which it must source for the production of napropamide in order to fulfil its orders during the year 2010.
14 With regard to the length of the extension of the suspension of operation, it must be pointed out, first, that, although such a suspension was initially granted in spite of the ‘in principle reparable’ nature of the financial harm pleaded by the applicant, that decision was essentially based on the specific circumstance that the applicant had resubmitted an application for assessment of napropamide pursuant to the accelerated assessment procedure (order of 28 April 2009, paragraphs 73 to 77). It follows that any extension of the suspension of operation of the contested decision must imperatively cease at the date of the formal conclusion of the accelerated assessment procedure, regardless of the legal remedies to which the applicant may have recourse should the accelerated assessment procedure result in the non‑inclusion of napropamide in Annex I to Directive 91/414.
15 It is necessary to point out, second, that there can be no question but that the requirements of the protection of public health must as a rule take precedence over economic considerations (see order of the President of the General Court in Case T-70/99 R Alpharma v Council [1999] ECR II‑2027, paragraph 152 and the case‑law cited). Consequently, an extension of the suspension of operation of the contested decision can, at this stage, be accepted only until 30 November 2010, which is the likely date of the conclusion of the accelerated assessment procedure. If it appears that that procedure is subject to delays, particularly because the periods referred to in Articles 20 and 21 of Regulation No 33/2008 are exceeded, the parties may apply, in due time, to the judge hearing the application for interim measures in order to examine whether the maintenance of the suspension of operation and the grant of additional interim measures are necessary.
16 It follows from all the foregoing that the suspension of operation of the contested decision should be extended until 30 November 2010, but not, however, extended beyond the date of delivery of the decision in the main proceedings or beyond the date of the formal conclusion of the accelerated assessment procedure, the parties being free to apply to the judge hearing the application for interim measures where it appears that the accelerated assessment procedure will not have been completed by the 30 November 2010.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The suspension of operation laid down in paragraph 1 of the operative part of the order of the President of the Court of 28 April 2009 in Case T‑95/09 R United Phosphorus v Commission (not published in the ECR) is extended until 30 November 2010, but shall not extend beyond the date of delivery of the decision in the main proceedings or beyond the date of the formal conclusion of the accelerated procedure, initiated with regard to napropamide, under Article 13 of Commission Regulation (EC) No 33/2008 of 17 January 2008 laying down detailed rules for the application of Council Directive 91/414/EEC 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 in its Annex I (OJ 2008 L 15, p. 5).
2. The costs shall be reserved.
Luxembourg, 15 January 2010.