ORDER OF THE PRESIDENT OF THE GENERAL COURT
15 November 2011 (*)
(Application for interim measures – Plant protection products – Active substance ethoxyquin – Non-inclusion of ethoxyquin in Annex I to Directive 91/414/EEC – Withdrawal of authorisations for plant protection products containing ethoxyquin – Application to suspend the operation of a measure – Lack of urgency)
In Case T‑269/11 R,
Xeda International SA, established in Saint-Andiol (France), represented by C. Mereu and K. Van Maldegem, lawyers,
applicant,
v
European Commission, represented by D. Bianchi, G. von Rintelen and P. Ondrůšek, acting as Agents,
defendant,
APPLICATION for suspension of operation of Commission Decision 2011/143/EU of 3 March 2011 concerning the non-inclusion of ethoxyquin in Annex I to Council Directive 91/414/EEC and amending Commission Decision 2008/941/EC (OJ 2011 L 59, p. 71) and, if necessary, other interim measures,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 This order for interim relief falls within a complex legal framework, laid down by Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1), by Commission Regulation (EC) No 1112/2002 of 20 June 2002 laying down the detailed rules for the implementation of the fourth stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC (OJ 2002 L 168, p. 14), by Commission Regulation (EC) No 2229/2004 of 3 December 2004 laying down further detailed rules for the implementation of the fourth stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC (OJ 2004 L 379, p.13) and by 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 into its Annex I (OJ 2008 L 15, p. 5).
2 Directive 91/414 seeks to harmonise the rules for the evaluation and approval of plant protection products and their active substances in the European Union (‘EU’). It provides that a plant protection product cannot be placed on the market in a Member State unless, firstly, its active substance has first been evaluated at an EU level on the basis of the criteria set out in Directive 91/414 and has then been included in Annex I to the directive and, secondly, the plant protection product containing that active substance has subsequently been registered at a national level.
3 In order to make possible a gradual evaluation of all ‘existing’ active substances, that is to say, substances which were already on the EU market two years after the date of notification of Directive 91/414, that is to say, on 25 July 1993, Article 8(2) of Directive 91/414 established a transitional regime during which the Commission of the European Communities was to commence a programme of work for the gradual examination of those active substances. Ethoxyquin, the active substance which is the subject of these proceedings, was notified and evaluated under those rules.
4 Ethoxyquin is a man-made chemical designed to be used, inter alia, to limit certain physiological disorders, such as browning, of pears stored in refrigerated areas or controlled atmospheres.
5 In relation to the ethoxyquin examination procedure, the Federal Republic of Germany was designated as the rapporteur Member State to carry out the assessment on behalf of the Commission. The Federal Republic of Germany prepared a draft assessment report that the European Food Safety Authority (the ‘EFSA’) sent to the applicant, Xeda International SA, on 13 March 2008. That document concluded that ethoxyquin should not be included in Annex I to Directive 91/414. In accordance with Article 24e of Regulation No 2229/2004, the applicant withdrew its support for the inclusion of ethoxyquin. On 8 December 2008, the Commission adopted Decision 2008/941/EC concerning the non‑inclusion of certain active substances in Annex I to Directive 91/414 and the withdrawal of authorisations for plant protection products containing those substances (OJ 2008 L 335, p. 91).
6 Pursuant to Article 13 of Regulation No 33/2008, the applicant submitted a new application for the inclusion of ethoxyquin in accordance with the accelerated procedure laid down in Articles 14 to 19 of that regulation. On 12 June 2009, the applicant sent an updated dossier concerning ethoxyquin to the Federal Republic of Germany, which drew up an additional report which was sent on 14 October 2009 to the EFSA, the Member States, the Commission and the applicant for comments. All of the comments were then included in the EFSA peer review report, the conclusions of which were sent on 26 August 2010 by the Commission to the applicant, which was requested to make comments. The applicant’s response, dated 29 September 2010, was then communicated to the Member States and was presented on three occasions to the Standing Committee on the Food Chain and Animal Health. The draft review report prepared by the Commission was then commented on by the applicant, which in particular reproduced its letter of 29 September 2010. All of those documents were presented to the Standing Committee on the Food Chain and Animal Health which, at its meeting of 27 and 28 January 2011, delivered a favourable opinion on the draft text presented by the Commission. On 3 March 2011, the Commission adopted Decision 2011/143/EU concerning the non-inclusion of ethoxyquin in Annex I to Council Directive 91/414/EEC and amending Commission Decision 2008/941/EC (OJ 2011 L 59, p. 71, the ‘contested decision’).
Procedure and forms of order sought
7 By application lodged at the Registry of the General Court on 23 May 2011, the applicant brought an action for annulment of the contested decision.
8 By a separate document, lodged at the Court Registry on 1 July 2011, the applicant brought this application for interim measures, in which it claims, in essence, that the President of the Court should:
– suspend the operation of the contested decision, pursuant to Article 105(2) of the Rules of Procedure of the General Court, until a decision has been given on this application for interim measures;
– in any event, suspend the operation of the contested decision, with effect from its entry into force, until the Court has ruled on the main application;
– grant any other interim measures as appropriate;
– order the Commission to pay the costs.
9 In its written observations lodged at the Court Registry on 27 July 2011, the Commission contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
10 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 the circumstances so require, order that the application of the act challenged before the General Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions are not to have suspensory effect, since acts adopted by the EU institutions are presumed to be lawful. It is therefore only by way of exception that the judge hearing the application for interim measures can order that the operation of an act challenged before the General Court be suspended or prescribe interim measures (see, to that effect, order of the President of the General Court of 17 December 2009 in Case T‑396/09 R Vereniging Milieudefensie and Stitching Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and the case-law cited).
11 Article 104(2) of the Rules of Procedure provides that an application for interim measures must state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing the application for interim measures may order the suspension of operation of an act and interim measures if it is established that such an order is justified, prima facie, in fact and in law (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action (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).
12 In addition, in the context of that overall examination, the judge hearing an application for interim measures 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 (orders 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 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). Where appropriate, the judge hearing the application for interim measures 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).
13 Having regard to the documents in the case, the President of the Court considers that he has all the material needed in order to rule on this application for interim measures and that it is not expedient first to hear oral argument from the parties.
14 In the circumstances of this case, it should first be examined whether the condition as to urgency is satisfied.
15 In that regard, it must be borne in mind that, according to settled case‑law, the urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable harm to the party requesting the relief (see order of the President of the General Court of 28 April 2009 in Case T‑95/09 R United Phosphorous v Commission, not published in the ECR (‘United Phosphorous order’), paragraph 32 and the case‑law cited). However, it is not sufficient to claim that execution of the act whose suspension is sought is imminent, but it is for the party seeking such relief to prove that it cannot wait for the outcome of the main proceedings without suffering harm of that kind (order of the President of the General Court in Case T‑34/02 R B v Commission [2002] ECR II‑2803, paragraph 85). While it does not have to be established with absolute certainty that the harm is imminent, its occurrence must nevertheless, particularly when it depends on several factors, be foreseeable with a sufficient degree of probability. The party requesting interim measures is required to prove the facts forming the basis of its claim that serious and irreparable harm is likely (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; and order of the President of the General Court in Case T‑181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 83).
16 Moreover, in order to assess whether the harm apprehended by the party requesting the interim measure is serious and irreparable and therefore justifies, exceptionally, suspension of operation of the contested decision, the judge hearing the application for interim measures must have specific and precise particulars, substantiated by detailed documents showing that party’s financial situation and enabling the judge to determine the precise effects which would follow, probably, if the measures sought were not granted (order of the President of the General Court of 12 May 2010 in Case T‑30/10 R Reagens v Commission, not published in the ECR, paragraph 45 and the case-law cited). The party applying for the interim measures is thus required to provide supporting documents and information that establish a faithful overall picture of its financial situation (see, to that effect, order of the President of the General Court of 7 May 2010 in Case T‑410/09 R Almamet v Commission, not published in the ECR, paragraphs 32, 57 and 61).
17 Moreover, it is settled case-law that that faithful overall picture of the financial situation must be provided in the text of the application for interim measures itself. Such an application must be sufficiently clear and precise to allow, by itself, the defendant to prepare its observations and the judge hearing the application for interim measures to rule on the application, where necessary, without any further supporting information, as the essential elements of fact and of law upon which it is based must be set out in a coherent and comprehensible fashion in the text of the application for interim measures itself (order of the President of the General Court of 31 August 2010 in Case T‑299/10 R Babcock Noell v Joint undertaking for Fusion Energy, not published in the ECR, paragraph 17; see, also, order of the President of the Court of Justice of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission, not published in the ECR, paragraph 13).
18 In this case, the applicant raises the risk of a loss of turnover and customers, submitting, in essence, that as the contested decision entails the total withdrawal of ethoxyquin and ethoxyquin-based products from the EU market, it will lose its entire market share in the EU for the products in question. In light of its sales for 2009, the applicant values that loss at [Confidential] (1).
19 Thus, the alleged harm is purely financial. It is settled case-law that the market share held by a company indicates only the percentage of all the products present on the market in question which were sold by that company to customers over the course of a specified reference period. Consequently, the loss of that market share consists in the loss of the profits that may be realised in the future on sales of the product in question. A market share can thus clearly be represented in financial terms, as the holder of that market share can benefit from it only in so far as it generates profit for it (United Phosphorous order, paragraph 64 and the case-law cited). In that regard, the applicant has itself given a precise estimate of the harm which would be caused to it by the contested decision. Therefore, it must be ascertained whether the alleged financial harm in this case can be classified as serious and, if necessary, whether it is irreparable.
20 As regards the determination of the serious nature of financial harm, it is settled case-law that that assessment is carried out in the light of, inter alia, the size and turnover of the undertaking and the characteristics of the group to which it belongs (see order of the President of the Court of Justice in Case C‑43/98 P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36 and the case-law cited; and order of the President of the General Court of 18 June 2008 in Case T‑475/07 R Dow AgroSciences and Others v Commission, not published in the ECR, paragraphs 77 to 82 and the case-law cited).
21 In this case, the applicant claims that there will be loss amounting to approximately [between 0% and 5%] of its turnover. It specifies that, concerning the overall turnover of the Xeda group, that loss represents approximately [between 0% and 5%]. Without needing to take a position on the accuracy of the latter percentage, which is questioned by the Commission in its observations, it must be recalled that a loss corresponding to less than 10% of turnover does not appear to be such as to threaten the very existence of the company or group in question (order of the President of the Court of Justice in Case C‑474/00 P(R) Commission v Bruno Farmaceutici and Others [2001] ECR I‑2909, paragraph 106). In this case, the turnover generated by the sale of ethoxyquin products represents an almost negligible part of the applicant’s turnover and the turnover of the group (see, by analogy, order in Commission v Bruno Farmaceutici and Others, paragraph 105). Therefore, contrary to the applicant’s submission at paragraph 63 of the application for interim measures, the mere loss of turnover is not a sufficient basis for holding that the alleged harm is serious within the meaning of the case-law cited above.
22 However, it should be pointed out that, in the evaluation of the seriousness of the harm, the judge hearing an application for interim measures cannot confine himself to having recourse, in a mechanical and rigid manner, solely to the relevant turnover but must also examine the circumstances of each case (see, to that effect, 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 114) and bring them into relation with the harm occasioned in terms of turnover (United Phosphorous order, paragraph 69).
23 In that regard, the applicant puts forward five arguments seeking to show that there are specific circumstances as a result of which the harm in this case may be classified as serious.
24 Firstly, the applicant submits that, in essence, the effects of the contested decision must be assessed in the light of Commission Decision 2009/859/EC of 30 November 2009 concerning the non‑inclusion of diphenylamine in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2009 L 314, p. 79). Since Decision 2009/859 deprived the applicant of the opportunity to place its diphenylamine-based products on the market, (diphenylamine being its only other antioxidant, which is used on apples), the prohibition by the contested decision on placing its ethoxyquin-based products on the market will, the applicant claims, have the consequence of depriving it of its entire range of antioxidants. Therefore, not only does the contested decision exacerbate the effects of Decision 2009/859 on the applicant’s financial situation and market position, but it also has significant repercussions on its formulation factory in [Confidential], which formulates both compounds.
25 Without it being necessary to decide whether it is possible to take into account the effects of the prohibition on placing on the market a product that is not the subject of this application for interim measures, it is sufficient to note that, in mentioning the effects on its financial situation and its market position as well as the significant repercussions on its factory, the applicant merely raises harm that is still of a purely pecuniary nature. That assessment is confirmed by the fact that the applicant estimates that the loss resulting from the cessation of its sale of antioxidant products amounts to [Confidential], or [between 0% and 10%] of the applicant’s total turnover and [between 0% and 10%] of the group turnover.
26 In the first place, inasmuch as those percentages, and more particularly the percentage at a group level, are less than the thresholds laid down in the case‑law, noted in paragraph 21 above, for losses to be classified as significant, they do not in themselves allow the alleged harm to be found to be serious.
27 In the second place, contrary to that which the applicant appears to deduce from paragraph 67 of the United Phosphorous order, the mere taking into account of the percentage turnover affected did not allow the President of the Court to find the harm suffered in that case to be serious. Indeed, the acknowledgement of the seriousness of that harm arises essentially from the specific circumstances of the case (order of the President of the General Court of 30 April 2010 in Case T‑71/10 R Xeda International and Pace International v Commission, not published in the ECR, paragraph 45). Thus, the significance of the world economic and financial crisis that at the time affected the value of the group to which the applicant belonged was taken into account (United Phosphorous order, paragraph 70, and the order in Xeda International and Pace International v Commission, paragraph 46). It must be noted that, in the application for interim measures, the applicant does not put forward any specific circumstance comparable to that which led to the acknowledgement of the seriousness of the harm in the case giving rise to the United Phosphorous order.
28 Finally, in the third place, the applicant merely asserts that the effects of Decision 2009/859 on its financial situation and market position are exacerbated and that there will be significant repercussions for its formulation factory in [Confidential], which formulates the diphenylamine and ethoxyquin compounds, without providing evidence in support of those claims. As was noted at paragraph 16 above, it is settled case‑law that, in order to assess the seriousness of the harm, the judge hearing an application for interim measures must have specific and precise particulars, substantiated by detailed documents. Moreover, an application for interim measures must present a faithful overall picture of the economic and financial situation of the party seeking those measures and of the group to which it belongs (see paragraphs 16, 17 and 20 above). As the Commission rightly noted in its observations on this application for interim measures, the applicant has not provided any information relating to the sale of its ethoxyquin-based products outside the EU. That information would however have been significant in relation to the evaluation of those effects on the production of goods whose placing on the market is affected by the contested decision only in so far as it has effect in EU territory. Therefore, the applicant has not sufficiently established the seriousness of the alleged impact of the contested decision on the operation of its formulation factory.
29 Consequently, the cumulative effects of the Commission decisions prohibiting the placing on the market of (i) diphenylamine-based products and (ii) ethoxyquin-based products – depriving the applicant of its entire antioxidant range – on the applicant’s financial situation and market position as well as on its formulation factory in [Confidential] do not amount, in this case, to a specific circumstance allowing the alleged harm to be found to be serious.
30 Secondly, the applicant raises the fact that the loss of revenue arising from the contested decision prevents it from pursuing, on the one hand, the research and development necessary for improving the [Confidential] process – regarded by the applicant as an indispensable pre-condition for its being able to submit a new approval application – and, on the other hand, the development of [Confidential] products.
31 In that regard, in the first place, it is sufficient to note that, in support of those claims, the applicant merely provides an affidavit of the president of the board concerning the effects on the company’s activities. As was recalled above, mere assertions do not suffice to show the reality of the specific circumstances raised. Thus, neither the indispensable nature of the [Confidential] process – which is disputed by the Commission – nor the exclusive nature of the financing of research by the sale of ethoxyquin products are supported by evidence satisfying the criteria defined in the case-law referred to in paragraphs 15 to 17 above.
32 In the second place, the consequences mentioned by the applicant relate to the way in which it had planned to finance its business plan. It must be recalled that it is apparent from the applicant’s own evaluation that the percentage of the sales in question, as regards both its turnover and the turnover of the group to which it belongs, is less than the thresholds laid down in the case‑law for those losses to be regarded as serious. Therefore, inasmuch as those losses appear to be slight, it would appear that that financing can be ensured in another way. In this application for interim measures, the applicant merely asserts, without any supporting evidence, that it cannot offset those losses, an assertion which it is not possible for the President of the Court to confirm on the basis of the information provided in the application.
33 Finally, in the third place, it must also be noted in this case that, as from the time Directive 91/414 was adopted providing for evaluation of all plant protection products with a view to keeping them on the market or not, and at the latest since the notification of ethoxyquin for the purposes of that evaluation, the applicant must have been aware of the possibility that a decision banning that substance might be adopted and factor that possibility into the risks that an undertaking operating in the plant protection product market normally must bear (see, to that effect and by analogy, orders in Commission v Bruno Farmaceutici and Others, paragraph 110, and Xeda International and Pace International v Commission, paragraph 58). Moreover, no economic operator can claim a right to property in a market share, even if it held that share at a time before the introduction of a measure affecting the market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances (Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others [2005] ECR I‑6451, paragraph 128, and order in Xeda International and Pace International v Commission, paragraph 58).
34 Consequently, the applicant could not reasonably expect to finance its business plan from the results of the sales of products made with a substance whose placing on the market could be banned. Therefore, the impact of the contested decision on the company’s business plan does not constitute, in this case, a specific circumstance allowing the alleged harm to be found to be serious.
35 Thirdly, the applicant submits that (i) it will lose its customers because of the presence of viable alternatives on the market and (ii) in the event of a ‘favourable’ decision at the end of the main proceedings, it will be difficult to regain those customers ‘as a result of commercial agreements’.
36 In the first place, as regards the loss of customers, since those customers represent a market share, it is established that that type of harm is purely financial and does not constitute of itself a specific circumstance (see paragraph 19 above). That aspect of the application for interim measures, which has already been analysed, does not allow it to be concluded that the alleged harm is serious (see paragraphs 18 to 21 above). The fact that there are viable alternatives on the market to which the applicant’s customers could switch must be assessed in the light of the percentage that that loss represents both for the undertaking in question and the group to which it is linked (see paragraph 22 above). In this case, having regard to the turnover concerned, the presence of competing products does not lead the President of the Court to consider the alleged harm to be serious.
37 In the second place, it must be noted that both the existence of viable alternatives and the difficulty of regaining customers are matters which pertain, above all, to the examination of whether or not the alleged harm is reparable, and not to the examination of its seriousness. At this stage, those arguments are therefore irrelevant.
38 For the sake of completeness, although the matter pertains to the examination of whether or not the harm is reparable, it can already be stated that the applicant merely puts forward the difficulty of regaining customers ‘as a result of commercial agreements’, without further information. It must be recalled that the party seeking interim relief must prove the facts forming the basis of its claim that serious and irreparable damage is likely (see paragraph 15 above). To that end, it must provide to the judge hearing the application for interim measures specific and precise particulars, supported by detailed documents (see paragraph 16 above). Thus, mere assertions do not suffice to satisfy those judicial criteria. Similarly, in the absence of any information, those ‘commercial agreements’ cannot be classified as obstacles of a structural or legal nature within the meaning of the case‑law (see, to that effect, order of the President of the First Chamber of the Court of Justice of 24 March 2009 in Case C‑60/08 P(R) Cheminova and Others v Commission, not published in the ECR, paragraph 64 and the case-law cited) nor can they of themselves explain why, if, for example, commercial measures were taken, those customers would not return to the applicant.
39 Therefore, the presence of viable alternatives and their impact on the applicant’s customers do not amount, in this case, to specific circumstances allowing it to be concluded that the alleged harm is serious.
40 Fourthly, the applicant submits that the cumulative prohibition on placing on the market both diphenylamine and ethoxyquin will irremediably tarnish its reputation and lead to a loss of consumer confidence, which the applicant will not be able to regain.
41 As a preliminary point, it should again be pointed out that the applicant’s assertions concerning the impossibility of regaining its customers are irrelevant in the context of the examination of the seriousness of the harm inasmuch as they pertain to the examination of whether or not the alleged harm is reparable.
42 In the first place, it should be pointed out that the impact of a decision prohibiting the placing on the market of a product, such as the contested decision, on the reputation of the undertaking that manufactures it has already been raised by the applicant in a recent case (order in Xeda International and Pace International v Commission, paragraphs 60 and 61). On that occasion, it was held, inter alia, that, in any event, the adverse effect on the applicant’s reputation, assuming it to be proved, would already have been caused by the contested decision and would last until such time as the contested decision is annulled by the judgment in the main proceedings. Given that the contested decision was adopted following a complex administrative procedure lasting several years, in which scientific experts and professionals working in the sector concerned participated, a suspension of the operation of that decision ordered by the President of the Court on a purely interim basis and in summary proceedings would scarcely be such as to dispel doubts which may exist as to the correctness of the view that ethoxyquin is not dangerous (see, to that effect, United Phosphorous order, paragraph 61, and the order in Xeda International and Pace International v Commission, paragraph 61). In that regard, it should be noted that the applicant has not explained to what extent those statements are not relevant to this case.
43 In the second place, in the case giving rise to the order in Xeda International and Pace International v Commission, the President of the Court held that the withdrawal of a plant protection product from the market will not necessarily have an adverse effect on the reputation of the entire undertaking concerned. In that regard, it is common knowledge that many undertakings operating on the market in question have already had their products withdrawn from the market without it being possible to say that those undertakings or their products were stigmatised as a result. The regulatory authorities and businesses in the sector concerned, which are familiar with the regulatory framework, tend, rather, to view a decision that a plant protection product should not be authorised as a normal part of a regulatory procedure. Such a decision may be regarded as being simply the result of scientific developments and improvement in research methods (see, to that effect, United Phosphorous order, paragraph 60, and the order in Xeda International and Pace International v Commission, paragraph 60). In this case, the applicant submits that, since it is not a question of the imminent loss of one product but of an entire market, the contested decision’s impact on its reputation is more significant and justifies departing from those findings.
44 However, it is to be observed (i) that the negative impact of Decision 2009/859 on the applicant’s reputation was not acknowledged by the President of the Court in the order in Xeda International and Pace International v Commission, and (ii) that that order has not been appealed. It therefore cannot be claimed that the contested decision reinforces the negative effects of a previous decision on the applicant’s reputation. As it is apparent from the application for interim relief that only the cumulative effect of those prohibition decisions justifies, in the applicant’s view, departing from the findings set out above, that argument must be rejected.
45 For the sake of completeness, supposing (i) that Decision 2009/859 had had the impact claimed and (ii) that the contested decision also had negative effects on the applicant’s reputation, it cannot be presumed that those impacts would be cumulative or that the second would reinforce the first. Indeed, no evidence was adduced to show that the prohibited products are part of the same market and concern the same customers.
46 Finally, in the third place, it cannot be inferred that the adverse effect on the applicant’s reputation – assuming it to be proved – as a result of the prohibition on the placing on the market of all its antioxidant products, would lead to a loss of consumer confidence. The applicant puts forward the particularly sensitive nature of the health sector to support its argument that the stigmatisation associated with ethoxyquin and ethoxyquin-based products as a result of the contested decision is almost inevitable and that its customers would not return to a product that had been wrongly declared as unsafe, and then returned to the market. In support of its assertions, the applicant produces a newspaper article and a personal opinion published on a blog.
47 However, it must be noted, first, that those articles do not name the products or the producers. Their content is vague and concerns pesticides in general. The applicant cannot reasonably attribute any probative force whatsoever to those documents in support of its claims. Second, those articles are intended for the general public and not for professional customers. As the Commission submits in its observations, the applicant does not appear to sell to final consumers. In any event, the application for interim measures does not contain any indication to the contrary. Moreover, as is apparent from the letter from the applicant’s [Confidential] distributor annexed to the application for interim measures, that category of customers is familiar with the evaluation procedures for plant protection products and their active substances. In that context, the evidence adduced by the applicant does not allow the findings of the President of the Court, recalled in paragraph 43 above, to be called into question.
48 Therefore, the alleged impact on the applicant’s reputation as a result of two successive decisions prohibiting the placing on the market of the two antioxidant products at its disposal does not amount, in this case, to a specific circumstance allowing the alleged harm to be found to be serious.
49 Fifthly, the applicant points to the fact that it is a small family business that operates in difficult financial conditions and that is not in a position to absorb the losses incurred. In support of those claims, it provides an affidavit from the president of the board regarding the effect that the failure to grant the interim measures applied for would have on the company’s operations.
50 In the first place, for the same reasons as those noted in paragraph 31 above, it must again be noted that those claims are not supported by any documentary evidence satisfying the criteria defined by the case-law referred to above (see paragraphs 15 to 17 above).
51 In the second place, not only has the applicant been inconsistent in its assessment in its pleadings of the size of the undertaking, but that size must be placed in context inasmuch as the analysis is carried out having regard to the group as a whole (see paragraph 20 above). It is to be recalled that the taking into consideration of the turnover of the group to which the company concerned belongs is based on the idea that the objective interests of that company are not independent of those of the persons controlling it within the same group. The serious and irreparable nature of the alleged harm must thus be assessed in relation also to the group comprising those persons. That coincidence of interests is justification in particular for not assessing the seriousness of the loss of the market shares of the company concerned independently of the interest of those controlling it in supporting, or not supporting, their subsidiary (see, to that effect, order in HFB and Others v Commission, paragraph 62, and orders of the President of the General Court in Case T‑241/00 R Le Canne v Commission [2002] ECR II‑37, paragraph 40; in Case T‑192/01 R Lior v Commission [2001] ECR II‑3657, paragraph 55; and in Dow AgroSciences and Others v Commission, paragraph 79). The crucial question when assessing financial circumstances is whether the company which complains of loss of revenue has other potential sources of revenue that might help it to curb that loss. If so, that must be taken into account by the judge hearing the application for interim measures, whether what is involved is possible revenue from the sale of another product or assistance from other persons. It should be added that undertakings belonging to a group or having one or more major shareholders are in a special situation and that must therefore be taken into account by the judge hearing the application for interim relief (order of the President of the Court of Justice in Case C‑364/99 P(R) DSR‑Senator Lines v Commission [1999] ECR I‑8733, paragraph 55; and order in Dow AgroSciences and Others v Commission, paragraph 81). It must, moreover, be pointed out that the account taken of the group does not entail assessment of the seriousness of the harm suffered by that group, but serves only to assess the seriousness of the harm suffered by a company belonging to that group (order in Dow AgroSciences and Others v Commission, paragraph 82). In this case, as was previously noted, at group level, the percentage of sales is less than the thresholds laid down by the case-law for harm to be classified as serious.
52 Therefore, in the light of the information in the documents before the Court, the applicant’s financial situation does not constitute, in this case, a specific circumstance allowing the alleged harm to be found to be serious.
53 It must therefore be held that in this case there is no specific circumstance which, when assessed in light of the relevant turnover, is such as to lead the President of the Court to conclude that the alleged harm is serious.
54 It follows that the applicant has not established that the alleged harm is serious. It is therefore not necessary to examine whether that harm is irreparable.
55 It follows from all the foregoing that the application for interim measures must be rejected for lack of urgency, without it being necessary to consider whether the other conditions for granting suspension of operation are fulfilled in this case.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 15 November 2011.