ORDER OF THE GENERAL COURT (First Chamber)
9 June 2010 (*)
(Approximation of laws – Deliberate release into the environment of genetically modified organisms – Authorisation procedure for placing on the market – Failure to adopt a decision – Action for failure to act – Action deprived of purpose – No need to adjudicate)
In Case T‑293/08,
BASF Plant Science GmbH, established in Ludwigshafen (Germany),
Plant Science Sweden AB, established in Svalöv (Sweden),
Amylogene HB, established in Svalöv,
BASF Plant Science Co. GmbH, formerly BASF Plant Science Holding GmbH, established in Ludwigshafen,
represented by D. Waelbroeck and U. Zinsmeister, lawyers, and D. Slater, Solicitor,
applicants,
v
European Commission, represented by C. O’Reilly and C. Zadra, acting as Agents,
defendant,
supported by
Kingdom of Denmark, represented by J. Bering Liisberg and R. Holdgaard, acting as Agents,
intervener,
APPLICATION for a declaration that, by failing to adopt a decision with regard to the applicants’ notification relating to the placing of a genetically modified Amflora potato on the market, the Commission failed to fulfil its obligations under Article 18(1) of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1) and under Article 5 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),
THE GENERAL COURT (First Chamber),
composed of I. Wiszniewska-Białecka (Rapporteur), President, F. Dehousse and H. Kanninen, Judges,
Registrar: E. Coulon,
makes the following
Order
1 By letter dated 17 March 2008 and received by the Commission of the European Communities on 19 March 2008, BASF Plant Science GmbH formally requested the Commission to adopt a decision, in accordance with Article 18(1) of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1) and with Article 5 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), concerning the placing on the market, in accordance with Directive 2001/18, of the Amflora potato genetically modified for enhanced content of the amylopectin component of starch.
2 By letter of 19 May 2008 the Commission replied to the formal notice from BASF Plant Science dated 17 March 2008. The Commission stated that it would be able to define its position and therefore proceed further with the procedure in relation to BASF Plant Science’s application only on receipt of a fresh scientific opinion from the European Food Safety Authority (EFSA) to which the Commission had sent a fresh mandate on 14 May 2008.
3 By application lodged at the Registry of the General Court on 24 July 2008, the applicants, BASF Plant Science, Plant Science Sweden AB, Amylogene HB and BASF Plant Science Holding GmbH, brought this action.
4 On 29 October 2008 the Commission lodged its defence.
5 By document lodged at the Registry of the Court on 28 November 2008, the Kingdom of Denmark requested leave to intervene in these proceedings in support of the form of order sought by the Commission. By order of 18 February 2009 the President of the First Chamber of the Court granted leave to intervene.
6 By letter of 5 March 2009 BASF Plant Science Holding informed the Registry of the Court that on 1 January 2009 it had changed its company name and was now BASF Plant Science Co. GmbH.
7 On 7 May 2009 the Kingdom of Denmark lodged its statement in intervention. On 8 July 2009 the applicants lodged their observations on the statement in intervention. By letter of 18 June 2009 the Commission informed the Court that it had no observations to make on the statement in intervention.
8 On 20 July 2009 the Court, as part of a measure of organisation of procedure, sent questions to the Commission and requested the production of documents. By letter of 31 July 2009 the Commission sent to the Registry of the Court its reply together with the requested documents.
9 By document lodged at the Registry of the Court on 4 March 2010, the applicants stated that the Commission had adopted on 2 March 2010 the relevant decision (Decision 2010/135/EU concerning the placing on the market, in accordance with Directive 2001/18, of a potato product (Solanum tuberosum L. line EH92-527-1) genetically modified for enhanced content of the amylopectin component of starch (OJ 2010 L 53, p. 11)), thereby bringing to an end the failure to act. The applicants added that, provided that the Commission did not claim that the applicants be ordered to pay the costs, they were renouncing their claim that the Commission should be ordered to pay the costs.
10 On 17 March 2010 the Commission submitted its observations on the application for a declaration that there is no need to adjudicate. The Commission stated that, given that the decision whose absence is the subject-matter of these proceedings had been adopted on 2 March 2010, the subject-matter of the action had ceased to exist and consequently there was no need to adjudicate on it. Accordingly, the Commission supported the applicants’ request that the action be declared devoid of purpose. The Commission added that it was renouncing its claim that the applicants be ordered to pay the costs.
11 The Kingdom of Denmark submitted no observations within the period prescribed on the application for a declaration that there is no need to adjudicate.
12 In accordance with settled case-law, where the act whose absence constitutes the subject-matter of the action for failure to act was adopted after the action was brought but before judgment, the subject-matter of the action has ceased to exist and there is no longer any need for the Court to give a decision on that action (see, to that effect, Joined Cases C‑15/91 and C‑108/91 Buckl and Others v Commission [1992] ECR I‑6061, paragraph 15, and order of 6 September 2006 in Case T‑34/05 Bayer CropScience and Others v Commission, not published in the ECR, paragraph 43).
13 In the light of the foregoing, it must be declared, in accordance with Article 113 of the Rules of Procedure of the Court, that the action has become devoid of purpose and that there is no need to adjudicate on it.
Costs
14 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 General Court. In the present case, it is clear that the main parties have renounced their claims in relation to costs. In those circumstances, it is appropriate to rule that each of the main parties shall bear its own costs.
15 Under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which intervened in the proceedings are to bear their own costs. Consequently, the Kingdom of Denmark shall bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. There is no need to adjudicate on this action.
2. The parties shall bear their own costs.
Luxembourg, 9 June 2010.
E. Coulon | | I. Wiszniewska-Białecka |