Case T-34/05 R

Makhteshim-Agan Holding BV and Others

v

Commission of the European Communities

(Interlocutory proceedings – Interim measures – Action for failure to act – Admissibility – Directive 91/414/EEC)

Summary of the Order

1.      Applications for interim relief – Interim measures – Conditions for granting – Urgency – ‘Prima facie case’ – Cumulative nature – Need to weigh up all the interests involved – Discretion of the court hearing the application for interim relief

(Art. 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

2.      Applications for interim relief – Conditions of admissibility – Admissibility of main action – Irrelevance – Limits

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(1))

3.      Actions for failure to act – Omission repaired after commencement of proceedings – Subject-matter of the action ceasing to exist – No need to adjudicate on the action – Proposal for a decision not to include the active substance Endosulfan in Annex I to Directive 91/414 – Assessment of the court hearing the application for interim relief

(Arts 230 EC, 232 EC and 233 EC; Council Directive 91/414, Annex I)

1.      Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications for interim measures must specify the subject‑matter of the dispute, the circumstances giving rise to urgency as well as the pleas of fact and law prima facie justifying the grant of the provisional measure sought (fumus boni juris). Those conditions are cumulative so that an application for interim measures must be rejected if one of them is absent. In an appropriate case the President has also to weigh up the interests at stake.

Moreover, in the context of that overall examination the President enjoys a wide margin of discretion and remains free to determine, in light of the particular features of the case, the way in which those different conditions have to be verified and the order of priority of that examination since there is no rule of Community law imposing on him a predetermined analytical model for assessing the need for an interim decision.

(see paras 34-35)

2.      The question of the admissibility of the action before the court determining the merits may not in principle be examined in the context of interim proceedings, owing to the risk of prejudging the main action. None the less, where the manifest inadmissibility of the main action to which the application for interim measures relates is raised, it may prove necessary to establish the existence of matters enabling such an action to be regarded as prima facie admissible.

(see para. 53)

3.      The remedy provided for in Article 232 EC is based on the idea that an unlawful failure to act on the part of the institution called upon to act enables application to be made to the Community Courts for a declaration that the failure to act is contrary to the Treaty where the institution concerned has not remedied that failure. Such declaration has the effect under Article 233 EC of requiring the defendant institution to take the measures necessary in order to comply with the judgment of the Community Court without prejudice to the actions for non-contractual liability which may stem from that declaration. Where the act whose omission forms the subject-matter of the dispute was adopted after the action was brought but before delivery of the judgment, a declaration by the Community Courts establishing the unlawfulness of the initial failure can no longer entail the consequences provided for in Article 233 EC. That means that, in such a case, just as in a case where the defendant institution reacts to the request to act within the period of two months, the subject-matter of the action has ceased to exist and there is no longer any need for the Court to give a decision.

In that regard, there is reason to believe at the stage of the interlocutory proceedings that the fact that the Commission formally submitted, in the context of the evaluation procedure of the active substance Endosulfan with a view to its possible inclusion in Annex I to Directive 91/414 concerning the placing of plant protection products on the market, a proposal for a decision not to include that substance in Annex I clearly underlines the Commission’s intention to close the examination of the active substance in question and thus constitutes a definition of position terminating the failure to act. The fact that such a proposal does not prima facie constitute an act challengeable by an action for annulment is irrelevant in that regard if it is the prerequisite for the next step in a procedure which has, in principle, to culminate in a legal act which itself will be challengeable by an action for annulment.

(see paras 67-70)