ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
30 March 2007 (*)
(Applications for interim measures and for suspension of operation – Directive 91/414/EEC – Inadmissible)
In Cases T‑393/06 R I, T‑393/06 R II and T‑393/06 R III,
Makhteshim-Agan Holding BV, established in Amsterdam (the Netherlands),
Makhteshim-Agan Italia Srl, established in Bergamo (Italy),
Magan Italia Srl, established in Bergamo,
represented by K. Van Maldegem and C. Mereu, lawyers,
applicants,
v
Commission of the European Communities, represented by L. Parpala and B. Doherty, acting as Agents,
defendant,
APPLICATIONS for suspension of operation of a decision alleged to be contained in a letter from the Commission dated 12 October 2006 concerning the evaluation of the active substance azinphos-methyl, in accordance with 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), and for other interim measures,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Legal context
1 The present interlocutory order forms part of a complex legal background, established 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), which establishes the Community system of authorisation and withdrawal of authorisation for placing plant protection products on the market (for an account of the provisions of Directive 91/414, see the order of the President of the Court of First Instance of 4 April 2006 in Case T‑420/05 R Vischim v Commission, not published in the ECR, paragraphs 1 to 17).
2 Since there is no need to set out all the details of that legal context, reference will be made only to those provisions which are relevant for the outcome of the present interim proceedings.
3 Article 4 of Directive 91/414 provides that ‘Member States shall ensure that a plant protection product is not authorised unless … its active substances are listed in Annex I’.
4 Active substances which are not listed in Annex I to Directive 91/414 may, on certain conditions, benefit from derogating transitional rules. Article 8(2) of the directive thus provides that ‘a Member State may, during a period of 12 years following the notification of this Directive, authorise the placing on the market in its territory of plant protection products containing active substances not listed in Annex I that are already on the market two years after the date of notification of this Directive’.
5 Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Directive 91/414 (OJ 1992 L 366, p. 10) organises the procedure for evaluating a number of substances with a view to their possible listing in Annex I to Directive 91/414. Those substances include azinphos-methyl.
6 Article 19 of Directive 91/414, as amended by Council Regulation (EC) No 806/2003 of 14 April 2003 adapting to Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in Council instruments adopted in accordance with the consultation procedure (qualified majority) (OJ 2003 L 122, p. 1), provides that ‘[t]he Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health set up pursuant to Article 58 of Regulation (EC) No 178/2002’ (‘the Standing Committee’), a regulatory committee whose procedure is governed by Articles 5 and 7 of Council Decision 1999/468/EEC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ 2006 L 200, p. 11).
7 Article 1 of Commission Regulation (EC) No 2076/2002 of 20 November 2002 extending the time period referred to in Article 8(2) of Directive 91/414 and concerning the non-inclusion of certain active substances in Annex I to that directive and the withdrawal of authorisations for plant protection products containing these substances (OJ 2002 L 319, p. 3), as amended by Commission Regulation (EC) No 1335/2005 of 12 August 2005 (OJ 2005 L 211, p. 6), provides:
‘The time period of 12 years referred to in Article 8(2) of Directive 91/414 … is extended until 31 December 2006 for the active substances which are assessed in the framework of Regulation … No 3600/92 … [Until that date], the Member States may continue to authorise or authorise again the placing on the market of plant protection products containing the above mentioned substances, in accordance with the provisions of Article 8(2) of Directive 91/414 …’
8 Article 7(3A) of Regulation No 3600/92, inserted by Commission Regulation (EC) No 1199/97 of 27 June 1997 amending Regulation No 3600/92 (OJ 1997 L 170, p. 19), provides that, after the assessment procedure, the Commission is to present to the Standing Committee either a draft directive to include the active substance in Annex I to the directive, or a draft decision to withdraw the authorisations of plant protection products containing the active substance, or a draft decision to suspend plant protection products containing the active substance from the market, with the option, however, of reconsidering the inclusion of the active substance in Annex I to the directive after submission of the results of additional trials or of additional information, or, last, a draft decision to postpone inclusion of the active substance pending the submission of the results of additional trials or information.
9 Article 5 of Decision 1999/468 provides:
‘…
2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft …
…
4. If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken and shall inform the European Parliament.
…
6. … If … the Council has indicated by qualified majority that it opposes the proposal, the Commission shall re-examine it. It may submit an amended proposal to the Council, re-submit its proposal or present a legislative proposal on the basis of the Treaty.’
Facts giving rise to the dispute
10 Makhteshim-Agan Holding BV is a distributor of azinphos-methyl in the European Union. Makhteshim-Agan Italia Srl is the holder of authorisations for the marketing in Italy of plant protection products based on azinphos-methyl and it distributes under licence other products for which Magan Italia Srl is the holder of marketing authorisations.
11 On a date not specified in the file but in any event before 31 July 1993, Makhteshim-Agan International Co-ordination Center, subsequently replaced by Makhteshim-Agan Holding BV, notified the Commission that it wished to obtain the inclusion of azinphos-methyl in Annex I to Directive 91/414.
12 On 3 March 2006 the Commission submitted to the Standing Committee a draft directive to include azinphos-methyl in Annex I to Directive 91/414.
13 As the Standing Committee issued an unfavourable opinion on that draft directive, the Commission, in accordance with Article 5(4) of Decision 1999/468, submitted the draft directive to the Council. On 18 September 2006 the Council opposed it.
14 On 12 October 1996, the Commission sent to the Federal German Republic, as the rapporteur Member State for azinphos-methyl, a letter containing the following conclusion:
‘The Commission sees no possibility of changing the Council’s mind on this substance. Thus, it would serve no useful purpose for the Commission to resubmit the same proposal or an amended one (for example by proposing a directive including the substance in Annex I with even further conditions). For the same reasons, it would be pointless for the Commission to submit a legislative proposal under Article 37 EC: the Council’s position would remain the same, and it would be unrealistic to imagine that such a text could be adopted before the deadline of 31 December 2006.
Therefore the Commission considers that the Council’s opposition means that no further steps can be taken to approve azinphos-methyl. In the absence of any approval at Community level by the date laid down in Article 8(2) of Directive 91/414, there would no longer be any legal basis for keeping the substance on the market. That date is 31 December 2006 (see Article 1 of Commission Regulation [No] 2076/2002, as amended by Regulation [No] 1335/2005).
Member States should therefore ensure that authorisations for plant protection products containing this substance are withdrawn by 31 December 2006. I would be grateful if you could make this known to interested parties (manufacturers, vendors and farmers etc.) in your Member State, and also to the notifiers with whom you had contact as rapporteur Member State.’
Procedure and forms of order sought by the parties
15 By application lodged at the Registry of the Court of First Instance on 18 December 2006, the applicants brought an action under the fourth paragraph of Article 230 EC for annulment of the contested measure and an action under Article 232 EC for a declaration that the Commission had failed to act.
16 By separate documents lodged at the Registry on 21 and 22 December 2006, the applicants each lodged an application for interim measures.
17 By documents lodged at the Registry on 17 January 2007, the Commission presented its observations in the three interlocutory cases.
18 On 1 February 2007, the parties presented oral submissions.
19 By document lodged at the Registry on 15 February 2007, the applicants submitted additional information, on which the Commission presented its observations on 8 March 2007.
20 On 1 March 2007, the President invited the parties in the three interlocutory cases to lodge, before 6 February 2006, any observations that they might have on the joinder of the three interlocutory cases, in accordance with Article 50(1) of the Rules of Procedure of the Court of First Instance. On 6 March 2007 the applicants complied with that invitation.
21 In the three interlocutory cases, the applicants claim that the President of the Court of First Instance should:
– declare the applications admissible and well founded;
– suspend the contested measure pending the outcome of the main case in so far as it amounts in fact and in law to a failure to include azinphos-methyl in Annex I to Directive 91/414;
– suspend the time-limit referred to in Article 8(2) of Directive 91/414 as concerns azinphos-methyl pending the outcome of the main case and until a decision has been adopted in respect of the inclusion of azinphos-methyl in Annex I to that directive, order (or order the Commission to establish) an extension of that time-limit in order to allow the Member States to continue to grant authorisations for plant protection products based on azinphos-methyl after 31 December 2006 and to authorise the marketing and sale of such products on their territory;
– order the Commission to pay the costs.
22 In the three interlocutory cases the Commission contends that the President of the Court of First Instance should dismiss the applications for interim measures as inadmissible or unfounded and order the applicants to pay the costs.
Law
23 Under Articles 242 EC and 243 EC, on the one hand, and Article 225(1) EC, on the other, the Court may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.
24 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if one of them is not satisfied (order of the President of the Court of Justice of 17 December 1998 in Case C‑364/98 P(R) Emesa Sugar v Commission [1998] ECR I‑8815, paragraph 47).
25 In the present case, since, on the one hand, Cases T‑393/06 R I, T‑393/06 R II and T‑393/06 R III relate to very similar facts and have the same subject-matter and, on the other hand, in the present order the question of urgency will not be examined, it is appropriate, in application of Article 50(1) of the Rules of Procedure, to order that those cases be joined for the purposes of the present order. It is then necessary to examine the question relating to the admissibility of the applications for interim measures.
Arguments of the parties
26 The applicants maintain that the main action is prima facie admissible. They submit in that regard, first, that the application was lodged at the Registry of the Court of First Instance within the period prescribed in the fourth paragraph of Article 230 EC; second, that since the contested act results from the last step in the review of azinphos-methyl provided for in Directive 91/414 it is binding and produces definitive legal effects, such as, in particular, a ban on the marketing of azinphos-methyl and azinphos-methyl-based plant protection products; and, third, although the contested act was not addressed to the applicants, it is of direct and individual concern to them by reason of certain attributes peculiar to them, such as the capacity of notifier or main supplier of data during the administrative procedure.
27 In any event, in the applicants’ submission, in principle the issue of the admissibility of the main application must not be examined in proceedings relating to an application for interim measures, so as not to prejudge the substance of the case.
28 The Commission contends, on the other hand, that the applications for interim measures are inadmissible owing to the fact that the main applications on which they are based are inadmissible.
29 The Commission submits, first of all, that the contested measure is not a measure capable of producing binding effects; next, that it is not of individual concern to the applicants; and, last, that the action for failure to act was not brought in accordance with the requirements of Article 232 EC.
Findings of the President
30 It must be borne in mind that the first subparagraph in Article 104(1) of the Rules of Procedure provides that an application to suspend the operation of any measure adopted by an institution, made pursuant to Article 242 EC, is to be admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance.
31 In the present case, as stated at paragraph 15 above, the applicants have brought an action for annulment of the contested measure, on the basis of the fourth paragraph of Article 230 EC, and an action for a declaration that the Commission has failed to act, on the basis of Article 232 EC.
32 It is settled case-law that the admissibility of the main action should not, in principle, be examined in proceedings relating to an application for interim measures so as not to prejudge the substance of the case. However, where it is contended that the main action from which the application for interim measures is derived is manifestly inadmissible, it may be necessary to establish certain grounds supporting the conclusion that such an action is prima facie admissible. Thus, in order for an application for interim measures to be declared admissible, the applicant must establish certain grounds supporting the conclusion that the substantive action from which his application is derived is prima facie admissible, so as to prevent him from obtaining, by way of proceedings for interim relief, the benefit of interim measures to which he could not be entitled if his action were declared inadmissible when examined as to its merits (orders in Case 376/87 R Distrivet v Council [1988] ECR 209, paragraph 21; Case T-236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 42; and of 24 March 2006 in Case T‑454/05 R Sumitomo Chemical Agro Europe and Philagro France v Commission, not published in the ECR, paragraph 46).
33 It must accordingly be determined whether the applicants have established, in their respective applications for interim measures, certain grounds supporting the conclusion that the main actions for annulment and for failure to act are not prima facie manifestly inadmissible.
The prima facie admissibility of the action for annulment
34 It must be borne in mind that, according to settled case-law, measures against which proceedings for annulment may be brought under Article 230 EC are measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by having a significant effect on his legal position (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Joined Cases T‑10/92 to T‑12/92 and T‑15/92 Cimenteries CBR and Others v Commission [1992] ECR II‑2667, paragraph 28). It must also be borne in mind that the particular form in which the contested measure was adopted is, in principle, immaterial as regards the analysis of its legal effects, which must be examined in the first place by reference to the substance of the measure (orders in Case T‑175/96 Berthu v Commission [1997] ECR II‑811, paragraph 19, and Case T‑84/97 BEUC v Commission [1998] ECR II‑795, paragraph 48).
35 In the present case, the applicants rely in essence on two arguments. They claim, on the one hand, that in so far as it expresses a definitive position adopted by the Commission in the context of the assessment procedure provided for in Directive 91/414, the contested measure is a measure which produces its own legal effects, namely the ban on the marketing of azinphos-methyl and azinphos-methyl-based plant protection products and that the contested measure is of direct and individual concern to them by reason of their status as notifier or main data provider.
36 Without prejudging the assessment of the Court of First Instance in the context of the main action, it is therefore appropriate to ascertain whether, at this stage, the contested measure may be considered to be prima facie amenable to challenge for the purposes of Article 230 EC.
37 The applicants claim that the contested measure has the legal effect of banning the marketing in the European Union of azinphos-methyl and azinphos-methyl based products.
38 It must be borne in mind in that regard that by the contested measure the Commission, first, after taking note of the attendant factual circumstances and finding that, in those circumstances, it was impossible that a directive to include azinphos-methyl in Annex I to directive 91/414, even if subject to very strict limits, would be adopted, informed the Federal German Republic of its intention not to continue the procedure for the adoption of a non-inclusion decision or a directive to include azinphos-methyl in Annex I to Directive 91/414 and, second, set out its interpretation of Article 8(2) of Directive 91/414, observing that the Member States should ensure that the authorisations granted for products containing that substance would be withdrawn by 31 December 2006.
39 As regards the part of the contested measure in which the Commission informs the Federal German Republic that it does not intend to continue the procedure for the adoption of a non-inclusion decision or a directive to include azinphos-methyl in Annex I to Directive 91/414, it should be recalled that such a measure, which reflects only the Commission’s intention to follow a particular line of conduct, cannot be regarded as intended to produce legal effects (see, to that effect, Case 114/86 United Kingdom v Commission [1988] ECR 5289, paragraph 13; Case C‑180/96 United Kingdom v Commission [1998] ECR I‑2265, paragraph 28; and Case C‑443/97 Spain v Commission [2000] ECR I‑2415, paragraph 34). As the Commission claims, it appears at this stage that it is not the announcement of that intention, but the expiry of the time-limit provided for in Article 8(2) of Directive 91/414 and Article 1 of Regulation No 2076/2002 that is capable of having legal effects, in so far as it brings to an end the exceptional transitional arrangements, which expired on 31 December 2006 (see, to that effect, Case 114/88 United Kingdom v Commission, paragraph 13). As for the applicants, they have not put forward any evidence in the interlocutory proceedings on which it might be concluded that the very existence of the contested measure has a significant effect on their legal position.
40 As regards the part of the contested measure in which the Commission sets out its interpretation of Article 8(2) of Directive 91/414, referring to the Member States’ obligation to ensure that authorisations to market the products will be withdrawn, it must be borne in mind that a written expression of an opinion cannot constitute a decision capable of producing legal effects, nor is it intended to produce such effects (see, to that effect, Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1299, paragraphs 16 and 17; Case 114/86 United Kingdom v Commission, paragraph 12; and order in Case 151/88 Italy v Commission [1989] ECR 1255, paragraph 22).
41 In the present case, it is not the interpretation of Directive 91/414 set out by the Commission that is capable of producing legal effects, but its application to a given situation (see, to that effect, Case T‑81/97 Regione Toscana v Commission [1998] ECR II‑2889, paragraph 23). As the Commission claims, even in the absence of the contested measure, the Member States, after the expiry of the period provided for in Article 8(2) of Directive 91/414 and in Article 1 of Regulation No 2076/2002, were required, under Article 4 of Directive 91/414, to withdraw their authorisations for the marketing of azinphos-methyl and of azinphos-methyl-based plant protection products.
42 It should further be borne in mind that, in the Community institutional system and according to the rules governing the division of powers between the Community and the Member States, it is for the latter, in the absence of any contrary provision of Community law, to ensure that Community regulations are implemented within their territory (see, to that effect, judgment in Joined Cases 89/96 Étoile commerciale and CNTA v Commission [1987] ECR 3005, paragraph 11, and order of the President of the Court of First Instance in Case T‑137/96 R Valio v Commission [1996] ECR II-1327, paragraph 30).
43 According to Article 4 of Directive 91/414, ‘Member States shall ensure that a plant protection product is not authorised unless … its active substances are listed in Annex I’.
44 Accordingly, in so far as it for the Member States to implement the provisions of Article 4 of Directive 91/414, the Commission has no power to adopt decisions as to its interpretation. In accordance with a well-established line of decisions, the Commission can therefore, in a measure such as the contested measure, only express an opinion which is not binding on the competent national authorities and which does not affect the applicants’ legal position (see, to that effect, judgment in Sucrimex and Westzucker v Commission, paragraph 40 above, paragraph 16, and orders in Joined Cases T‑492/93 and T‑492/93 R Nutral v Commission [1993] ECR II‑1023, paragraphs 25 to 29, and in Valio v Commission, paragraph 42 above, paragraph 36).
45 As regards the applicants’ argument that the contested measure amounts to a decision not to enter the product in Annex I to Directive 91/414, it must be pointed out that the contested measure does not appear, either by its form, by its conduct or by its context, to be a Commission decision adopted under Article 7(3A) of Regulation No 3600/92.
46 First of all, the contested measure is not in the form of a decision but in the form of a simple letter addressed to the Federal German Republic. Furthermore, it was not published in the Official Journal of the European Union and it was not adopted at the end of the procedure provided for in Directive 91/414.
47 Next, the contested measure does not have the content of a decision, in so far as it merely indicates the future effects which, according to the Commission, derive from Article 8(2) of Directive 91/414, as amended by Article 1 of Regulation No 2076/2002.
48 Last, the context in which the contested measure was issued indicates that the Commission did not intend to adopt a measure producing effects other than those resulting from the expiry of the period provided for in Directive 91/414. In effect, in the contested measure the Commission explains its line of conduct, stating, first, that the Standing Committee and the Council had opposed its draft directive, second, that an amended draft directive could not be contemplated and, third, that it was impossible to obtain approval of a new draft directive before 31 December 2006.
49 In those circumstances, it must be held that the applicants have not shown that the contested measure amounted to a non-inclusion decision within the meaning of Directive 91/414. Nor have they demonstrated to the requisite legal standard that the contested measure was capable of having legal effects of such a kind as to have a significant effect on their legal position.
50 It follows from all of the foregoing that the applicants have not established to the requisite legal standard that the action for annulment on which their applications for interim measures is based was not prima facie manifestly inadmissible.
The prima facie admissibility of the action for failure to act
51 It must be observed, as a preliminary point, that it follows from the applications for interim measures that those applications are based solely on the main application for annulment of the contested measure, which was brought on the basis of Article 230 EC.
52 While that consideration is in principle sufficient to dismiss the applications for interim measures as inadmissible, since they are based on a main action which is prima facie inadmissible (see, to that effect, order in Sumitomo Chemical Agro Europe and Philagro France v Commission, paragraph 32 above, paragraphs 44 and 64), it is none the less appropriate to examine the arguments put forward by the Commission, which seek to demonstrate that the main action for failure to act is also inadmissible.
53 In that regard, it must be observed that, as the Commission asserts without being challenged by the applicants, the applicants did not first call upon the Commission to act before bringing their action for failure to act, as required by the second paragraph of Article 232 EC.
54 As regards the applicants’ argument, raised at the hearing, that it was impossible to call upon the Commission to act in the present case, since they could not know that the Commission would not adopt a non-inclusion decision or a directive to include azinphos-methyl in Annex I within the period expiring on 31 December 2006, it is sufficient to state that, apart from the fact that Article 232 EC does not provide for any derogation from the requirement to call upon the Commission to act, first, the applicants themselves, as the Commission correctly observes, produced a letter from the German authorities dated 20 November 2006 whereby those authorities informed Makhteshim-Agan International Co-ordination Center, the notifier, subsequently replaced, as indicated at paragraph 11 above, by Makhteshim-Agan Holding BV, that the Commission did not intend to continue the procedure and, second, that the applicants have adduced no evidence to establish that they could not have validly called upon the Commission to act before the expiry of the period referred to above.
55 Furthermore, even on the assumption that the Commission was called upon to act by the applicants and that it was required, pursuant to Article 5(2) of Decision 1999/468, to continue the procedure, it must be pointed out that there is sufficient evidence to support the conclusion that the Commission adopted a position within the meaning of Article 232 EC.
56 It is settled case-law that, by using the terms ‘has failed to address to that person an act’, Article 232 EC refers to failure to act in the sense of failure to take a decision or to adopt a position, not the adoption of a measure different from that desired or considered necessary by the persons concerned (judgments in Case 8/71 Deutscher Komponistenverband v Commission [1971] ECR 705, paragraph 2; Joined Cases 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473, paragraph 17; and Joined Cases C‑15/91 and C‑198/91 Buckl and Others v Commission [1992] ECR I‑6061, paragraph 17; and order of the President of the Court of First Instance in Case T‑34/05 R Makhteshim-Agan Holding and Others v Commission [2005] ECR II‑1465, paragraph 60).
57 It must be held that, in the contested measure, the Commission adopted a position when it clearly expressed its intention not to adopt one of the measures provided for in Article 7(3A) of Regulation No 3600/92 and not to propose a legislative measure pursuant to Article 37 EC.
58 Consequently, at this stage, and without in any way prejudging the decision which the Court might adopt on that question in the main action, the President does not have sufficient material before him to consider that the contested measure does not constitute the adoption of a position for the purposes of Article 232 EC.
59 All of the foregoing leads to the conclusion that the applicants have not demonstrated that the main action for failure to act was not prima facie manifestly inadmissible.
60 It follows that, in accordance with the case-law cited at paragraph 32 above, it must be held that the applications for interim measures are inadmissible and must be dismissed.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Cases T‑393/06 R I, T‑393/06 R II and T‑393/06 R III are joined for the purposes of the present order.
2. The applications for interim measures are dismissed.
3. Costs are reserved.
Luxembourg, 30 March 2007.