ORDER OF THE PRESIDENT OF THE GENERAL COURT
25 October 2010 (*)
(Applications for interim measures – Regulation (EC) No 1007/2009 – Trade in seal products – Ban on import and sale – Exception in favour of Inuit communities – Second application for suspension of operation of a measure – New facts – No urgency)
In Case T‑18/10 R II,
Inuit Tapiriit Kanatami, established in Ottawa (Canada),
Nativak Hunters and Trappers Association, established in Qikiqtarjuaq (Canada),
Pangnirtung Hunters’ and Trappers’ Association, established in Pangnirtung (Canada),
Jaypootie Moesesie, residing in Qikiqtarjuaq,
Allen Kooneeliusie, residing in Qikiqtarjuaq,
Toomasie Newkingnak, residing in Qikiqtarjuaq,
David Kuptana, residing in Ulukhaktok (Canada),
Karliin Aariak, residing in Iqaluit (Canada),
Canadian Seal Marketing Group, established in Quebec (Canada),
Ta Ma Su Seal Products, established in Cap-aux-Meules (Canada),
Fur Institute of Canada, established in Ottawa,
NuTan Furs, Inc., established in Catalina (Canada),
GC Rieber Skinn AS, established in Bergen (Norway),
Inuit Circumpolar Conference Greenland (ICC), established in Nuuk, Greenland (Denmark),
Johannes Egede, residing in Nuuk,
Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK), established in Nuuk,
represented by J. Bouckaert and H. Viaene, lawyers,
applicants,
v
European Parliament, represented by I. Anagnostopoulou and L. Visaggio, acting as Agents,
and
Council of the European Union, represented by M. Moore and K. Michoel, acting as Agents,
defendants,
supported by
European Commission, represented by É. White, P. Oliver and K. Mifsud-Bonnici, acting as Agents,
and by
Kingdom of the Netherlands, represented by C. Wissels, Y. de Vries, J. Langer and M. Noort, acting as Agents,
interveners,
APPLICATION for suspension of the operation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (OJ 2009 L 286, p. 36),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought
1 The purpose of Regulation (EC) No 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products (OJ 2009 L 286, p. 36), according to Article 1 thereof, is to establish harmonised rules concerning the placing on the market of seal products.
2 In order to prevent disturbance of the internal market in the products concerned while taking into account animal-welfare considerations, Article 3(1) of Regulation No 1007/2009 provides:
‘The placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence. These conditions shall apply at the time or point of import for imported products.’
3 Recital 14 in the preamble to Regulation No 1007/2009 states in that regard that the fundamental economic and social interests of Inuit communities engaged in the hunting of seals as a means to ensure their subsistence should not be adversely affected. The hunt is an integral part of the culture and identity of the members of Inuit society and, as such, is recognised by the United Nations Declaration on the Rights of Indigenous Peoples. Therefore, the placing on the market of seal products which result from hunts traditionally conducted by Inuit and other indigenous communities and which contribute to their subsistence should be allowed.
4 It follows from Article 3(4) and Article 5(3) of Regulation No 1007/2009 that measures for, inter alia, the implementation of the authorisation in favour of Inuit communities have to be adopted by the European Commission.
5 Article 8 of Regulation No 1007/2009 provides that, although that regulation is to enter into force on the 20th day following its publication in the Official Journal of the European Union, Article 3 is to apply from 20 August 2010.
6 By application lodged at the Court Registry on 11 January 2010, the applicants, Inuit Tapiriit Kanatami, Nativak Hunters and Trappers Association, Pangnirtung Hunters’ and Trappers’ Association, Mr Jaypootie Moesesie, Mr Allen Kooneeliusie, Mr Toomasie Newkingnak, Mr David Kuptana, Ms Karliin Aariak, Mr Efstathios Andreas Agathos, Canadian Seal Marketing Group, Ta Ma Su Seal Products, Fur Institute of Canada, NuTan Furs, Inc., GC Rieber Skinn AS, Inuit Circumpolar Conference Greenland (ICC), Mr Johannes Egede and Kalaallit Nunaanni Aalisartut Piniartullu Kattuffiat (KNAPK) brought an action seeking the annulment of Regulation No 1007/2009.
7 By separate document lodged at the Court Registry on 11 February 2010, the persons mentioned in the preceding paragraph made an initial application for interim measures, in which they requested that the President of the Court should, in essence, order suspension of the operation of Regulation No 1007/2009 until the Court has given judgment in the action for annulment brought against that regulation (‘the first application for interim measures’).
8 By order of 30 April 2010 in Case T-18/10 R Inuit Tapiriit Kanatami and Others v Parliament and Council, not published in the ECR (‘the order of 30 April 2010’), the President of the Court rejected the first application for interim measures. After finding that, first, the admissibility of the main action could not be excluded (paragraphs 28 to 48) and, secondly, that the pleas in law put forward by the applicants appeared, at first view, to be sufficiently relevant and serious as to constitute a prima facie case capable of justifying the grant of the interim measures requested (paragraphs 49 to 95), he concluded that there was no urgency, stating the following in paragraphs 108 to 116:
‘108 … in respect of the pecuniary damage alleged, the President of the Court points out that, as regards applicants who are natural persons, the serious and irreparable nature of that damage cannot be ruled out and that it is necessary to ascertain, having regard to the individual circumstances of each applicant, that he has an amount of money which under normal circumstances should enable him to meet all the expenditure necessary for satisfying his own basic needs and those of his family until judgment is given on the substance of the action …
109 However, the analysis necessary to establish that there is such damage is to a large extent the same as that relating to the other damage alleged by the applicants, namely the alleged impossibility of continuing to live according to their culture and traditions on account of the prohibition laid down in Regulation No 1007/2009. Such damage, were it to be proved, could be regarded as capable of justifying the grant of the interim measure requested.
110 In that regard, it must be pointed out that, if it were to be proved that such damage stemmed from Regulation No 1007/2009, the President of the Court would have to assess whether the abandonment of the economic activities referred to by that regulation in the context of the main proceedings might already occur before a ruling on that action had been given, without there being any possibility of resuming those activities if the act at issue were to be annulled …
111 In the present case, it is clear from recitals 14 and 17 in the preamble and from Article 3(1) and (4) and Article 5 of Regulation No 1007/2009, that the legislature, not wishing adversely to affect the fundamental economic and social interests of Inuit communities engaged in seal hunting as a means to ensure their subsistence, allowed the placing on the market of seal products which result from such hunting and that, to that end, it entrusted the Commission with the task of defining, inter alia, the conditions under which those products may be placed on the market. According to the Commission’s response to the question which the President of the Court addressed to it, the measures to implement Regulation No 1007/2009 in respect of, inter alia, that issue could be adopted in May 2010.
112 The President of the Court accordingly finds that the applicants’ argument that the exception in their favour provided for in Article 3(1) of Regulation No 1007/2009 will be an “empty box” cannot, at this stage, be accepted in so far as, the Commission not yet having adopted or even formulated a proposal concerning the implementing measures relating to that exception, the scope and effects of that exception cannot be assessed.
113 That finding also applies to the fear expressed by the applicants with regard to the fact that Inuit hunters do not themselves export seal products but use intermediaries who are not necessarily Inuit. As Article 3(1) of Regulation No 1007/2009 allows the placing on the market of products which “result” from, inter alia, hunts conducted by Inuit, the Commission is not under any obligation to define the implementing measures in such a way as to exclude products of Inuit origin which are imported into the Union by intermediaries who are not Inuit.
114 As regards the applicants’ argument that the exception in favour of the Inuit provided for by [Council Directive 83/129/EEC of 28 March 1983 concerning the importation into Member States of skins of certain seal pups and products derived therefrom (OJ 1983 L 91, p. 30)] has been ineffective, it must be pointed out, first, that, until the implementing measures relating to the exception to the prohibition provided for by Regulation No 1007/2009 have been adopted, it is impossible to make a comparison and, secondly, that the applicants themselves admit that the negative effects of that directive with regard to the Inuit did not stem from the prohibition which it introduced, as such, but from the psychological effect which it had on potential purchasers with regard to the need to respect animals.
115 Such negative reactions on the part of potential purchasers cannot be considered to be consequences of Regulation No 1007/2009 because that regulation does not provide any new information in respect of the fact that seals are sentient beings that can experience pain, distress, fear and other forms of suffering. Therefore, those negative reactions, assuming they have been shown to exist, would amount to an independent choice made by potential purchasers, which would constitute the decisive cause of the damage pleaded …
116 It follows from the foregoing that the applicants have not proved the existence of circumstances giving rise to urgency such as to justify the grant of interim measures.’
9 There was no appeal against the order of 30 April 2010.
10 On the other hand, by application lodged at the Court Registry on 28 July 2010, all but one of the persons mentioned in paragraph 6 above (‘the applicants’) made a second application for interim measures based on Articles 278 TFEU and 279 TFEU and Article 109 of the Rules of Procedure of the General Court.
11 In support of that second application for interim measures, the applicants submit that they became aware, on 2 June 2010, in the course of the main proceedings, of the draft of a Commission regulation containing the measures for the implementation of the authorisation in favour of Inuit communities (‘the Inuit exception’) pursuant to Article 3(4) of Regulation No 1007/2009. According to them, it is apparent from that document that the future implementing regulation of the Commission will be completely inappropriate in so far as it will render the Inuit exception meaningless.
12 The applicants add that they would have preferred to wait until the implementing regulation was published before making this second application for interim measures. However, as the publication of that regulation had not yet taken place by the end of July 2010, that is to say three weeks before the entry into force of Article 3 of Regulation No 1007/2009 on 20 August 2010, they submit that they are obliged to seek interim relief on the basis of the present draft.
13 Consequently, the applicants claim that the President of the Court should:
– declare the second application for interim measures admissible on account of the new facts which support the arguments in the first application for interim measures;
– order suspension of the operation of Regulation No 1007/2009 until the Court has given judgment in the action for annulment brought against that regulation;
– order the European Parliament and the Council of the European Union to pay the costs.
14 By order of 19 August 2010, which was adopted pursuant to Article 105(2) of the Rules of Procedure, the President of the Court suspended the operation of the conditions restricting, under Article 3(1) of Regulation No 1007/2009, the placing on the market of seal products in so far as concerns the applicants until the order bringing the present proceedings for interim measures to an end is adopted.
15 In their written observations lodged at the Court Registry on 7 September 2010, the Council, the Parliament and the Commission contend that the President of the Court should:
– dismiss the application for interim measures;
– order the applicants in the present case to pay the costs.
Law
16 Having regard to the documents on the file, the President of the Court considers that he has all the material necessary in order to rule on the present application for interim measures and that no purpose would be served by first hearing oral argument from the parties.
Admissibility
17 Under Article 109 of the Rules of Procedure, rejection of an application for interim measures is not to bar the party who made it from making a further application on the basis of new facts.
18 According to settled case-law, ‘new facts’ within the meaning of that provision should be taken to mean facts which appear after the order dismissing the first application for interim measures was adopted or which the applicant was not capable of invoking in the first application or during the proceedings leading to the first order and which are relevant to the assessment of the case in question (see order of the President of the General Court in Case T-420/05 R II Vischim v Commission [2006] ECR II-4085, paragraph 54, and the case-law cited).
19 It is therefore necessary to establish whether, in the present application for interim measures, the applicants have provided new facts capable of calling into question the assessments which led the President of the Court to dismiss, by order of 30 April 2010, the first application for interim measures.
20 In that regard, it must be borne in mind that, in the order of 30 April 2010, the President of the Court, after stating that the analysis of the pecuniary damage alleged by the applicants was to a large extent the same as that relating to their non-pecuniary damage, namely the alleged impossibility of continuing to live according to their culture and traditions, pointed out that, in adopting Regulation No 1007/2009, the legislature did not wish adversely to affect the fundamental economic and social interests of Inuit communities engaged in seal hunting as a means to ensure their subsistence and therefore tolerated the placing on the market of seal products which result from such hunting, entrusting the Commission with the task of adopting an implementing regulation defining the conditions under which those products may be placed on the market. Furthermore, the President of the Court added that, as at 30 April 2010, the Commission had not adopted or even formulated a proposal concerning the implementing measures relating to the Inuit exception, with the result that the scope and effects of that exception could not be assessed. For those reasons, the President of the Court rejected ‘at this stage’ the applicants’ argument that the Inuit exception provided for in Article 3(1) of Regulation No 1007/2009 would be an ‘empty box’ and dismissed the first application for interim measures on the ground of lack of urgency (see paragraph 8 above).
21 It follows that, in order to reject the applicants’ argument that the Inuit exception would be an ‘empty box’, the President of the Court found, in essence, in the order of 30 April 2010, that it was impossible to assess the scope and effects of that exception in the absence of any document concerning the implementing measures relating to that exception, more specifically that of the imminence of serious and irreparable damage, until the implementing regulation provided for in Article 3(4) of Regulation No 1007/2009 had been adopted, on the ground that the assessment of urgency had to include an examination of the scope and effects of that implementing regulation. It follows that the wording of the latter appears to be relevant to the assessment of the case in question in accordance with the case-law cited in paragraph 18 above.
22 A draft regulation containing a proposal concerning the implementing measures relating to the Inuit exception was brought to the notice of the applicants on 2 June 2010 (see paragraph 11 above). It follows that that draft regulation constitutes a new fact for the purpose of the case-law cited in paragraph 18 above and, therefore, that the applicants were authorised to base the present application for interim measures on that draft regulation without waiting for the formal entry into force of Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (OJ 2010 L 216, p. 1) (‘the implementing regulation’). Although it is true that the implementing regulation was adopted only on 10 August 2010 and published in the Official Journal of the European Union only on 17 August 2010, the applicants could not be required to wait until the latter date before making their application for interim measures, particularly since that date almost coincides with the date on which the conditions restricting, under Article 3(1) of Regulation No 1007/2009, the placing on the market of seal products had to be applied.
23 Consequently, the present application for interim measures must be declared admissible. It must be stated, however, that the examination of the discussion between the parties will be restricted to the requirement of urgency, whereas the numerous arguments concerning the admissibility of the main proceedings and the prima facie case go beyond the scope of Article 109 of the Rules of Procedure. Lastly, that examination will relate, for reasons of expediency, to the implementing regulation as published on 17 August 2010, and not to the draft regulation of 2 June 2010, particularly since the wording of the latter corresponds, in essence, to that of the implementing regulation.
Urgency
24 As regards the implementing regulation, it must be pointed out that that document introduced a mechanism by which ‘recognised bodies’ issue documents attesting that seal products are compliant with the requirements laid down in Article 3(1) of Regulation (EC) No 1007/2009.
25 To that end, Article 3 of the implementing regulation provides:
‘1. Seal products resulting from hunts by Inuit or other indigenous communities may only be placed on the market where it can be established that they originate from seal hunts which satisfy all of the following conditions:
(a) seal hunts conducted by Inuit or other indigenous communities which have a tradition of seal hunting in the community and in the geographical region;
(b) seal hunts the products of which are at least partly used, consumed or processed within the communities according to their traditions;
(c) seal hunts which contribute to the subsistence of the community.
2. At the time of the placing on the market, the seal product shall be accompanied by the attesting document referred to in Article 7(1).’
26 According to Article 7(1) of the implementing regulation, the ‘recognised bodies’ are to issue, upon request, an attesting document where the requirements for placing on the market set out in Article 3(1) of that regulation are met. Under Article 9(1)(a) of that regulation, Member States must designate one or several authorities responsible, inter alia, for verification of attesting documents for seal products imported from third countries.
27 Article 6 of the implementing regulation specifies the requirements for recognition by the Commission of ‘recognised bodies’ as follows:
‘1. An entity shall be included in a list of recognised bodies where it demonstrates that it fulfils the following requirements:
(a) it has legal personality;
(b) it has the capacity to ascertain that the requirements of Article 3 or 5 are met;
(c) it has the capacity to issue and manage attesting documents referred to in Article 7(1), as well as process and archive records;
(d) it has the ability to carry out its functions in a manner that avoids conflict of interest;
(e) it has the ability to monitor compliance with the requirements set out in Articles 3 and 5;
(f) it has the capacity to withdraw attesting documents referred to in Article 7(1) or suspend their validity in case of non-compliance with the requirements of this Regulation, and to take measures to inform competent authorities and customs authorities of Member States thereof;
(g) it is subject to an independent third party audit;
(h) it operates at national or regional level.
2. In order to be included in the list referred to in paragraph 1, an entity shall submit to the Commission a request accompanied by documentary evidence that it fulfils the requirements set out in paragraph 1.
3. The recognised body shall submit audit reports produced by the independent third party referred to in paragraph 1(g) to the Commission at the end of each reporting cycle.’
Arguments of the parties
28 Bearing in mind that Regulation No 1007/2009 prohibits the marketing of any seal products, the applicants maintain that the major part of the exports of those products to the European Union is bound to disappear. The same fate awaits the Inuit seal products given that the Inuit exception is an ‘empty box’. It is to be feared that the competent national authorities will not correctly implement that exception. The absence of any definition of what is to be regarded as a ‘tradition of seal hunting’ in the implementing regulation and the impossibility of implementing that regulation given the date of its entry into force leaves room for those authorities who may wish to do so to reduce the Inuit exception to a useless chimera.
29 The applicants fear that neither the sealing industry nor the Inuit communities or hunters will be in a position to set up ‘recognised bodies’, given that those bodies must, under Article 6(1)(d) of the implementing regulation, carry out their functions ‘in a manner that avoids conflict of interest’. No private entity will have any interest in setting up such bodies and it is highly uncertain that the Canadian or ‘Inuit’ Governments envisage doing so, given the costs associated with it compared with the limited benefits. In any event, it remains to be seen whether those Governments would find themselves in a conflict of interest situation or not, given that it is common knowledge that they are in favour of the sale of seal products.
30 Furthermore, Article 6(1)(h) of the implementing regulation, according to which those bodies must ‘operate at national or regional level’, requires the setting up of a number of different bodies, which all have to be certified by the Commission. The implementation of the Inuit exception will thus be extremely costly, complex and time-consuming and therefore purely theoretical in the light of the entry into force of the implementing regulation on 20 August 2010 and the limited market for Inuit seal products.
31 All the conditions referred to in the implementing regulation must be met no later than 20 August 2010, although it is inconceivable that those conditions can be met so as to allow the effective application of the Inuit exception as of that date. On the contrary, it would take years to set up an organised workable scheme, even if such a scheme were possible. In particular, there will be no ‘recognised bodies’ by 20 August 2010. The proposition that Inuit should comply with the requirements laid down by the implementing regulation is therefore unrealistic.
32 The fact that the implementing regulation allows the export by commercial ‘non-Inuit’ companies of seal products originating from Inuit hunting will serve no purpose at all. Indeed, in the absence of a traceability system which makes it possible to identify seal products originating from Inuit hunting, it will be impossible to implement the Inuit exception. Furthermore, the investments required in order to set up such a system are so huge in comparison with the profit that can be made by those commercial companies from selling Inuit seal products that those investments will never be made. According to the applicants, that is confirmed by the 2010 Cowi Final Report (‘the Cowi Report”, Annex 30 to the present application for interim measures).
33 As regards the Cowi Report, the applicants state that the Commission ‘Environment’ Directorate-General ordered a Danish engineering and planning firm for large-scale projects to prepare a report on how to implement the Inuit exception. That report, which was finalised in January 2010, confirmed the applicants’ fears as to the effects of the implementing regulation. The Commission therefore opted to adopt a monitoring system, which had the effect that the existing marketing infrastructure for the relatively modest number of Inuit-sourced seal products was not maintained.
34 The applicants state that it would be extremely difficult to create a new and alternative market niche for Inuit seal products within the context of such a scheme. The Council, the Parliament and the Commission did not take into consideration that the international market for sealskins is driven primarily by fashion trends rather than specific demand for Inuit products. The Government of the territory of Nunavut (Canada) has had moderate success within Canada in developing demand for unique Inuit seal products. However, it is much more difficult to develop that niche market internationally, where consumers tend to be less aware and/or appreciative of Inuit culture.
35 In that connection, the applicants state, first, that the prohibition on trade in seal products will likely result in the loss, within the European Union, of infrastructure such as auction houses and tanneries, which are mostly held by ‘non-Inuit’ commercial corporations serving the ‘non-Inuit’ trade in those products, and, without that infrastructure, the Inuit simply cannot bring their sealskins to the European market (order of 30 April 2010, paragraph 102). They state, secondly, that the ban on the importation of the skins of seal pups laid down by Directive 83/129 in 1983 resulted in the collapse of the seal products market even for Inuit communities (order of 30 April 2010, paragraph 103). The same result is to be expected with the implementing regulation.
36 Furthermore, the Inuit exception system would require an umbrella agreement with the Canadian federal Government and, perhaps, at a later stage, provincial or territorial regional public bodies, especially since the latter would have to administer the scheme. To comply with the onerous traceability requirement imposed by the implementing regulation, Canadian Inuit would have to persuade the Canadian federal Government to begin negotiations with the European Union, which would require substantial investments of time and involve costs that that Government would not necessarily be willing to invest.
37 The applicants submit that the situation described above will cause them both pecuniary and non-pecuniary damage.
38 The most obvious damage to them is a loss of revenue, which must not be evaluated in a mechanical and rigid manner by having recourse solely to the relevant turnover, but must take into consideration the circumstances of each case, that is to say the applicants’ specific situation, the worldwide economic downturn and the difficult market conditions. Regulation No 1007/2009, therefore, which was published in September 2009, created a wave of insecurity among seal product purchasers and has already resulted in a decline in sealskin sales.
39 The applicants explain, by means of a first table, that the average sealskin prices have fallen – since the proposal for the adoption of a regulation banning trade in July 2008 – in Nunavut from almost 60 Canadian dollars (CAD) in December 2006 to around CAD 48 in December 2008, and then to around CAD 15 in May 2010. A suspension of the operation of the regulation is therefore essential in order to avoid a total crash in those prices on the world market.
40 The applicants add that, in line with the decrease in sealskin prices, revenues resulting from the sale of sealskins at auction in Canada have also declined since the July 2008 proposal in the following manner:
Year | Number of sealskins sold | Average price (in CAD) | Total income |
2002-03 | 8,508 | 48.83 | 415,445.64 |
2003-04 | 7,600 | 45.13 | 342,988.00 |
2004-05 | 7,180 | 63.61 | 456,719.80 |
2005-06 | 7,658 | 66.83 | 511,784.14 |
2006-07 | 7,677 | 57.85 | 444,114.45 |
2007-08 | 1,101 | 55.90 | 61,545.90 |
2008-09 | 4,059 | 38.31 | 155,500.29 |
2009-10 | 4,150 | 16.85 | 69,927.50 |
41 According to the applicants, that trend is confirmed by the severe decrease in the numbers of seals caught since the Commission proposal in 2008 and the adoption of Regulation No 1007/2009 in 2009:
Year | Quota | Average price | Catch | % |
2005 | 319,517 | 75.00 | 323,826 | 101.4 |
2006 | 335,000 | 105.00 | 354,857 | 105.9 |
2007 | 270,000 | 69.00 | 224,745 | 83.2 |
2008 | 275,000 | 31.00 | 217,850 | 79.2 |
2009 | 280,000 | 12.50 | 72,407 | 25.9 |
2010 | 322,306 | 19.50 | 66,496 | 20.6 |
42 The applicants state that, in July 2010, it became clear that the decrease in catches, sealskin prices and numbers sold, which began in 2008, was the consequence not of the worldwide financial turmoil but of market uncertainty due to the threat of a ban on seal products. The entry into force of Regulation No 1007/2009 without a certified scheme for Inuit seal products being in place, as a result of inter alia the timing of the adoption of the implementing regulation, has a devastating effect on the world trade in seal products.
43 In that connection, they state that in 2006 the Inuit earned around one million CAD (around 650 000 euro) as a result of the hunting of seals and that, according to an estimation made by the authorities of the territory of Nunavut in 2005, the total sealing industry contributed about CAD 800 000 annually to the economy of that territory (see order of 30 April 2010, paragraph 99). That revenue, which is very important for the Inuit hunters and their families, will be lost since the prohibition on trade in seal products will no longer allow those products to be sold, in particular the skins, in order to cover hunting expenses.
44 The applicants point out a second financial consequence of the prohibition on trade in seal products: trade will be affected not only in the European Union, but also in other parts of the world. As a result of the attention given by the European Union to this issue, the prohibition will have a snowball effect on traders and consumers outside the European Union. The result is a global slump in consumer interest for seal products and low market prices in all geographic markets.
45 Furthermore, it is unlikely that current trade relationships could be restored after the annulment of Regulation No 1007/2009 since users of seal products would in the meantime probably have switched to alternative products, as is shown by the experience acquired with the seal pups ban of 1983.
46 As regards their non-pecuniary damage, the applicants maintain that seal by-products from the hunt, mostly sealskins, are marketed in order to cover hunting expenses. As a result of the adoption of Regulation No 1007/2009 and the lack of effect of the Inuit exception, the exports of those products to the European Union, including Inuit seal products, are likely to disappear. Therefore, the Inuit applicants and, more generally, the Inuit will no longer have that source of revenue available to cover their hunting expenses. Moreover, for the applicants and, more generally, the Inuit communities, seal hunting represents more than a means of subsistence and cannot be reduced to a mere economic activity. It forms part of their ancestral tradition.
47 By effectively preventing the applicants from exporting their seal products to the European Union, Regulation No 1007/2009 and the implementing regulation thus affect their living conditions by interfering with the societal fibre of Inuit communities. The non-monetary aspect of Inuit seal hunting is of much greater significance than the monetary aspect because seal meat is still a large component of an Inuit’s diet.
48 The applicants submit that the dynamic between needing money to hunt, the loss of revenue from seal products, the resulting need for salaried employment, the scarcity of such gainful employment, the reduced time for hunting and the inevitable reduction in the quantity of seal meat and other traditional food available, will rapidly and irreparably exacerbate the already difficult living conditions for a large number of Inuit, including the Inuit hunters and seal product processors applying for the present interim measures and the Inuit represented in the present proceedings by their organisations.
49 Lastly, the suicide rate among young people in Inuit communities is very high. Similarly, substance abuse, which is already a huge challenge for Inuit communities, will increase as more and more Inuit will be unable to maintain themselves and their families and practise their traditional way of life while making a modest income to cover their expenses.
50 The applicants conclude by stating that the adoption of Regulation No 1007/2009, irrespective of the adoption of the implementing regulation, justifies the fear that the Inuit applicants and, more generally, the Inuit people, will no longer be in a position to maintain their way of life. The applicants therefore submit that they have established that there is urgency.
51 The Council and the Parliament, supported by the Commission, dispute the applicants’ arguments in their entirety and contend that there is no urgency.
Findings of the President of the Court
52 In so far as the applicants complain of the serious and irreparable harm which ‘the Inuit population’, ‘the Inuit communities’, ‘Inuit hunters’ and ‘the seal industry’ will be subjected to, it must be borne in mind that it is settled case-law that an entity governed by public law such as a State or a local infra-State body is by its very nature responsible for protecting the economic, social and cultural interests regarded as general at national, regional or local level. Consequently, such an entity governed by public law may, in proceedings for interim measures, make submissions regarding damage which affects a general economic sector, in particular where the disputed measure may have unfavourable repercussions for the level of employment and cost of living (see, to that effect, order of the President of the General Court of 9 November 2007 in Case T-183/07 R Poland v Commission, not published in the ECR, paragraph 39; order of the President of the General Court of 16 November 2007 in Case T-312/07 R Dimos Peramatos v Commission, not published in the ECR, paragraph 36; and order of the President of the General Court of 14 December 2007 in Case T‑387/07 R Portugal v Commission, not published in the ECR, paragraph 34).
53 In the present case, however, the fact remains that no entity governed by public law – such as, for example, the Canadian federal Government, the Danish Government, the Government of the autonomous province of Greenland (Denmark), the Government of the territory of Nunavut or other infra-State body responsible for defending Inuit interests – is among the applicants in the present case.
54 It follows that the applicants cannot rely on the case-law cited in paragraph 52 above to refer, in the present proceedings for interim measures, to the general economic, social and cultural interests of the Inuit. On the contrary, it is for each of the applicants in the present case to adduce pertinent evidence to show that Regulation No 1007/2009, the operation of which he is requesting to have suspended, may cause him personally, having regard to the facts of his particular case and the legal issues involved, serious and irreparable harm if no suspension of operation is granted (see, to that effect, order of the President of the General Court in Case T-326/07 R Cheminova and Others v Commission [2007] ECR II-4877, paragraphs 50 and 51; order of the President of the General Court of 14 March 2008 in Case T‑440/07 R Huta Buczek v Commission, not published in the ECR, paragraph 24; 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, paragraph 80; see also, to that effect and by analogy, Case 169/84 Cofaz and Others v Commission [1986] ECR 391, paragraph 28).
55 As regards both the pecuniary and non-pecuniary damage alleged by the applicants, it must be borne in mind that their argument is essentially that seals are an important means of subsistence and that the sale of seal products generates the income necessary for seal hunting, which forms an important basis of the cultural identity and social cohesion of Inuit communities (sharing of meat after the hunt). The applicants maintain that the Inuit hunt seals primarily for their meat whereas sealskins, the inevitable by-products of those hunts, are sold in order to cover hunting expenses. The applicants claim that a decrease in sales of Inuit sealskins results in a corresponding decrease in hunting and, therefore, a decrease in the quantity of seal meat available for sharing within those communities.
56 However, the applicants focus their argument on the imminence of pecuniary damage, in particular in terms of loss of revenue from the sale of seal products. As regards the non-pecuniary damage alleged, they merely present it as a consequence of the pecuniary damage suffered by alleging that there is an inseparable link between the two categories of damage in question.
57 Accordingly, it is for the President of the Court to assess, first, the arguments which the applicants put forward to establish the pecuniary damage which they would suffer, as a result of the impracticable nature of the implementing regulation, if the present application for interim measures were dismissed.
58 Furthermore, it is appropriate to examine that pecuniary damage by making a distinction between the various categories of applicant, namely natural persons (seal hunters, seal trappers and processors of seal products), commercial companies which are active in the areas of the processing and marketing of seal products or use such products for medical purposes and the non-profit-making organisations and associations which represent Inuit interests.
59 As regards the pecuniary damage alleged by the applicants who have the status of natural persons, it is settled case-law that an interim measure is justified if it appears that, in the absence of that measure, the party seeking it would find himself in a position which is likely to jeopardise his financial viability since he would not have an amount of money which under normal circumstances should enable him to meet all the expenditure necessary for satisfying his own basic needs and those of his family until judgment is given on the substance of the action (see order of the President in Case T-306/01 R Aden and Others v Council and Commission [2002] ECR II-2387, paragraph 94, and order of the President of 27 April 2010 in Case T-103/10 P(R) Parliament v U, not published in the ECR, paragraph 36, and the case-law cited; see also, order of 30 April 2010, paragraph 108).
60 It is therefore necessary to determine whether each of the applicants who are seal hunters, seal trappers or processors of seal products has proved satisfactorily that, having regard to his individual circumstances, he would no longer have the means necessary to finance the seal hunt if the present application for interim measures were dismissed.
61 In order to assess whether the damage alleged is of a serious and irreparable nature and thus justifies the suspension, by way of exception, of operation of the contested regulation, the President of the Court must, according to settled case-law, have hard and precise information, supported by detailed documents showing the financial situation of each applicant who is a natural person and seeks the suspension of operation of that regulation and enabling the judge to determine the precise effects which would follow, probably, if the measures sought were not granted (see, to that effect, order in Parliament v U, paragraph 37, and the case-law cited).
62 It follows that, in order to justify the grant of the suspension of operation sought, each of the applicants is required to produce, with supporting evidence, a faithful overall picture of its financial situation. Furthermore, the President of the Court, where the other parties contest the application, cannot grant the application for interim measures on the basis of mere unsupported assertions from those parties. Taking into consideration the fact that the grant of interim measures is strictly exceptional, such measures can be ordered only if those assertions are supported by conclusive evidence (see, to that effect, order in Parliament v U, paragraph 39).
63 It must be added that an applicant must provide the faithful overall picture of his financial situation at the stage when the application for interim measures is submitted. According to settled case-law, an application for interim measures must be sufficient in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, where necessary, without other supporting information, as the essential elements of fact and law on which it is founded must be set out in the application for interim relief itself (see to that effect order in Parliament v U, paragraph 40, and the case-law cited).
64 In the present case, the fact remains that the applicants who have the status of natural persons have not provided, in the present application for interim measures, evidence which makes it possible to establish the actual financial situation of each of them taken individually. The applicants have not specified the income which they receive from the hunt or other activities or their personal fortunes. They have also failed to produce attestations from a competent authority stating their right to social assistance, unemployment benefit or other form of allowance. In any event, they have not explained the reasons why they have been unable to provide that information or procure such attestations (see, to that effect, Aden and Others v Commission, paragraphs 101 to 115).
65 That obligation to provide a faithful overall picture of the financial situation of the applicants who are seal hunters or trappers was, in the present case, also borne out by the fact that the Cowi Report, produced by the applicants (see paragraphs 32 and 33 above), refers to subsidy schemes in Greenland and Nunavut to support seal hunting. First, in Greenland, the professional hunting of seals is heavily subsidised by means of an agreement relating to the purchase of skins by the network of tanneries belonging to the company Great Greenland, which is 100% owned by the Greenland Government. Secondly, the Government of the territory of Nunavut started a support programme for seal hunters, which consists not only in providing equipment, but also in buying skins for the purpose of resale at auction, with the aim of financing the purchase of fuel and ammunition. According to the Cowi Report, those measures ensure that the social, cultural and economic traditions of the territory of Nunavut are preserved (Cowi Report, pages 42 and 43; Annex 2, page 3 and Annex 3, page 2).
66 The applicants have not expressed an opinion either on the veracity of the information relating to those subsidy schemes or on the extent to which the subsidies in question contributed to financing the hunting of seals by those among them who are seal hunters or trappers.
67 It follows that the evidence produced with regard to the financial situation of the applicants who are natural persons does not make it possible for the President of the Court to assess the seriousness of the pecuniary damage which those applicants would suffer if the application for interim measures were dismissed.
68 As regards the pecuniary damage alleged by the applicants which are commercial companies active in the areas of the processing and marketing of seal products or using such products for medical purposes, it must be borne in mind that according to settled case-law an interim measure may be granted only if it appears that, without such a measure, the party requesting it would be in a position that could imperil its existence or seriously and irremediably affect its market share (see, to that effect, order in Dow AgroSciences and Others v Commission, paragraphs 71 and 72, and the case-law cited). It is also settled case-law that the seriousness of the damage pleaded may be assessed only in the light, in particular, of the size and turnover of each individual company or undertaking and, where relevant, of the characteristics of the group to which it belongs (see, to that effect, order in Dow AgroSciences and Others v Commission, paragraph 77, and the case-law cited).
69 In the present case, the fact remains that the applicants have not provided, in the present application for interim measures (see paragraph 63 above), any evidence enabling the President of the Court to assess the individual financial situation of each of the commercial companies active in the areas of the processing and marketing of seal products or using such products for medical purposes, as that application does not contain any information relating to the turnover from the sale, processing, marketing or use of seal products which each of them is likely to lose. In the absence of such evidence, the President of the Court is unable to assess the seriousness of the pecuniary damage which those companies would suffer if the application for interim measures were dismissed.
70 As regards the pecuniary damage alleged by the applicants which are non-profit-making organisations and associations representing Inuit interests, it is sufficient to point out that, according to settled case-law, even damage constituted by the fact that such entities have to cease all their activities cannot be regarded as serious, precisely because, far from being exposed to the free play of competition, they are non-profit-making, and their activities could still be carried out, after their possible dissolution, by other associations which would be set up by their current members (see, to that effect, order in Aden and Others v Council and Commission, paragraph 118; order of the President of the General Court of 2 July 2009 in Case T-246/09 R Insula v Commission, not published in the ECR, paragraphs 24 to 27, and order of the President of the General Court of 26 March 2010 in Case T-16/10 R Alisei v Commission, not published in the ECR, paragraphs 41 to 43). In the present case, the applicants have not provided any information concerning the prejudice which would be caused to the effectiveness of the activities carried out by each of the associations and organisations in question or concerning their possible dissolution.
71 It follows that the applicants have not managed to establish that serious pecuniary damage is imminent in respect of any of the three categories of applicant.
72 As regards the non-pecuniary damage alleged by the applicants, they have not explained why the loss of income which each of them would suffer – the seriousness of which has not been shown – would force them to cease or reduce their seal hunting activities to an extent which would seriously compromise their means of subsistence, cultural identity and social cohesion. They have not, inter alia, explained the relationship between the loss of income which they would suffer and the reduction in their seal hunting activities and have not stated the exact amount as of which they would be forced to abandon all hunting activity. Moreover, they have not stated, and still less established, that the significant decrease in the number of seals captured in Canada in 2009 and 2010 – only 72 407 and 66 496 as against 217 850 in 2008 (see paragraph 41 above) – gave rise to a famine within the Inuit communities concerned or the collapse of their cultural and social life with serious consequences for the Canadian Inuit applicants taken individually.
73 The applicants have not therefore established the seriousness of the damage alleged as regards each of them taken individually, even if their claims relating to the impracticable nature of the implementing regulation were to be well-founded. Consequently, the condition of urgency cannot be considered to be satisfied as far as they are concerned.
74 In the circumstances of the present case, it is necessary to examine briefly, for the sake of completeness, the overall and general figures put forward by the applicants to establish urgency as regards the Inuit communities in Canada and Greenland.
75 In that regard, it must be borne in mind, first, that in the first application for interim measures the applicants claimed that the application of Regulation No 1007/2009 would wipe out at least half of the Inuit revenue as the European Union market had always been very important for the Inuit economy and the seal processing industry in general. In support of that claim they stated that, in 2006, imports into the Union amounted to EUR 720 039 from Canada and to EUR 1 419 042 from Greenland, that the Canadian Inuit earned approximately EUR 650 000 as a result of exports and that the total sealing industry contributed (estimate from 2005) approximately CAD 800 000 annually to the economy of the territory of Nunavut (order of 30 April 2010, paragraph 99).
76 Secondly, in the present application for interim measures, the applicants, while reiterating the abovementioned figures (see paragraph 43 above), add three tables showing the significant fall, as from July 2008, in average sealskin prices, revenues resulting from the sale of those sealskins at auction and the number of seals caught (see paragraphs 39 to 41 above). The applicants claim that that threefold fall was the consequence not of the worldwide financial turmoil but of market uncertainty due to the threat of a ban on seal products following the adoption of Regulation No 1007/2009 (see paragraph 42 above).
77 It must however be pointed out that those tables are not capable of substantiating the applicants’ claim that the losses caused are the result of market uncertainty due to the threat of a ban on seal products following the adoption of Regulation No 1007/2009 and not of the worldwide financial turmoil.
78 First, those figures relate only to the Canadian seal products market, in particular to that of Nunavut, whereas no figures were submitted for the Greenlandic market. That lacuna in information cannot be filled by the mere assertion on the part of the applicants (paragraph 39 of the first application for interim measures) that the documentation relating to Canadian Inuit is equally relevant mutatis mutandis to Greenlandic Inuit with the result that whenever reference is made to Canadian Inuit this should also be read as comprising Greenlandic Inuit. Although such an assimilation seems to be justified as regards the general aspects which characterise the life of Inuit communities, such as climatic conditions in the Arctic, means of subsistence and social and cultural traditions, it cannot be accepted as regards the outcome of economic organisation and productivity, expressed in figures, particularly since the two Inuit communities in question, the Canadian Inuit and the Greenlandic Inuit, are attached to two separate countries and are subject to different political measures.
79 Secondly, although the figures relating to the Canadian market unquestionably reflect a marked decline in that market, they do not, on their own, make it possible to attribute that decline to the uncertainty due to the threat of adoption of Regulation No 1007/2009 rather than to the worldwide financial turmoil. It must be added that, in paragraph 52 of the first application for interim measures, the applicants relied on data according to which, in 2006, Canadian Inuit caught only around a tenth of the seals caught in Canada, namely 30 000 per year, of which only a fifth, namely 6 000 seals, were exported ‘though not necessarily to the [European Union]’.
80 The applicants therefore themselves mention the rather minimal participation (10%) of Canadian Inuit in the ‘seal economy’ in Canada and the rather low export rate (20%) of ‘Inuit products’ as such. Furthermore, they are not able to specify the share of exports intended for the European Union and only those exports may be affected by Regulation No 1007/2009. The Cowi Report (see paragraphs 32 and 33 above) mentions not the European Union, but Russia, China and the Far East as being the ‘large markets’ for seal products and states that only 3% of seals caught in Canada were caught by the Inuit. That suggests, first, that uncertainty due to the threat of a ban on seal products following the adoption of Regulation No 1007/2009 does not have a significant effect on the ‘Inuit economy’ of Canada and, secondly, that the huge decrease in the figures relating to the ‘seal economy’ in Canada must, in all probability, be attributed mainly to the worldwide financial turmoil, in so far as it also affected the large export markets of Russia, China and the Far East.
81 Consequently, the applicants have not proved urgency by putting forward overall and general figures relating to the Inuit communities in Canada, even if their claims concerning the impracticable nature of the implementing regulation were to be well-founded.
82 As regards the figures relating to the Greenlandic Inuit, the applicants stated, in paragraph 52 of the first application for interim measures, that imports to the European Union from Greenland amounted, in 2006, to 1 419 042 euro and that a quarter of Greenland’s exports went to the European Union market. They added that Greenland had a population of 56 194 inhabitants in January 2009 of which 89% were Inuit.
83 Although the applicants did not provide more specific figures stating in respect of Greenland, like the three tables relating to the ‘seal economy’ in Canada, changes in sealskin prices, the revenues resulting from the sale of those sealskins at auction and the number of seals caught, there are grounds to assume that the impact of Regulation No 1007/2009 on the ‘Inuit economy’ of Greenland would not be negligible if the implementing regulation actually proved to be impracticable. As the Inuit constitute almost 90% of the Greenlandic population, it seems likely that the exports intended for the European Union market, which would be affected in that situation, would almost completely relate to the ‘Inuit economy’ of Greenland. Moreover, the Cowi Report (see paragraphs 32 and 33 above) confirms that almost all of the seals caught in Greenland were caught by Inuit.
84 It must therefore be examined – again briefly and for the sake of completeness – whether the applicants have established, to the requisite legal standard, the impracticable nature of the implementing regulation so far as concerns the implementation of the Inuit exception in Greenland.
85 In that connection, the applicants complain, inter alia, of the obligations stemming from Articles 3, 6 and 7 of the implementing regulation (see paragraphs 24 to 27 above) submitting that, first, it is impossible to create the traceability system required by that regulation, which should make it possible to identify seal products deriving from Inuit hunting, as such a system is too costly, too complex and too time-consuming and the implementing regulation does not contain any definition of the words ‘tradition of seal hunting’; secondly, no-one is able to set up the ‘recognised bodies’ responsible for ensuring that traceability by 20 August 2010; thirdly, it is to be feared that the national authorities, on account of the impracticable nature of the implementing regulation, will not correctly implement the Inuit exception; and, fourthly, the present marketing infrastructure (tanneries and auction houses) would not be retained for the modest quantity of Inuit products with the result that it would become impossible to sell those products on the European market.
86 In that regard, it is admittedly conceivable that the relatively late official publication of the implementing regulation could delay the implementation of the Inuit exception in so far as concerns the marketing on the European Union market of seal products deriving from hunting by Greenlandic Inuit. However, although that delay may damage the ‘Inuit economy’ of Greenland, the applicants do not establish that the implementing regulation is objectively impracticable, the arguments put forward to that effect being mere unsubstantiated general assertions, whereas they should have provided specific evidence and proved the facts alleged to form the basis of the likelihood of the impracticability alleged, since damage of a purely hypothetical nature cannot justify the ordering of the suspension of operation sought (see, to that effect, order of 30 April 2010, paragraphs 105 and 106 and the case-law cited).
87 For instance, as regards the alleged impossibility of implementing a traceability system, as required by the implementing regulation, involving ‘recognised bodies’, the applicants did not take a view on the Cowi Report (see paragraphs 32 and 33 above), which refers to the traceability systems which have already in fact been implemented in Greenland stating that, first, the products of the Great Greenland company, which has a network of tanneries and is 100% owned by the Greenland Government, carry a label with a bar code and the words ‘[t]raditional hunt conducted by Inuit communities for subsistence purposes’ and, secondly, that there are ‘Government support schemes’ which provide a centralised database for identification of the source of goods deriving from hunting, which in the case of Greenland is by definition Inuit or indigenous.
88 The applicants have failed both to dispute the veracity of those passages of the Cowi Report and to set out the reasons why it would be impossible to adapt those Greenlandic traceability systems to the requirements of the implementing regulation, whereas the Parliament and the Commission have stated that the efforts undertaken by the Greenland Government to implement a traceability system which is precisely in accordance with the implementing regulation are already well advanced. Furthermore, nothing would appear to preclude the Great Greenland company or a Greenlandic public authority from being entrusted with the duties of a ‘recognised body’, the Commission having, moreover, commented positively on the measures envisaged to that effect by the Greenland Government. Accordingly, it does not seem likely that the absence, in the implementing regulation, of a more detailed definition of the words ‘tradition of seal hunting’ can prove that that regulation is impracticable as regards the implementation of the Inuit exception in Greenland.
89 As regards the infrastructure, such as tanneries and auction houses, which is necessary to market seal products placed on the market by Greenlandic Inuit, the figures submitted by the applicants do not show that there is a risk of that infrastructure disappearing rapidly on account of the modest quantity of Inuit products. According to that data, the Inuit constitute almost 90% of the Greenlandic population, with the result that almost all of the seals caught in Greenland were hunted by the Inuit. In other words, ‘the ‘seal economy’ in Greenland is, in essence, an ‘Inuit economy’. It is therefore likely that the provisions of Regulation 1007/2009 in conjunction with those of the implementing regulation will not have any perceptible impact on the Inuit economy and that Great Greenland and the auction houses supplied by that company will continue to operate as before.
90 In view of the foregoing considerations, there is nothing which would give grounds for assuming, at this stage, that the national authorities may not correctly apply the implementing regulation to seal products which come from Greenlandic Inuit. In any event, the applicants have not submitted any specific evidence to substantiate their fears in that regard. Consequently, the damage which might be caused by such conduct on the part of the authorities must be classified as purely hypothetical, in that it is based on the occurrence of future and uncertain events. Such damage cannot justify the ordering of an interim measure (see order of 30 April 2010, paragraph 106 and the case-law cited).
91 In so far as the applicants submit also that the introduction by the European Union of restrictions on commerce in seal products would have a snowball effect on the whole of the world market, it is sufficient to point out, first, that the introduction by a third country of similar restrictions, even if they were modelled on measures taken at European Union level, would be the direct consequence not of those measures, but of a decision taken by the authorities of that third country in the exercise of their absolute discretion (see order in Cheminova v Commission, paragraph 110) and, secondly, that for consumers or other traders to refrain, under the influence of those measures, from buying seal products outside of the European Union would be the consequence of an independent choice on the part of those potential purchasers, which would constitute the decisive cause of the resulting damage (see, to that effect, order of 30 April 2010, paragraph 115).
92 Lastly, in submitting that the prohibition on trade imposed by Regulation No 1007/2009 would be likely to give rise to an increase in the suicide rate and substance abuse among young Inuit, the applicants are simply making mere general and abstract assertions. Given that Regulation No 1007/2009 and the implementing regulation will probably have no perceptible impact on the ‘Inuit economy’ in Greenland (see paragraph 89 above), those risks must, at this stage, be regarded as having no sufficiently close link with the implementation of the Inuit exception in Greenland.
93 It follows from all of the foregoing that the applicants have not proved the existence of circumstances giving rise to urgency such as to justify the suspension of operation sought.
94 Since the existence of urgency has not been established, the present application for interim measures must be dismissed, without it being necessary to examine whether the condition relating to the weighing up of the interests involved has been satisfied (see, to that effect, order of the President of the Court in Case C-364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I-8733, paragraph 61).
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The order of the President of the General Court of 19 August 2010 in Case T-18/10 R II Inuit Tapiriit Kanatami and Others v Parliament and Council, not published in the ECR, is cancelled.
3. The costs are reserved.
Luxembourg, 25 October 2010.