Non-confidential version
ORDER OF THE PRESIDENT OF THE GENERAL COURT
30 April 2010 (*)
(Application for interim measures – Directive 91/414/EEC – Decision concerning the non-inclusion of diphenylamine in Annex I to Directive 91/414 – Application for suspension of operation of a measure – Lack of urgency)
In Case T‑71/10 R,
Xeda International SA, established in Saint-Andiol (France), represented by C. Mereu, K. Van Maldegem, lawyers, and P. Sellar, Solicitor,
applicant,
v
European Commission, represented by D. Bianchi and L. Parpala, acting as Agents, assisted by J. Stuyck, lawyer,
defendant,
APPLICATION, essentially, for suspension of operation of Commission Decision 2009/859/EC of 30 November 2009 concerning the non-inclusion of diphenylamine in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2009 L 314, p. 79) pending judgment in the main proceedings,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 The present order for interim relief falls within a complex legal framework laid down by Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1) (‘the Directive’), by Commission Regulation (EC) No 451/2000 of 28 February 2000 laying down the detailed rules for the implementation of the second and third stages of the work programme referred to in Article 8(2) of the Directive (OJ 2000 L 55, p. 25), and by Commission Regulation (EC) No 1490/2002 of 14 August 2002 laying down further detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of the Directive and amending Regulation No 451/2000 (OJ 2002 L 224, p. 23) (for an exposition of the provisions concerned, see the order of the President of 17 December 2007 in Case T‑367/07 R Dow AgroSciences and Others v Commission, not published in the ECR, paragraphs 1 to 8 and 10 to 20).
2 The Directive seeks to harmonise the rules for the evaluation and approval of plant protection products and their active substances in the European Union. It provides that a plant protection product cannot be marketed in a Member State unless: (i) its active substance has first been evaluated at Community level on the basis of the criteria set out in the Directive and has then been included in Annex I to the Directive; and (ii) the plant protection product containing that active substance has subsequently been registered at national level.
3 In order to make possible a gradual evaluation of all ‘existing’ active substances, that is to say, substances which were already on the European Union market two years after the date of notification of the Directive, that is to say, on 25 July 1993, Article 8(2) of the Directive established a transitional regime during which the Commission was to commence a programme of work for the gradual examination of those active substances. Diphenylamine, the active substance which is the subject of the present proceedings, was notified and evaluated pursuant to those rules.
4 Diphenylamine is a man-made chemical that was developed for agricultural use in the 1950s. Introduced as a pesticide in Europe around 1970, diphenylamine has been used continually by the global farming community for over 40 years. It is used as a post-harvest scald inhibitor. Its anti-scald activity is the result of its antioxidant properties, which protect the apple skin from the oxidation products of alpha-farnesene during storage.
5 The applicant, Xeda International SA, the parent company of the Xeda group, is active primarily in products used for the post-harvest treatment of fruits and vegetables, including diphenylamine-based products. Those products are manufactured at its production facilities in [confidential] (1) and sold under the brand names Xedamine 20, Xedamione Aerosol and Shield 31.
6 With regard to the procedure for the assessment of diphenylamine, Ireland was designated as the Rapporteur Member State to carry out the evaluation on behalf of the Commission. In June 2000, diphenylamine was notified to the Rapporteur Member State and it was provided with the relevant dossier.
7 The European Food Safety Authority (EFSA) received the draft assessment report from the Rapporteur Member State on 20 June 2007 for the purposes of a peer review by the Member States and EFSA. On the basis of the available data, the Rapporteur Member State recommended that diphenylamine be included in Annex I to the Directive.
8 On 30 September 2008, EFSA concluded the peer review and submitted to the Commission its ‘conclusion regarding the peer review of the pesticide risk assessment of the active substance diphenylamine’. In that conclusion EFSA identified a number of matters of concern.
9 EFSA’s conclusions were reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health and finalised on 26 February 2009 in the format of the Commission review report for diphenylamine.
10 On 30 November 2009, after receiving the notifier’s observations, the Commission adopted Commission Decision 2009/859/EC concerning the non-inclusion of diphenylamine in Annex I to [the Directive] and the withdrawal of authorisations for plant protection products containing that substance (OJ 2009 L 314, p. 79) (‘the contested decision’). That decision was adopted in the absence of an opinion delivered by the Standing Committee on the Food Chain and Animal Health within the time-limit laid down by its Chairman and whilst the Council, to which the Commission had submitted a proposal, had neither adopted the proposed measures nor indicated its opposition to them within the time-limit laid down to that effect.
11 The operative part of the contested decision reads as follows:
‘Article 1
Diphenylamine shall not be included as an active substance in Annex I to [the Directive] ...
Article 2
Member States shall ensure that:
(a) authorisations for plant protection products containing diphenylamine are withdrawn by 30 May 2010;
(b) no authorisations for plant protection products containing diphenylamine are granted or renewed from the date of publication of this Decision.
Article 3
Any period of grace granted by Member States in accordance with the provisions of Article 4(6) of [the Directive] shall be as short as possible and shall expire on 30 May 2011 at the latest.
Article 4
This Decision is addressed to the Member States.’
12 The reason given in the contested decision for the non-inclusion of diphenylamine as an active substance in Annex I to the Directive is that a number of concerns were identified during the evaluation of that active substance. Thus, the contested decision states that it was not possible to perform a reliable consumer exposure assessment, as data were missing on the presence and toxicity of unidentified metabolites of the substance, as well as on the possible formation of nitrosamines during storage of the active substance and during processing of treated apples. Moreover, no data were available on the potential breakdown or reaction product of diphenylamine residues in processed commodities. Consequently, it was not possible to conclude on the basis of the information available that diphenylamine met the criteria for inclusion in Annex I to the Directive (recital 5).
13 Despite the arguments put forward by the notifier, the Commission took the view that the concerns identified could not be eliminated. It considered that the assessments made on the basis of the information submitted and evaluated during the EFSA expert meetings had not demonstrated that it could be expected that, under the proposed conditions of use, plant protection products containing diphenylamine satisfied in general the requirements laid down in the Directive (recital 6).
14 In its application for interim measures, the applicant states that it is preparing a new dossier on diphenylamine with a view to having it evaluated pursuant to Commission Regulation (EC) No 33/2008 of 17 January 2008 laying down detailed rules for the application of [the Directive] as regards a regular and an accelerated procedure for the assessment of active substances which were part of the programme of work referred to in Article 8(2) of that directive but have not been included in its Annex I (OJ 2008 L 15, p. 5).
Procedure and forms of order sought
15 By application lodged at the Registry of the Court on 18 February 2010, the applicant and Pace International LLC brought an action for annulment of the contested decision.
16 By a separate document lodged at the Registry of the Court on 22 February 2010, the applicant brought the present application for interim relief, in which, in essence, it requests the President of the Court to:
– suspend the contested decision pursuant to Article 105(2) of the Court’s Rules of Procedure until it has ruled on the present application for interim relief, without prejudice to the applicant’s resubmission of the application for assessment of diphenylamine pursuant to Regulation No 33/2008;
– in any event, suspend the operation of the contested decision, as from the date of its taking effect, until the Court has ruled on the main proceedings;
– grant any other interim measures as appropriate;
– hold a hearing;
– order the Commission to pay the costs.
17 In its written observations lodged at the Registry of the Court on 11 March 2010, the Commission contends that the President of the Court should:
– dismiss the application for interim measures as inadmissible or unfounded;
– order the applicant to pay the costs.
18 After the Commission had lodged its observations, the applicant was granted leave to submit a response on certain points of those observations, which it did by pleadings lodged on 25 March 2010. By document of 9 April 2010, the Commission set out its views on that response.
Law
19 Under Articles 278 TFEU and 279 TFEU, in conjunction with Article 256(1) TFEU, the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of the act contested before the General Court be suspended or prescribe any necessary interim measures.
20 Article 104(2) of the Rules of Procedure provides that an application for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency, and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing the application may order suspension of operation of an act and interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action (order in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).
21 In addition, in the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed and assessed (order in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of the President of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). Where appropriate, the judge hearing the application must also weigh up the interests involved (order in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73).
22 Finally, it is to be noted that Article 278 TFEU establishes the principle that actions are not to have suspensory effect, since acts adopted by the institutions, bodies, offices and agencies of the European Union are presumed to be lawful. It is therefore only by way of exception that the judge hearing the application can order that operation of the act contested before the General Court be suspended or prescribe interim measures (see, to that effect, order of the President of 17 December 2009 in Case T-396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and the case-law cited).
23 Having regard to the documents in the case, the President of the Court considers that he has all the material needed in order to rule on the present application for interim measures and that it is not expedient first to hear oral argument from the parties. Consequently, the applicant’s request that a hearing be arranged must be rejected.
Arguments of the parties
Admissibility
24 Whilst acknowledging that the applicant had initially notified diphenylamine pursuant to Article 10(2) of Regulation No 451/2000, the Commission states that its status as ‘notifier’ was subsequently transferred to another undertaking, in November 2001. Only such a notifier may bring an application for interim measures based on the provisions of the Directive. The fact that the applicant became a member of the Diphenylamine Data Development Consortium in 2009 did not reinstate its status as notifier. Consequently, the conditions laid down in the fourth paragraph of Article 263 TFEU are not fulfilled, with the result that the application for interim measures should be declared inadmissible.
25 The applicant disagrees with the formalistic position put forward by the Commission, on the ground that it never lost its status as ‘notifier’. It could in any event rely on that status as a member of the Diphenylamine Data Development Consortium. The criteria of the fourth paragraph of Article 263 TFEU are accordingly met and the application for interim measures is admissible.
Prima facie case
26 The applicant submits that the contested decision is vitiated by a number of manifest errors of assessment relating to each of the three points of scientific concern referred to in recital 5 thereof. Basing itself on the documents produced during the assessment procedure which led to the adoption of the contested decision, it takes the view that the concern relating to the possible formation of nitrosamines is the principal ground relied upon by the Commission, the two other concerns relating to unidentified metabolites and the lack of processing studies being of secondary importance.
27 In order to draw its conclusions as to the formation of nitrosamines, the Commission took account of an immaterial factor for the assessment of diphenylamine, namely tank mixing of diphenylamine with other active substances, generating, in the Commission’s view, nitrosamines. However, it is quite clear from the dossier submitted by the applicant that the typical use of diphenylamine expressly excludes tank mixes. It follows that, in relation to the principal concern raised in the contested decision, the Commission relied on a mere hypothesis for which there was, at the material time, evidence to the contrary.
28 The applicant adds that the contested decision infringes the principle of proportionality, in that the alleged concerns could have been addressed through less restrictive measures. Thus, diphenylamine could have been included in Annex I to the Directive with restrictions on use or subject to the condition that confirmative data be provided. Lastly, the Commission infringed the principle of sound administration and the applicant’s rights of defence. The procedural delays attributable to the Commission deprived the applicant of its right to rely on Article 3 of Commission Regulation (EC) No 1095/2007 of 20 September 2007 amending Regulation No 1490/2002 and Regulation (EC) No 2229/2004 laying down further detailed rules for the implementation of the fourth stage of the programme of work referred to in Article 8(2) of [the Directive] (OJ 2007 L 246, p. 19) and to obtain a transitional extension until 31 December 2010 of the authorisation period for diphenylamine.
29 The Commission contests all of the applicant’s arguments, submitting that the condition that there must be a prima facie case is not fulfilled in the present case.
Urgency and the balance of interests
30 Observing that the contested decision requires the withdrawal of all authorisations for plant protection products containing diphenylamine by 30 May 2010, the applicant states that it can no longer continue to market or sell diphenylamine-based products after that date if the interim measures it seeks are not granted to it. The applicant states in that regard that it has already received letters from three of its key customers informing it that they are looking for alternative products. Those customers account for roughly [confidential]% of the applicant’s sales of diphenylamine-based products. In the applicant’s view, the contested decision will therefore cause serious and irreparable damage to its market share and turnover, production facilities and, more generally, the market conditions and its market position.
31 Referring to the case-law according to which the seriousness of harm must be assessed, inter alia, having regard to the size and overall turnover of the party seeking the interim measure, and the characteristics of the group of companies to which it belongs, the applicant states that, because of the contested decision, it can no longer supply its customers with diphenylamine-based products and will lose its entire market in the European Union for those products. Those sales, which totalled EUR [confidential], or [confidential]% of its turnover for 2008 (EUR [confidential]), will be lost entirely as a result of the contested decision.
32 Regarding the Xeda group of which it is the parent company, the applicant states that the other companies are Xeda Italia (100% owned), Cedax (88% owned), Nutea (80% owned) and Eurolabel (32% owned). Their annual turnovers were EUR [confidential], respectively. Thus, the annual turnover which may be taken into account is 100% of the applicant’s annual turnover (EUR [confidential]), 100% of Xeda Italia’s annual turnover (EUR [confidential]), 88% of Cedax’s annual turnover (EUR [confidential]), 80% of Nutea’s annual turnover (EUR [confidential]) and 32% of Eurolabel’s annual turnover (EUR [confidential]). On that basis, the Xeda group’s total turnover amounted to EUR [confidential] during the 2008 financial year. Therefore, the turnover lost by the applicant as a result of the contested decision (EUR [confidential]) represents [between 1% and 10%] of the Xeda group’s global turnover. Such a loss of turnover is clearly a serious matter.
33 The applicant adds that there are specific circumstances which make the damage it will suffer irreparable, including the lack of substitutes in its portfolio, the presence of competing products and the existence of structural and legal obstacles which make an immediate regain of the lost market share upon annulment of the contested decision impossible. In particular, even in the event of a successful judgment in a few years’ time, the applicant will be unable to return on the market because its one and only formulation factory will have abandoned the production of diphenylamine in the meantime.
34 In that regard, it states that its plant in [confidential] produces around [confidential] kg of preparations per year, including [confidential] kg of diphenylamine, which represents [confidential]% of its production. The plant’s operating profit was approximately EUR [confidential] with production costs of EUR [confidential]. If diphenylamine production were to cease in that plant, the loss would be EUR [confidential], resulting in a loss of [confidential]% of the total profits from that plant and the applicant would be forced to close its pesticides division or, at the very least, its antioxidant unit. In such a case, if the contested decision were annulled, the applicant would not be able to recommence production of diphenylamine-based products in the short or medium term after the annulment.
35 Moreover, the impact of a decision by the Commission to withdraw a plant protection product, even where there is no associated risk to health, could be very damaging to the product’s reputation. Given the sensitivity of the sector, logically, customers are not very likely to return to a product that has been declared unsafe, even if incorrectly, and then subsequently re-authorised. The particularly negative stigma associated with diphenylamine and diphenylamine-based products as a result of the contested decision would in fact be almost unavoidable. Irrespective of the amounts spent on advertising in an attempt to convince consumers to return to using diphenylamine, it is highly unlikely that the applicant would be able to convince its customers and regain its market share. In the applicant’s submission, users of plant protection products are as sensitive to risks of a substance as users of medicinal products.
36 Lastly, the applicant submits that the balance of interests weighs clearly in favour of suspension of operation of the contested decision. Diphenylamine does not present any known dangers to public health, as the Rapporteur Member State itself recommended its inclusion in Annex I to the Directive and all the concerns about diphenylamine relate to nitrosamines, which are not formed in the conditions of use as practised by the applicant. Furthermore, diphenylamine has been in safe and continuous use by the global farming community since it was first introduced in Europe in the 1960s and has not caused any known damage to humans or the environment since that time. Consequently, public health considerations cannot be accorded greater weight than the serious and irreparable harm caused to the applicant as a result of the contested decision.
37 The Commission contests all of the arguments put forward by the applicant and submits that neither the condition of urgency nor that of a balance of interests is fulfilled in the present case.
Findings of the President of the Court
38 In the circumstances of the present case, it should first be examined whether the condition as to urgency is satisfied.
39 It must be borne in mind that, according to settled case-law, the urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the relief (see order of 28 April 2009 in Case T‑95/09 R United Phosphorus v Commission, not published in the ECR, paragraph 32 and case-law cited) (‘United Phosphorus order’).
40 In the present case, the applicant alleges a risk of loss of market share and customers, arguing, in essence, that as the contested decision involves the total withdrawal of diphenylamine and diphenylamine-based products from the market in the European Union, it would lose its entire European market for the products and all of its customers who purchase them.
41 As the applicant appears to have acknowledged in the application for interim measures, that category of damage is purely financial. The market share held by a company indicates only the percentage of all the products present on the market in question which were sold by that company to customers over the course of a specified reference period. Consequently, the loss of that market share consists in the loss of the profits liable to be realised in the future on sales of the product in question. A market share can thus clearly be represented in financial terms, as the holder of that market share can benefit from it only in so far as it generates profit for him (United Phosphorus order, paragraph 64).
42 Regarding the seriousness of the financial loss alleged, it is settled case-law that the interim measure sought will be justified only if it appears that, without such a measure, the applicant would be in a position that could imperil its existence before final judgment is given in the main action. Since imminent disappearance from the market does indeed constitute damage that is both irremediable and serious, adoption of the interim measure sought appears justified in such a situation (United Phosphorus order, paragraph 34 and case-law cited).
43 While account has also been taken of the fact that, if the measure sought were not granted, the applicant’s market share would be irremediably affected, it must be pointed out that this situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also of a serious nature. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders (United Phosphorus order, paragraph 35 and case-law cited).
44 In the present case, the applicant alleges losses representing [between 1% and 10%] of the global turnover of the group of which it is the parent company. Relying on the United Phosphorus order, it submits that such a loss must be categorised as serious. The Commission, by contrast, takes the view that the group to which the applicant belongs is made up of a greater number of companies than stated by the applicant, with the result that the loss in relation to the global turnover of the group must be less than the alleged [1% to 10%].
45 It should also be borne in mind in that regard that, in paragraph 67 of the United Phosphorus order, the President of the Court did recognise as serious a financial loss which, as a percentage of the global turnover of the group to which the applicant company belonged, was lower than that relied on in the present case. In order to do so, however, he relied essentially on the specific circumstances of the case before him, without ruling on whether it was necessary to ‘determine whether that percentage [was], in itself, sufficiently large to establish the gravity of that harm’, merely observing that the percentage in question was greater, in financial terms, than what had been held not to be serious in certain previous orders.
46 In paragraphs 69 to 71 of the United Phosphorus order, after noting that the relevant turnover for quantifying as a percentage the alleged loss was that of the 2007/08 financial year, the President of the Court stated that he could not confine himself to having recourse, in a mechanical and rigid manner, solely to that turnover, but that he ‘also [had to ] examine the circumstances of each case … and … bring them into relation, when taking his decision [in April 2009], with the harm occasioned in terms of turnover’. He thus took account of the major economic and financial crisis suffered by the world economy for several months which had impacted on the value of the group to which the applicant company belonged, adding that that group had, ‘at the end of March 2009’, lost a lot of its share value. The President of the Court concluded that, in the light of ‘specific circumstances’, the applicant company had established the gravity of the harm it would suffer if the interim measures sought were not granted.
47 Next, in paragraphs 75 to 77 of the United Phosphorus order, the President of the Court added that there were additional ‘specific circumstances’ such as to justify the finding, notwithstanding the nature, ‘in principle reparable’, of the harm pleaded, that there was urgency capable of justifying the granting of the interim measures sought. In that regard, he considered decisive the fact that, five weeks after the adoption of the disputed decision and almost three months before the lodging of its application for interim measures, the applicant company had commenced the accelerated procedure provided for by Regulation No 33/2008, in which its prospects of success appeared to be greater than in the procedure which led to the disputed decision, due to the fact that, in that accelerated procedure, the applicant company had been able to present all the recent scientific data which had, improperly, not been taken into account in the procedure which led to the disputed decision, in disregard of the latest developments in science and the state of current scientific and technical knowledge. Moreover, the accelerated assessment procedure was liable to be completed only a few months after the date laid down for the withdrawal of the disputed products from the market, which led the President of the Court to conclude that it would be unreasonable to allow the prohibition of the marketing of a product in respect of which it was not improbable that its marketing would be authorised only a few months later.
48 In the present case, there is no specific circumstance comparable to those which characterised the case which gave rise to the United Phosphorus order.
49 The applicant has evaluated its harm in relation to the turnover of its group for the 2008 financial year, without mentioning a subsequent deterioration in its economic and financial situation, which the President of the Court must take into account at the time of adoption of his order in the present proceedings.
50 The applicant further stated, in the application for interim measures, that it was preparing to submit a new dossier on diphenylamine with a view to having it evaluated under Regulation No 33/2008. It is therefore not at all in the same specific procedural situation as the applicant company in the case which gave rise to the United Phosphorus order.
51 It does not seem possible that the accelerated assessment procedure, which the applicant has only contemplated undertaking, is liable to be completed a few months after the date imposed for the withdrawal from the market of plant protection products containing diphenylamine, namely 30 May 2010. Consequently, it cannot be deemed unreasonable to allow the prohibition of the marketing of the substance in question.
52 Nor has the applicant, in its arguments put forward in support of there being a prima facie case, criticised EFSA or the Commission for having prevented it from presenting recent scientific data in the procedure which led to the contested decision. It cannot, therefore, allege that its prospects of success are greater in the envisaged accelerated assessment procedure, on the ground that that procedure would afford it the opportunity to present new scientific data which was improperly not taken into account in the procedure which led to the contested decision, in disregard of the latest developments in science and the state of current scientific and technical knowledge.
53 It follows from the foregoing that the President of the Court must consider whether the harm suffered by the applicant, representing [between 1% and 10%] of the global turnover of the group of which it is the parent company, is in itself so great as to be deemed to be serious.
54 It should be borne in mind in that regard that the marketing of diphenylamine, the subject-matter of the present proceedings, takes place in a highly-regulated market, that of plant protection products. The complex system, referred to in paragraphs 1 and 2 above, provides that such a product may be marketed in a Member State only if, first, its active substance has been evaluated at Community level on the basis of the criteria set out in the Directive and has then been included in Annex I to the Directive and, secondly, the plant protection product containing that active substance has subsequently been registered at national level.
55 For undertakings active on another highly-regulated market, namely that of medicinal products for human use, the President of the Court of Justice found that in the case of a loss corresponding to less than 10% of the turnover of the undertaking concerned, the financial difficulties that the undertaking could experience did not appear to be such as to threaten its very existence (order in Case C‑474/00 P(R) Commission v Bruno Farmaceutici and Others [2001] ECR I‑2909, paragraph 106).
56 In the event of a loss representing even almost two-thirds of the turnover of the undertaking concerned, the President of the Court of Justice, whilst acknowledging that the financial difficulties caused to that undertaking could be such as to threaten its existence, nevertheless stated that, in a highly-regulated sector, where major investment is often required and the competent authorities may be led to intervene rapidly when public health risks become apparent, for reasons which cannot always be foreseen by the undertakings concerned, it is for those undertakings, if they are not to bear themselves the loss resulting from such intervention, to protect themselves against its consequences by adopting an appropriate policy (order in Commission v Bruno Farmaceutici and Others, paragraphs 107 to 109).
57 That line of reasoning is also valid for the situation of the applicant, faced with a loss of [between 1% and 10%] – well under the 10% threshold alluded to by the President of the Court – of the global turnover achieved in 2008 by the group to which it belongs, without its being necessary to rule on whether the Commission’s line of argument, to the effect that the harm alleged is even lower than [between 1% and 10%], is well founded (see paragraph 44 above).
58 It is also worth noting in this case that, as from the time the Directive was adopted in 1991 providing for assessment of all plant protection products with a view to keeping them on the market or not, and at the latest since the notification of diphenylamine in June 2000 for the purposes of that assessment, the applicant had to be aware of the possibility that a decision banning that substance might be adopted and factor that possibility into the risks that an undertaking operating in the plant protection product market normally must bear (see, to that effect and by analogy, order in Commission v Bruno Farmaceutici and Others, paragraph 110). Moreover, no economic operator can claim a right to property in a market share, even if he held it at a time before the introduction of a measure affecting the market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances (Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others [2005] ECR I‑6451, paragraph 128).
59 It follows that the applicant has not established the seriousness of the harm alleged. It is therefore not necessary to determine whether that harm is irreparable.
60 To the extent to which the applicant fears that the contested decision will compromise its reputation in general and that of its diphenylamine-based products, it is necessary to point out that the withdrawal of a plant protection product from the market will not necessarily have an adverse effect on the reputation of the entire undertaking concerned. In that regard, it is common knowledge that many undertakings operating on the market in question have already had their products withdrawn from the market without it being possible to say that those undertakings or their products were stigmatised as a result. The regulatory authorities and businesses in the sector concerned, which are familiar with the regulatory framework, tend, rather, to view a decision that a plant protection product should not be authorised as a normal part of a regulatory procedure. Such a decision may be regarded as being simply the result of scientific developments and improvement in research methods (see, to that effect, United Phosphorus order, paragraph 60).
61 In any event, harm to the applicant’s reputation and to that of diphenylamine, assuming it to have been proved, would already have been caused by the contested decision and would last until such time as the contested decision is annulled by the judgment in the main action. Given that the contested decision was adopted following a complex administrative procedure lasting more than nine years, in which scientific experts and professionals working in the sector concerned participated, a suspension of the operation of that decision ordered by the President of the Court on a purely interim basis and in summary proceedings would scarcely be such as to dispel doubts which may exist as to the correctness of the view that diphenylamine is not dangerous (see, to that effect, United Phosphorus order, paragraph 61).
62 It follows from all the foregoing that the application for interim measures must be dismissed on grounds of lack of urgency, without its being necessary to rule on the admissibility thereof or to ascertain whether the other conditions for granting suspension of operation of a measure are fulfilled in the present case.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 30 April 2010.