ORDER OF THE GENERAL COURT (First Chamber)
9 October 2014 (*)
(Intervention — Interest in the result of the case — Representative associations — Confidentiality)
In Case T‑584/13,
BASF Agro BV, established in Arnhem (Netherlands),
BASF SE, established in Ludwigshafen (Germany),
BASF Belgium Coordination Center, established in Antwerp (Belgium),
BASF Española, SL, established in Barcelona (Spain),
BASF Italia SpA, established in Cesano Maderno (Italy),
BASF Nederland BV, established in Arnhem,
BASF Slovensko spol. s.r.o., established in Bratislava (Slovakia), represented by J.-P. Montfort and M. Peristeraki, lawyers,
applicants,
v
European Commission, represented by P. Ondrůšek and G. von Rintelen, acting as Agents,
defendant,
APPLICATION for annulment of Commission Implementing Regulation (EU) No 781/2013 of 14 August 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substance fipronil, and prohibiting the use and sale of seeds treated with plant protection products containing this active substance (OJ 2013 L 219, p. 22),
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, I. Pelikánová (Rapporteur) and E. Buttigieg, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 On 4 November 2013, BASF Agro BV and the other applicants brought an action for annulment of Commission Implementing Regulation (EU) No 781/2013 of 14 August 2013 amending Implementing Regulation (EU) No 540/2011, as regards the conditions of approval of the active substance fipronil, and prohibiting the use and sale of seeds treated with plant protection products containing this active substance (OJ 2013 L 219, p. 22).
2 In accordance with Article 24(6) of the Rules of Procedure of the General Court, a summary of the application initiating proceedings in Case T‑584/13 was published in the Official Journal of the European Union of 11 January 2014 (OJ 2014 C 9, p. 27).
3 By document lodged at the Court Registry on 17 February 2014, the Deutscher Berufs- und Erwerbsimkerbund eV (DBEB), Mellifera eV — Vereinigung für wesensgerechte Bienenhaltung (‘Mellifera’), the Österreichischer Erwerbsimkerbund (ÖEB), the OÖ Landesverband für Bienenzucht (OÖL) and the Österreichischer Imkerbund (ÖIB) sought leave to intervene jointly in support of the form of order sought by the Commission.
4 By document lodged at the Court Registry on 20 February 2014, the European Seed Association (ESA) applied for leave to intervene in support of the form of order sought by the applicants.
5 The applications referred to above were served on the applicants and the Commission, in accordance with Article 116(1) of the Rules of Procedure.
6 By document lodged at the Court Registry on 27 March 2014, the applicants indicated that they opposed the joint intervention of the DBEB, Mellifera, the ÖEB, the OÖL and the ÖIB. They also requested confidential treatment in respect of certain information included in the application, the reply and the annexes thereto, with regard to all intervening parties.
7 By document lodged at the Court Registry on 26 March 2014, the Commission indicated that it objected to the intervention of the ESA and to the joint intervention of the DBEB, Mellifera, the ÖEB, the OÖL and the ÖIB.
Law
8 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case other than a dispute between Member States, between institutions of the Union or between Member States and institutions of the Union, may intervene in that case.
9 It is settled case-law that the concept of an interest in the result of the case, within the meaning of that provision, must be defined in the light of the precise subject-matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested decision and whether his interest in the result of the case is established (see the order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26 and the case-law cited).
10 It is established case-law that intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (orders of the President of the Court of Justice in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraph 66, and Case C‑151/98 P Pharos v Commission [1998] ECR-I 5541, paragraph 6; orders of the President of the General Court in Case T‑53/01 R Poste Italiane v Commission [2001] ECR II‑1479, paragraph 51, and Case T‑201/04 R Microsoft v Commission [2004] ECR II‑2977, paragraph 37). In particular, an association may be granted leave to intervene in a case if it represents a significant number of undertakings active in the sector concerned, if its objects include the protection of the interests of its members, if the case may raise questions of principle affecting the functioning of the sector concerned and if the interests of its members may therefore be affected significantly by the forthcoming judgment (orders in Case T‑87/92 Kruidvat v Commission [1993] ECR II‑1375, paragraph 14, and Case T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2004] ECR II‑1603, paragraph 21; and the order of 18 October 2012 in Case T‑245/11 ClientEarth and The International Chemical Secretariat v European Chemicals Agency, not published in the ECR, paragraph 12).
11 The Court of Justice has stated that the adoption of a broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of cases, whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (orders in National Power and PowerGen, paragraph 66, and ClientEarth and The International Chemical Secretariat, paragraph 13).
12 It is in the light of the case-law cited above that it is necessary to examine the applications for leave to intervene submitted by the ESA, the DBEB, Mellifera, the ÖEB, the OÖL and the ÖIB.
The status of representative association and the objects of the ESA, the DBEB, Mellifera, the ÖEB, the OÖL and the ÖIB
13 In the first place, it is necessary to determine whether the ESA, the DBEB, Mellifera, the ÖEB, the OÖL and the ÖIB represent a significant number of undertakings active in the sector concerned and whether their objects include the protection of the interests of their members.
14 In the present case, those applicants for leave to intervene are associations of seed producers or of beekeepers.
15 First, with regard to the ESA, it is not disputed that, at European level, it is made up of 48 companies operating in the seed production and marketing and plant development sector, 38 national professional associations active in the same sector and 40 associated companies. Moreover, in addition to its plant development activities and its operation of a European quality seed treatment assurance scheme, the ESA’s objects also include, according to its articles of association, the protection of its members’ interests.
16 Second, the DBEB states, without being contradicted by the parties, that its members are made up of approximately 750 professional and commercial beekeepers in Germany. According to its articles of association, its object is to maintain and promote commercial beekeeping and to protect the economic interests of beekeepers, inter alia, by representing the interests of its members.
17 Third, the ÖEB states, without being contradicted by the parties, that that it has approximately 260 members who are commercial beekeepers in Austria. According to its articles of association, its objects include the representation of commercial beekeepers vis-à-vis all competent authorities.
18 Fourth, the ÖIB states, without being contradicted by the parties, that it is made up of nine regional associations of Austrian beekeepers, totalling 22 600 members organised into 929 local sections. According to its articles of association, its objects include the representation of its members vis-à-vis public authorities, in particular the federal Austrian authorities and the EU authorities.
19 It follows from the foregoing that the ESA, the DBEB, the ÖEB and the ÖIB fulfil the conditions for intervening as associations representing their members’ interests laid down in the case-law cited at paragraph 10 above.
20 Fifth, Mellifera describes itself as a German association of 800 beekeepers, farmers and gardeners whose object is the preservation of bees’ habitats and the quality of honey and honey-based products.
21 As noted by the applicants, it is apparent from Mellifera’s articles of association that the protection of its members’ interests in the beekeeping sector does not form part of its object. Accordingly, Mellifera does not fulfil the conditions for intervening as an association which represents its members’ interests laid down in the case-law cited in paragraph 10 above. Its application for leave to intervene must therefore be dismissed.
22 Sixth, the OÖL states that it is made up of 250 associations of beekeepers in the Bundesland (region) of Upper Austria representing 6 500 members and that it is active at federal level throughout Austria.
23 However, it should be noted, as observed by the applicants, that, according to its articles of association, the OÖL does not have the object or task of representing its members’ interests. Accordingly, the OÖL does not fulfil the conditions for intervening as an association which represents its members’ interests. Its application for leave to intervene must therefore be dismissed.
Whether the interests of the members of the ESA, the DBEB, the ÖEB and the ÖIB will be significantly affected
24 In the second place, it is necessary to determine whether the interests of the members of the ESA, the DBEB, the ÖEB and the ÖIB may be significantly affected by the forthcoming judgment, within the meaning of the case-law cited at paragraph 10 above.
25 First, with regard to the ESA, it is apparent from its application for leave to intervene that, as a direct consequence of the adoption of the contested regulation, its members no longer have the possibility of using the products concerned by the contested regulation to treat seed and subsequently market it. According to the ESA, that has had an economic, social and environmental impact on the entire sector which it represents, as well as causing immediate material damage for some of its members, who have been unable to dispose of reserves of seed that has already been treated. The ESA also contends that the present dispute raises questions of principle which affect the sector, relating, inter alia, to the scope of the Commission’s powers in regulating plant protection products.
26 In the light of those explanations, the members of the ESA must be regarded as having a direct, existing interest in the applicants’ application for the annulment of the contested decision being granted.
27 That conclusion is not called into question by the Commission’s arguments.
28 The Commission argues, in essence, that the contested regulation does not have the effect of preventing the ESA’s members from continuing their activities entailing the research, development, production and marketing of seed, but simply that of prohibiting them from treating such seed with certain products and it is, therefore, uncertain whether the outcome of these proceedings will affect their interests directly.
29 However, it is clear that the interests of the ESA’s members will necessarily be affected by the outcome of the present proceedings, since their activities consist precisely in the marketing of seed treated with the plant protection products referred to in the contested regulation. The fact that those activities are prohibited affects their interests significantly.
30 Second, the DBEB, the ÖEB and the ÖIB are correct to state that the outcome of the present dispute will be decisive as to the question whether use of the substances covered by the contested regulation will remain subject to the restrictions laid down in the regulation. As it is suspected that those substances are harmful to bees, the DBEB, the ÖEB and the ÖIB have an interest in the outcome of the dispute.
31 It cannot be objected in that regard that, since authorisation for the use of fipronil in the treatment of seed has never been applied for or obtained in Austria or Germany, the present action and the operative part of the forthcoming judgment will have no effect on the situation of the members of the DBEB, the ÖEB and the ÖIB. It is true that, even if the contested regulation were annulled in the present proceedings, the use of fipronil for the treatment of seed would still require a decision on the part of the competent national authorities. However, it is also true that, as long as it is in force, the contested regulation will prohibit those authorities from approving any such use and therefore constitutes, from the standpoint of the members of the DBEB, the ÖEB and the ÖIB, an additional guarantee against the use in the future of fipronil, which, those applicants for leave to intervene suspect, is harmful to bees. In those circumstances, the outcome of the present dispute may have a significant impact on those applicants’ interests.
32 It follows from all the foregoing that the application for leave to intervene submitted by the ESA in support of the form of order sought by the applicants and the joint application for leave to intervene submitted by the DBEB, the ÖEB and the ÖIB in support of the form of order sought by the Commission must be allowed. The applications for leave to intervene submitted by Mellifera and the OÖL must be rejected.
The rights of the interveners
33 The notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure having been published on 11 January 2014, the applications for leave to intervene which have been allowed were submitted within the period prescribed in Article 115(1) of those rules, and the rights of the interveners are those laid down in Article 116(2) to (4) of those rules.
The request for confidential treatment
34 The applicants have requested, pursuant to Article 116(2) of the Rules of Procedure, that certain confidential information in the file should not be disclosed to the intervening parties and have produced a non-confidential version of the pleadings and documents in question for that purpose.
35 At this stage, the documents to be provided to the intervening parties must therefore be restricted to non-confidential versions of the documents served or, as the case may be, to be served on the parties. A decision on the merits of the request for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted on that issue.
36 Moreover, since the applications for leave to intervene submitted by Mellifera and the OÖL have been rejected, there is no need to adjudicate on the applicants’ request for confidential treatment with regard to the latter.
Costs
37 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings. As the present order closes the proceedings as far as Mellifera and the OÖL are concerned, it is necessary to make an order as to the costs relating to their applications for leave to intervene.
38 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. The applicants have requested that applicants for leave to intervene be ordered to pay the costs of the intervention proceedings, whereas the Commission has not made any submissions concerning costs as regards unsuccessful applications for leave to intervene.
39 The General Court orders Mellifera and the OÖL, which have been unsuccessful in their applications, to bear their own costs and to pay the costs incurred by the applicants relating to their applications for leave to intervene, and orders the Commission to bear its own costs relating to those applications.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The European Seed Association is granted leave to intervene in Case T‑584/13 in support of the form of order sought by the BASF Agro BV and the other applicants.
2. The Deutscher Berufs- und Erwerbsimkerbund eV, the Österreichischer Erwerbsimkerbund and the Österreichischer Imkerbund are granted leave to intervene in Case T‑584/13 in support of the form of order sought by the Commission.
3. The application for leave to intervene submitted by Mellifera eV — Vereinigung für wesensgerechte Bienenhaltung and the OÖ Landesverband für Bienenzucht is dismissed.
4. The Registrar will furnish the intervening parties with a non-confidential version of each of the procedural documents served on the parties.
5. A date shall be fixed by which the intervening parties may lodge their observations on the application for confidential treatment. A decision on the merits of that application is reserved.
6. A date shall be fixed by which the intervening parties may lodge a statement in intervention, without prejudice to their right to lodge a supplementary statement following a decision on the merits of the application for confidential treatment.
7. Mellifera and the OÖ Landesverband für Bienenzucht shall bear their own costs and pay the costs incurred by BASF Agro and the other applicants relating to the unsuccessful applications for leave to intervene.
8. The Commission shall bear its own costs relating to the unsuccessful applications for leave to intervene.
9. With regard to the successful applications for leave to intervene, the costs are reserved.
Luxembourg, 9 October 2014.