ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
18 June 2008 (*)
(Application for interim relief – Directive 91/414/EEC – Application for suspension of operation of a measure – Admissibility – No urgency)
In Case T‑475/07 R,
Dow AgroSciences Ltd, established in Hitchin, Hertfordshire (United Kingdom),
Dow AgroSciences LLC, established in Indianapolis, Indiana (United States),
Dow AgroSciences, established in Mougins (France),
Dow AgroSciences Export, established in Mougins,
Dow AgroSciences BV, established in Hoek (Netherlands),
Dow AgroSciences Hungary kft, established in Budapest (Hungary),
Dow AgroSciences Italia Srl, established in Milan (Italy),
Dow AgroSciences Polska sp. z o.o., established in Warsaw (Poland),
Dow AgroSciences Iberica, SA, established in Madrid (Spain),
Dow AgroSciences s.r.o., established in Prague (Czech Republic),
Dow AgroSciences Danmark A/S, established in Kongens Lyngby (Denmark),
Dow AgroSciences GmbH, established in Munich (Germany),
Dintec Agroquímica – Produtos Químicos Lda, established in Funchal, Madeira (Portugal),
Finchimica SpA, established in Brescia (Italy),
represented by C. Mereu and K. Van Maldegem, lawyers,
applicants,
v
Commission of the European Communities, represented by B. Doherty and L. Parpala, acting as Agents,
defendant,
APPLICATION for suspension of the operation of Commission Decision 2007/629/EC of 20 September 2007 concerning the non-inclusion of trifluralin in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 255, p. 42), until delivery of the judgment in the main proceedings,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Background
1 The present interim order 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’), and 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) as amended 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 (OJ 2002 L 224, p. 23) (see, for an exposition of the provisions concerned, the order of the President of the Court of First Instance 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 Dow AgroSciences Ltd, Dow AgroSciences LLC, Dow AgroSciences, Dow AgroSciences Export, Dow AgroSciences BV, Dow AgroSciences Hungary kft, Dow AgroSciences Italia Srl, Dow AgroSciences Polska sp. z o.o., Dow AgroSciences Iberica, SA, Dow AgroSciences s.r.o., Dow AgroSciences Danmark A/S, Dow AgroSciences GmbH (‘the Dow applicants’), Dintec Agroquímica – Produtos Químicos, Lda (‘Dintec’) and Finchimica SpA, the applicants in the present case, produce and market trifluralin and trifluralin-based plant protection products. Trifluralin, a chemical developed in the United States in 1963, is one of the most successful (weed control) herbicides. On the Community market, its principal uses have been in oilseed rape and sunflowers, in particular in France.
3 The Dow applicants are the market leaders for trifluralin-based products. Dow AgroSciences LLC – a company established in the United States which manufactures and markets agricultural products and is a wholly-owned subsidiary of Dow Chemical Company – is the parent company of the other Dow applicants, which are wholly owned by it. Dintec, a joint venture owned by Dow AgroSciences BV (which holds 66% of the capital) and Suroholi – Comercio Internacional e Serviços, Lda (which holds 34% of the capital), does not produce trifluralin, but was formed principally for the sale of trifluralin to companies manufacturing trifluralin-based products under their own brands. Finchimica is the only company in the European Union that manufactures trifluralin. Originally founded with the sole object of producing trifluralin, Finchimica subsequently acquired trade marks relating to that substance and a number of marketing authorisations in respect of the Community market. Until recently, its entire production was sold exclusively to Dintec, which in turn resold it principally to the Dow applicants.
4 In August 2000 Dow AgroSciences Ltd, in its own name and on behalf of Dintec, notified the Commission of its wish to secure the inclusion of trifluralin in Annex I to the Directive. The Commission accepted the notification, from which time Dow AgroSciences Ltd and Dintec participated in the review of trifluralin, and in April 2002 they submitted their dossiers to the Hellenic Republic, the rapporteur Member State, which were evaluated by that State pursuant to Article 8 of Regulation No 451/2000.
5 The Hellenic Republic forwarded its draft assessment report to the European Food Safety Authority (EFSA) on 11 July 2003, recommending the inclusion of trifluralin in Annex I to the Directive subject to two conditions. This draft assessment report was the subject of peer review by the Member States and EFSA. The review lasted until 14 March 2005, the date upon which EFSA submitted to the Commission its report ‘Conclusion regarding the peer review of the pesticide risk assessment of the active substance trifluralin’. EFSA concluded that trifluralin could be expected to meet the safety requirements of the Directive, subject to a number of conditions. The Member States and the Commission then examined the issue within the Standing Committee on the Food Chain and Animal Health. In March 2007 the Commission finalised its review report for trifluralin, in which it proposed that trifluralin not be included in Annex I to the Directive.
6 On 20 September 2007, after receiving comments from the notifiers, the Commission adopted, in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health, Decision 2007/629/EC concerning the non-inclusion of trifluralin in Annex I to the Directive and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 255, p. 42; ‘the contested decision’), the operative part of which is worded as follows:
‘Article 1
Trifluralin 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 trifluralin are withdrawn by 20 March 2008;
(b) no authorisations for plant protection products containing trifluralin 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 20 March 2009 at the latest.
Article 4
This Decision is addressed to the Member States.’
7 The justification given in the contested decision for not including trifluralin as an active substance in Annex I to the Directive was that, during the evaluation of that active substance, a number of concerns had been identified. Thus, the contested decision stated that trifluralin was of high toxicity to aquatic organisms, in particular fish, and also that it was highly persistent in soil and not readily biodegradable. Moreover, it showed potential for accumulation. In particular, trifluralin exceeded significantly the maximum bioconcentration factor laid down in the Directive for aquatic organisms, indicating a potential for bioaccumulation in such organisms. Due to its high volatility, transport through air could not be excluded and, despite a rapid photochemical degradation, monitoring programmes had shown migration to places distant from application. Consequently, it had not been possible to conclude on the basis of the information available that trifluralin met the criteria for inclusion in Annex I to the Directive (recital 5).
8 Despite the arguments put forward by the notifiers, the Commission took the view that the concerns could not be eliminated. It considered that 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 trifluralin satisfied in general the requirements laid down in the Directive (recital 6).
Procedure and forms of order sought
9 By application lodged at the Registry of the Court of First Instance on 21 December 2007, the applicants brought an action for annulment of the contested decision.
10 By separate document, lodged at the Court Registry on 19 March 2008, they brought the present application for interim measures, in which they claim that the President of the Court of First Instance should:
– suspend the operation of the contested decision pursuant to Article 105(2) of the Rules of Procedure of the Court of First Instance;
– in any event, suspend the operation of the contested decision;
– grant any other interim measures as appropriate;
– order the Commission to pay the costs, including interest at 8%;
– hold an oral hearing and take such other or further measures as justice may require.
11 In its written observations lodged at the Court Registry on 14 April 2008, the Commission contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicants to pay the costs.
12 On 17 April 2008 the President of the Court asked the parties certain questions. The parties replied in writing within the time-limit set.
Law
13 Under Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the Court of First Instance may, if it considers that circumstances so require, order that application of the act contested before it be suspended or prescribe any necessary interim measures.
14 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is not satisfied (order in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). Where appropriate, the judge hearing the application must also weigh up the interests involved (see the order in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73 and the case cited).
15 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 Community 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 the Court of Justice of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
16 Having regard to the documents in the case, and in particular the parties’ replies to the questions asked, 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 applicants’ request that a hearing be arranged must be rejected.
Admissibility
Arguments of the parties
17 The Commission submits that none of the applicants other than the notifiers of trifluralin is individually concerned, for the purposes of the fourth paragraph of Article 230 EC, by the contested decision. As is apparent from three lists annexed to the Commission’s observations, there are numerous companies apart from those other applicants which were authorised to sell products containing trifluralin, as is indeed admitted by the applicants themselves in the application for interim measures. Consequently the main action and, therefore, the application for interim measures should be declared manifestly inadmissible so far as concerns those applicants.
18 In the applicants’ submission, the main action is admissible under the fourth paragraph of Article 230 EC because it is directed against a measure which produces binding legal effects that are of direct and individual concern to the applicants. First, the notifiers of trifluralin are without doubt entitled to bring the main proceedings.
19 Second, most of the applicants other than the notifiers held national marketing authorisations for trifluralin-based plant protection products, granted to them by the competent Member State authorities. As no other business may now obtain such a marketing authorisation, these applicants form part of a closed class of businesses. All of their authorisations were withdrawn on 20 March 2008 as a direct result of the contested decision.
20 The applicants add that those marketing authorisations constitute specific rights analogous to intellectual property rights. The case-law recognises an applicant’s individual concern where he has a specific right that deserves protection so that the institution is under a duty to take account of the consequences of the measure it envisages adopting for that right and hence for the situation of the individuals concerned when it deprives them of that right (Case C‑309/89 Codorníu v Council [1994] ECR I‑1853).
21 In addition, Dow AgroSciences LLC holds intellectual property rights over trifluralin-based plant protection products through various trade marks. These longstanding trade marks will be rendered redundant as a result of the contested decision. Finchimica also holds a number of trade marks relating to trifluralin.
22 Furthermore, it is only if the Commission alleges that the main action is manifestly inadmissible that it should be examined in proceedings for interim measures whether there are grounds for concluding prima facie that that action is admissible. In any event, such an examination is necessarily summary, the judge hearing the application for interim measures being able to dismiss it on this basis only where admissibility of the main action can be wholly excluded. In the present case, the Commission has not pleaded that the main action is manifestly inadmissible.
23 The applicants further submit that groups of companies frequently divide up their various tasks between the different legal persons in the group, one company dealing with the administrative aspects (notification of the dossier and participation in the administrative procedure) while others specialise in manufacture and sales. According to the applicants, the factors which distinguish the first company must benefit the others, as members of the same group of companies, since acts with regard to notification and participation in the administrative procedure will have been carried out for all the companies in the group. That is clear from the structure of the Directive, which is designed in such a way that there is only one notification per corporate group, and from the application of the concept of an enterprise. In addition, the applicants are all collectively and individually involved in the marketing of products containing trifluralin in the Community. In this context, the applicants rely on Case T-112/97 Monsanto v Commission [1999] ECR II‑1277.
24 In the applicants’ submission, to declare the main action inadmissible in so far as it has been brought by the applicants other than the notifiers would effectively place an undertaking conducting its business through a single company in a more favourable position than a group of companies which conducts its business through national subsidiaries or exclusive distributors. The logical endpoint of such an approach would be that all loss sustained outside the single individually concerned company would be ignored. That would represent a radical break with business reality and would frustrate the protection offered by the Community system of interim legal remedies.
Findings of the President of the Court
25 By virtue of Article 104(1) of the Rules of Procedure, an application for interim measures is admissible only if it is made by a party to a case that is before the Court. This rule implies that the main action, to which the application for interim measures relates, can in fact be examined by the Court.
26 It is settled case-law that in principle the admissibility of the main action should not be examined in proceedings for interim measures so as not to prejudge the case in the main proceedings. Nevertheless, where it is contended that the main action to which the application for interim measures relates is manifestly inadmissible, it may prove necessary to establish whether there are any grounds for concluding prima facie that the main action is admissible (orders in Case C‑300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council and Commission [2000] ECR I-8797, paragraph 34; in Case T-236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 42; and in Case T‑155/02 R VVG International and Others v Commission [2002] ECR II‑3239, paragraph 18).
27 Such examination of the admissibility of the main action is necessarily summary because proceedings for interim measures are by nature urgent (Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council and Commission, cited in paragraph 26 above, paragraph 35).
28 In the context of an application for interim measures, the admissibility of the main action can be assessed only on a prima facie basis, the aim being to examine whether the applicant has adduced sufficient evidence or arguments justifying the prima facie conclusion that the admissibility of the main action cannot be excluded. The judge hearing the application for interim measures should declare that application inadmissible only where admissibility of the main action can be wholly excluded. To rule, at the stage of the proceedings for interim measures, on the admissibility of the main action when its admissibility is not, prima facie, wholly excluded would be tantamount to prejudging the Court of First Instance’s decision in respect of that action (orders in Case T-342/00 R Petrolessence and SG2R v Commission [2001] ECR II-67, paragraph 17; in Joined Cases T-195/01 R and T-207/01 R Government of Gibraltar v Commission [2001] ECR II-3915, paragraph 47; and in Case T-37/04 R Região autónoma dos Açores v Council [2004] ECR II‑2153, paragraph 110).
29 In the present case, the Commission contends that the main action is partly inadmissible as the contested decision is not of individual concern to most of the applicants.
30 In so far as the applicants plead that the Commission has failed to establish that the inadmissibility alleged is manifest, it need merely be pointed out that the inadmissibility of an action constitutes an absolute bar which may be raised by the Community judicature of its own motion (Case C-298/00 P Italy v Commission [2004] ECR I-4087, paragraph 35). It is thus not necessary, in order to assess whether the main action, if inadmissible, is manifestly so and, therefore, whether the application for interim measures is admissible, for the Commission to have presented exhaustive argument in that regard.
31 Furthermore, while the applicants point out that any examination of admissibility in proceedings for interim measures is necessarily summary, the fact that the judge hearing an application for interim measures is not required to conduct as extensive an examination as in a main action cannot be interpreted as absolutely prohibiting a detailed examination, if that is necessary in order to determine whether the application for interim measures is admissible. Where he conducts a more detailed examination of that kind, not only can he be criticised for adopting this approach solely if his examination is vitiated by an error of law (Vischim v Commission, cited in paragraph 15 above, paragraph 50) but also it is to be noted that the length of that examination is dependent on the number of arguments put forward by the party concerned and its length is not capable, in itself, of calling into question the fact that any inadmissibility found is manifest.
32 With regard to whether the main action is admissible, it is to be observed first of all that the Commission, while contesting that the applicants other than the notifiers are entitled to bring the action, expressly acknowledges that the notifiers are so entitled. Indeed, since they, in their capacity as notifiers of trifluralin, did participate in the procedure for the assessment of an active substance provided for by the Directive and benefit from the procedural guarantees provided for by the relevant legislation, it cannot be excluded, at first sight, that the contested decision is of direct and individual concern, within the meaning of the fourth paragraph of Article 230 EC, to the companies in question and that the main application made by them is admissible (see, to this effect, Dow AgroSciences and Others v Commission, cited in paragraph 1, paragraph 48).
33 In those circumstances, since one and the same main application is involved, there is prima facie no need to consider whether the other applicants are entitled to bring proceedings (see, to this effect, Case C-313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraph 31; Joined Cases T-447/93 to T‑449/93 AITEC and Others v Commission [1995] ECR II‑1971, paragraph 82; and Case T-374/00 Verband der freien Rohrwerkeand Others v Commission [2003] ECR II‑2275, paragraph 57). That case-law, founded on considerations relating to economy of procedure, is justified by the fact that, even if one or other of those applicants were not entitled to bring proceedings, the Court should nevertheless consider the substance of the pleas for annulment put forward in their entirety (see, to this effect, the judgment of the Court of First Instance of 9 July 2007 in Case T-282/06 Sun Chemical Group and Others v Commission, not yet published in the ECR, paragraph 52).
34 It must be stated, however, that while the case-law referred to in the preceding paragraph is, where relevant, to be taken into consideration in the main proceedings, it cannot apply in proceedings for interim measures.
35 The grant of interim relief is subject to specific conditions, in particular the condition relating to the urgency of the relief sought. In accordance with settled case-law, urgency 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. That party must furnish proof that he cannot await the conclusion of the main action without personally suffering damage which would have serious and irreparable effects for him (see Dow AgroSciences and Others v Commission, cited in paragraph 1, paragraph 51 and the case-law cited).
36 It follows that only a party who is entitled to bring the main action to which the application for interim measures relates can be permitted to establish urgency by submitting that he would personally suffer serious and irreparable damage if the interim relief sought were not granted. In the absence of such a restriction it would be sufficient, in order to obtain interim relief, for undertakings concerned by a Community measure to join forces and collectively bring an action for annulment – accompanied by an application for interim measures – which would be brought by applicants only one of whom would be entitled to bring proceedings for the purposes of the fourth paragraph of Article 230 EC while the others could only show themselves to be the victim of serious and irreparable damage.
37 It must therefore be examined whether the applicants other than the notifiers of trifluralin appear prima facie to be manifestly not entitled to apply to the Court for annulment, in the main proceedings, of the contested decision.
38 First, it is necessary to identify the companies which can be classified, in the present case, as notifiers of trifluralin. In the applicants’ submission, Dow AgroSciences Ltd, Dintec and Finchimica can be, whereas the Commission disputes that Finchimica has this status.
39 As stated in paragraph 32 of the main application, on 25 August 2000 Dow AgroSciences Ltd gave formal notification to the Hellenic Republic in respect of the active substance trifluralin, in accordance with Article 4 of Regulation No 451/2000. As is apparent from Annex A3 to the main application, that notification designates Dintec as ‘manufacturer’, as defined in Article 2(2) of Regulation No 451/2000, of the substance, while specifying: ‘Location of plant … Finchimica SpA. … Manerbio … Italy’. In an explanatory letter of 25 August 2000 that accompanied the notification, Dow AgroSciences Ltd sets out the relationships between the three companies; it points out that Dintec is a joint venture that was formed by Dow AgroSciences BV and I.Pi.Ci. SpA (Industria Prodotti Chimici), while stating that it is authorised to sign regulatory documents concerning trifluralin-related activities on Dintec’s behalf. The letter continues:
‘Regarding the location of the manufacturing plant, Finchimica SpA is simply a member company of the I.Pi.Ci. group of companies.’
40 It follows that the role of Finchimica seems to be limited to that of a manufacturing plant, whereas the status of notifier for the purpose of Articles 2 and 4 of Regulation No 451/2000 must be restricted solely to Dow AgroSciences Ltd and Dintec.
41 The applicants other than Dow AgroSciences Ltd and Dintec must satisfy the criteria laid down by the fourth paragraph of Article 230 EC, according to which any natural or legal person may institute proceedings against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
42 It must be stated at the outset that, while the applicants submit that the system of notification was designed in such a way as to take advantage of the fact that a notifier may in fact represent an entire corporate group, there is nothing in the case file to permit the conclusion that Dow AgroSciences Ltd or Dintec notified trifluralin not only in its own name, but also for and on behalf of the other Dow applicants. In this context, the applicants admittedly refer to the structure of the Directive and to the concept of an enterprise. However, this comment is, first, too vague to establish that the main application made by the other Dow applicants is prima facie admissible. Also, while it is true that Article 6(1) of Regulation No 451/2000 encourages the collective presentation of dossiers in relation to notification of the same active substance, suffice it to state that the applicants have not proved that such presentation is prescribed or presumed, by virtue of the relevant legislation, in the case of a group of companies such as that formed by the Dow applicants.
43 Furthermore, the contested decision constitutes prima facie an act of general application in that it applies to objectively determined situations and entails legal effects in respect of categories of persons envisaged in a general and abstract manner. Articles 1 to 3 of the contested decision concern an active substance, trifluralin, and economic operators who hold marketing authorisations that are referred to in a general and abstract manner. Accordingly, in light of those provisions, and subject to the existence of characteristics which are peculiar to them, those economic operators are prima facie affected by the contested decision in the same manner and placed in an identical situation.
44 The possibility remains however that, in certain circumstances, the provisions of this measure of general application may be of individual concern to some of them (Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501, paragraph 13; Codorníu v Council, cited in paragraph 20 above, paragraph 19; and Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 36).
45 In accordance with settled case-law, natural or legal persons other than the person to whom a measure is addressed can claim that the measure is of individual concern to them, within the meaning of the fourth paragraph of Article 230 EC, only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee would be (Case 25/62 Plaumann v Commission [1963] ECR 95, 107; Codorníu v Council, cited in paragraph 20 above, paragraph 20; Unión de Pequeños Agricultores v Council, cited in paragraph 44 above, paragraph 36; and Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraph 45).
46 The possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them, as long as such application takes effect by virtue of an objective legal or factual situation defined by the measure in question (order in Case C-131/92 Arnaudand Others v Council [1993] ECR I-2573, paragraph 13; order in Case C‑409/96 P Sveriges Betodlares and Henrikson v Commission [1997] ECR I‑7531, paragraph 37; and Case T‑138/98 ACAV and Others v Council [2000] ECR II‑341, paragraph 64).
47 In the present case, it seems that, far from being individually distinguished by attributes peculiar to them, the applicants other than Dow AgroSciences Ltd and Dintec are affected in the same way as all the other vendors of trifluralin in the same situation. The contested decision contains nothing tangible to support the conclusion that it was adopted having regard to the particular situation of the applicants other than Dow AgroSciences Ltd and Dintec. It is apparent therefore that it is solely by reason of their objective position as economic operators covered by the contested decision that those applicants might claim to be affected by it. An effect of that kind is not sufficient for individual concern within the meaning of the fourth paragraph of Article 230 EC. None of the arguments to the contrary put forward by the applicants allows this assessment to be called into question.
48 So far as concerns the fact that certain of the applicants other than Dow AgroSciences Ltd and Dintec held national marketing authorisations for trifluralin, the mere existence of such marketing rights, which is potentially called into question by the contested decision, is not capable of individually distinguishing the holder of the right where the right is granted, pursuant to a general and abstract rule, to objectively determined economic operators (see, to this effect, the order in Case T-94/04 EEB and Others v Commission [2005] ECR II‑4919, paragraphs 53 to 55). The Commission has demonstrated, by adducing three lists annexed to its observations, that a number of undertakings other than the applicants existed which sold trifluralin too and which therefore had marketing rights in the same way as the applicants. The applicants have not denied the presence on the market of those undertakings referred to by the Commission.
49 While the Dow applicants maintain that their marketing rights were granted on the basis of an extensive and costly dossier, suffice it to state that all the holders of such rights, including holders not belonging to the Dow Chemical group, necessarily had to meet the same conditions. Consequently, those requirements are not capable of individually distinguishing the applicants other than Dow AgroSciences Ltd and Dintec. The matter at issue here is a consequence of the general national rules implementing Article 4 of the Directive, which requires the Member States to examine plant protection products before allowing them to be placed on the market.
50 The Dow applicants submit however that, pursuant to Article 13 of the Directive, inclusion in Annex I thereto confers on the notifier data protection rights covering the registration dossier; any person wishing to obtain a national marketing authorisation is required to have obtained a right to refer to that dossier. Since they belong to the same group as the notifier, all the Dow applicants enjoy automatic access to the protected data, a fact which distinguishes them from the other holders of a marketing authorisation.
51 As to those submissions, only the notifier holds the data protection rights conferred by the Directive. It follows that all holders of a national marketing authorisation for trifluralin, including those not belonging to the Dow Chemical group, necessarily had to obtain the right to refer to the protected data of Dow AgroSciences Ltd and Dintec. The mere fact that companies belonging to the group could gain access to those data more easily than other economic operators is not sufficient to confer upon them the specific legal position that was held by Dow AgroSciences Ltd and Dintec. Since this circumstance involves no more than facilitating the acquisition of national marketing authorisations for trifluralin by them, it is not capable of individually distinguishing the applicants other than Dow AgroSciences Ltd and Dintec.
52 Even if the contested decision were capable of producing different effects depending on the particular holder of a national marketing authorisation for trifluralin, that fact would not be sufficient to demonstrate that the applicants other than Dow AgroSciences Ltd and Dintec have attributes peculiar to them or are in a factual situation which differentiates them from the economic operators referred to in the lists adduced by the Commission. The applicants did not explain in the application for interim measures to what extent their marketing rights would be specially affected by the adverse consequences of the contested decision in a manner that would distinguish them from any other operator in the category in question (see, to this effect, the order of the Court of First Instance of 11 September 2007 in Case T-28/07 Fels-Werke and Others v Commission, not published in the ECR, paragraph 63).
53 Furthermore, the line of argument according to which the applicants other than Dow AgroSciences Ltd and Dintec formed part of a closed class of undertakings condemned to losing their marketing authorisations on 20 March 2008 must also be rejected. It is settled case-law that, in order for the existence of such a class to be a factor capable of distinguishing the persons in question individually in relation to a measure of general application, the institution adopting the contested measure must have been under an obligation to take account, at the time of adoption of the measure, of the particular circumstances of those persons (see Case T-489/93 Unifruit Hellas v Commission [1994] ECR II‑1201, paragraph 25; the order in Case T-60/96 Merck and Others v Commission [1997] ECR II‑849, paragraph 58; Case T‑166/99 Andres de Dios and Others v Council [2001] ECR II‑1857, paragraph 54; and the order in Joined Cases T-54/00 and T-73/00 Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2001] ECR II-2691, paragraph 53 and the case-law cited). Here, no such obligation was imposed on the Commission for the adoption of the contested decision.
54 So far as concerns the argument based on the other Dow applicants being part of the same undertaking as Dow AgroSciences Ltd, one of the two notifiers of trifluralin, by virtue of their status as wholly-owned subsidiaries of the parent company of the same group, the applicants do not plead case-law of the Court of Justice stating that a decision of individual concern to a subsidiary automatically concerns individually the other subsidiaries and the parent company belonging to the same group. Nor does it appear from the case-law of the Court of First Instance that the latter has accepted that companies in the same group are individually distinguished in this way.
55 First, in Joined Cases T-125/96 and T‑152/96 Boehringer v Council and Commission [1999] ECR II‑3427, at paragraphs 174 and 175, the Court of First Instance, after declaring admissible the action for annulment brought by the subsidiary Boehringer Ingelheim Vetmedica, which had been found to be individually concerned, expressly left open the question whether, in so far as the action had been brought by the parent company C.H. Boehringer Sohn too, it was admissible for the sole reason that the two companies belonged to the same group. Referring in particular to CIRFS and Others v Commission, cited in paragraph 33 above, the Court decided that, as a single action was involved, it was not necessary to examine whether the parent company had the capacity to bring proceedings since the action brought by its subsidiary was admissible in any event.
56 Second, while it is true that in Monsanto v Commission, cited in paragraph 23 above (paragraph 58) – a judgment relied upon by the applicants – the Court found that a parent company (Monsanto Company) was individually concerned by a measure notified to its wholly-owned subsidiary (Monsanto Europe), it appears that this reasoning can be explained only by the very specific circumstances of that case. Such circumstances do not obtain in the present case.
57 The contested decision in the present case is a measure of general application, which is addressed to the Member States alone and concerns Dow AgroSciences Ltd solely as an interested third party, whereas the measure at issue in Monsanto v Commission, cited in paragraph 23 above, was formally addressed by the Commission under Article 2 thereof to ‘The Monsanto Company’ and rejected the application which had been made by Monsanto Europe for authorisation of a veterinary medicinal product. Furthermore, Monsanto Company had invented the product in question, developed it and was the worldwide coordinator of its commercial exploitation. In the present case, it is not apparent from the application for interim measures that the Dow applicants other than Dow AgroSciences Ltd play such a role in relation to trifluralin.
58 As regards the applicants’ assertion of specific rights in accordance with Codorníu v Council, cited in paragraph 20 above, which they claim to possess as holders of national marketing authorisations, it is true that the Court of Justice held in that judgment (at paragraph 21) that the Spanish proprietor of the trade mark Gran Cremant de Codorníu, which had traditionally used that mark, was individually concerned by a provision of a general nature under which only French and Luxembourg producers were entitled to use the term ‘crémant’, given that the provision prevented that proprietor from using its mark. The proprietor was therefore, in a way, ‘expropriated’ by that provision, since use of the designation in question was restricted to other economic operators (see, to this effect, the order in Case T-196/03 EFfCI v Parliament and Council [2004] ECR II‑4263, paragraph 58). However, that is not the case here, as the contested decision does not seek in the slightest to restrict a specific intellectual property right regarding trifluralin to certain operators to the detriment of the applicants.
59 It is true that in Case T-13/99 Pfizer Animal Health v Council [2002] ECR II‑3305 and Case T-70/99 Alpharma v Council [2002] ECR II‑3495 the Court of First Instance found elements closely resembling a specific right comparable to the right at issue in Codorníu v Council, cited in paragraph 20 above, upon which the applicants were able to rely because the scientific data in their dossiers could not be used by other economic operators. However, that particular legal situation of the applicants was recognised because they had taken all the steps necessary in order in particular to acquire the status of person first responsible for putting the substance at issue into circulation, for the purposes of the relevant Community legislation (Pfizer Animal Health v Council, paragraph 99, and Alpharma v Council, paragraph 91). In the present case, the applicants other than Dow AgroSciences Ltd and Dintec cannot invoke a comparable legal position by putting forward solely their national marketing authorisations for trifluralin.
60 In any event, such a national marketing authorisation constitutes only a derogation, granted by the competent authority, from the prohibition on placing potentially hazardous substances on the market and cannot, as such, come under industrial and commercial property rights or intellectual property rights, which confer an exclusive marketing right. For that reason, the applicants likewise cannot profitably plead the judgment of the Court of Justice of 13 March 2008 in Case C-125/06 P Commission v Infront WM, not yet published in the ECR, paragraphs 70 to 77, in which the Court declared admissible an action for annulment of a measure adversely affecting the exclusive television broadcasting rights that the applicant had acquired before the contested measure was adopted.
61 In so far as the applicants, referring to Codorníu v Council, cited in paragraph 20 above (paragraph 21), plead damage caused to the worth of the trade marks held by Dow AgroSciences LLC and Finchimica, it need merely be recalled that the contested decision does not seek in the slightest to restrict a specific intellectual property right regarding trifluralin to certain operators to the detriment of the applicants (see paragraph 58 above). Furthermore, while it is apparent from the documents adduced by the applicants that Dow AgroSciences LLC and Finchimica are the proprietors of a number of trade marks, there is nothing to indicate that the use of those marks may, as such, be affected by a prohibition on the marketing of the active substance trifluralin, in particular as, far from being registered specifically for trifluralin, the marks relate to herbicides, insecticides, fungicides, products for destroying weeds and vermin, chemicals to be used in agriculture, disinfectants, pharmaceutical, veterinary and sanitary preparations and so forth, in the generic sense. Dow AgroSciences LLC and Finchimica may therefore, in any event, continue to use them for products which do not contain trifluralin and in order to prevent other undertakings from using signs liable to be confused with them.
62 This conclusion is not called into question by the purely factual assertion that the trade marks at issue are inextricably linked to the active substance trifluralin and products containing that active substance. Trade marks confer legal protection solely on the goods in respect of which they have been registered. The applicants have not pleaded, and all the less proved, that trifluralin as such benefits from legal protection of that kind which might be capable of individually distinguishing them. It seems, on the contrary, that any economic operator was able, from the point of view of trade mark law, to use and market trifluralin, provided that he observed the trade marks registered in favour of Dow AgroSciences LLC and Finchimica.
63 As regards Finchimica, it remains to be examined whether the fact that it is the only company in the Community that produces trifluralin and has been bound to Dintec by an exclusive supply contract might be such as to establish prima facie that the main application made by it is admissible.
64 It is to be noted that the contested decision prohibits only the placing of the active substance trifluralin on the Community market, without thereby precluding that undertakings established on that market continue to produce trifluralin for export outside the Community. The applicants themselves envisage this situation in stating that, in order to replace the lost trifluralin sales on the Community market with sales on markets outside the Community, Finchimica would have to increase its share of those markets by more than 20%.
65 It follows that the contested decision is of concern to Finchimica only at an economic and financial level in that it prohibits all marketing of trifluralin on the Community market, whereas the legal situation of Finchimica, as a company producing trifluralin, remains unchanged. In order to be entitled to challenge the contested decision, Finchimica would have had to establish that it directly affected its legal situation as a producer of trifluralin (see, to this effect, Case C-386/96 P Dreyfus v Commission [1998] ECR I‑2309, paragraph 43). However, a direct effect of that kind has not been established by Finchimica, which has not even shown that the contested decision constitutes a challengeable act in that it produced binding legal effects such as to affect its production activity by bringing about a distinct change in its legal position (see, to this effect, Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 62; and Case C‑123/03 P Commission v Greencore [2004] ECR I‑11647, paragraph 44).
66 Finally, in so far the applicants plead that, in the examination of admissibility, groups of companies will be discriminated against vis-à-vis single undertakings because the damage caused to such groups apart from the individually concerned company will not be taken into consideration, that is a line of argument which is irrelevant in the context of the fourth paragraph of Article 230 EC and can be taken into account only when examining urgency (see paragraph 82 below).
67 It follows from the foregoing that the contested decision cannot, prima facie, be considered to be of direct and individual concern to the applicants other than Dow AgroSciences Ltd and Dintec. Those applicants are thus not entitled to bring the present application for interim measures (see however, in any event, paragraphs 87, 88 and 116 below).
68 On the other hand, the application for interim measures is admissible so far as concerns Dow AgroSciences Ltd and Dintec.
Urgency
69 In accordance with settled case-law, urgency 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. It does not have to be established with absolute certainty that the damage is imminent; it is sufficient that the damage, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability (see the order in Case T-346/06 R IMS v Commission [2007] ECR II-1781, paragraphs 121 and 123, and the case-law cited). However, the party invoking damage is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (orders in Case C-335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; in Case T-151/01 R Duales System Deutschland v Commission [2001] ECR II-3295, paragraph 188; and in Case T-34/02 R B v Commission [2002] ECR II‑2803, paragraph 86).
70 It is also well-established case-law that damage of a purely financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty since normally it can be the subject of subsequent financial compensation (orders in Case C-471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, paragraph 113, and in Case T-339/00 R Bactria v Commission [2001] ECR II‑1721, paragraph 94).
71 The interim measure sought is 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 in the main action (order in Case T-181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 84). Since imminent disappearance from the market does constitute damage that is both irremediable and serious, adoption of the interim measure sought appears justified in such a situation.
72 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 (orders in Case T-13/99 R Pfizer Animal Health v Council [1999] ECR II‑1961, paragraph 138, and in Case T-392/02 R Solvay Pharmaceuticals v Council [2003] ECR II‑1825, paragraph 107), 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, however minimal, may be irremediably lost; on the contrary it is necessary for that market share to be sufficiently large (see, to this effect, the order in Case T‑369/03 R Arizona Chemical and Others v Commission [2004] ECR II-205, paragraphs 83 and 84). An applicant who invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of it, in particular by appropriate publicity measures, is impossible by reason of obstacles of a structural or legal nature (see, to this effect, Commission v Cambridge Healthcare Supplies, cited in paragraph 70 above, paragraphs 110 and 111, and the order of the President of the Court of First Instance of 26 February 2007 in Case T-416/06 R Sumitomo Chemical Agro Europe v Commission, not published in the ECR, paragraphs 59 and 60).
73 It is in the light of those considerations that examination is required of the reasons put forward by the applicants to establish that Dow AgroSciences Ltd and Dintec will suffer serious and irreparable damage if suspension of the operation of the contested decision is not ordered. It is to be remembered that the arguments relating to the applicants other than Dow AgroSciences Ltd and Dintec must be excluded from that examination (see paragraph 67 above).
Damage suffered by Dow AgroSciences Ltd
74 The applicants plead three types of damage that will be caused by immediate operation of the contested decision: (i) a loss of market share and customers; (ii) harm to their reputation and to that of trifluralin and of their trifluralin-based products and trade marks; and (iii) loss of their trade marks and brands. They submit that the alleged loss of their market shares and customers is not purely financial damage.
75 The latter contention cannot be upheld, the damage invoked by the applicants being of a purely financial nature in that it consists in the loss of the income from trifluralin sales.
76 Moreover, the applicants themselves have quantified the damage that the contested decision will cause Dintec, asserting that it will immediately lose [confidential] (1) % of its total turnover. So far as concerns Finchimica, they have adduced its annual reports and balance sheets for 2005 and 2006, submitting that the damage caused by the contested decision will correspond to [confidential] % of its turnover. Finally, the expert report relied upon by the Dow applicants, which is annexed to the application for interim measures, refers to several figures, ranging from USD [confidential] million to USD [confidential] million, as regards the damage which the Dow applicants would suffer if the interim relief sought were not granted.
77 It should be determined, next, whether the damage pleaded in the present case may be classified as serious in the light, in particular, of the size and turnover of the undertaking and of the characteristics of the group to which it belongs (see the orders in Case C-43/98 P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36 and the case-law cited, and in Dow AgroSciences and Others v Commission, cited in paragraph 1 above, paragraph 91 and the case-law cited).
78 The applicants criticise such an approach on the grounds, first, that the turnover of the group to which they belong is not relevant to an assessment of the severity of the damage suffered by way of loss of market share and customers and by way of harm to their market position, and second, that a group of companies is systematically discriminated against vis-à-vis a single undertaking because the damage caused to the group apart from the individually concerned company is not taken into consideration in order to establish urgency.
79 In that regard, it is to be observed that the approach of taking into consideration the turnover of the group to which the company concerned belongs is based on the idea that the objective interests of that company are not independent of those of the persons controlling it within the same group. The gravity and irreparability of the purported damage must therefore be assessed in relation also to the group made up of those persons. That coincidence of interests is justification in particular for not assessing the gravity of the loss of the market shares of the company concerned independently of the interest of those controlling it in supporting, or not supporting, their subsidiary (see, to this effect, the orders in HFB and Others v Commission, cited in paragraph 69 above, paragraph 62; in Case T-241/00 R LeCanne v Commission [2001] ECR II‑37, paragraph 40; and in Case T-192/01 R Lior v Commission [2001] ECR II‑3657, paragraph 55).
80 Furthermore, as is apparent from the case-law cited in paragraph 35 above, the question whether serious and irreparable damage might occur is to be examined in the light of the personal situation of the party requesting the interim relief, which requires an assessment on a case-by-case basis having regard to the facts of each case and the legal issues involved (see, to this effect, HFB and Others v Commission, cited in paragraph 69 above, paragraph 57). In the light of this case-law, the claim concerning breach of the principle of non-discrimination must be rejected as it is general in nature and not supported by evidence or arguments relating to the circumstances of the case in point.
81 In any event, the crucial question when assessing financial circumstances is whether the company which complains of losses of income has alternative potential sources of income that might help it to stem those losses. If so, this must be taken into account by the judge hearing the application for interim measures, whether it is possible income from the sale of another product that is involved or, as in the present case, assistance from other persons. It should be added that undertakings belonging to a group or having one or more major shareholders are in a special situation and that must therefore be taken into account by the judge hearing an application for interim measures (order in Case C-364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I-8733, paragraph 55).
82 It should also be pointed out that, although the judge hearing an application for interim measures limits his examination to the damage suffered solely by the company whose application for such measures has been declared admissible, while he assesses the gravity of that damage on the basis of the sales made by the entire group to which that company belongs, such an approach is dictated by the simultaneous application of two different concepts, namely the concept – of a strictly legal nature – under the procedural rules relating to the admissibility of the application for interim measures and the concept – rather of an economic nature – requiring the assessment of the damage to take account of all the circumstances liable to reflect the actual financial situation of the applicant entitled to bring the main action and make the application for interim measures. Indeed, the account taken of the group does not entail assessment of the gravity of the damage suffered by the group but serves only to assess the gravity of the damage suffered by a company belonging to it.
83 As regards the data produced by the applicants in order to establish serious damage, it must be stated that they have not provided any detail enabling the financial characteristics of the group to which Dow AgroSciences Ltd belongs to be assessed, or indeed any detail such as to show that the parent company has no interest in supporting that subsidiary. Nor does the application for interim measures contain figures relating to the sales of trifluralin and trifluralin-based products that Dow AgroSciences Ltd could lose as a result of the contested decision. In the absence of such details, the President of the Court is unable to assess the gravity of the damage pleaded by the applicants that is linked to any loss of market share (see, to this effect, Sumitomo Chemical AgroEurope v Commission, cited in paragraph 72 above, paragraphs 71 and 72).
84 Such information should have been set out in the text of the application for interim measures itself (orders in Case T-306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 52; in Case T-175/03 R Schmitt v EAR [2003] ECR‑SC I‑A‑175 and II‑883, paragraph 18; and in Case T-85/05 R Dimos Ano Liosion and Others v Commission [2005] ECR II‑1721, paragraph 37), particularly as the Commission has stated that the parent company of the group to which Dow AgroSciences Ltd belongs achieved a substantial total turnover in 2006.
85 In their replies to the President of the Court’s questions, the applicants still did not provide complete and detailed information concerning their membership of that group. They merely stated the amount of Dow AgroSciences LLC’s ‘revenue’ in 2003, in 2004 and in 2005.
86 Consequently, the arguments presented in the application for interim measures do not enable the President of the Court to relate the alleged loss suffered by Dow AgroSciences Ltd to the total turnover of the Dow Chemical group and to assess the gravity of the damage pleaded. In the light of the case-law cited in paragraphs 79 to 84 above, the applicants should have presented at the appropriate time figures enabling the gravity of the damage to be assessed. In those circumstances, they certainly could not merely request, in response to the written questions asked by the President of the Court, that they be given the opportunity to submit such information. This belated request must therefore be rejected.
87 For the sake of completeness, it should be stated that – as is apparent from the documents that have been produced by the Commission from public sources and have not been contested by the applicants – the parent company (Dow Chemical Company) of the group to which the Dow applicants belong achieved a total turnover of USD 49.1 billion in 2006. The annual damage, assessed at roughly USD [confidential] million by the abovementioned expert report annexed to the application for interim measures – which envisages the worst possible prospect, namely the loss of the entire sales of all the Dow applicants on both the Community and non-Community markets, including sales corresponding to the anticipated increase in sales by 2011 – thus corresponds approximately to only 0.1% of that total group turnover. Such annual damage evidently cannot be classified as serious and there is no need to verify whether the prospect taken into account by the expert report reflects the true position.
88 This assessment is not affected by the fact that the Commission has recently prohibited the Dow applicants from marketing two other plant protection products, namely haloxyfop-R by Commission Decision 2007/437/EC of 19 June 2007 concerning the non-inclusion of haloxyfop-R in Annex I to the Directive and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 163, p. 22) and 1,3‑dichloropropene by Commission Decision 2007/619/EC of 20 September 2007 concerning the non-inclusion of 1,3-dichloropropene in Annex I to the Directive and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 249, p. 11). In so far as the applicants contend that account should be taken of the cumulative damage caused by all these prohibitions, suffice it to state that they have not supplied any figures concerning the damage caused by Decision 2007/619. In addition, while certain of the Dow applicants have brought an action, registered as Case T-470/07, for the annulment of Decision 2007/619, that action was not accompanied by an application for interim measures. Decision 2007/437 was the subject of the order in Dow AgroSciences and Others v Commission, cited in paragraph 1 above, where the President of the Court assessed the damage suffered at less than 0.1% of the total turnover of the Dow Chemical group. Consequently, the impact of the two abovementioned decisions is not such as to transform the losses caused by the decision contested in the present case into serious damage.
89 It follows that the damage, in terms of loss of market share and customers, caused to Dow AgroSciences Ltd – as, indeed, that caused to the Dow applicants as a whole – cannot be considered serious, and there is not even any need to determine, first, to what extent that damage could be reduced by the sale of replacement products and, secondly, whether the applicants have proved to the required legal standard that there is a direct causal link between the contested decision and the claimed reduction in their trifluralin sales on markets outside the Community.
90 This conclusion is not called into question by an assessment of the circumstances as a whole relied upon by the Dow applicants, which maintain that they have acquired a reputation with trifluralin since the beginning of the 1960s, that they have invested substantially in research and development in respect of trifluralin, that they have acquired extensive know-how, that they have built up a solid customer base over a period of years and that they have longstanding trade marks of repute relating to trifluralin whose value will be destroyed by the contested decision. These historical considerations cannot be taken into consideration since they disclose no economic and financial figures, in terms of loss of turnover, which could be taken into account to assess damage liable to justify the grant of an interim measure.
91 As regards specifically the alleged loss of value of the trade marks used by the Dow applicants, it need merely be recalled that they are all registered in the name of Dow AgroSciences LLC alone (see paragraph 21 above). As has been held in paragraphs 67 and 73 above, any damage caused to Dow AgroSciences LLC cannot be taken into account when considering urgency, as urgency must be established in respect of Dow AgroSciences Ltd alone. In any event, there seems to be nothing to prevent the Dow applicants from continuing to use the trade marks as such (see paragraphs 61 and 62 above).
92 The applicants further submit that, if the interim measures sought are not granted, the contested decision will cause serious harm to the image and reputation of the Dow applicants in general and, specifically, to the reputation of their trifluralin products and the other products which they sell on the pesticides market. They consider that the statement in the contested decision according to which trifluralin endangers the health of its users will have the effect of stigmatising that substance.
93 In this regard, the Commission has rightly observed that withdrawal of a plant protection product from the market is not necessarily harmful to the reputation of the entire undertaking concerned, noting that Bayer, BASF and Syngenta, which the applicants have described as important competitors, have already had their products withdrawn from the market. Furthermore, it appears that the regulatory authorities and businesses in the sector concerned, which are familiar with the regulatory framework, tend 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 by the public as being simply the result of scientific developments and improvement in research methods.
94 The argument that consumer confidence in a plant protection product is particularly sensitive to statements that the product presents a risk to health likewise cannot justify the suspension of the operation of the contested decision. Harm to the Dow applicants’ reputation, 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 proceedings. Given that the contested decision was adopted following a complex administrative procedure lasting seven years, in which scientific experts and people working in the sector concerned participated, a suspension of the operation of that decision ordered by the President of the Court on a purely provisional basis and in summary proceedings would scarcely be such as to dispel the doubts of a sensitive user as to the correctness of the view that trifluralin is not toxic.
95 Nor have the applicants proved to the required legal standard that the damage alleged to be caused to Dow AgroSciences Ltd or the Dow applicants as a whole can be regarded as irreparable.
96 While the applicants contend that they are liable to lose irreversibly the market shares acquired by trifluralin, they have not established that it would be impossible for them to regain those lost market shares, should the contested decision be annulled on conclusion of the main proceedings.
97 The applicants have merely put forward general and abstract assertions, contending that their customers will need to find replacement substances to satisfy their plant protection product requirements, that they have only very limited replacement products in the event of a market shift to cross-spectrum products and that their competitors will be able to consolidate their position with appropriate marketing and advertising campaigns during the period in which the applicants’ trifluralin-based products are excluded from the market. On the other hand, the applicants have not adduced a representative survey of the Dow applicants’ customers relating to the chances of trifluralin returning to the market.
98 Moreover, one of the expert reports which they themselves annexed to their application for interim measures expressly states that the replacement products are ‘more expensive and less effective’ than trifluralin. This technical and economic point rather supports the view that it will be possible for trifluralin to return to the market should the contested decision, after not having its operation suspended, be annulled by the judgment in the main proceedings.
99 While the applicants contend that such a return will necessarily be preceded by a lengthy waiting period because they will have to, first, wait for the Commission to propose a directive including trifluralin in Annex I to the Directive and for the directive to be adopted, and second, apply for fresh marketing authorisations in the Member States before being able to recommence sales of trifluralin, it need merely be pointed out that the applicants, after bringing their main action on 21 December 2007, waited until 19 March 2008 – that is to say the day before the withdrawal of marketing authorisations for trifluralin that was required by Article 2 of the contested decision – before lodging the present application for interim measures. It was therefore by a deliberate choice, of which they must accept the consequences, that the applicants ran the risk that trifluralin would be removed from the Community market before the proceedings concerning interim measures were completed, requiring fresh steps to be taken to enable trifluralin-based products to be marketed under Article 6 of the Directive.
100 Finally, as has been stated in paragraph 93 above, there is no basis for concluding that, taking all products together, the reputation of the applicants themselves will be affected. It therefore appears plausible that any harm to reputation will be limited to trifluralin-based products alone; that reputation could be restored if the contested decision were annulled, where appropriate by means of a publicity campaign organised by the Dow applicants, aimed at the circles concerned.
101 It follows that, while recapture of the market shares lost because of the contested decision may, financially and economically, be quite onerous, such a return to the market, including restoration of trifluralin’s reputation, does not appear impossible (see, to this effect, the order in Pfizer Animal Health v Council, cited in paragraph 72 above, paragraphs 161 to 165). Moreover, in so far as the financial damage invoked by the Dow applicants is not made good by simply giving effect to the judgment in the main proceedings, it may be made good by the means of redress provided for in Articles 235 EC and 288 EC (see ArizonaChemical and Others v Commission, cited in paragraph 72 above, paragraph 75 and the case-law cited).
102 The damage allegedly caused in the present case to Dow AgroSciences Ltd or the Dow applicants as a whole on account of the contested decision cannot therefore be regarded as irreparable.
103 It follows from all of the foregoing that the applicants have not shown, as matters now stand, that Dow AgroSciences Ltd – or indeed the Dow applicants taken as a whole – would suffer serious and irreparable damage if suspension of operation of the contested decision were not granted.
Damage suffered by Dintec
104 The same is true of the applicant Dintec, a joint venture owned by Dow AgroSciences BV and Suroholi – Comercio Internacional e Serviços, Lda.
105 The applicants admittedly present a table which sets out a number of turnover figures for Dintec (trifluralin sales, sales of other products, sales on the Community market, sales on markets outside the Community and total turnover) in respect of 2005, 2006 and 2007, submitting that, if operation of the contested decision is not suspended, Dintec will lose its principal customer, namely the Dow applicants, and [confidential] % of its total turnover. However, they have not provided any detail enabling the financial characteristics of the two companies which respectively hold 66% and 34% of its capital to be assessed. In the absence of such details, the President of the Court is unable to assess the gravity of the damage pleaded (see paragraph 83 above).
106 Such information should have been set out in the text of the application for interim measures itself, particularly as the Commission has stated that one of Dintec’s two parent companies, namely Dow AgroSciences BV, was part of the Dow Chemical group whose parent company achieved a substantial total turnover in 2006 (see paragraph 84 above). It is not sufficient in this context that the applicants, in response to a written question from the President of the Court, quantified Dow AgroSciences LLC’s ‘revenue’ in 2003, in 2004 and in 2005, without specifying the relevant overall turnover of that company or that of Dow Chemical Company. Moreover, they remained silent with regard to Suroholi’s financial position.
107 Consequently, the arguments presented in the application for interim measures do not enable the President of the Court to relate the alleged damage suffered by Dintec to the total turnover of the legal persons which control it and to assess the gravity of the damage pleaded (see paragraph 86 above).
108 For the sake of completeness, it should be added that, in so far as the damage claimed to be caused to Dintec is assessed in relation to the financial capability of the Dow Chemical group, to which Dow AgroSciences BV belongs, that damage, amounting to [confidential] % of total turnover – even if account is taken of the highest of the figures set out in the application for interim measures, namely EUR [confidential] million – could only be classified as insignificant (see paragraph 87 above).
109 It is true that the applicants, in response to a written question from the President of the Court, adduced an affidavit from Dow AgroSciences LLC, according to which operation of the contested decision may well prevent Dintec from continuing to operate, and an affidavit from Suroholi stating that neither it nor its parent companies nor any of the companies in the Suroholi group will be prepared to support Dintec.
110 However, a unilateral refusal of this kind to provide financial assistance, on the part of the persons which control Dintec and whose objective interests merge with those of the controlled company (see paragraph 79 above), cannot be sufficient to preclude the financial position of those persons from being taken into account. The extent of the alleged damage cannot depend on the unilateral intention of the parent companies of the subsidiary which requests that operation of the measure be suspended in a situation where, in the absence of evidence of sufficient probative value put forward by the applicants to the contrary, it may be supposed that the interests of Dintec and those of Dow AgroSciences BV and Suroholi merge (see, to this effect, the order in Case C-7/01 P(R) FEG v Commission [2001] ECR I‑2559, paragraph 46).
111 While the applicants further submit that Dintec was formed to operate principally in the trifluralin market, that it has few other products in its portfolio and that it lacks the know-how necessary to switch to other markets, so that it will be unable to make up for the loss of sales of trifluralin, it need merely be pointed out that, in accordance with well established case-law (see the order in Case T-350/00 R Free Trade Foods v Commission [2001] ECR II‑493, paragraph 59 and the case-law cited), urgency in ordering interim relief must result from the effects produced by the contested measure and not from a lack of diligence on the part of the applicant. The latter must, if he is not to bear the loss himself as part of the ‘risks of the undertaking’, show reasonable diligence in limiting the extent of the loss.
112 In the present case, while it was perfectly legitimate for Dintec to direct its business strategy towards the sale of trifluralin and to choose the Dow applicants as its principal customers, the urgency pleaded nonetheless does not result from events that it was entirely unable to foresee. The fact must be taken into consideration that Dintec itself notified the Commission in August 2000 of its wish to secure the inclusion of trifluralin in Annex I to the Directive and that it therefore had to be aware that that substance would be the subject of detailed scientific analysis – whose final outcome was not foreseeable – in order to assess whether its toxicity appeared tolerable. In this context, Dintec was informed in February 2005 that problems preventing trifluralin’s immediate and unconditional inclusion had arisen in the course of the EFSA peer review. Furthermore, the EFSA report of 14 March 2005 (see paragraph 5 above), published on that body’s website, referred to certain high risks linked to the use of trifluralin.
113 In those circumstances Dintec could not expect that, in all probability, the Commission would decide, at the end of the assessment procedure, that trifluralin met the conditions for inclusion in Annex I to the Directive. On the contrary, as a prudent and well-informed trader, Dintec should have taken all precautionary measures to reduce, from March 2005 at the latest, its economic dependence on trifluralin and the Dow applicants, by diversifying its product range. The fact that Dintec, with full knowledge of all the circumstances, chose not to diversify in this way in good time must therefore be regarded as a lack of diligence which, for this additional reason, prevents operation of the contested decision from being suspended.
114 Finally, with regard to whether the damage pleaded is irreparable, the applicants have not put forward anything that is capable of establishing that Dintec is in a situation different from that of Dow AgroSciences Ltd, in relation to which it was found at paragraph 95 et seq. above that the damage caused as a result of the contested decision could not be regarded as irreparable.
Damage suffered by Finchimica
115 It is to be remembered that, since Finchimica is not entitled to make the present application for interim measures, all arguments designed to establish urgency in respect of the suspension of operation sought by it must be disregarded (see paragraph 73 above).
116 For the sake of completeness, it should be recalled that Finchimica was originally founded with the sole object of producing trifluralin (which in 2007 accounted for [confidential] % of its overall production), that it is the only company in the Community which manufactures trifluralin and that, until recently, it sold its entire production exclusively to Dintec, which resold it principally to the Dow applicants. The choice of heightened dependence of that kind on a single product and a single customer forms part of the ‘risks of the undertaking’ of which Finchimica must accept the consequences. While the applicants claim that operation of the contested decision will cause Finchimica loss corresponding to [confidential] % of its turnover, Finchimica’s lack of diligence consisting in the absence of product and customer diversification in good time thus prevents operation of the contested decision from being suspended (see paragraphs 111 to 113 above).
117 In those circumstances, it is not necessary to examine whether the information relating to the group to which Finchimica belongs, which the applicants produced only in reply to a written question from the President of the Court, must be regarded as having been submitted too late and, if it was not, as sufficiently detailed to enable the gravity of the damage pleaded to be assessed.
118 Consequently, in so far as the application for interim measures is admissible it must be dismissed for lack of urgency, without any need to examine whether the other conditions governing suspension of the contested decision’s operation are met.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 18 June 2008.