ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
1 March 2007 (*)
(Applications for interim measures – Application for suspension of operation of a measure – Directive 91/414/EEC – European Food Safety Authority – Inadmissibility)
In Cases T‑311/06 R I, T‑311/06 R II, T‑312/06 R and T‑313/06 R,
FMC Chemical SPRL, established in Brussels (Belgium),
Arysta Lifesciences SAS, established in Noguères (France),
Otsuka Chemical Co. Ltd, established in Osaka (Japan),
represented by C. Mereu and K. Van Maldegem, lawyers,
applicants,
v
European Food Safety Authority (EFSA), represented by A. Cuvillier and D. Detken, acting as Agents,
defendant,
supported by
Commission of the European Communities, represented by B. Doherty, acting as Agent,
intervener,
APPLICATIONS for suspension of operation of the acts of the EFSA of 28 July and 28 August 2006 concluding the evaluation of the active substances carbofuran, carbosulfan and benfuracarb for the purposes of Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant-protection products on the market (OJ 1991 L 230, p. 1), and for the grant of other interim measures,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Legal framework
1 This order in proceedings for interim measures forms part of a complex legal framework fixed by Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230. p. 1), which establishes the Community rules applicable to the authorisation and withdrawing of authorisation for placing plant-protection products on the market (for a summary of the provisions of Directive 91/414 see the Order of the President of the Court of First Instance of 4 April 2006 in Case T-420/05 R Vischim v Commission, not published in the ECR, paragraphs 1 to 17).
2 In so far as, for the purposes of this order, there is no need to set out all the details of the legal background, reference will be made only to those provisions that are of interest for the disposal of the present proceedings for interim measures.
3 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 Directive 91/414 (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 Directive 91/414 and amending Regulation No 451/2000 (OJ 2002 L 224, p. 23), organises the procedure for evaluation of various substances mentioned in Annex I thereto, including carbofuran, carbosulfan and benfuracarb, with a view to their possible inclusion in Annex I to Directive 91/414.
4 Article 8(1) of Regulation No 451/2000 provides:
‘1. The rapporteur Member State shall evaluate and report only on those active substances for which at least one dossier has been determined to be complete … . It shall send a draft report of its assessment of the dossier to the [European Food Safety Authority (EFSA)] as quickly as possible …
At the same time, the rapporteur Member State shall make a recommendation to the Commission either:
– to include the active substance in Annex I to Directive 91/414/EEC, stating the conditions for inclusion, or
– not to include the active substance in Annex I to Directive 91/414/EEC, stating the reasons for the non-inclusion
– …’
5 Article 8(7) of Regulation No 451/2000 provides:
‘The EFSA shall evaluate the rapporteur’s draft assessment report and deliver its opinion on whether the active substance can be expected to meet the safety requirements of Directive 91/414/EEC to the Commission at the latest one year after receipt of the rapporteur Member State draft assessment report. Where appropriate, the EFSA shall give its opinion on the available options claimed to meet the safety requirements …’
6 Article 8(8) of Regulation No 451/2000 provides:
‘At the latest six months after receipt of the [EFSA] opinion referred to in Article 7, the Commission shall submit a draft review report. Without prejudice to any proposal it may submit with a view to amending the Annex to Directive 79/117/EEC, and on the basis of the finalised review report, it shall submit to the Committee:
(a) a draft directive to include the active substance in Annex I to Directive [91/414], setting out where appropriate the conditions, including the time limit, for such inclusion; or
(b) a draft decision addressed to the Member States to withdraw the authorisations of plant-protection products containing the active substance, pursuant to the fourth subparagraph of Article 8(2) of Directive [91/414], whereby that active substance is not included in Annex I to Directive [91/414], mentioning the reasons for the non-inclusion.
…’
7 Article 22 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety provides as follows:
‘…
2. The [EFSA] shall provide scientific advice and scientific and technical support for the Community’s legislation and policies in all fields which have a direct or indirect impact on food and feed safety. It shall provide independent information on all matters within these fields and communicate on risks.
…
6. The [EFSA] shall provide scientific opinions which will serve as the scientific basis for the drafting and adoption of Community measures in the fields falling within its mission.
…’
8 Article 47 of Regulation No 178/2002 provides:
‘1. The contractual liability of the [EFSA] shall be governed by the law applicable to the contract in question. The Court of Justice of the European Communities shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Authority.
2. In the case of non-contractual liability, the [EFSA] shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or its servants in the performance of their duties. The Court of Justice shall have jurisdiction in any dispute relating to compensation for such damage.
…’
Facts giving rise to the dispute
9 As regards Cases T-311/06 R I and T-311/06 R II, having notified the Commission of their wish to have the active substance carbofuran included in Annex I to Directive 91/414, FMC Chemical SPRL and Arysta Lifesciences SAS, manufacturers and distributors within the European Union of carbofuran and carbofuran-based plant-protection products, each forwarded a dossier to the Kingdom of Belgium, the rapporteur Member State, on 26 and 30 April 2002. On 3 August 2004 the applicants received the Kingdom of Belgium’s draft assessment report which recommended that carbofuran should not be included in Annex I to Directive 91/414. EFSA delivered its opinion on 28 July 2006 (updated on 28 August 2006 and published on its internet site the same day), entitled ‘Conclusion regarding the peer review of the pesticide risk assessment of the active substance Carbofuran’ (‘the act contested in Case T-311/06’).
10 As regards Case T‑312/06 R, having notified the Commission of its wish to have the active substance carbosulfan included in Annex I to Directive 91/414, FMC Chemical, manufacturer and distributor within the European Union also of carbosulfan and carbosulfan-based plant-protection products, forwarded a dossier to the Kingdom of Belgium, the rapporteur Member State, on 22 April 2002. In July 2004 the Kingdom of Belgium finalised its draft assessment report which recommended that carbosulfan should not be included in Annex I to Directive 91/414. EFSA delivered its opinion on 28 July 2006 (published on its internet site on 18 September 2006 and updated on 6 October 2006), entitled ‘Conclusion regarding the peer review of the pesticide risk assessment of the active substance Carbosulfan’ (‘the act contested in Case T-312/06’).
11 As regards, last, Case T‑313/06 R, having notified the Commission of its wish to have the active substance benfuracarb included in Annex I to Directive 91/414, Otsuka Chemical Ltd, manufacturer and distributor within the European Union of benfuracarb and benfuracarb-based plant-protection products, forwarded a dossier to the Kingdom of Belgium, the rapporteur Member State, on 30 April 2002. In July 2004 the Kingdom of Belgium finalised its draft assessment report which recommended that benfuracarb should not be included in Annex I to Directive 91/414. EFSA delivered its opinion on 28 July 2006 (published on its internet site on 18 September 2006 and updated on 6 October 2006), entitled ‘Conclusion regarding the peer review of the pesticide risk assessment of the active substance Benfuracarb (‘the act contested in Case T-313/06’).
Procedure and forms of order sought by the parties
12 By application lodged at the Registry of the Court of First Instance on 7 November 2006, FMC Chemical and Arysta Lifesciences brought an action on the basis of the fourth paragraph of Article 230 EC, registered under number T‑311/06, for annulment of the act contested in Case T‑311/06. In their application the applicants also raised a plea of illegality in respect of Article 20 of Regulation No 1490/2002 and made a claim for damages on the basis of Article 288 EC.
13 By separate documents lodged at the Registry on 17 November 2006, FMC Chemical and Arysta Lifesciences made two applications for interim measures, registered under numbers T‑311/06 R I and T‑311/06 R II, respectively.
14 By application lodged at the Registry of the Court of First Instance on 17 November 2006, FMC Chemical brought an action on the basis of the fourth paragraph of Article 230 EC, registered under number T‑312/06, for annulment of the act contested in Case T‑312/06. In its application the applicant also raised a plea of illegality in respect of Article 20 of Regulation No 1490/2002 and made a claim for damages on the basis of Article 288 EC.
15 By separate document lodged at the Registry on the same day, FMC Chemical made an application for interim measures, registered under T‑312/06 R.
16 By application lodged at the Registry of the Court of First Instance on 18 November 2006, Otsuka Chemical brought an action on the basis of the fourth paragraph of Article 230 EC, registered under number T‑313/06, for annulment of the act contested in Case T‑313/06. In its application the applicant also raised a plea of illegality in respect of Article 20 of Regulation No 1490/2002 and made a claim for damages on the basis of Article 288 EC.
17 By separate document lodged at the Registry on the same day, Otsuka Chemical made an application for interim measures, registered under number T‑313/06 R.
18 On 21 November 2006 all the applicants lodged a letter containing new evidence.
19 On 28 November 2006 EFSA, the defendant in all four sets of interlocutory proceedings, lodged its observations on each application.
20 On 1 December 2006 the President of the Court of First Instance requested the parties to submit, by 5 December 2006 at the latest, any observations they wished to make on the joinder of the proceedings for interim measures, in accordance with Article 50(1) of the Court of First Instance’s Rules of Procedure. The parties complied with that request within the period prescribed.
21 By document lodged on 4 December 2006 the Commission sought leave to intervene in the four sets of proceedings for interim measures in support of the defendant. On 12 December 2006 the applicants lodged their observations on the Commission’s application to intervene.
22 On 8 December 2006 the applicant in Cases T‑311/06 R I and T‑312/06 R lodged new evidence which was added to the documents before the Court.
23 On 15 December 2006, at the hearing before the President of the Court of First Instance, the Commission was granted leave to intervene in the four cases and the parties’ oral explanations were heard.
24 At the end of an informal meeting held at the invitation of the President after the hearing, he fixed a time-limit of 19 January 2007 for the parties to reach agreement on an amicable settlement of the dispute.
25 On 18 January 2007 the Commission lodged its observations on the Court of First Instance’s proposal. On 23 January 2007 the applicants lodged a letter addressed to the Commission, setting out their intention to reach an agreement. At the President’s invitation, the Commission lodged its final observations on 9 February 2007.
26 In Cases T‑311/06 R I and T‑311/06 R II, the applicants claim that the President of the Court of First Instance should:
– declare their applications to be admissible and well founded;
– order suspension of the operation of the act contested in Case T-311/06 pending the decision in the main proceedings;
– order the Commission to propose no measure related to the non-inclusion of carbofuran in Annex I to Directive 91/414 pending the decision in the main proceedings and, in particular, to remove the discussion on carbofuran from the agenda of the committee meeting held on 23 and 24 November 2006, and from the agenda of meetings of that committee to be held in the future, pending the decision in the main proceedings;
– order EFSA to pay the costs.
27 In Case T-312/06 R the applicant claims that the President of the Court of First Instance should:
– declare its application admissible and well founded;
– order suspension of the operation of the act contested in Case T‑312/06, pending the decision in the main proceedings;
– order the Commission to propose no measure related to the non-inclusion of carbosulfan in Annex I to Directive 91/414 pending the decision in the main proceedings and, in particular, to remove the discussion on carbosulfan from the agenda of the committee meeting held on 23 and 24 November 2006, and from the agenda of meetings of that committee to be held in the future, pending the decision in the main proceedings;
– order EFSA to pay the costs.
28 In Case T-313/06 R, the applicant claims that the President of the Court of First Instance should:
– declare its application to be admissible and well founded;
– order suspension of the operation of the act contested in Case T‑313/06, pending the decision in the main proceedings;
– order the Commission to propose no measure related to the non-inclusion of benfuracarb in Annex I to Directive 91/414 pending the decision in the main proceedings and, in particular, to remove the discussion on benfuracarb from the agenda of the committee meeting held on 23 and 24 November 2006, and from the agenda of meetings of that committee to be held in the future, pending the decision in the main proceedings;
– order EFSA to pay the costs.
29 In each of the four cases EFSA and the Commission contend that the President of the Court of First Instance should reject the application for interim measures as inadmissible and order the applicant to pay the costs.
Law
30 By virtue of Articles 242 EC and 243 EC on the one hand and of Article 225(1) EC on the other, the Court may, if it considers that the circumstances so require, order suspension of the application of the contested act or prescribe any necessary interim measures.
31 Article 104(2) of the Rules of Procedure provides that applications 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 (order of the President of the Court of Justice of 19 July 1995 in Case C‑149/95 P(R) Commission v Atlantic Container Line [1995] ECR I‑2165, paragraph 22). Those conditions are cumulative, so that applications for interim measures must be rejected if one of the conditions is not satisfied (order of the President of the Court of Justice of 17 December 1998 in Case C‑364/98 P(R) Emesa Sugar v Commission [1998] ECR I‑8815, paragraphs 43 and 47).
Concerning the joinder of Cases T‑311/06 R I, T‑311/06 R II, T‑312/06 R and T‑313/06 R
32 The parties have raised no objections to the joining of the four applications for interim measures for the purposes of this order.
33 Having regard to the fact that Cases T‑311/06 R I, T‑311/06 R II, T‑312/06 R and T‑313/06 R turn on very similar facts and have connected subject-matter, there are grounds, pursuant to Article 50(1) of the Rules of Procedure, to order their joinder for the purposes of this order.
Admissibility
– Arguments of the parties
34 In the four cases the applicants put forward the same arguments in support of the admissibility of their applications for interim relief as in support of their actions in the main proceedings.
35 The applicants put forward, in particular, two series of arguments intended to show, first, that EFSA is one of the institutions whose acts may be the subject of an action for annulment in accordance with Article 230 EC and, second, that the acts in question are challengeable acts for the purposes of that article.
36 With regard to the first series of arguments, the applicants claim, in the first place, that EFSA’s statutes provide for the Court of Justice to have jurisdiction to hear and determine cases based on its acts and, as a result, that its acts are challengeable by virtue of Article 230 EC.
37 In the second place, the applicants claim that in a letter of 19 May 2004 addressed to the Parliament, the Council and the Commission, EFSA itself admitted that ‘[a]ll EFSA acts are … potentially subject to judicial review’.
38 With regard to the second series of arguments, the applicants maintain, first, that EFSA possesses administrative powers of such a nature that it must be possible for its acts to form the subject of an action for annulment as provided for in Article 230 EC, as the Court has affirmed in a similar case giving rise to its judgment in Joined Cases 193/87 and 194/87 Maurissen and European Public Service Union v Court of Auditors [1989] ECR 1045 and Mr Darmon likewise in his Opinion of 12 April 1989 in that case (ECR 1055).
39 Second, the applicants take the view that the title of the contested acts, that is to say, ‘Final EFSA Conclusion’, cannot make it impossible that the acts should be challengeable for the purposes of Article 230 EC.
40 Third, the applicants argue that the contested acts produce binding legal effects, in particular in that the Commission has no power to adopt a decision not to include (or a decision to include) the product at issue in Annex I to Directive 91/414 without first obtaining EFSA’s opinion, on the one hand, and in that EFSA’s decision closes the administrative stage of the assessment of the active substance, on the other. The Court of Justice has acknowledged, in its judgment in Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others [2005] ECR I‑6451, that such a decision may form the subject of an action for annulment in similar circumstances.
41 Fourth, the applicants are of the view that EFSA’s opinion is the final stage in a special procedure similar to that in the case giving rise to the judgment of the Court of Justice in Joined Cases 8/66 to 11/66 Cimenteries CBR and Others v Commission [1967] ECR 75.
42 Fifth, the applicants rely on an obiter dictum in the judgment of the Court of Justice in Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 11, to the effect that a provisional measure may be challenged if it is ‘the culmination of a special procedure distinct from that intended to permit the Commission or the Council to take a decision on the substance of the case’.
43 Sixth, the applicants observe that judicial review of EFSA’s acts is expressly provided for by Regulation (EC) No 1935/2004 of the European Parliament and of the Council of 27 October 2004 on materials and articles intended to come into contact with food and repealing Directives 80/590/EEC and 89/109/EEC (OJ 2004 L 338, p. 4).
44 According to the defendant, however, the applications for interim relief seeking suspension of operation of the contested acts are not admissible.
45 First of all, it argues, EFSA’s acts cannot form the subject of an action for annulment as provided for by Article 230 EC inasmuch as EFSA does not appear in that article among the institutions against whose acts an action for annulment may be brought. Moreover, on reading Article 47 of Regulation No 178/2002 it is apparent that the legislature intended to make subject to review by the Court of Justice only actions for damages brought against EFSA, and not actions for annulment challenging EFSA’s acts, because EFSA has only very restricted powers amounting to no more than the formulation of a scientific opinion.
46 Next, the defendant maintains that the applications for interim measures are inadmissible inasmuch as the acts challenged in the actions in the main proceedings are not actionable, since they do not themselves produce legal effects and are merely preparatory or provisional measures.
47 Last, the defendant takes the view that the applicants’ claims for directions to be issued to the Commission are not admissible on the ground that, first, it is settled case-law that the court hearing an application for interim measures has no jurisdiction to issue directions to the Community institutions and that, second, the Commission is not a party to these proceedings.
– Findings of the President of the Court of First Instance
48 It is to be borne in mind that the first subparagraph of Article 104(1) of the Rules of Procedure provides that an application to suspend the operation of any measure adopted by an institution is admissible only if the applicant challenges that measure in proceedings before the Court of First Instance.
49 In the present case, as mentioned in paragraphs 12, 14 and 16 above, the applicants have brought an action for annulment directed at the contested acts on the basis of the fourth paragraph of Article 230 EC, and also an action for damages on the basis of Article 288 EC. Nevertheless, it must be found that the applications for interim relief make it clear that they are attached only to the action in the main proceedings seeking annulment of the act contested in each case, on the basis of the fourth paragraph of Article 230 EC.
50 According to settled case-law, the admissibility of the main application must not as a rule be examined in proceedings relating to an application for interim measures. Where, however, as in this case, it is contended that the main action from which the application for interim measures is derived is manifestly inadmissible, it may be necessary to establish certain grounds for the conclusion that such an action is prima facie admissible. Thus, in order for an application for interim measures to be declared admissible, the applicant must establish certain grounds supporting the conclusion that the substantive action from which his application is derived is prima facie admissible, so as to prevent him from obtaining, by way of proceedings for interim relief, the benefit of interim measures to which he could not be entitled if his action were declared inadmissible when examined as to its merits (order of the President of the Court of Justice of 27 January 1988 in Case 376/87 R Distrivet v Council [1988] ECR 209, paragraph 21; orders of the President of the Court of First Instance of 15 January 2001 in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 42, and of 24 March 2006 in Case T‑454/05 R Sumitomo Chemical Agro Europe and Philagro France v Commission, not published in the ECR, paragraph 46).
51 Consequently, it must be ascertained whether the applicants have in their respective applications for interim measures established grounds supporting the conclusion that the substantive actions from which their applications are derived are not manifestly inadmissible.
52 In these proceedings the contested acts are opinions delivered by EFSA in accordance with Article 8(7) of Regulation No 451/2000.
53 It is to be borne in mind that only measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position constitute acts or decisions which may be the subject of an action for annulment. In the specific case of acts or decisions adopted by a procedure involving several stages, an action for annulment may as a rule be brought only against measures which definitively establish the position of the institution concerned upon the conclusion of the procedure. This means that preliminary or purely preparatory measures cannot be the subject of an action for annulment (IBM v Commission, paragraph 42 above, paragraphs 9 and 10; order in Sumitomo Chemical Agro Europe and Philagro France v Commission, paragraph 50 above, paragraph 50).
54 So far as concerns the applicants’ arguments as to whether EFSA may be regarded as numbered among the institutions whose acts may form the subject of an action for annulment in accordance with Article 230 EC and, more particularly, the argument relying on the instruments constituting EFSA, the fact remains that Article 47 of Regulation No 178/2002 does no more than establish the jurisdiction of the Court of Justice with regard, on the one hand, to EFSA’s contractual liability when the contracts it concludes contain an arbitration clause and, on the other, to its non-contractual liability.
55 As regards, next, the argument concerning the letter supposedly sent by EFSA to the Council and the Commission, the fact is that, even if EFSA did actually write such a letter, its subjective interpretation of Article 230 EC is without bearing on the objective conditions for application of that provision and in any event it confined itself to stating that all its acts were potentially actionable, without claiming either that all its acts were actionable or, still less, that the acts challenged in these proceedings were actionable.
56 It is therefore to be held that the applicants have not prima facie put forward evidence to establish that the Court has jurisdiction to hear and determine actions for annulment challenging EFSA’s acts as such, on the one hand, or to support the conclusion that whether or not EFSA’s acts may form the subject of an action for annulment is not to be assessed in relation to the requirements of Article 230 EC.
57 While those considerations are in theory sufficient for the applications for interim relief to be rejected as manifestly inadmissible by reason of their deriving from actions in the main proceedings which are prima facie inadmissible, it is nevertheless appropriate to examine the further arguments adduced by the applicants concerning the nature of the contested acts, seeking to prove that the actions in the main proceedings are admissible.
58 First, so far as concerns the inferences drawn by the applicants from Maurissen and European Public Service Union v Court of Auditors, paragraph 38 above, it is to be noted that in that case the issue was whether an act of the President of the Court of Auditors, adopted in the capacity of appointing authority for the purposes of the Staff Regulations of Officials of the European Communities, was to be regarded as a mere measure of internal organisation of the service or as an act adversely affecting an official within the meaning of Article 91 of the Staff Regulations. The Court of Justice’s judgment in that case does not deal with the question whether acts of the Court of Auditors are, as such, capable of forming the subject of an action for annulment.
59 Second, with regard to the applicants’ argument that the name of an act cannot prevent that act from being actionable, it will suffice to point out that, while the applicants are fully entitled to refer to the judgment in Case 22/70 Commission v Council [1971] ECR 263 in which the Court held, in paragraph 42, that ‘[a]n action for annulment must therefore be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects’, it is nevertheless for the applicants to show that the contested act is intended to produce such effects.
60 Third, the applicants’ argument that the contested acts produce binding legal effects, in particular in that the Commission has no power to adopt a decision not to include (or a decision to include) the product at issue in Annex I to Directive 91/414 without first obtaining EFSA’s opinion, on the one hand, and in that EFSA’s decision closes the administrative stage of the assessment of the active substance, on the other, must also be rejected.
61 As regards the first part of that argument, it is sufficient to note that the applicants do not claim that EFSA’s opinion is binding on the Commission or that the latter does not enjoy a certain latitude concerning the advisability of including the active substance at issue in Annex I to Directive 91/414.
62 As regards the second part of the argument, the applicants rely on the judgment in Alliance for Natural Health and Others, paragraph 40 above, which in their view recognises that an action may be brought to challenge a final decision of EFSA rejecting a request for modification of a list of vitamins as provided for by Article of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51).
63 In paragraphs 87 and 88 of that judgment, which are mentioned by the applicants, the Court of Justice declared as follows:
‘It should also be stated that the criticisms made by the applicants in the main actions of the procedure for modifying the positive lists concern in essence the administrative and financial burdens involved in presenting files seeking such modifications and the way in which the criteria of safety and bioavailability set out in the 11th recital to Directive 2002/46 are applied by [EFSA] when considering individual files.
However, although such factors may, depending on the circumstances, be advanced in support of an action for annulment of a final decision refusing an application for modification of the positive lists or an action for damages against [EFSA] under Article 47(2) of Regulation No 178/2002, they cannot, in themselves, affect the legality of the procedure for modifying the positive lists, as the Greek Government has pointed out in its written observations.’
64 It is clear, first, that in that judgment the Court confines itself to confirming that an action for annulment may be brought against the final decision rejecting a request for modification of the positive lists and that only an action for damages may lie against EFSA and, second, that Article 8(7) and (8) of Regulation No 451/2002 does not provide that EFSA is empowered to adopt a ‘final decision’.
65 Fourth, so far as concerns the applicants’ argument that EFSA’s opinion is the final stage in a special procedure analogous to that referred to in Cimenteries CBR and Others v Commission, paragraph 41 above, it will suffice to note that in the latter case the Court was called upon to rule on the admissibility of an action for annulment challenging the act of the Commission whereby the latter, pursuant to Article 15(6) of Regulation No 17 of the Council, First Regulation implementing Articles [81] and [82] of the Treaty, of 6 February 1962 (OJ, English Special Edition 1959‑1962, p. 87), had excluded the benefit of an exemption from a fine imposed for infringement of Articles 81 EC and 82 EC.
66 No more is necessary than to state that in this instance the applicants have put forward nothing that would make it possible to assess the similarity which they maintain exists between the procedure provided for by Regulation No 751/2000, in performance of which EFSA adopted the acts contested in the present case and the procedure provided for by Regulation No 17, which led to the Commission’s adoption of the act at issue in the abovementioned judgment.
67 Fifth, as regards the applicants’ argument that in certain circumstances a provisional measure is actionable, it is to be recalled that, in IBM v Commission, paragraph 42 above, the Court simply declares in paragraphs 10 and 11 as follows:
‘In the case of acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure, … in principle an act is open to review only if it is a measure definitively laying down the position of the Commission or the Council on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision.
It would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings not only bore all the legal characteristics referred to above but in addition were themselves the culmination of a special procedure distinct from that intended to permit the Commission or the Council to take a decision on the substance of the case.’
68 The applicants have advanced no argument that could lead to its being considered that the contested acts were adopted at the conclusion of a special procedure before EFSA and were not part of the ordinary procedure provided for by Directive 91/414 with a view to the adoption of an act fixing the Commission’s final position. That the contested acts form part of an ordinary procedure is borne out by Article 22(2) and (6) of Regulation No 178/2002, which provides that EFSA’s powers are limited to the provision of scientific opinions.
69 Sixth, with regard to Regulation No 1935/2004, the applicants have advanced no argument to support the conclusion that it establishes rules derogating from Article 230 EC. Article 14 of that regulation merely provides for administrative review by the Commission of acts adopted by EFSA under the powers vested in the latter by that regulation.
70 Having regard to all the foregoing, the inevitable conclusion is that at this stage the applicants have not put forward any evidence proving to the requisite legal standard that the contested acts produce binding legal effects such as to affect their interests by bringing about a distinct change in their legal position.
71 In consequence, without in any way prejudging the position of the Court of First Instance in the action in the main proceedings, it does not at this stage appear that the applicants have put forward any argument that makes it possible to consider that the actions for annulment from which their applications for interim measures derive are not prima facie manifestly inadmissible.
72 It follows that, in accordance with the case-law cited in paragraph 50 above, the applications for interim measures must be held to be inadmissible and must be rejected.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby:
1. 1. Joins Cases T‑311/06 R I, T‑311/06 R II, T‑312/06 R and T‑313/06 R for the purposes of this order.
2. 2. Rejects the applications for interim measures.
3. 3. Reserves the costs.
Luxembourg, 1 March 2007.