Tribunal de Justicia de la Unión Europea
In Case C-350/04 ORDER OF THE PRESIDENT OF THE COURT15 October 2004 (1)
Fecha: 15-Oct-2004
- 1 By their appeal, Enviro Tech Europe Ltd and Enviro Tech International Inc. request the Court to set aside the order of the President of the Court of First Instance of 2 July 2004 in Case T-422/03 R II Enviro Tech Europe and Enviro Tech International v Commission (not yet published in the ECR; ‘the order under appeal’).
- 2 By that order, the President of the Court of First Instance dismissed an application seeking, first, suspension of the n‑propyl‑bromide (‘nPB’) entry in the 29th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p.234); secondly, suspension of the entry for nPB in Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the 29th time Directive 67/548 (OJ 2004 L 152, p.1), and, thirdly, that other interim measures be ordered.
- 3 The Commission of the European Communities submitted its defence to the appeal on 9 September 2004.
- 4 Since the parties’ written observations and the documents in the file contain all the information necessary for judgment to be given on this appeal, there is no need to hear oral observations from the parties.
- 5 Reference is made to paragraphs 1 to 30 of the order under appeal for the legal framework, the facts of the dispute and the procedure before the Court of First Instance.
- 6 In the order under appeal, the President of the Court of First Instance identified seven requests from the appellants: first, to declare their application admissible and well founded; second, to declare that interim relief is necessary to prevent irreparable harm to them; third, to suspend the inclusion by the Commission of nPB in the 29th adaptation to technical progress of Directive 67/548 pending final judgment in the main proceedings; fourth, to adopt any other interim relief measures the President of the Court of First Instance deemed appropriate to prevent the reclassification of nPB as R 11 and R 60; fifth, to suspend the nPB entry in the 29th adaptation to technical progress of that directive; sixth, to order the Commission to give immediate notice to the Member States that such entry is suspended pending final judgment in the main action, and, seventh, to issue such other order as necessary effectively to achieve interim relief for the appellants.
- 7 First of all, the President of the Court of First Instance found that the assessment of the first and second requests depends on the admissibility and merits of the other requests (paragraph 51 of the order under appeal).
- 8 As regards the third request, the President of the Court of First Instance noted that its wording is particularly ambiguous and subject to various interpretations (paragraph 52 of the order under appeal). In that regard, he held that if that request, which seeks the suspension of the inclusion by the Commission of nPB in the 29th adaptation to technical progress of Directive 67/548, was to be interpreted as seeking to prevent the Commission and/or the Regulatory Committee established by Article 29 of Directive 67/548 (‘the Regulatory Committee’) from exercising their legislative powers for the purpose of thus including nPB, it should be considered together with the fourth request, which asks the President to adopt any other interim relief measures appropriate to prevent the reclassification of nPB as R 11 and R 60. However, inasmuch as the Commission adopted Directive 2004/73 on 29 April 2004, in particular classifying nPB under those categories, those requests were ‘henceforth devoid of purpose’ (paragraphs 53 to 55 of the order under appeal).
- 9 If, by contrast, the third request was to be interpreted as seeking the suspension of the nPB entry in the 29th adaptation to technical progress of Directive 67/548, it should be considered together with the fifth request, which seeks to have the entry for nPB in Directive 2004/73 suspended. In that regard, the President of the Court of First Instance found that those two requests, interpreted in that way, seek suspension of the operation of Directive 2004/73, that is, an act which the appellants did not challenge in the main action, contrary to the first paragraph of Article 104(1) of the Rules of Procedure of the Court of First Instance.
- 10 The President of the Court of First Instance consequently also rejected the sixth request. He found that the seventh request was vague and imprecise so that it had to be rejected as inadmissible.
- 11 By their appeal, the appellants request the Court, first, to declare the appeal admissible and well founded, second, to declare the requests they submitted at first instance admissible, third, to set aside the order under appeal, fourth, to rule on those requests or, in the alternative, to refer the case back to the Court of First Instance and, fifth, to order the Commission to pay the costs of both sets of proceedings.
- 12 In support of their appeal, the appellants put forward three grounds alleging, first, breach of a number of general principles of Community law in the assessment of the third, fourth and fifth requests, second, misinterpretation of Article 104(1) of the Rules of Procedure of the Court of First Instance and of the principle of effectiveness in the assessment of the third and fifth requests and, third, breach of the duty to state reasons in the assessment of the third, fifth and seventh requests.
- 13 By their first ground of appeal, the appellants essentially dispute the rejection by the President of the Court of First Instance of the third and fourth requests as being ‘henceforth devoid of purpose’. In their submission, to accept that those requests have become devoid of purpose amounts to permitting the President to base his decision on his own failure to rule in a timely fashion on the request for interim relief. The appellants point out in that regard that they had submitted their application for interim relief on 5 April 2004, that is, in their submission, well before the meeting of the Regulatory Committee, scheduled for 14 April 2004.
- 14 By their second ground of appeal, the appellants claim that rejection of the third and fifth requests on the ground that those requests sought suspension of an act which the appellants had not challenged in the main action amounts to excessive formalism and is at variance with the purpose of economy of procedure.
- 15 Those arguments cannot be accepted.
- 16 The proceedings for interim relief of which the present appeal forms a part are directed in essence at preventing the inclusion of nPB in the 29th adaptation to technical progress of Directive 67/548 before the Court of First Instance has ruled on the legality of that inclusion.
- 17 However, since the Regulatory Committee approved the draft reclassification of nPB and the Commission adopted Directive 2004/73, the event which the appellants’ application for interim relief sought to challenge had already taken place by the date on which the President of the Court of First Instance made his decision.
- 18 In such a situation, the appellants had lost their legal interest in pursuing the proceedings for interim relief. For a person to have an interest in bringing proceedings the action must be likely, if successful, to procure an advantage for the applicant (see, by analogy, Case C‑19/93P Rendo and Others v Commission [1995] ECRI‑3319, paragraph 13, and Case C‑174/99P Parliament v Richard [2000] ECRI‑6189, paragraph33). As the Commission submits in its defence, that is not true in this case.
- 19 It would be different only if the appellants’ application for interim relief could also be interpreted as seeking the suspension of the nPB entry in Directive 2004/73. However, as the President of the Court of First Instance correctly held in paragraph 56 of the order under appeal, such an interpretation is impossible, because the appellants had not challenged that directive in the main action. Such reasoning is not excessively formalistic, but constitutes an entirely correct application of the Rules of Procedure with which the President of the Court of First Instance must comply.
- 20 The appellants seem however to consider that the President of the Court of First Instance should have granted the interim measures requested in order to remedy the fact that he had not ruled in due time on their applications for interim relief.
- 21 In that regard, it need only be stated that such reasoning is invalid since no compensation or reparation of that kind is provided for in proceedings for interim relief.
- 22 The first and second grounds of appeal must thus be rejected.
- 23 By their third ground of appeal, the appellants submit that the reasons provided for the order under appeal are insufficient. However, it is not disputed that the order includes, in paragraphs 51 to 59, a detailed and complete statement of reasons, which satisfies the requirements of the Court’s case-law on the subject. Accordingly, the third ground of appeal must also be rejected.
- 24 It follows from all the foregoing that the appeal must be dismissed.
- 1.
- The appeal is dismissed.
- 2.
- The costs are reserved.
ORDER OF THE PRESIDENT OF THE COURT
15 October 2004 (1)
(Appeal – Interim proceedings – Classification, packaging and labelling of dangerous substances – Classification of n-propyl-bromide)
In Case C-350/04 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice, brought on 11 August 2004,
Enviro Tech Europe Ltd, established in Kingston upon Thames (United Kingdom),
Enviro Tech International Inc., established in Chicago (United States),
represented by C. Mereu and K. van Maldegem, avocats,
appellants,
the other party to the proceedings being:
Commission of the European Communities, represented by X. Lewis and D. Recchia, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE PRESIDENT OF THE COURT,
gives the following
Order
Legal framework, facts and procedure before the Court of First Instance
The order under appeal
The appeal
The first and second grounds of appeal
The third ground of appeal
On those grounds, the President of the Court makes the following order:
Signatures.
- 1 –
- Language of the case: English.