Tribunal de Justicia de la Unión Europea
(Appeal – Proceedings for interim relief – Regulation (EC) No 2032/2003 ORDER OF THE PRESIDENT OF THE COURT 13 December 2004 (1)
Fecha: 13-Dic-2004
- 1 By its appeal, Sumitomo Chemical (UK) plc (‘the appellant’) seeks to have set aside the order of the President of the Court of First Instance of the European Communities of 2 July 2004 in Case T‑78/04 R Sumitomo Chemical (UK) v Commission [2004] ECR II‑0000 (‘the order under appeal’), by which that Court dismissed an application, first, for suspension of operation of Article 5(1) and (2) of, and Annexes II and V to, Commission Regulation (EC) No 2032/2003 of 4November 2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market, and amending Regulation (EC) No 1896/2000 (OJ 2003 L 307, p.1) and, second, for the adoption of any other interim measures the judge hearing the application for interim measures deemed appropriate.
- 2 The Commission submitted its observations on the appeal on 5 October 2004.
- 3 Since the parties’ written observations and the documents before the Court contain all the information necessary to adjudicate on this appeal, there is no need to hear oral observations from the parties.
- 4 Reference is made to paragraphs 1 to 20 of the order under appeal for the legal framework, the facts of the case and the procedure before the Court of First Instance.
- 5 Having found that it could not be ruled out that the appellant was directly and individually concerned by Regulation No 2032/2003 and, therefore, that its application for annulment under the fourth paragraph of Article 230 EC was admissible, the President of the Court of First Instance examined the Commission’s argument that the application for interim measures was inadmissible because the provisions challenged in the main action and those in respect of which the suspension of operation was sought were not the same.
- 6 He observed in that connection that the first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance provides that an application under Article 242 EC to suspend the operation of a measure adopted by an institution is admissible only if the applicant is challenging that measure before the Court of First Instance.
- 7 As regards the interim measures referred to in Article 243 EC, he stated that it follows from the second subparagraph of Article 104(1) of the Rules of Procedure that an application for the adoption of one of those measures is admissible where there is a sufficiently close link between the interim measure sought and the subject-matter of the main action. Referring to paragraph 39 of the order of the President of the Court of First Instance of 22 November 1995 in Case T-395/94 R II Atlantic Container Line and Others v Commission [1995] ECRII‑2893, he stated that the rule set out in the first subparagraph of Article 104(1) of the Rules of Procedure also applies, unless there are exceptional circumstances, in respect of an application for interim measures where it essentially seeks the same result as an application for suspension of operation.
- 8 The President found that only Annex II to Regulation No 2032/2003 was challenged in the main action and also formed the subject of the application for suspension of operation. He held that the appellant’s request for any other interim relief measures the judge hearing the application for interim measures should deem appropriate was too vague and imprecise to be taken into account. Therefore, he confined his examination of the matter to whether an order suspending the operation of Annex II to Regulation No 2032/2003 was justified.
- 9 On that point, he took the view that suspension of the operation of the annex concerned would not be of any use to the applicant, since it contained a mere statement of facts. Accordingly, the President dismissed the application for interim measures.
- 10 By its appeal, the appellant claims that the order under appeal should be set aside. It asks the Court to adjudicate itself on the application or, in the alternative, to refer the case back to the Court of First Instance to rule on the merits of the application. Finally, it claims that the Commission should be ordered to pay the costs of both sets of proceedings.
- 11 The Commission contends that the appeal should be dismissed. In the alternative, it contends that the request for interim measures should be rejected.
- 12 The appellant puts forward five pleas in law in support of its appeal. They are (i) misinterpretation of Article104(1) of the Rules of Procedure of the Court of First Instance and infringement of the principle of effectiveness, (ii) misinterpretation of Article 44(1)(d) of those rules of procedure and infringement of the principle of effectiveness, (iii) error in the legal assessment of the facts, (iv) infringement of the right to complete and effective judicial protection and the right to a fair hearing and (v) breach of the duty to state reasons.
- 13 By its first ground of appeal, the appellant submits that the President of the Court of First Instance ought to have interpreted Article 104(1) of the Rules of Procedure of the Court of First Instance not in the abstract but having regard to the particular circumstances of the case in accordance with the principle of effectiveness. Thus, the President was required, for the purpose of ensuring the appellant’s legal protection and compliance with the principle of effectiveness, to analyse the link between the provisions against which the main action is directed and those in respect of which suspension of operation was sought – which he failed to do.
- 14 In that regard, it should be noted that it is clear from the actual wording of the first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance that an application to suspend the operation of a measure is admissible only if the measure is challenged before that Court.
- 15 That rule can be explained by the fact that the chance to apply for operation of a measure to be suspended serves to ensure the full effectiveness of judicial protection, given that, under Article 242 EC, actions brought before the Community Courts do not have suspensory effect. Suspension of operation can be found necessary, as regards the safeguarding of effective judicial protection, only if the measure is challenged before the Community Courts.
- 16 Application of the second subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance, concerning the interim measures referred to in Article 243 EC, cannot have the result that the rule laid down in the first subparagraph of Article 104(1) is circumvented, even though the other interim measures may take very different forms.
- 17 Thus, in finding that the rule set out in the first subparagraph of Article104(1) of the Rules of Procedure of the Court of First Instance also applies, unless there are exceptional circumstances, in respect of an application for interim measures which essentially seeks the same result as an application for suspension of operation, the President of the Court of First Instance did not make an error of law. Accordingly, under that provision, he could rightly declare inadmissible the application for suspension of the operation of Article 5(1) and (2) of, and of Annex V to, Regulation No 2032/2003 on the ground that those provisions had not been challenged in the main action.
- 18 The first ground of appeal must therefore be rejected.
- 19 By its second ground of appeal, the appellant submits that the President of the Court of First Instance should have interpreted Article 44(1)(d) of the Rules of Procedure of that Court broadly and in such a way as to ensure compliance with the principle of effectiveness. Such an interpretation would have resulted in the President identifying the interim measures necessary to ensure that the appellant’s legal position was not irremediably prejudiced prior to a decision being given in the main action.
- 20 In that regard, it must be held that, in proceedings for interim measures, the Community judicature’s responsibility is to assess the admissibility and, where appropriate, the merits of the form of order sought by the applicant, to which Article 44(1)(d) of the Rules of Procedure of the Court of First Instance refers, and not to formulate the form of order. Asking the judge hearing the application for interim measures (as the appellant did) to adopt ‘any other interim relief measures [which he] deems appropriate to preserve [the] applicants’ position pending the full resolution of the dispute in the main proceedings’, without specifying in what those measures might consist, amounts to asking the judge himself to draw up the form of order which he is subsequently supposed to assess.
- 21 Therefore, the second ground of appeal must also be rejected.
- 22 By its third ground of appeal, the appellant claims that the order under appeal is founded on an incorrect legal assessment of the facts, which consists in declaring inadmissible the application for suspension of operation of Article 5(1) and (2) of, and Annex V to, Regulation No 2032/2003 purely on the basis that those provisions were not challenged in the main action.
- 23 It must be held that, by this ground of appeal, the appellant merely reiterates the arguments already put forward in the context of its first ground of appeal.
- 24 The third ground of appeal, like the first, must thus be rejected.
- 25 By its fourth ground of appeal, the appellant maintains that the President of the Court of First Instance made an error of law in failing to consider whether the conditions as to urgency and irreparable harm were fulfilled.
- 26 As the Commission has pointed out, this plea in law presupposes that the application for interim measures is admissible. Since the conclusion was reached in the order under appeal, without any error of law, that the application for interim relief was inadmissible, this ground of appeal is ineffective as a separate ground of appeal.
- 27 The fourth ground of appeal must therefore be rejected.
- 28 By its fifth ground of appeal, the appellant submits that the grounds stated in the order under appeal are inadequate. First, the reasoning in the order under appeal is insufficient in relation to the rejection of the request for suspension of operation and, second, the order does not give a sufficient explanation as to why the application for interim measures does not meet the criteria laid down in Article 44(1)(d) of the Rules of Procedure of the Court of First Instance.
- 29 In that regard, it must be held that, in paragraphs 42 to 48 concerning the rejection of the application for suspension of operation and in paragraphs 49 to 51 concerning the application for other interim measures, the order under appeal includes detailed reasoning which fulfils the requirements of the Court’s case-law in the matter.
- 30 Therefore, the fifth ground of appeal must also be rejected.
- 31 Consequently, the appeal must be dismissed in its entirety.
- 1.
- The appeal is dismissed.
- 2.
- The costs are reserved.
ORDER OF THE PRESIDENT OF THE COURT
13 December 2004 (1)
(Appeal – Proceedings for interim relief – Regulation (EC) No 2032/2003 – Biocidal products – Suspension of operation – Measures not challenged in the main action – Other interim measures – Determination)
In Case C-381/04 P(R),APPEAL pursuant to the second paragraph of Article 57 of the Statute of the Court of Justice, brought on 2 September 2004,
Sumitomo Chemical (UK) plc, established in London (United Kingdom), represented by K. Van Maldegem, Rechtsanwalt, and C. Mereu, avocat,
appellant,
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,
after hearing the views of the Advocate General, L.A. Geelhoed,
makes the following
Order
Legal framework, facts and procedure before the Court of First Instance
The order under appeal
The appeal
The appeal
First ground of appeal
Second ground of appeal
Third ground of appeal
Fourth ground of appeal
Fifth ground of appeal
On those grounds, the President of the Court orders:
Signatures
- 1 –
- Language of the case: English.