ORDER OF THE PRESIDENT OF THE COURT
28 October 2005(*)
(Appeal – Proceedings for interim relief– Admissibility of the main action – Failure to act – Extent of judicial protection)
In Case C-258/05 P(R),
APPEAL brought on 10June 2005 under the second paragraph of Article 57 of the Statute of the Court of Justice,
Makhteshim-Agan Holding BV, established in Amsterdam (Netherlands),
Alfa Georgika Efodia AEVE(Alfa Agricultural Supplies SA), established in Athens (Greece),
Aragonesas Agro SA, established in Madrid (Spain),
represented by C. Mereu and K. van Maldegem, avocats,
appellants,
the other party to the proceedings being:
Commission of the European Communities, represented by B.Doherty, acting as Agent, with an address for service in Luxembourg,
defendant at first instance,
THE PRESIDENT OF THE COURT,
after hearing the views of Advocate General Stix-Hackl,
makes the following
Order
1By their appeal, Makhteshim-Agan Holding BV, Alfa Georgika Efodia AEVE (Alfa Agricultural Supplies SA) and Aragonesas Agro SA seek annulment of the order delivered on 27April 2005 by the President of the Court of First Instance of the European Communities in Case T‑34/05R Makhteshim-Agan and Others, not yet published in the ECR (hereinafter ‘the order under appeal’).
2By that order, the President of the Court of First Instance dismissed an application for an order for interim measures concerning the evaluation of the active plant protection substance endosulfan with a view to its possible inclusion in Annex I to Council Directive 91/414/EEC of 15July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).
3The Commission of the European Communities submitted its response to the appeal on 18July 2005.
4As the written submissions of the parties and the documents on the case-file contain all of the information necessary to enable a ruling to be given on the present appeal, there is no need for the parties to submit oral argument on the matters raised.
Legal context, facts and proceedings before the Court of First Instance
5With regard to the legal context, the facts underlying the dispute and the proceedings before the Court of First Instance, reference is made to paragraphs 1 to 33 of the order under appeal.
The order under appeal
6In paragraph 53 of the order under appeal, the President of the Court of First Instance, acting in his capacity as the judge dealing with the application for interim measures, stated that, according to settled case-law, where the manifest inadmissibility of the main action to which the application for interim measures relates is raised, it may prove necessary to establish the existence of matters enabling such an action to be regarded as prima facie admissible. He then went on to examine the two principal submissions put forward by the then applicants in their main action.
7With regard to the first of those submissions, which sought a declaration that the Commission had failed to act, the President of the Court of First Instance stated, in paragraph 73 of the order under appeal, that he did not have sufficient information available to him to form the view that it was still necessary to adjudicate on that submission. The Commission, he found, had brought an end to any possible failure by its letter of 26November 2004, which predated the main action and the wording of which set out the Commission’s refusal to accede to the then applicants’ request, or, in any event, by the fact that the Commission had, during the proceedings before the Court of First Instance, formally presented to the Standing Committee on the Food Chain and Animal Health a draft decision not to include endosulfan in Annex I to Directive 91/414.
8With regard to the second of those submissions, which sought to have an injunction issued against the Commission, the President of the Court of First Instance stated in paragraph 75 of the order under appeal that the Community Courts are not competent to issue injunctions against an institution in the context of proceedings under Article 232EC.
9The President of the Court of First Instance accordingly dismissed the application for interim measures on the ground that the main action appeared to be manifestly unfounded or at least, in part, to disclose no cause of action and, for the remainder, to have to be declared manifestly inadmissible.
The appeal
10In their appeal, the appellants submit that the order under appeal should be set aside and that their submissions before the Court of First Instance be upheld in their entirety.
11The Commission argues that the appeal should be dismissed and requests that the appellants also be ordered to pay the costs.
Concerning the appeal
12The appellants put forward four grounds in support of their appeal. The first alleges an error of law in the appraisal of the admissibility of the main action, the second alleges ultra vires in connection with the proceedings for interim relief, the third alleges infringement of the right to complete and effective judicial protection and of the right to a fair hearing, while the fourth alleges a failure to give a ruling or, in the alternative, lack of sufficient reasoning.
The first ground of appeal
The first branch of the first ground
13By the first branch of their first ground of appeal, the appellants submit that the President of the Court of First Instance confused, on the one hand, the action consisting in the examination of the data produced by the appellants and, on the other hand, the action consisting in the taking of a decision on the question as to whether endosulfan should or should not be included in Annex I to Directive 91/414. According to the appellants, the Commission was under an obligation to examine those data and a failure to act subsists until such time as the Commission has done so.
14According to the case-law, a failure to act comes to an end on the day on which the person who called upon the institution to act receives the document by which it defines its position (judgment in Joined Cases T‑194/97 and T‑83/98 Branco v Commission [2000] ECR II‑69, paragraph 55), and the fact that such a definition of position does not satisfy the applicant is of no relevance in this respect inasmuch as Article 232EC refers to failure to act in the sense of a failure to take a decision or to define a position, not in the sense of the adoption of a measure different from that desired or considered necessary by the applicant (order in Case C-44/00P Sodima v Commission [2000] ECR I‑11231, paragraph 83 and the case-law there cited).
15It is clear, on the basis of the facts presented to the President of the Court of First Instance, that the appellants, following the letter of 26November 2004 or, at the very least, since they had become aware that the Commission had formally submitted a proposal that endosulfan should not be included in Annex I to Directive 91/414, were faced with a situation the main aspect of which was that the Commission had defined its position on their application but in a manner that was unfavourable to them. As this latter point has no bearing on the fact that a position was actually defined and the failure to act thus brought to an end, the conclusion drawn by the President of the Court of First Instance that he had insufficient information before him to form the view that it was still necessary to adjudicate on the then applicants’ request for a declaration that the Commission had failed to act was not vitiated by an error of law. The appellants themselves, moreover, point out that they are not alleging that the Commission did not take a decision concerning the inclusion of endosulfan in Annex I to Directive 91/414.
16It follows that the first branch of the first ground of appeal must be rejected.
The second branch of the first ground of appeal
17By the second branch of their first ground of appeal, the appellants contend that the President of the Court of First Instance erred in forming the view that their second submission, by which they claimed that an injunction should be issued against the Commission, was inadmissible. They argue that the order under appeal is in this regard at variance with that of the President of the Court in Case C‑365/03P(R) Industrias Químicas del Vallés v Commission [2003] ECR I‑12389.
18While it is true that this latter order relates to the same Community legislation as that in issue in the present case and that there is some similarity of facts, those circumstances do not in any way support the appellants’ contention that the order in Industrias Químicas del Vallés is ‘directly applicable by analogy’. As the Commission has correctly pointed out, that order was made in a case in which the procedural context was entirely different, that is to say, in an action for annulment, and not in an action for failure to act. Moreover, neither the passages of that order to which the appellants refer nor, indeed, any other passages of that order can lend support to the assertion that the President of the Court of First Instance ought to have come to a conclusion other than that which he in fact reached.
19The second branch of the first ground of appeal must therefore also be rejected.
The second ground of appeal
20By their second ground of appeal, the appellants submit that the President of the Court of First Instance exceeded his competence within the context of proceedings for interim relief. They contend that, by concluding that the main action appeared to be manifestly inadmissible or at least, in part, to disclose no cause of action and, for the remainder, to have to be declared manifestly inadmissible, the President of the Court of First Instance prejudiced the outcome of the main action.
21It must be pointed out in this regard that the Court has, on numerous occasions, ruled that the decision of the judge hearing an application for interim relief does not prejudge the decision to be made by the Court of First Instance on hearing the main action (see orders in Case C‑300/00P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR I‑8797, paragraph 35, and in Case C‑471/02P(R) Gómez-Reino v Commission [2003] ECR I‑3207, paragraph 46). The Court of First Instance, when ruling on the main action, is therefore free to take a different view to that of the judge hearing the application for interim relief on the question whether the case brought before it is admissible and well founded.
22It follows that the second ground of appeal must also be rejected.
The third and fourth grounds of appeal
23By these grounds, which it is appropriate to examine together, the appellants contend that the President of the Court of First Instance erred in law in failing to address the issues of urgency and irreparable harm (third ground) and in failing to rule on their request that the Commission be ordered to produce the minutes and agendas of certain meetings (fourth ground). More specifically, they allege that those omissions amount to a breach of their rights to complete and effective judicial protection and of their right to a fair hearing. They further submit that the reasoning of the order under appeal is insufficient in regard to their request for the production of certain documents.
24Suffice it in this regard to point out that the right to complete and effective judicial protection and the right to a fair hearing do not mean that, after establishing that the application for interim measures must be dismissed, on the ground that the main action appears to be manifestly inadmissible or at least, in part, to disclose no cause of action and, for the remainder, to have to be declared manifestly inadmissible, the judge dealing with an application for interim relief is obliged to rule on other aspects of that same application which necessarily cannot have any bearing on his decision. The reasoning set out in the order under appeal is in this regard entirely adequate.
25The third and fourth grounds of appeal must therefore also be rejected.
26As none of the grounds relied on by the appellants in support of their appeal can be upheld, the appeal must be dismissed in its entirety.
Costs
27Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for the appellants to be ordered to pay the costs, and as the latter have been unsuccessful, the appellants must be ordered to pay the costs.
On those grounds, the President of the Court hereby orders:
1.The appeal is dismissed.
2.Makhteshim-Agan Holding BV, Alfa Georgika Efodia AEVE (Alfa Agricultural Supplies SA) and Aragonesas Agro SA shall pay the costs of the present proceedings.
[Signatures]
* Language of the case: English.