(Appeal – Interim measures – Application for suspension of operation – Directive 91/414

ORDER OF THE PRESIDENT OF THE COURT

3 April 2007 (*)

(Appeal – Interim measures – Application for suspension of operation – Directive 91/414/EEC – Fresh application for interim measures – New facts – Urgency – None)

In Case C‑459/06P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice brought on 13 November 2006,

Vischim Srl, established in Cesano Maderno (Italy), represented by C.Mereu and K.Van Maldegem, lawyers,

appellant,

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 Advocate GeneralKokott,

makes the following

Order

1By its appeal, Vischim Srl asks the Court to set aside the order of the President of the Court of First Instance of the European Communities of 13 October 2006 in Case T‑420/05 RII Vischim v Commission [2006] ECR II‑0000 (‘the order under appeal’) dismissing the application for interim measures which sought the suspension of the deadline of 31 August 2006 set in Article 3(1) of Commission Directive 2005/53/EC of 16 September 2005 amending Council Directive 91/414/EEC to include chlorothalonil, chlorotoluron, cypermethrin, daminozide and thiophanate-methyl as active substances (OJ 2005 L241, p.51; ‘the contested directive’).

Legal context

2Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L230, p.1) establishes, inter alia, the Community system of grant and withdrawal of authorisations for placing plant protection products on the market.

3Article 4(1)(a) of Directive 91/414 provides that ‘Member States shall ensure that a plant protection product is not authorised unless … its active substances are listed in Annex I’.

4The contested directive added chlorothalonil with a purity level (maximum content) for hexachlorobenzene of 0.01g/kg to Annex I to Directive 91/414. In that respect, it is clear from the first recital in the preamble to Commission Directive 2006/76/EC of 22 September 2006 amending Directive 91/414 as regards the specification of the active substance chlorothalonil (OJ 2006 L263, p.9), that the Commission of the European Communities endorsed the standard approved at that time by the Food and Agriculture Organisation of the United Nations (‘FAO’). The contested directive entered into force on 1 March 2006 in accordance with Article 4.

5Article 2 of the contested directive provides:

‘Member States shall adopt and publish by 31 August 2006 at the latest the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

They shall apply those provisions from 1 September 2006.

…’

6Article 3(1) of the contested directive states:

‘1. Member States shall in accordance with Directive 91/414/EEC, where necessary, amend or withdraw existing authorisations for plant protection products containing chlorothalonil … as [an] active [substance] by 31 August 2006.

By that date they shall in particular verify that the conditions in Annex I to that Directive relating to chlorothalonil … are met …’

Background to the appeal

7By application lodged on 25 November 2005, the appellant brought an action before the Court of First Instance under the fourth paragraph of Article 230 EC for the partial annulment of the contested directive in so far as it includes, in Annex I to Directive 91/414, chlorothalonil with a purity level for hexachlorobenzene that excludes the product manufactured by the appellant. In the alternative, the appellant brought an action under Article 232 EC for failure to act and made a claim for compensation under Article 288 EC.

8By separate document of 12 December 2005, the appellant brought an application for interim measures (‘the first application for interim measures’) which sought, inter alia, to secure the suspension of operation of the contested directive and an order that Member States should not withdraw the appellant’s product containing chlorothalonil from the national markets.

9The President of the Court of First Instance dismissed that application by order of 4 April 2006 (‘the first order’), declaring that the appellant had not demonstrated to the requisite legal standard that adoption of the interim measures sought was urgent in order to avoid the appellant suffering serious and irreparable damage. The appellant did not bring an appeal against the first order.

10In the meantime, in December 2005, the FAO adopted a new specification for chlorothalonil, with a purity level for hexachlorobenzene of 0.04g/kg. Prompted by the adoption of this new FAO specification, the Commission initiated the necessary procedure for the adoption of a new directive amending the contested directive, in order that a purity level for hexachlorobenzene of 0.04g/kg should be laid down. The new specification was adopted at the meeting of the Standing Committee on the Food Chain and Animal Health of 13 and 14 July 2006. The procedure culminated in the adoption of Directive 2006/76.

11On 21 August 2006, the appellant brought a fresh application for interim measures before the Court of First Instance under Article 109 of its Rules of Procedure (‘the second application for interim measures’), based on facts which were subsequent to the first order and relevant to the assessment of the case in question. The appellant asked the President of the Court of First Instance to declare that the appellant was liable to suffer serious and irreparable damage, and to suspend the deadline of 31 August 2006 set in Article 3(1) of the contested directive as far as the appellant’s product was concerned until the full resolution of the dispute in the main proceedings or until the Commission had presented a proposal to the Standing Committee setting a new time frame for compliance with the new Annex I listing conditions, as laid down by Directive 2006/76. It is in the context of that second application that the President of the Court of First Instance made the order under appeal.

Order under appeal

12By the order under appeal, the President of the Court of First Instance found that the appellant had not established to the requisite legal standard that, in the present case, new facts existed which called into question the assessment of the need to adopt the interim measures sought, on which the first order was based. In that regard, he examined three facts expressly contended by the appellant to be new, and four facts to which the appellant referred for the first time in its second application for interim measures, without expressly pleading that they were new.

13The facts submitted as being new concerned the acknowledgement that the appellant’s product complied with the contested directive, the introduction of a new directive and the withdrawal of the product from the market from 31 August 2006.

14As regards, first, the fact that, on 26 April 2006, the Rapporteur Member State designated pursuant to Article 5(2)(b) of Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Directive 91/414 (OJ 1992 L366, p.10) – in the present case, the Kingdom of the Netherlands – had assessed the appellant’s product and regarded it as equivalent, in terms of its purity level, to the reference product described in Annex I to Directive 91/414, the President of the Court of First Instance stated that the new assessment of the appellant’s product did not conclude that there was such equivalence as regards the purity level for hexachlorobenzene laid down by the contested directive.

15Next, the President of the Court of First Instance considered the appellant’s argument that the Commission had adopted a new directive in order to amend the contested directive. While indicating that the appellant was referring only to a preliminary draft of the directive, which in fact was adopted only after the second application for interim measures had been lodged, the President of the Court of First Instance stated that he had, in the first order, already assessed the possibility that the Commission would amend the contested directive, regarding as acceptable a purity level for hexachlorobenzene above that laid down by the contested directive.

16Finally, the President of the Court of First Instance considered the appellant’s pleading in respect of the fact that its product would be withdrawn from the market on 31 August 2006, the deadline set in Article 3(1) of the contested directive. He stated that the risk of withdrawal of the authorisations granted in respect of the product had already been assessed in the first order, and that the appellant had not put forward any new matter which could justify amendment of that assessment.

17The facts to which the appellant referred for the first time in its second application for interim measures, without expressly pleading that they were new, are the refusal by Syngenta, the holder of authorisations for chlorothalonil and products containing that substance in the United Kingdom, to share data, the intention of the competent United Kingdom authorities to revoke the authorisations granted to the appellant, the risk of losing its manufacturing plant in Italy and, lastly, the risks to its very existence.

18As regards, first, the letter of 13 July 2006 by which its competitor Syngenta refused to grant access to the dossier which it had filed in view of the addition of chlorothalonil to Annex I to Directive 91/414, the President of the Court of First Instance stated that the appellant, which had not initiated the procedures laid down by United Kingdom legislation in order to obtain the sharing of the data concerned, had merely pleaded that it was unable to invoke such procedures without, however, proving that it was unable to do so.

19Second, the President of the Court of First Instance took into consideration the letters from the competent United Kingdom authorities of 28 July 2006 to the appellant and of 2 and 17 August 2006 to some of its customers, in which the authorities stated their intention to revoke the national authorisations granted in respect of the appellant’s product. He took the view that such letters were not capable of calling into question the assessment of urgency on which the first order was based, since they merely confirmed that the alleged damage to the appellant would result not from the contested directive, but from a possible decision by the national authorities, which have a certain discretion.

20Third, as regards the appellant invoking the possibility of losing its manufacturing plant in Italy, the President of the Court of First Instance held that that eventuality was not unforeseeable or, in any event, was one that could have been raised at the time of the first application for interim measures, with the result that it could not be regarded as a new fact.

21Finally, as regards the appellant’s existence being in jeopardy, after examining the quarterly report of one of the appellant’s shareholders, relating to the second quarter of 2006, the President of the Court of First Instance stated that the document was not certified and did not enable the appellant’s material situation to be assessed with regard to the characteristics of the group to which it was linked, as the report did not in any way enable the financial situation of the appellant’s other shareholder to be assessed.

Appeal

22In support of its appeal in relation to interim measures, the appellant raises five pleas in law relating to (1) misinterpretation of Article 109 of the Rules of Procedure of the Court of First Instance, (2) manifest error in the legal assessment of the new facts submitted by the appellant, (3) misinterpretation of the contested directive, (4) lack of competence (ultra vires), infringement of the principle of proportionality, and misinterpretation of the United Kingdom Plant Protection Products Regulations 2005 (‘the PPPR’), and (5) infringement of the right to complete and effective judicial protection, and of the right to a fair hearing.

Concerning the appeal

23It is settled case-law that the judge hearing an application for interim measures may order interim relief only 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. Where appropriate, the judge hearing such an application must also weigh up the interests involved. The conditions thus imposed are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (see, in particular, the orders of the President of the Court of Justice of 29 April 2005 in Case C-404/04P‑R Technische Glaswerke Ilmenau v Commission [2005] ECRI‑3539, paragraphs 10 and 11, and the order of 15 December 2005 in Case C‑326/05P‑R Industrias Químicas del Vallés v Commission (not published in the ECR), paragraphs 14 and 15).

First plea in law

24By its first plea in law, the appellant claims that the President of the Court of First Instance infringed Article 109 of the Rules of Procedure of that court, which provides that ‘[r]ejection of an application for an interim measure shall not bar the party who made it from making a further application on the basis of new facts’, when he concluded that, in order to be relevant under that article, the facts submitted in support of the second application for interim measures had to be both chronologically posterior to the date of the first order and such that by themselves they would call into question that order, essentially in relation to the assessment of the urgency with which the interim measures sought are to be adopted. The second of those conditions applies only to applications made under Article 108 of the Rules of Procedure of the Court of First Instance, which states that,‘[o]n application by a party, the order may at any time be varied or cancelled on account of a change in circumstances’ and, therefore, is not among the requirements of Article 109.

25It must be emphasised, first of all, that, in the context of the overall examination undertaken by the judge hearing an application for interim measures, he has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which the various conditions referred to in paragraph 23 above 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 assessed (see the order of the President of the Court of Justice of 17 December 1998 in Case C‑364/98P(R) Emesa Sugar v Commission [1998] ECR I‑8815, paragraph 44).

26It follows that the President of the Court of First Instance was entitled to begin his examination of the second application for interim measures also by reference to the condition as to urgency. The mere fact that the President of the Court of First Instance took the first order into account when examining the second application, and considered the new facts in the light of his first assessment of the urgency, does not call into question the lawfulness of the order under appeal. The President of the Court of First Instance was not precluded from invoking, in the context of that order, considerations which were included in the first order, inasmuch as those considerations are not vitiated by an error of law.

27In addition, the appellant has not shown how the assessment of the President of the Court of First Instance would have differed if he had favoured the approach advocated by the appellant, whereby the new facts should have been assessed on their own merits in the context of a fresh review by reference to the current factual situation. The appellant merely argues in support of that approach that if the President of the Court of First Instance had assessed the new facts correctly, he would have reached a different conclusion. It must be stated that that assertion is not sufficient to show that the examination undertaken by the President of the Court of First Instance did not satisfy the requirements of Article 109 of the Rules of Procedure. Further, thus analysed by the appellant, this plea in law appears to be indissociable from the second plea in law relating to a manifest error in the legal assessment of the new facts.

28Consequently, there is no reason to consider that the President of the Court of First Instance examined a condition which is not provided for in Article 109 of the Rules of Procedure of the Court of First Instance, or that that examination led to a result which was different from that to which the second application for interim measures would have led if the President had not proceeded in that way. The first plea in law must therefore be dismissed.

Second plea in law

29By its second plea in law, the appellant claims that the President of the Court of First Instance erred in law when he assessed the relevance and legal effects of the new facts adduced by the appellant. It refers, in that regard, to (1) the report from the Rapporteur Member State of 26 April 2006, (2) the preliminary draft of Directive 2006/76, (3) the letter from the competent United Kingdom authorities of 28 July 2006, (4) the letter from Syngenta of 13 July 2006, and (5) the risk of closure of its manufacturing plant in Italy. As the third and fourth matters are inherently connected with the third and fourth pleas in law, respectively, it is appropriate to consider them in the context of those pleas.

30As regards, first, the report of 26 April 2006, the appellant argues that the President of the Court of First Instance erred in law when he declared, in paragraph 59 of the order under appeal, that ‘the new assessment of [the appellant’s] product by the Rapporteur Member State does not conclude that it is equivalent to the reference product described in Annex I to Directive 91/414 as regards the purity level for hexachlorobenzene laid down by the contested directive’.

31It must be noted first of all in that regard that what is involved is the appraisal of evidence, which cannot be called into question in an appeal. In that context, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance has accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the evidence adduced before the Court of First Instance has been distorted, the appraisal therefore does not constitute a point of law which is subject to review by the Court of Justice (see, in particular, Case C‑411/04P Salzgitter Mannesmann v Commission [2007] ECR I‑0000, paragraph 55).

32It must be noted that the appellant did not refer in its appeal to a distortion of the evidence. In any event, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (Case C‑167/04P JCB Service v Commission [2006] ECR I‑0000, paragraph 108), which, given the complexity of the file submitted to the Court, and in particular of the report of 26 April 2006 referred to above, is not the case here.

33Finally, it must be added that the President of the Court of First Instance stated in paragraph 60 of the order under appeal that, even if that new assessment had concluded that the appellant’s product was equivalent to the reference product described in Annex I to Directive 91/414, that circumstance would not be capable of affecting the assessment of urgency contained in the first order, which was based on the fact that the appellant (1) had not demonstrated a causal link between the contested directive and the alleged damage, and (2) had not adduced evidence from which it could be concluded that the damage alleged was serious or irreparable, in particular having regard to its financial position.

34Second, so far as the preliminary draft of the directive amending the contested directive is concerned, it must be recalled that, in paragraph 72 of the first order, the President of the Court of First Instance had already assessed the possibility that the Commission would amend the contested directive, regarding as acceptable a purity level for hexachlorobenzene above that laid down by the contested directive. In paragraph 65 of the order under appeal, he considered that the appellant had not adduced any matter to justify a finding that the preliminary draft of Directive 2006/76, in itself, calls into question the assessment of urgency.

35Nor has the appellant adduced evidence in its appeal to invalidate the President’s finding that the mere fact that, when the second application for interim measures was brought, the procedure for the adoption of a new directive was underway cannot be regarded, in itself, as calling into question the assessment of urgency. Accordingly, the assessment of the President of the Court of First Instance concerning the effect of the preliminary draft of Directive 2006/76 is not vitiated by an error of law.

36Third, as regards the risk of closure of the appellant’s manufacturing plant, a matter which was relied on for the first time in the second application for interim measures, it is appropriate to confirm the assessment of the President of the Court of First Instance that this was not an unforeseeable eventuality or, in any event, an eventuality which was not capable of being raised at the time of the first application for interim measures.

37Accordingly, the second plea in law must be dismissed.

Third plea in law

38The appellant claims that the President of the Court of First Instance erred in law when he concluded that the withdrawal of the appellant’s authorisations was the consequence not of the contested directive, but of a possible decision by the national authorities which have a certain discretion. It refers, in that regard, to the letter dated 28 July 2006 which was addressed to the appellant by the United Kingdom authorities and which established that the national authorities had no such discretion.

39In paragraph 78 of the order under appeal, the President of the Court of First Instance considered that that letter from the United Kingdom authorities states ‘(i) that those authorities intend to revoke the applicant’s national authorisations in view of the fact that it has not demonstrated that it has access to a complete dossier satisfying the requirements of Annex II to Directive 91/414 and (ii) that the person to whom the letter is addressed may contest the authorities’ assessment before those authorities’. In paragraph 79 of the order under appeal, the President of the Court of First Instance concluded that such a letter was not capable of calling into question the assessment of urgency, since it ‘merely [confirmed] that the alleged injury constituted by withdrawal of the national authorisations would result not from the contested directive but from a possible decision by the national authorities, which have a certain discretion’.

40It must be noted first of all that, in that letter, the United Kingdom authorities state that ‘the [appellant’s] active substance as manufactured … is compliant with the new specifications’. The letter continues as follows:

‘We have of course had discussions about the lack of access to particular vertebrate data, however … in relation to other specific Annex points, … you have not yet demonstrated appropriate access to Annex II data to support your existing approved chlorothalonil-containing products required by [the contested directive]. Therefore a Notice of Intent to revoke [the approval of] your existing chlorothalonil products is enclosed with this letter.’

41It is apparent from that evidence that the authorities did not intend to withdraw the appellant’s product from the market because of its non-compliance with the contested directive as regards the requisite level of purity. On the contrary, it appears that the national authorities were prepared to overlook that requirement and to acknowledge the appellant’s right to rely on the new specification proposed by the FAO in December 2005 and adopted by the Standing Committee on 13 and 14 July 2006, even before the new specification was formally adopted by Directive 2006/76 in September 2006.

42By contrast, it is clear from the letter from the United Kingdom authorities that the withdrawal of authorisation in relation to the appellant’s product was justified by the fact that the appellant had not shown that it had access to a complete dossier as laid down in Annex II to Directive 91/414. That finding is confirmed by the letters from the Irish authorities of 30 August 2006 and the Belgian authorities of 7 September 2006, which the appellant put before the President of the Court of First Instance. The Irish and Belgian authorities do not mention the purity level provided for by the contested directive but refer only to the gaps in the appellant’s dossier.

43Finally, it must be observed that, in their letter of 28 July 2006, the United Kingdom authorities set a time-limit for the appellant to submit any comments with a view to amending their assessment. That opportunity to challenge the authorities’ assessment is indicative of the fact that, contrary to the appellant’s claim, the withdrawal of the authorisation granted in respect of its product is not the ‘direct and automatic’ consequence of the contested directive. The national authorities are in a position to take into consideration information submitted by the interested parties before the expiry of the time-limit for transposition of the directive by the Member States, for example, as in the present case, the adoption of a new purity standard by the FAO and the Standing Committee.

44Consequently, the President of the Court of First Instance did not err in law when he concluded that the alleged damage to the appellant would result not from the contested directive but from a possible decision by the national authorities, which have a certain discretion. The appellant’s third plea in law must therefore be dismissed.

Fourth plea in law

45By its fourth plea in law, which is divided into two parts, the appellant claims that the President of the Court of First Instance (1) acted ultra vires and infringed the principle of proportionality in assessing to an excessive level of detail the facts and legal aspects underlying the second application for interim measures, and (2) erred in law in his interpretation of the United Kingdom regulations.

46As regards the first part of the fourth plea in law, the appellant claims, first, that the President of the Court of First Instance assessed ‘in an excessively formalistic fashion’ the evidence it had provided, for example requiring it to provide certified versions of the quarterly report of one of its shareholders.

47In that regard it must be noted that, as has been pointed out in paragraph 31 above, the Court of First Instance alone has jurisdiction to assess the value which should be attached to the evidence which is produced to it. Therefore, the finding by the President of the Court of First Instance that the report which was submitted to him was not certified cannot, in principle, be subject as such to review by the Court of Justice.

48In any event, even if that finding incorporates a requirement and that requirement may be regarded as disproportionate, it must be observed that the President of the Court of First Instance also noted that the report concerns only one of the appellant’s shareholders and does not in any way enable the financial situation of its other shareholder to be assessed. In the context of the examination of the appellant’s financial viability, consideration may be given, for the purposes of assessing its economic circumstances, to the characteristics of the group to which, by virtue of its shareholding structure, it belongs (see the order of the President of the Court of Justice of 15 April 1998 in Case C‑43/98P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36). It follows that that assessment by the President of the Court of First Instance is not vitiated by an error of law.

49Second, in the first part of this plea in law, the appellant claims that the President of the Court of First Instance examined certain aspects of the case ‘in a level of detail that is normally applied only in the context of the main proceedings’.

50It is true that, in the context of interim proceedings, the judge hearing the application for interim measures is not required, as a rule, to undertake as detailed an assessment as in the context of the main proceedings. However, that finding cannot be interpreted as meaning that a detailed assessment is absolutely prohibited. Where the judge hearing an application for interim measures undertakes such an assessment, he can be criticised for doing so only if that assessment is vitiated by an error of law. No such error has been identified at this stage of the analysis.

51As regards the second part of the fourth plea in law in relation to the alleged error of law by the President of the Court of First Instance in interpreting the relevant United Kingdom regulations, it must be emphasised that, in the context of an appeal relating to an interim order determining an application for the suspension of operation of a Community measure which is, at the same time, the subject of an action for annulment under Article 230 EC, the appellant cannot be justified in asking the Court to set aside that order on the basis of an allegedly incorrect interpretation of national regulations.

52In any event, and irrespective of whether the interpretation of the United Kingdom regulations in question could be examined by the Court, it must be noted that the evidence put forward by the appellant is not capable of showing that the interpretation adopted by the President of the Court of First Instance – on the basis of the information available to him – is vitiated by an error of law.

53In that regard, the appellant claims that, contrary to the finding by the President of the Court of First Instance, it was prevented by Regulation 5(4) and (5) of the PPPR from relying on the information sharing procedures laid down by those regulations, as its product did not have the same purity level as that included in Annex I to Directive 91/414.

54It must nevertheless be observed that the appellant produced the text of Regulation 5 of the PPPR for the first time in the context of the appeal. Therefore, the President of the Court of First Instance was not, in principle, in a position to assess the relevance of that regulation in the circumstances of this case. Furthermore, even if the President ought to have taken account of Regulation 5 simply because it is referred to in Regulation 16 of the PPPR, which was drawn to his attention in the second application for interim measures, it is not apparent from Regulation 5 that the only obstacle to the application of the information sharing procedures was the fact that the appellant’s product did not have the same level of purity as that included in Annex I to Directive 91/414.

55The same conclusion must be drawn as regards the letter from Syngenta of 13 July 2006. In that letter, the company was not expressly refusing access to its dossier solely because the appellant’s product did not have a level of purity that complied with the contested directive, but merely stated that it was not established that the appellant had received information from the Rapporteur Member State or the Commission that the purity level for hexachlorobenzene had been or would be set as 0.04g/kg.

56Furthermore, the appellant’s assertion that it had initiated discussions several months earlier, but had already faced a refusal from Syngenta for the same reason (that the appellant’s product purity levels appeared to differ from that set in Annex I to the contested directive), is not substantiated by any evidence.

57The fourth plea in law must, therefore, be dismissed.

Fifth plea in law

58As the Commission rightly emphasises, the fifth plea in law, relating to the infringement of the right to complete and effective judicial protection, and of the right to a fair hearing, has no significance independently of the other pleas in law and, as such, cannot be assessed. It too must, therefore, be dismissed.

59Having regard to all the foregoing considerations, the appellant’s pleas in law cannot be upheld. Accordingly, the appeal must be dismissed.

Costs

60Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal by virtue of Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs, if they are applied for in the successful party’s pleadings. Since the Commission has applied for the appellant to pay the costs, and the appellant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1.The appeal is dismissed.

2.Vischim Srl shall pay the costs.

[Signatures]

* Language of the case: English.