(Application for interim relief— Plant protection products— Regulation (EC) No1107/2009— Implementing regulation (EU) 2020/17

ORDER OF THE PRESIDENT OF THE GENERAL COURT

8 June 2020 (*)

(Application for interim relief— Plant protection products— Regulation (EC) No1107/2009— Implementing regulation (EU) 2020/17— Non-renewal of approval of the active substance chlorpyriphos-methyl— Application for suspension of operation of a measure— Lack of any urgency— Serious and irreparable damage— Absence)

In Case T‑77/20R,

Ascenza Agro, SA, established in Setúbal (Portugal), represented by K.Van Maldegem, P.Sellar, lawyers, and G.McElwee, Solicitor,

applicant,

v

European Commission, represented by A.Dawes, F.Castilla Contreras and I.Naglis, acting as Agents,

defendant,

APPLICATION based on Articles278 and 279 TFEU, seeking suspension of the operation of Commission Implementing Regulation (EU) 2020/17 of 10January 2020 concerning the non-renewal of approval of the active substance chlorpyrifos-methyl, in accordance with Regulation (EC) No1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No540/2011 (OJ 2020 L7, p.11),

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Background to the dispute and legal framework

1The applicant, Ascenza Agro, SA, formerly Sapec Agro SA, is a limited company governed by Portuguese law whose subsidiaries sell plant protection products containing chlorpyrifos-methyl (‘CHP Methyl’). [confidential] (1)

2The applicant has [confidential].

3During the 1990s, the applicant began developing a broad range of off-patent products and invested, inter alia, in activity related to CHP Methyl.

4CHP Methyl is an insecticide used within the European Union on a wide range of fruit, vegetable and field crops. It is an active substance of the organophosphates family used in plant protection products as an insecticide intended to combat harmful organisms in a range of crops, and to treat stored cereals and empty warehouses. According to the European Union Pesticides Database, in February 2020, 14 Member States had granted marketing authorisations for plant protection products containing CHP Methyl.

5CHP Methyl was approved in the European Union by Commission Directive 2005/72/EC of 21October 2005 amending Council Directive 91/414/EEC to include chlorpyrifos, chlorpyrifos-methyl, mancozeb, maneb, and metiram as active substances (OJ 2005 L279, p.63), which added the active substance CHP Methyl to AnnexI to Council Directive 91/414/EEC of 15July 1991 concerning the placement of plant protection products on the market (OJ 1991 L230, p.1).

6With the entry into force of Regulation (EC) No1107/2009 of the European Parliament and of the Council of 21October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L309, p.1), the active substances included in AnnexI to Directive 91/414 were deemed to have been approved and listed in PartA of the Annex to Commission Implementing Regulation (EU) No540/2011 of 25May 2011 implementing Regulation (EC) No1107/2009 as regards the list of approved active substances (OJ 2011 L153, p.1).

7As the approval of the active substance CHP Methyl was due to expire, the applicant lodged an application in June 2013 for renewal of the approval of that active substance, pursuant to Article1 of Commission Implementing Regulation (EU) No844/2012 of 18September 2012 setting out the provisions necessary for the implementation of the renewal procedure for active substances, as provided for in Regulation (EC) No1107/2009 (OJ 2012 L252, p.26), within the period prescribed by that article.

8In July 2015, the applicant submitted a supplementary dossier pursuant to Article6 of Regulation No844/2012.

9On 9February 2017, the rapporteur Member State (‘the RMS’), namely the Kingdom of Spain, in consultation with the co-rapporteur Member State, namely the Republic of Poland, sent a draft renewal assessment report (‘the RAR’) to the European Food Safety Authority (EFSA) and the European Commission in which the RMS considered, inter alia, that a renewal of the approval of CHP Methyl should be subject to the submission of further confirmatory information.

10In July 2017, the EFSA circulated the draft RAR to, inter alia, the applicant and the Member States for their comments and launched a public consultation on it.

11On 4July 2018, the EFSA asked the applicant, inter alia, to provide further information. After assessing that information, the RMS submitted an updated RAR to the EFSA.

12In April 2019, technical toxicology experts from the EFSA and the Member States raised their concerns regarding the genotoxic potential and developmental neurotoxicity of CHP Methyl and the associated risks to human health.

13Due to those concerns, on 1July 2019 the Commission sent a mandate to the EFSA requesting it to issue a statement on the available outcomes of the human health assessment and to provide an indication as to whether the active substance met the approval criteria laid down in Article4 of Regulation (EC) No1107/2009.

14On 31July 2019, the EFSA sent to the Commission and the Member States its initial statement on the available outcomes of the human health risk assessment in which it considered that CHP Methyl did not meet the approval criteria set out in Article4 of Regulation No1107/2009 because there were critical areas of concern for human health, safe levels of exposure could not be determined, and a risk assessment could not be carried out. In its initial statement, the EFSA also indicated that it was necessary to have further discussions on certain aspects.

15On 12August 2019, the Commission sent the applicant, inter alia, a draft renewal report that proposed that the approval of CHP Methyl should not be renewed, in order to obtain its observations on it.

16On 14August 2019, the Commission invited the applicant, inter alia, to provide the EFSA with technical comments ahead of a second experts’ discussion scheduled by the EFSA to be held on 5September 2019.

17Following the meeting of the EFSA’s and the Member States’ technical experts on toxicology, which took place on 5September 2019, the Commission sent the EFSA a new mandate asking it to update its initial statement on the available outcomes of the human health risk assessment.

18On 15October 2019, the applicant received the RAR, updated by the RMS in September 2019. That report stated that it was not possible to conclude on the genotoxicity potential of the active substance CHP Methyl and that the genotoxicity was still not established. According to the report, the renewal of approval should be subject to conditions and restrictions.

19On 11November 2019, the EFSA communicated to the Commission and the Member States its updated statement, in which it confirmed its initial position that CHP Methyl did not satisfy the approval criteria laid down in Article4 of Regulation No1107/2009 because there were critical areas of concern.

20The Commission invited the applicant to submit its comments on the EFSA’s statements and on the draft RAR.

21On 6December 2019, Member States meeting within the Standing Committee on Plants, Animals, Food and Feed gave a positive opinion by qualified majority on the draft Regulation not to renew the approval of CHP Methyl.

22On 10January 2020, the Commission adopted Commission Implementing Regulation (EU) 2020/17 of 10January 2020 concerning the non-renewal of the approval of the active substance chlorpyrifos-methyl, in accordance with Regulation (EC) No1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No540/2011 (OJ 2020 L7, p.11; ‘the contested regulation’).

Procedure and forms of order sought

23By application lodged with the Court Registry on 10February 2020, the applicant and Industrias Afrasa, SA brought an action for the annulment of the contested regulation.

24By separate document lodged at the Court Registry on 13February 2020, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the Court should:

–order the suspension of the operation of the contested regulation with immediate effect, pursuant to Article157(2) of the Rules of Procedure, pending the Court’s ruling on the main action;

–grant any other interim measures deemed appropriate and hold an oral hearing as necessary;

–order the Commission to pay all the costs of the present proceedings.

25By letter lodged at the Court Registry on 13February 2020, the applicant requested confidential treatment vis-à-vis the public of the content of certain information in the application for interim measures and certain documents annexed thereto.

26In its observations on the application for interim measures, lodged at the Court Registry on 11March 2020, the Commission contends, in essence, that the President of the General Court should:

–dismiss the application for interim measures;

–reserve the costs pending pronouncement of the judgment in the main proceedings.

27By document lodged at the Court Registry on 19March 2020, the applicant submitted fresh evidence.

28On 8April 2020, the Commission lodged its observations on the fresh evidence submitted.

Law

General considerations

29It is apparent from a reading of Articles278 and 279 TFEU, together with Article256(1) TFEU, that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended, or prescribe any necessary interim measures, pursuant to Article156 of the Rules of Procedure. Nevertheless, Article278 TFEU states that in principle actions are not to have suspensory effect, in so far as acts adopted by the Union institutions enjoy a presumption of legality. It is therefore only in exceptional cases that the judge hearing an application for interim measures may order the suspension of the operation of an act contested before the Court, or prescribe interim measures (see, to that effect, order of 19July 2016, Belgium v Commission, T‑131/16R, EU:T:2016:427, paragraph12).

30Article156(4) of the Rules of Procedure requires applications for interim measures to 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 measure applied for’.

31The judge hearing an application for interim measures may order suspension of operation of an act and other interim measures 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. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. Where appropriate, the judge hearing the application will also weigh up the interests involved (order of 2March 2016, Evonik Degussa v Commission, C‑162/15P‑R, EU:C:2016:142, paragraph21 and the case-law cited).

32In the context of that overall examination, the judge hearing the application for interim measures has a wide discretion and is free to determine, in the light of the particular features of the case, the way in which those various conditions must be verified and also the order in which they will be examined, since there is no rule of law imposing a pre-established plan for determining the necessity of making an interim order (order of 19July 2012, Akhras v Council, C‑110/12P(R), not published, EU:C:2012:507, paragraph23 and the case-law cited).

33Having regard to the documents in the case file, the President of the Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

34In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

Urgency

35In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts (order of 14January 2016, AGC Glass Europe and Others v Commission, C‑517/15P‑R, EU:C:2016:21, paragraph27).

36To attain that objective, urgency must, generally, be assessed in the light of the need for an interim order so as to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the proceedings on the merits without suffering serious and irreparable damage (order of 14January 2016, AGC Glass Europe and Others v Commission, C‑517/15P‑R, EU:C:2016:21, paragraph27 and the case-law cited).

37Furthermore, according to well-established case-law, there is urgency only if the serious and irreparable damage feared by the party requesting the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts forming the basis of its claim that such damage is likely, it being clear that purely hypothetical damage, based on future and uncertain events, cannot justify the grant of interim measures (order of 11July 2018, GE Healthcare v Commission, T‑783/17R, EU:T:2018:503, paragraph23 and the case-law cited).

38It is also established case-law that, in order to determine whether all the conditions set out in paragraphs36 and 37 above are met, the judge hearing the application for interim measures must have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking interim relief finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial harm, must produce, with supporting evidence, an accurate overall picture of its financial situation (order of 11July 2018, GE Healthcare v Commission, T‑783/17R, EU:T:2018:503, paragraph26 and the case-law cited).

39It is in the light of those criteria that it must be examined whether the applicant has succeeded in demonstrating urgency.

The specific and unique circumstances of the present case

40The applicant maintains that it has been the victim of specific and unique circumstances which support the conclusion that, despite the absence of serious and irreparable damage, there is a situation of urgency that justifies the grant of the interim measures sought.

41According to the applicant, those circumstances are, first, the fact that the Commission, without giving an explanation, did not follow the procedure for the renewal of approval of the active substance CHP Methyl laid down in Regulation No1107/2009, secondly, the United Kingdom’s policy, due to Brexit, consisted of supporting the Commission every time it would lead to a blocking minority, thirdly, the fact that the RMS proposed renewal of the approval of CHP Methyl in September 2019 (see paragraph18 above), fourthly, the fact that farmers in Italy have sought authorisations in order to be able to use CHP Methyl plant protection products and, fifthly, the Covid-19 pandemic.

42In particular, the applicant claims that those individual circumstances are similar to those which justified the grant of interim measures in the case which gave rise to the order of 28April 2009, United Phosphorus v Commission (T‑95/09R, not published, EU:T:2009:124), in which the worldwide economic and financial crisis at the time had seriously affected the group to which the applicant company in that case belonged.

43In that regard, it must be stated that the circumstances of the present case are not comparable to those of the case that gave rise to the order of 28April 2009, United Phosphorus v Commission (T‑95/09R, not published, EU:T:2009:124).

44In that case, the President of the Court took account of the effect that the global economic and financial crisis had had, until the end of March 2009, on the value, in terms of stock market capitalisation, of the group to which the applicant belonged. In those particular circumstances, the judge hearing the application for interim measures recognised that the applicant in that case had established the seriousness of the damage which it would suffer if the Court did not grant the interim measures sought (order of 28April 2009, United Phosphorus v Commission, T‑95/09R, not published, EU:T:2009:124, paragraphs70 and 71). In addition, the President of the Court considered that there were two other particular circumstances concerning the risk of immobilisation or closure of a factory and the resubmission of a request for assessment of the active substance at issue in the present case under an expedited procedure, which permitted the conclusion, despite the ‘potentially reparable nature’ of the damage claimed by the applicant, that there was an urgency capable of justifying the grant of the interim measures sought (order of 28April 2009, United Phosphorus v Commission, T‑95/09R, not published, EU:T:2009:124, paragraphs75 to 82).

45By contrast, in the present case, first of all, as regards the first four circumstances identified by the applicant, it must be acknowledged that, as the Commission rightly pointed out, those circumstances are not relevant for the purpose of establishing whether there is urgency. They are, at most, relevant for determining whether the conditions of a prima facie case and the balancing of interests, that is to say, the other cumulative conditions for the grant of interim measures, are satisfied.

46Secondly, the applicant has not demonstrated that the Covid-19 pandemic has in fact affected its value in terms of stock market capitalisation [confidential].

47Furthermore, in view of the measures adopted by the Portuguese Republic during the pandemic in question, which were designed to ensure that, during the state of emergency, the marketing of products essential to agricultural production, including plant protection products, is not affected, it is unlikely that that pandemic would have had significant effects on the applicant’s economic situation.

48By its Decreto n^o2‑B/2020 que regulamenta a prorrogação do estado de emergência decretado pelo Presidente da República (Decree No2‑B/2020 governing the extension of the state of emergency decreed by the President of the Republic), of 18March 2020 (Diário da República, 1^re série, n^o66, 2ºSuplemento, of 2April 2020), the Portuguese Government did not, during the state of emergency decreed due to the Covid-19 pandemic, suspend commercial activity of products necessary to agricultural production, including chemical plant health products and plant protection products, in order to ensure continuity of supply to the agricultural market (see Article10(1) and AnnexII, points20 and 43 of that decree).

49Consequently, it must be held that the circumstances which justified the grant of interim measures in the case that gave rise to the order of 28April 2009, United Phosphorus v Commission (T‑95/09R, not published, EU:T:2009:124), are not the same as those in the present case.

50In the light of the foregoing, it must be held that those circumstances do not justify the conclusion that, despite the absence of the alleged serious and irreparable damage, there is a situation of urgency capable of justifying the grant of the interim measures sought.

Seriousness of the damage

51The applicant relies, in essence, on two types of serious and irreparable damage on account, first, of the risk of loss of sales and market share of CHP Methyl and other associated financial losses and, secondly, of having to make a definitive commercial choice within a disadvantageous timeframe.

–The risk of loss of sales and market share and other related financial losses

52As regards the first type of damage alleged, the applicant submits that, because of the contested regulation, it will suffer quantifiable financial loss in the form of a significant loss of turnover and profit. In addition, the applicant claims that it risks suffering an unquantifiable financial loss resulting from the impossibility of exploiting [confidential], loss of portfolio sales and losses related to the negative effects on its rating.

53In that regard, it must be observed that the damage alleged is purely financial.

54Regarding the seriousness of the financial damage alleged, it is settled case-law that, the interim measure sought will be justified only if it appears that, without such a measure, the party seeking it would be in a position that could imperil its existence before the final decision in the main action (order of 21January 2019, Agrochem-Maks v Commission, T‑574/18R, EU:T:2019:25, paragraph33 and the case-law cited).

55In that regard, it is settled case-law that the assessment of the seriousness of that damage is carried out in the light of, inter alia, the size and turnover of the undertaking and the characteristics of the group to which it belongs (order of 21January 2019, Agrochem-Maks v Commission, T‑574/18R, EU:T:2019:25, paragraph34 and the case-law cited).

56In addition, it must be recalled that, also according to settled case-law, it has been found, that, on the one hand, with regard to a loss corresponding to less than 10% of turnover of undertakings active in highly regulated markets, the financial difficulties which those undertakings risked suffering did not appear to be such as to threaten their very existence and, on the other, regarding a loss representing almost two thirds of the turnover of those undertakings, while acknowledging that the financial difficulties they underwent could have been such as to imperil their very existence, it has nevertheless been underlined that, in a highly regulated sector where major investment is often required and the competent authorities may be led to intervene when public health risks become apparent, for reasons which cannot always be foreseen by the undertakings concerned, it was for those undertakings, if they were not to bear themselves the loss resulting from such intervention, to protect themselves against its consequences by adopting an appropriate policy (order of 21January 2019, Agrochem-Maks v Commission, T‑574/18R, EU:T:2019:25, paragraph35 and the case-law cited).

57In the present case, the applicant does not claim that it is in a situation liable to imperil its very existence. However, it states that, for the years 2018 and 2019, it derives [confidential] from its sales of CHP Methyl in the European Union, which represents approximately [confidential] of its total turnover of EUR[confidential] and [confidential] of the overall turnover [confidential]. On the basis of that turnover, the applicant’s loss therefore corresponds to a loss of [confidential] of its turnover and of [confidential] of the turnover of the group of companies to which the applicant belongs.

58In the light of that information, it must be recalled that, in accordance with the case-law referred to in paragraphs55 and 56 above, the alleged loss of turnover does not appear likely to imperil the very existence of the company or group concerned.

59Since the applicant’s sales of CHP Methyl in the European Union correspond to only [confidential] of the overall turnover [confidential] during the period in question, it must be held that the turnover and profit generated by those sales of CHP Methyl represent only a small part of the turnover or gross profit [confidential], within the meaning of the case-law (see, to that effect, order of 22June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17R, EU:T:2018:407, paragraph37 and the case-law cited).

60Moreover, it must also be observed that the financial losses regarded as unquantifiable that the applicant allegedly risks suffering do not appear to be such as to imperil its very existence, all the more so since [confidential].

61In that regard, it must be noted that the applicant is operating on a highly regulated market. As noted in paragraph56 above, it was therefore incumbent on the applicant to behave in such a way as to take account of the increased risk of a ban on the marketing of its product, in terms of having to bear the loss arising from such a ban. The judge hearing the application for interim measures must, in the analysis of the seriousness of the alleged damage, also take into account the commercial strategy adopted by the applicant (see, to that effect, order of 21January 2019, Agrochem-Maks v Commission, T‑574/18R, EU:T:2019:25, paragraph46).

62Moreover, as the applicant acknowledges, economic operators are increasingly confronted with a regulatory environment hostile to traditional chemicals because of the Commission’s stated objective of significantly reducing the use and risk of chemical pesticides. Thus, without any further evidence relating to measures that the applicant may have taken to avoid a potentially risky situation in the light of the nature of the market in question, exceeding the indicative threshold of 10% cannot, in itself, convince the judge hearing the application for interim measures of the seriousness of the alleged harm (see, to that effect, order of 21January 2019, Agrochem-Maks v Commission, T‑574/18R, EU:T:2019:25, paragraph47).

–Damage that is objectively significant owing to the need to make a final commercial choice within an disadvantageous timeframe

63As regards the second type of damage, the applicant claims that it will suffer objectively significant financial loss because it has to make a final commercial choice within a disadvantageous timeframe as regards the future of its CHP Methyl products, its relationship with its customers and the people it employs. In that context, the applicant states that it is considering various options which may be taken individually or collectively.

64In that regard it is apparent from the case-law of the Court of Justice that it cannot be excluded that financial harm which is objectively significant and which allegedly results from the obligation to make a final commercial choice of some magnitude within a disadvantageous timescale, could be considered as ‘serious’, or even that the seriousness of such harm could be considered as obvious, even in the absence of information concerning the size of the undertaking concerned (order of 7March 2013, EDF v Commission, C‑551/12P(R), EU:C:2013:157, paragraph33).

65However, that case-law must be assessed by reference to the field in which the applicant operates (order of 22June 2018, FMC v Commission, T‑719/17R, EU:T:2018:408, paragraph60). As recalled in paragraph56 above, it is settled case-law that, in the context of a highly regulated market, such as that in the present case, in which the competent authorities may intervene rapidly when public health risks become apparent, for reasons that cannot always be foreseen, it is for the undertakings concerned to protect themselves against its consequences by adopting an appropriate policy (order of 16June 2016, ICA Laboratories and Others v Commission, C‑170/16P(R), not published, EU:C:2016:462, paragraph29 and the case-law cited).

66In the present case, first, the applicant submits that the costs [confidential] are objectively high, particularly in view of its annual turnover and profits.

67However, as the Commission observes, those costs cannot be regarded as objectively considerable in view of the turnover [confidential].

68Secondly, the applicant claims that [confidential].

69In that regard, it must be noted that, although the applicant provided a detailed description [confidential].

70Thirdly, as regards the applicant’s argument that [confidential].

71Fourthly, the applicant claims that it could simply consider developing its current portfolio of other products. In that regard, it is sufficient to note that that possibility of exploiting its current portfolio of products other than CHP Methyl is not called into question by the contested regulation.

72Fifthly, the applicant claims that [confidential].

73In that regard, it should be recalled that, in accordance with the established case-law set out in paragraph38 above, the judge hearing the application for interim measures must have specific and precise information, supported by detailed, certified documentary evidence showing the financial situation of the party seeking interim measures and enabling an assessment of the consequences likely to occur if the measures sought are not granted.

74It must be held that the applicant has not provided any specific and precise information, supported by detailed, certified documentary evidence, in accordance with the requirements of the case-law, which substantiates [confidential].

75In addition, it must be held that, even if the applicant had substantiated its assertions, those expenses would not be objectively significant having regard to the turnover of [confidential].

76As regards [confidential], it should be noted that the applicant does not explain how they differ from the loss of market share and the associated value to which it refers in respect of the quantifiable financial loss analysed in paragraphs57 to 59 above.

77Sixthly, the applicant claims that the contested regulation will have [confidential].

78In that regard, it must be noted that, as the Commission observes, [confidential].

79Seventhly, the applicant claims that it cannot hope to recover the costs incurred in bringing the action for annulment of the contested act or the application for interim measures, even if it is awarded costs.

80In that regard, first, it should be noted that it is not possible for those costs to be classified as ‘objectively significant financial harm’, within the meaning of the case-law referred to in paragraph64 above, in the light of the turnover of [confidential]. Secondly, if the conditions are satisfied, there is nothing to prevent the applicant from attempting to recover the damage suffered by means of an action for damages under Article340 TFEU.

81In the light of the foregoing, it must be concluded that the applicant has not established the seriousness of the damage alleged.

Irreparability of the damage

82It does not appear, moreover, that the damage alleged in the present case can be categorised as irreparable.

83First, it is settled case-law that damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even hardly reparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he or she suffered the damage. Any such damage could be recouped by the applicant’s bringing an action for compensation on the basis of Articles268 and 340 TFEU (orders of 28November 2013, EMA v InterMune UK and Others, C‑390/13P(R), EU:C:2013:795, paragraph48 and the case-law cited, and of 28April 2009, United Phosphorus v Commission, T‑95/09R, not published, EU:T:2009:124, paragraph33 and the case-law cited).

84It must be observed, however, that harm of a financial nature may, inter alia, be considered to be serious and irreparable if the harm, even when it occurs, cannot be quantified (order of 28November 2013, EMA v InterMune UK and Others, C‑390/13P(R), EU:C:2013:795, paragraph49 and the case-law cited).

85It is true that the uncertainty of obtaining compensation for pecuniary damage if an action for damages is brought cannot in itself be regarded as a factor capable of establishing that such damage is irreparable within the meaning of the case-law. At the interlocutory stage, the possibility of subsequently obtaining compensation for pecuniary damage if an action for damages is brought following annulment of the contested measure is necessarily uncertain. Interim proceedings are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is to guarantee the full effectiveness of the final future decision that will be made in the main action (in this case an action for annulment) to which the interim proceedings are an adjunct (order of 22June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17R, EU:T:2018:407, paragraph93 and the case-law cited).

86However, the situation is different where it is already clear, when the assessment is carried out by the judge hearing the application for interim measures, that, in view of its nature and the manner in which it will foreseeably occur, the harm alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good that harm by bringing an action for damages (order of 22June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17R, EU:T:2018:407, paragraph94 and the case-law cited).

87In the present case, the applicant alleges, as mentioned in paragraph52 above, financial losses in respect of unquantifiable damage resulting from the impossibility of exploiting [confidential], loss of portfolio sales and losses related to the negative effects on its rating. The applicant claims that, according to the case-law, that unquantifiable damage is irreparable by its very nature.

88In that regard, it should be noted that, contrary to the applicant’s argument, that category of damage is quantifiable.

89As the Commission rightly pointed out, the studies prepared by the consultants funded by the applicant and a member of the applicant’s board of directors itself provided forecasts concerning the losses allegedly resulting from the applicant’s inability to exploit [confidential] in plant protection products containing CHP Methyl, and quantified that damage. Thus, it is apparent from the case file that the losses alleged to be caused by the reduction in portfolio sales will amount to [confidential] and that the losses alleged to be caused by a reduction in the applicant’s credit rating will be due to an increase in the interest rate on the applicant’s loans at a level higher than [confidential] per year.

90It follows that the alleged risks of damage that have just been examined may be quantified, within the meaning of the case-law cited in paragraph84 above.

91In the second place, while, in the case-law, account has also been taken of the fact that, if the measure sought were not granted, the applicant’s market share would be irremediably affected, it must be pointed out that this situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also of a serious nature. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders. A party seeking interim measures who invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of that market share is impossible by reason of obstacles of a structural or legal nature (order of 28April 2009, United Phosphorus v Commission, T‑95/09R, not published, EU:T:2009:124, paragraph35 and the case-law cited).

92In the present case, it has been concluded that the share of the turnover that the applicant fears losing is not significant (see paragraph59 above). The applicant submits, however, that structural and legal obstacles prevent it from regaining a significant proportion of the market share that it will lose, such as the loss of customers for more than two years, [confidential] and the fact that those losses cannot be compensated by means of an action for damages.

93First, as regards the loss of customers, it should be pointed out that the applicant has not succeeded in establishing, to the requisite legal standard, that it would be impossible for it to regain that customer base. As the Commission has pointed out, the studies drawn up by the consultants referred to by the applicant in its pleadings contain declarations of general application which do not specifically concern CHP Methyl. Thus, the information in the case file for the application for interim measures does not support the conclusion that that loss of customers would be irremediable and that it would not be possible for the applicant, in respect of CHP Methyl, to regain its previous position should the contested regulation be annulled at the close of the main proceedings.

94Consequently, the difficulty invoked, as set out in the written pleadings, of regaining market share lost as a result of the loyalty to the product that they used, cannot therefore, in itself, convince the judge hearing the application for interim remedies of the irreparable nature of the alleged harm (see, to that effect, order of 21January 2019, Agrochem-Maks v Commission, T‑574/18R, not published, EU:T:2019:25, paragraph71).

95Secondly, as regards [confidential], it should be noted, as the Commission rightly pointed out, that there was nothing to prevent the applicant [confidential] from [confidential] their activities prior to the adoption of the contested regulation, given, moreover, the regulatory environment hostile to traditional chemicals referred to in paragraph62 above. In addition, it is difficult to understand to what extent [confidential], even if that were to be established, can constitute serious and irreparable harm (order of 8May 2019, Sumitomo Chemical and Tenka Best v Commission, T‑734/18R, not published, EU:T:2019:314, paragraph38).

96Thirdly, as regards the applicant’s assertion that its losses cannot be compensated by means of an action for damages, it must be stated that the applicant does not adduce any evidence in support of its claim that financial compensation is not sufficient in itself to constitute restitutio in integrum (order of 7November 2019, AMVAC Netherlands v Commission, T‑317/19R, not published, EU:T:2019:833, paragraph70).

97It follows that the applicant has not established that the alleged damage is serious or irreparable.

98It follows from all of the foregoing that the application for interim measures must be dismissed, as the applicant has failed to establish urgency, without it being necessary to rule on the prima facie case or even to weigh up the interests involved.

99Pursuant to Article158(5) of the Rules of Procedure, the costs must be reserved.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.The application for interim measures is dismissed.

2.The costs are reserved.

Luxembourg, 8 June 2020.

*Language of the case: English.

1 Confidential data redacted.