Ascenza Agro and Industrias Afrasa v Commission (interim measures - suspension of operation - Plant protection products - Order) [2020] EUECJ T-77/20

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(Application for interim measures - Plant protection products - Regulation (EC) No 1107/2009 - Implementing Regulation (EU) 2020/17 - Non-renewal of approval of the active substance chlorpyrifos-methyl - Application for suspension of operation of a measure - Lack of urgency - Serious and irreparable harm - None)

Industrias Afrasa, SA, established in Paterna (Spain), represented by K. Van Maldegem and P. Sellar, lawyers, and G. McElwee, Solicitor,

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

APPLICATION based on Articles 278 and 279 TFEU, seeking suspension of the operation of Commission Implementing Regulation (EU) 2020/17 of 10 January 2020 concerning the non-renewal of the approval of the active substance chlorpyrifos-methyl, in accordance with Regulation (EC) No 1107/2009 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) No 540/2011 (OJ 2020 L 7, p. 11),

1 The applicant, Industrias Afrasa, SA, is a company incorporated under Spanish law, founded in 1955, which manufactures plant protection products. It does not manufacture chlorpyrifos-methyl (‘CHP-methyl’) or formulate it as a plant protection product. From March 2018, it has purchased supplies of already formulated CHP-methyl products from Ascenza Agro, SA, formerly Sapec Agro SA (‘Ascenza’), which it then resells under its own brand name, through its own distribution network. The applicant has [confidential] (1) plant protection products registered worldwide, including [confidential] in the European Union, for various uses.

3 CHP-methyl is an insecticide used in the European Union on a wide range of fruit, vegetable and arable crops. It is an organophosphate active substance used in plant protection products as an insecticide to control pests on a range of crops and to treat stored cereal grain and empty warehouses. According to the EU Pesticides Database, as of February 2020, 14 Member States had issued marketing authorisations for plant protection products containing CHP-methyl.

4 CHP-methyl was approved in the European Union by Commission Directive 2005/72/EC of 21 October 2005 amending Council Directive 91/414/EEC to include chlorpyrifos, chlorpyrifos-methyl, mancozeb, maneb and metiram as active substances (OJ 2005 L 279, p. 63), which added the active substance CHP-methyl to Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).

5 With the entry into force of Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414 (OJ 2009 L 309, p. 1), the active substances included in Annex I to Directive 91/414 were deemed to be approved and were listed in Part A of the Annex to Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation No 1107/2009 as regards the list of approved active substances (OJ 2011 L 153, p. 1).

6 As the approval of the active substance CHP-methyl was due to expire, Ascenza submitted, in June 2013, an application for the renewal of the approval of that active substance in accordance with Article 1 of Commission Implementing Regulation (EU) No 844/2012 of 18 September 2012 setting out the provisions necessary for the implementation of the renewal procedure for active substances, as provided for in Regulation No 1107/2009 (OJ 2012 L 252, p. 26), within the period provided for in that article.

7 In July 2015, Ascenza submitted a supplementary dossier in accordance with Article 6 of Regulation No 844/2012.

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

9 In July 2017, EFSA sent the draft RAR to, amongst others, Ascenza and the Member States for comments and carried out a public consultation on the draft RAR.

10 On 4 July 2018, EFSA requested Ascenza, amongst others, to supply additional information. After assessment of that information by the RMS, it submitted an updated RAR to EFSA.

11 In April 2019, technical toxicology experts from EFSA and the Member States raised concerns about the genotoxic potential and developmental neurotoxicity of CHP-methyl and the associated risks to human health.

12 In view of those concerns, the Commission sent a mandate to EFSA on 1 July 2019 requesting it to issue a statement on the available results of the human health risk assessment and to provide an indication as to whether CHP-methyl meets the approval criteria set out in Article 4 of Regulation No 1107/2009.

13 On 31 July 2019, EFSA sent the Commission and the Member States its initial statement on the available results of the human health risk assessment, in which it concluded that CHP-methyl did not meet the approval criteria set out in Article 4 of Regulation No 1107/2009 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 conducted. In its initial statement, EFSA also indicated the need for further discussions on certain aspects.

14 On 12 August 2019, the Commission sent to Ascenza, amongst others, a draft renewal report proposing the non-renewal of approval of CHP-methyl for comment.

15 On 14 August 2019, the Commission invited Ascenza, amongst others, to provide technical comments to EFSA ahead of a second expert discussion scheduled by EFSA for 5 September 2019.

16 Following the meeting of technical experts in toxicology from EFSA and the Member States, which took place on 5 September 2019, the Commission sent a new mandate to EFSA requesting it to update its initial statement on the available results of the human health risk assessment.

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

18 On 11 November 2019, EFSA sent the Commission and the Member States its updated statement, in which it confirmed its initial position that CHP-methyl does not meet the approval criteria set out in Article 4 of Regulation No 1107/2009 because of the existence of critical areas of concern.

19 The Commission invited Ascenza to comment on EFSA’s statements and on the draft RAR.

20 On 6 December 2019, the Member States meeting within the framework of the Standing Committee on Plants, Animals, Food and Feed delivered a favourable opinion by qualified majority on the draft regulation for the non-renewal of the approval of CHP-methyl.

21 On 10 January 2020, the Commission adopted Implementing Regulation (EU) 2020/17 concerning the non-renewal of the approval of the active substance chlorpyrifos-methyl, in accordance with Regulation No 1107/2009, and amending the Annex to Implementing Regulation No 540/2011 (OJ 2020 L 7, p. 11) (‘the contested regulation’).

22 By application lodged at the Court Registry on 10 February 2020, Ascenza and the applicant brought an action for annulment of the contested regulation.

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

- order the suspension of operation of the contested regulation with immediate effect, pursuant to Article 157(2) of the Rules of Procedure of the General Court, pending the Court’s ruling on the main action;

- grant any other interim measures deemed appropriate and hold an oral hearing if required;

- order the Commission to pay all the costs and expenses of the present proceedings.

24 By letter lodged at the Court Registry on 17 February 2020, the applicant requested that the content of certain information contained in the application for interim measures and certain documents annexed thereto be treated as confidential vis-à-vis the public.

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

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

27 On 8 April 2020, the Commission lodged its observations on the new evidence submitted.

28 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he 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 Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the EU institutions are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (see, to that effect, order of 19 July 2016, Belgium v Commission, T-131/16 R, EU:T:2016:427, paragraph 12).

29 Article 156(4) of the Rules of Procedure provides that applications for interim measures are 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’.

30 The judge hearing an application for interim relief 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. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C-162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

31 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C-110/12 P (R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

32 Having regard to the documents in the case file, the President of the General 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.

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

34 In 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 judicature (see, to that effect, order of 14 January 2016, AGC Glass Europe and Others v Commission, C-517/15 P-R, EU:C:2016:21, paragraph 27).

35 To attain that objective, urgency must, generally, be assessed in the light of the need for an interlocutory order 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 main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C-517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

36 Furthermore, according to well-established case-law, there is urgency only if the serious and irreparable harm 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 that form the basis of its claim that such harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 11 July 2018, GE Healthcare v Commission, T-783/17 R, EU:T:2018:503, paragraph 23 and the case-law cited).

37 It is also settled case-law that, to determine whether all the conditions referred to in paragraphs 35 and 36 above are fulfilled, 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 the interim measures 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 (see order of 11 July 2018, GE Healthcare v Commission, T-783/17 R, EU:T:2018:503, paragraph 26 and the case-law cited).

38 In addition, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary, without any supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 22 March 2018, Valencia Club de Fútbol v Commission, T-732/16 R, not published, EU:T:2018:171, paragraph 43 and the case-law cited).

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

40 The applicant submits that it was the victim of specific and unique circumstances which justify the conclusion that, despite the lack of serious and irreparable harm, there is a situation of urgency which could justify the granting of the interim measures sought.

41 Those circumstances are, according to the applicant, first, the fact that the Commission departed from the procedure for renewal of the approval of the active substance CHP-methyl laid down by Regulation No 1107/2009 without giving any explanation, secondly, the United Kingdom’s policy, because of Brexit, which was to support the Commission each time a blocking minority could exist, thirdly, the fact that the RMS proposed renewal of the approval of CHP-methyl in September 2019 (see paragraph 17 above), fourthly, the fact that farmers in Italy sought authorisations in order to be able to use CHP-methyl based plant protection products and, fifthly, the COVID-19 pandemic.

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

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

44 In that case, the President of the General Court took account of the effect which the global economic and financial crisis had, up to the end of March 2009, on the value, in terms of market capitalisation, of the group to which the applicant belonged. In those specific circumstances, the judge hearing the application for interim measures recognised that the applicant in that case had established the gravity of the harm which it would suffer if the Court did not grant the interim measures sought (order of 28 April 2009, United Phosphorus v Commission, T-95/09 R, not published, EU:T:2009:124, paragraphs 70 and 71). In addition, the President of the General Court held that there were two other specific circumstances relating to the risk of the immobilisation or closure of a plant and the resubmission of an application for assessment of the active substance at issue in that case under an accelerated procedure, making it possible to find, notwithstanding the ‘in principle reparable nature’ of the harm pleaded by the applicant, that there was urgency capable of justifying the granting of the interim measures sought (order of 28 April 2009, United Phosphorus v Commission, T-95/09 R, not published, EU:T:2009:124, paragraphs 75 to 82).

45 However, in the present case, in the first place, 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 in order to establish whether there is a situation of urgency. At most, they will be relevant for determining whether the conditions relating to fumus boni juris and balancing of interests are met, that is to say, the other cumulative conditions for the granting of interim measures.

46 In the second place, the applicant does not show that the COVID-19 pandemic has actually affected its value.

47 Furthermore, in view of the measures adopted by the Kingdom of Spain during the pandemic in question, aimed at ensuring that, during the state of emergency, the marketing of products essential to agricultural production, including plant protection products, was not affected, it is unlikely that that pandemic had a significant effect on the applicant’s financial situation.

48 By Real Decreto 463/2020, por el que se declara el estado de alarma para la gestión de la situación de crisis sanitaria ocasionada por el COVID-19 (Royal Decree 463/2020 declaring a state of emergency in respect of the management of the health crisis caused by COVID-19) of 14 March 2020 (BOE No 67 of 14 March 2020, p. 25390), the Spanish Government, during the state of emergency declared at the time of the COVID-19 pandemic, adopted measures to ensure the food supply and the operation of production centres, including farms (see Article 15 of that royal decree).

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

50 In view of the above, it must be held that those circumstances do not justify the conclusion that, despite the alleged lack of serious and irreparable damage, there is a situation of urgency which could justify the granting of the interim measures sought.

51 The applicant alleges, in essence, two types of serious and irreparable harm as a result, first, of the risk of loss of sales and market share relating to CHP-methyl and other related financial losses and, secondly, of having to make a final commercial choice of objective significance within a disadvantageous timescale.

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

52 As regards the first type of alleged harm, the applicant considers that, as a result of the contested regulation, it will lose its turnover from sales of CHP-methyl products. In addition, the applicant submits that it is at risk of unquantifiable financial loss arising from the loss of [confidential] sales [confidential].

53 In that regard, it should be pointed out that the harm alleged is purely financial.

54 Regarding 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 (see order of 21 January 2019, Agrochem-Maks v Commission, T-574/18 R, EU:T:2019:25, paragraph 33 and the case-law cited).

55 In that regard, it is settled case-law that the assessment of the serious nature of such 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 (see order of 21 January 2019, Agrochem-Maks v Commission, T-574/18 R, EU:T:2019:25, paragraph 34 and the case-law cited).

56 In 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 do 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 threaten 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 (see order of 21 January 2019, Agrochem-Maks v Commission, T-574/18 R, EU:T:2019:25, paragraph 35 and the case-law cited).

57 In the present case, the applicant does not claim that it is in a situation which could threaten its very existence. However, it states that for the year 2018 it derived [confidential] from its sales of CHP-methyl products in the European Union, which represented [confidential] of its total turnover and [confidential] of its turnover in the European Union. In 2019, its turnover from the sale of CHP-methyl products amounted to [confidential], which represented [confidential] of its total turnover and [confidential] of the turnover generated by its sales within the European Union. On the basis of that turnover, the applicant’s loss therefore corresponds, in 2018, to a loss of [confidential] of its turnover and, in 2019, to a loss of [confidential] of its turnover.

58 In the light of that data, it must be considered that, in accordance with the case-law referred to in paragraphs 55 and 56 above, the alleged loss of turnover does not appear to be such as to threaten the applicant’s very existence.

59 Moreover, it should be noted that the financial losses, considered to be unquantifiable, which the applicant is allegedly at risk of suffering are also not such as to threaten its very existence, especially since the applicant has been supplying products containing CHP-methyl only since March 2018 and has so far registered [confidential] plant protection products worldwide and [confidential] plant protection products in the European Union for various uses.

60 In addition, it must be noted, in that regard, that the applicant carries out its activity on a highly regulated market. Any loss of market share and associated value resulting from the non-renewal of the approval of CHP-methyl is an integral part of the regulatory process. As noted in paragraph 56 above, it was therefore incumbent on the applicant to behave in such a way as to take into account 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 should, in his analysis of the seriousness of the alleged harm, take into account the applicant’s business strategy (see, to that effect, order of 21 January 2019, Agrochem-Maks v Commission, T-574/18 R, EU:T:2019:25, paragraph 46).

61 In addition, economic operators are increasingly confronted with a regulatory environment hostile to traditional chemicals due to the Commission’s declared objective to significantly reduce the use and risks of chemical pesticides. Consequently, 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, even exceeding the indicative threshold of 10% of turnover 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 21 January 2019, Agrochem-Maks v Commission, T-574/18 R, EU:T:2019:25, paragraph 47).

- Objectively significant harm because of the need to make a final commercial choice of some magnitude within a disadvantageous timescale

62 As regards the second type of harm, the applicant alleges that it will suffer objectively significant financial harm as a result of having to make a final commercial choice of some magnitude within a disadvantageous timescale concerning the future of its CHP-methyl products, the continued production of those products and the relationship which it has with its customers and the people it employs. In that context, the applicant states that it is examining various choices which can be taken individually or collectively.

63 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 (see, to that effect, order of 7 March 2013, EDF v Commission, C-551/12 P(R), EU:C:2013:157, paragraph 33).

64 However, that case-law must be assessed having regard to the field in which the applicant operates (order of 22 June 2018, FMC v Commission, T-719/17 R, EU:T:2018:408, paragraph 60). As noted in paragraph 56 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 which cannot always be foreseen, it is for the undertakings concerned to protect themselves against its consequences by adopting an appropriate policy (see order of 16 June 2016, ICA Laboratories and Others v Commission, C-170/16 P (R), not published, EU:C:2016:462, paragraph 29 and the case-law cited).

65 In the present case, first, the applicant considers that the estimated costs of introducing a new dossier with a view to the future approval of another active substance are objectively high. In addition, the [confidential].

66 However, as the Commission points out, nothing prevented the applicant from [confidential] before the adoption of the contested regulation, given the small number of other organophosphates which remain approved as active substances in the European Union.

67 Secondly, the applicant submits that, if it invests in a new facility for the production, for example, of biological pesticides, it will have to [confidential], which would entail objectively significant financial investment.

68 In that regard, it must be held that, in so far as the applicant does not manufacture CHP-methyl or preparations based on CHP-methyl for use as plant protection products in its own factory, since it merely buys and sells under its own brand CHP-methyl products manufactured by Ascenza, it is not clear why the applicant claims that it must redirect its production line.

69 Furthermore, it must be borne in mind that, in accordance with the settled case-law referred to in paragraph 37 above, 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 the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed.

70 However, it is important to note that the applicant did not provide any specific and precise information, supported by any detailed, certified documentary evidence, in accordance with the requirements of the case-law, which substantiates the costs allegedly associated with [confidential].

71 Thirdly, as regards the argument that the applicant could [confidential], it is important to point out, as the Commission does, that there is no indication, first, that [confidential] and, secondly, since the applicant [confidential] has a fairly diversified product portfolio, that it is not in a position to [confidential].

72 Fourthly, the applicant claims that, regardless of its business decisions, it cannot hope to recoup the costs incurred in bringing the action for annulment of the contested regulation or the application for interim measures, even if it is awarded costs.

73 In that regard, it should be pointed out that those costs cannot be regarded as ‘objectively significant financial harm’ within the meaning of the case-law referred to in paragraph 63 above, having regard to the applicant’s turnover. However, there is nothing to prevent the applicant from seeking to recoup the damage suffered by way of an action for damages under Article 340 TFEU, if the conditions for such an action are met.

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

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

76 In the first place, it is well-established case-law that damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage. Any such damage could be recouped by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see orders of 28 November 2013, EMA v InterMune UK and Others, C-390/13 P (R), EU:C:2013:795, paragraph 48 and the case-law cited, and of 28 April 2009, United Phosphorus v Commission, T-95/09 R, not published, EU:T:2009:124, paragraph 33 and the case-law cited).

77 Nevertheless, it must be pointed out that harm of a financial nature may be considered to be serious and irreparable if the harm, even when it occurs, cannot be quantified (see order of 28 November 2013, EMA v InterMune UK and Others, C-390/13 P (R), EU:C:2013:795, paragraph 49 and the case-law cited).

78 It 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. Interlocutory proceedings are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is only 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 interlocutory proceedings are an adjunct (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T-476/17 R, EU:T:2018:407, paragraph 93 and the case-law cited).

79 However, 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 (see order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T-476/17 R, EU:T:2018:407, paragraph 94 and the case-law cited).

80 In the present case, the applicant pleads, as referred to in paragraph 52 above, financial losses in respect of non-quantifiable damage arising from the loss of [confidential] sales [confidential]. The applicant claims that, according to the case-law, non-quantifiable damage is, by its very nature, irreparable.

81 In that regard, it should be pointed out that, contrary to the applicant’s submission, that category of damage is quantifiable.

82 Indeed, as the Commission has rightly pointed out, it is apparent from the file that the applicant does not claim that the losses allegedly caused by the reduction in [confidential] sales [confidential] are impossible to quantify. It only claims that those losses cannot be quantified accurately.

83 It follows that the alleged risks of harm considered above can be quantified, within the meaning of the case-law cited in paragraph 77 above.

84 In 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 that 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. An applicant for interim measures who invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of that share is impossible by reason of obstacles of a structural or legal nature (see order of 28 April 2009, United Phosphorus v Commission, T-95/09 R, not published, EU:T:2009:124, paragraph 35 and the case-law cited).

85 In the present case, it has been concluded that the share of turnover the loss of which is feared by the applicant is not large (see paragraph 58 above). The applicant maintains, however, that structural and legal obstacles prevent it from regaining a significant proportion of the market share which it will lose, such as the loss of customers for more than two years, the impossibility of offering its customers [confidential] in order to compensate for the losses suffered and the fact that those losses cannot be made good by means of an action for damages.

86 First, as regards the loss of customers, it should be pointed out that the applicant has failed to establish to the requisite legal standard that it will be impossible for it to regain those customers. As the Commission noted, an isolated statement by only one of its customers, stating in general terms that the likelihood of its company re-selling the applicant’s CHP-methyl products is low on account of commercial agreements, without any further details, is not such as to demonstrate that those losses of customers will be irremediable and that it will not be possible for the applicant, in respect of CHP-methyl, to regain its previous position in the event that the contested regulation is annulled at the end of the main proceedings.

87 Consequently, the difficulty invoked, as is apparent from the pleadings, in regaining market share lost as a result of the loyalty of customers to the product they use cannot, therefore, in itself, convince the judge hearing the application for interim measures of the irreparable nature of the alleged harm (see, to that effect, order of 21 January 2019, Agrochem-Maks v Commission, T-574/18 R, EU:T:2019:25, paragraph 71 (not published)).

88 Secondly, as regards the impossibility of [confidential] to compensate for the losses incurred, it is important to note, as the Commission rightly pointed out, that nothing prevented the applicant from [confidential] before the adoption of the contested regulation, taking into account, moreover, the hostile regulatory environment for traditional chemicals referred to in paragraph 61 above. In addition, it is difficult to understand in what way the applicant’s inability to [confidential], even if it were to be established, can constitute serious and irreparable harm (order of 8 May 2019, Sumitomo Chemical and Tenka Best v Commission, T-734/18 R, not published, EU:T:2019:314, paragraph 38).

89 Thirdly, as regards the applicant’s assertion that its losses cannot be compensated by means of an action for damages, it must be noted that the applicant does not provide any evidence in support of its allegation that financial compensation alone would not suffice to constitute restitutio in integrum (order of 7 November 2019, AMVAC Netherlands v Commission, T-317/19 R, not published, EU:T:2019:833, paragraph 70).

90 It follows that the applicant has established neither the seriousness nor the irreparability of the alleged damage.

91 It 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 examine the admissibility of that application, to examine whether there is a prima facie case or to undertake a weighing of interests.

92 Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ascenza Agro and Industrias Afrasa v Commission (interim measures - suspension of operation - Plant protection products - Order) [2020] EUECJ T-77/20_CO (08 June 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/T7720_CO.html Cite as: EU:T:2020:246, EU:T:2020:247, [2020] EUECJ T-77/20_CO, ECLI:EU:T:2020:246, ECLI:EU:T:2020:247

Court of Justice of the European Communities (including Court of First Instance Decisions)