Orders nº T-740/18 of Tribunal General de la Unión Europea, September 26, 2019

• Resolution Date: September 26, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-740/18

(Application for interim measures - Plant protection products - Regulation (EC) No 1107/2009 - Active substance thiram - Conditions of approval for placing on the market - Application for suspension of operation - Lack of urgency)

In Case T-740/18 R,

Taminco BVBA, established in Ghent (Belgium), represented by C. Mereu and S. Englebert, lawyers,

applicant,

v

European Commission, represented by G. Koleva, A. Lewis and I. Naglis, acting as Agents,

defendant,

APPLICATION based on Articles 278 and 279 TFEU, seeking suspension of the operation of Commission Implementing Regulation (EU) 2018/1500 of 9 October 2018 concerning the non-renewal of approval of the active substance thiram, and prohibiting the use and sale of seeds treated with plant protection products containing thiram, 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 Commission Implementing Regulation (EU) No 540/2011 (OJ 2018 L 254, p. 1),

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Background to the dispute, procedure and forms of order sought by the parties

1 The applicant, Taminco BVBA, is a company established under Belgian law belonging to the Eastman group of companies. Taminco is, together with Arysta LifeScience Great Britain Ltd, the main proprietor of a set of toxicological data. In addition, the applicant is the holder of registrations for foliar treatments and seed treatments used to protect crops. As such, the applicant manufactures, inter alia, the active substance thiram.

2 Pursuant to Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation (EC) No 1107/2009 of the European Parliament and of the Council as regards the list of approved active substances (OJ 2011 L 153, p. 1), thiram was listed in 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). The approval of thiram is subject to the standard regulatory renewal of approval process under Article 14 et seq. 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/EEC (OJ 2009 L 309, p. 1).

3 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), the renewal of approval was subject to an initial evaluation by the rapporteur Member State, the French Republic, and the co-rapporteur Member State, the Kingdom of Belgium, which concluded that there was to be no change in the classification of thiram and proposed that it be renewed for use as seed treatment.

4 The European Food Safety Authority (EFSA) received the result of the initial evaluation on 20 January 2016 and sent it to the Members States and the Thiram Task Force for comments on 15 March 2016.

5 On 1 February 2017, EFSA sent the applicant four documents (its overall conclusion report, the list of endpoints, the peer review report and the renewal assessment report) which contained, inter alia, the conclusion of the discussion of its experts on the potential carcinogenicity of thiram.

6 On 15 February 2017, the applicant sent EFSA redacted versions of the four documents in accordance with Article 63 of Regulation No 1107/2009.

7 By email of 16 February 2017, EFSA rejected the requests referred to as regards the publication of the conclusion and of the list of endpoints for thiram on the ground that it was its standard procedure to make publicly available the results of a peer review process. In addition, it specified that the conclusion clearly reports why the classification had been proposed and on what basis. On 20 July 2017, after several exchanges between the parties concerning the publication of that conclusion, EFSA notified the applicant of its decision of 18 July 2017 to publish a provisional redacted version of its conclusion on its website before publishing it in its entirety, including the reference to thiram’s classification as a carcinogen, on the expiry of the period for bringing an action before the General Court, namely, on 20 September 2017.

8 On 14 September 2017, the applicant lodged an action for annulment against EFSA’s decision and an application for interim measures, the latter of which was dismissed (order of 12 October 2018, Taminco v EFSA, T-621/17 R, EU:T:2018:763).

9 The EFSA conclusion was reviewed by the Commission within the Standing Committee on Pesticides, Animals, Food and Feed and a Review Report stating that the approval of the substance thiram should not be renewed was presented. This review was confirmed by the Appeal Committee on 12 July 2018.

10 On 9 October 2018, the Commission adopted Implementing Regulation (EU) 2018/1500 of 9 October 2018 concerning the non-renewal of approval of the active substance thiram, and prohibiting the use and sale of seeds treated with plant protection products containing thiram, 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 Commission Implementing Regulation (EU) No 540/2011 (OJ 2018 L 254, p. 1; ‘the contested regulation’).

11 The contested regulation establishes the non-renewal of the approval of the active substance thiram and prohibits the use and sale of seeds treated with plant protection products containing thiram.

12 In accordance with Article 4 thereof, the contested regulation requires Member States to withdraw authorisations for plant protection products containing thiram as active substance by 30 January 2019 at the latest. Article 5 provides for a ‘grace period’ that was to expire by 30 April 2019 for plant protection products used for foliar application and is to expire on 30 January 2020 for other plant protection products, including those used for seed treatment, at the latest.

13 By application lodged at the Registry of the General Court on 19 December 2018, the applicant seeks the annulment of the contested regulation.

14 By separate document lodged at the Court Registry on the same day, the applicant lodged an application for interim measures, in which it claims, in essence, that the President of the General Court should:

- suspend with immediate effect the contested regulation in accordance with Articles 156 and/or 157(2) of the Rules of Procedure of the General Court until the Court has given judgment in the main proceedings;

- suspend the expiry date for the approval of thiram as set out in Articles 4 and 5 of the contested regulation;

- order any other interim measures as appropriate and hold an oral hearing as needed;

- order the Commission to pay the costs.

15 In its observations on the application for interim measures, which were lodged at the Court Registry on 14 January 2019, the Commission contends that the President of the General Court should:

- dismiss the application for interim measures;

- reserve the costs until judgment in the main proceedings.

Law

General considerations

16 It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of an act contested 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 institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T-476/17 R, EU:T:2018:407, paragraph 17 and the case-law cited).

17 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must ‘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 interim measure applied for’.

18 Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or 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 damage 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, so that an application for interim measures must be dismissed if either of them is absent. Where appropriate, the judge hearing such an application must also weigh the competing interests (see, to that effect, 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).

19 In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific 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, to that effect, 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).

20 Having regard to the...