Orders nº T-317/19 of Tribunal General de la Unión Europea, November 07, 2019

• Resolution Date: November 07, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-317/19

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

In Case T-317/19 R,

AMVAC Netherlands BV, established in Amsterdam (Netherlands), represented by C. Mereu, M. Grunchard and S. Englebert, lawyers,

applicant,

v

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

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU seeking suspension of the operation of Commission Implementing Regulation (EU) 2019/344 of 28 February 2019 concerning the non-renewal of approval of the active substance ethoprophos, 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 2019 L 62, p. 7),

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, AMVAC Netherlands BV (‘AMVAC’), is a company established under Dutch law belonging to the American Vanguard Corporation, a U.S. holding company and producer of chemical products. AMVAC was established in 2012 as a marketing, distribution and registration subsidiary of the AMVAC Chemical Corporation, a subsidiary of the American Vanguard Corporation that manufactures, formulates and distributes substances for the protection of crops, turf, ornamental plants, and human and animal health. As such, the applicant markets, inter alia, the active substance ethoprophos.

2 In 2010, the American Vanguard Corporation invested in the acquisition of two product lines from Bayer CropScience AG, one of which was an ethoprophos-based product line marketed as MOCAP®, a broad-spectrum soil nematicide and insecticide registered to counteract damage to flora caused by nematode worms and other soil insects.

3 In accordance with the procedure for listing the active substances of plant protection products established by 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), ethoprophos was added to Annex I to Directive 91/414 by Commission Directive 2007/52/EC of 16 August 2007 amending Directive 91/414/EEC to include ethoprophos, pirimiphos-methyl and fipronil as active substances (OJ 2007 L 214, p. 3).

4 Active substances included in Annex I to Directive 91/414 are deemed to have been approved under 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) and are listed in Part A of the Annex 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).

5 The approval of ethoprophos is subject to the standard regulatory renewal of approval procedure under Article 14 et seq. of Regulation No 1107/2009.

6 An application for the renewal of the approval of ethoprophos was submitted 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).

7 On 28 February 2019, the Commission adopted Implementing Regulation (EU) 2019/344 concerning the non-renewal of approval of the active substance ethoprophos, 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 2019 L 67, p. 7; ‘the contested regulation’).

8 The Commission concluded that it had not been established with respect to one or more representative uses of at least one plant protection product containing ethoprophos that the approval criteria provided for in Article 4 of Regulation No 1107/2009 were satisfied. It was therefore appropriate not to renew the approval of the active substance ethoprophos, in accordance with Article 20(1)(b) of that regulation.

9 The contested regulation thus establishes that approval of the active substance ethoprophos is not to be renewed.

10 In accordance with Article 3 thereof, the contested regulation requires Member States to withdraw authorisations for plant protection products containing ethoprophos as an active substance by 21 September 2019 at the latest. Article 4 provides for a possible ‘grace period’ that will expire by 21 March 2020 at the latest.

11 By application lodged at the Registry of the General Court on 24 May 2019, the applicant seeks the annulment of the contested regulation.

12 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 Article 157(2) of the Rules of Procedure of the General Court until the Court has given judgment in the main proceedings;

- grant any other interim measures as appropriate and hold an oral hearing if necessary;

- order the Commission to pay the costs.

13 In its observations on the application for interim measures, which were lodged at the Court Registry on 11 June 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

14 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 the 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 brought before the Court do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only in exceptional circumstances 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).

15 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...