22 June 2018 (*1)

(Application for interim measures — Plant protection products — Implementing Regulation (EU) 2017/1496 — Non-renewal of approval of the active substance DPX KE 459 (flupyrsulfuron-methyl) — Application for suspension of operation — Lack of urgency — Balancing of interests)

In Case T‑719/17 R,

applicant,

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) 2017/1496 of 23 August 2017 concerning the non-renewal of approval of the active substance DPX KE 459 (flupyrsulfuron-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 Commission Implementing Regulation (EU) No 540/2011 (OJ 2017 L 218, p. 7),

makes the following

Order (*1)

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Law

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In addition, according to well-established case-law, there is urgency only if the serious and irreparable damage feared by the party seeking 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 damage is likely, it being clear that purely hypothetical damage, based on future and uncertain events, cannot justify the granting of interim measures (see order of 23 March 2017, Gollnisch v Parliament, T‑624/16, not published, EU:T:2017:243, paragraph 25 and the case-law cited).

Moreover, according to the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.

Thus, 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 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P-R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).

It is also settled case-law that, in order to determine whether all the conditions referred to in paragraphs 25, 26 and 28 above are fulfilled, the judge hearing the application for interim measures must have concrete and precise indications, 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 damage, must produce, with supporting documentation, an accurate overall picture of its financial situation (see, to that effect, order of 29 February 2016, ICA Laboratories and Others v Commission, T‑732/15 R, not published, EU:T:2016:129, paragraph 39 and the case-law cited).

While the application for interim measures may be supplemented on specific points by references to documents annexed to it, those documents cannot compensate for the lack of essential information in that application. It is not for the judge hearing the application for interim measures to seek, in the stead of the party concerned, those matters contained in the annexes or in the main application which could support the application for interim measures. For such an obligation to be imposed on the judge hearing the application for interim measures would, moreover, render ineffective Article 156(5) of the Rules of Procedure, which requires the application for interim measures to be made by a separate document (see, to that effect, order of 20 June 2014, Wilders v Parliament and Others, T‑410/14 R, not published, EU:T:2014:564, paragraph 16 and the case-law cited).

It is in the light of those criteria that it should be examined whether the applicant has managed to show the existence of serious and irreparable damage.

The applicant claims that immediately implementing the contested regulation risks causing serious and irreparable damage due to the loss of its market share in the European cereal herbicides market.

In that regard, it appears to consider itself at risk of damage from, on the one hand, loss of its current market share in the European cereal herbicides market and, on the other hand, loss of the market share it would hold once the FPS business was acquired.

Seriousness of the alleged damage caused by the loss of market share

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In the fourth and last place, it should be pointed out that it is apparent from the case-law 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).

However, that case-law must be assessed having regard to the field in which the applicant operates. It is settled case-law that, in the context of a highly regulated market — such as that in the case at hand, as the applicant acknowledges — 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, if they are not to bear themselves the loss resulting from such intervention, 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).

EU:C:2016:462

In the case at hand, at 6 November 2014 at the earliest, during the delivery of EFSA’s conclusion proposing that FPS be classified in the category of suspected carcinogenic and reproductive toxicants (C2 and R2) (see paragraph 5 above), or, at the latest, 18 March 2015, when the Commission published its draft review report proposing that that substance’s approval not be renewed (see paragraph 6 above), DuPont had information on the basis of which it was within its diligence to take the appropriate measures, in accordance with the case-law cited in paragraph 60 above, in order to meet any regulatory risks faced in relation to the prohibition on marketing FPS. Those regulatory risks are, moreover, confirmed in the publication, first, by EFSA of the revised version of its conclusion on 3 October 2016 and, second, by the Commission of the revised version of its draft review report on 22 December 2016 (see paragraph 7 above).

Furthermore, all of those considerations are all the more relevant in the specific circumstances attached to the present case in so far as it is evident that all of that information had to be thoroughly scrutinised by the applicant in its transaction to acquire DuPont’s FPS business.

In any event, the applicant does not put forward any specific matters in that regard. It is not for the judge hearing the application for interim measures to seek, in the stead of the party concerned, those matters, in accordance with the case-law mentioned in paragraphs 26 to 30 above.

Consequently, in view of the specific circumstances of the present application for interim measures, it cannot be concluded that the alleged loss of market share in the European cereal herbicides market can be categorised as ‘financial harm which is objectively significant’ within the meaning of the case-law cited in paragraph 59 above.

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On those grounds,

hereby orders:

The application for interim measures is dismissed.

The costs are reserved.

Luxembourg, 22 June 2018.

Registrar

(1) Language of the case: English.

(1) Only the paragraphs of the present Order which the Court considers it appropriate to publish are reproduced here.