EU General Court Extends Interim Relief for UPLs Napropamide

On 15 January 2010, the President of the General Court granted an application lodged by Field Fisher Waterhouse on behalf of United Phosphorus Ltd. (UPL) for the extension of the suspension of the Commissions decision of 7 November 2008 not to include napropamide in Annex I to Directive 91/414 concerning plant protection products, until the conclusion of the assessment of new data on napropamide under the so-called "re-submission" procedure.

Summary of the case so far
UPL was the sole notifier of napropamide under the review process established by Directive 91/414. The Rapporteur Member State (RMS), Denmark, had recommended the inclusion of napropamide in Annex I, but that recommendation was not followed by the European Food Safety Authority (EFSA) and the Commission. Field Fisher Waterhouse filed an action for the annulment of the decision on the grounds that it was based on a series of manifest errors of appraisal of scientific facts and was not adopted in accordance with the rights and principles guaranteed by the EU legal order. Field Fisher Waterhouse also filed an application for the suspension of the decision, pending the outcome of the judgment in the main case.

On 29 April 2009, the President of the Court ordered the suspension of the decision, agreeing that suspension was urgently required to prevent UPL suffering serious and irreparable harm pending the outcome of the main case. The President appreciated, amongst others, the fact that the market capitalisation of the UPL group of companies had decreased significantly as a result of the financial crisis and that UPLs factory in India, its sole supply source, was in danger of closing down, therefore making a return to the market unlikely, if the non-inclusion decision is finally annulled. A further factor was that napropamide had been resubmitted for assessment under Regulation 33/2008. The President held, in this respect, that "it would be unreasonable to allow the prohibition of the marketing of a product in respect of which it is not improbable that its marketing will be authorised only a few months later".

Given that the timetable for the re-submission procedure was uncertain, the President granted suspension until 7 May 2010 (end of the sell out period of grace) and invited the parties to submit an update to the Court by 15 March 2010 on the re-submission progress.

Since it was clear that the re-submission procedure would not be completed until after the 7 May 2010, the date when the suspension of the decision was due to expire, on 15 December 2009, Field Fisher Waterhouse applied to the Court for the extension of the suspension of the decision until 30 November 2010. The Commission challenged that application, arguing that the harm UPL had suffered was no longer "serious", and in any event, according to the Commission, the it was not certain that the re-submission would be successful. The President of the General Court rejected the Commissions arguments and extended the period of suspension until 30 November 2010, as requested by UPL. This means that UPL will be able to continue selling its napropamide-based products for the 2010 season pending the re-submission process.

Comment
This interim relief ruling follows an earlier positive ruling in the same case and is a particularly welcome development for the plant protection products industry. It demonstrates, first, a better understanding and balancing of all the interests at stake by the judiciary, and second, a certain flexibility to take into account fluid, regulatory situations such as the delays in the re-submission procedure and decide accordingly.  Furthermore, it confirms the increased role of the judiciary to review the validity of decisions taken by the Commission under Directive 91/414.