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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

8 October 2021 (*)

(Interim relief – Environment – Directive (EU) 2019/904 – Reduction of the impact of certain plastic products on the environment – Implementing Regulation (EU) 2020/2151 – Harmonised marking specifications for beverage cups – Application for suspension of operation of a measure – No urgency)

In Case T‑148/21 R,

Paccor Packaging GmbH, established in Düsseldorf (Germany), represented by P. Kugel and G. Dávid, lawyers,

applicant,

v

European Commission, represented by S. Bourgois and L. Haasbeek, acting as Agents,

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU for suspension of the operation of Commission Implementing Regulation (EU) 2020/2151 of 17 December 2020 laying down rules on harmonised marking specifications on single-use plastic products listed in Part D of the Annex to Directive (EU) 2019/904 of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment (OJ 2020 L 428, p. 57),

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, Paccor Packaging GmbH, is a company established under German law which manufactures and places on the EU market plastic beverage cups.

2        On 17 December 2020, the European Commission adopted, pursuant to Article 7(2) of Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (OJ 2019 L 155, p. 1), Implementing Regulation (EU) 2020/2151 of 17 December 2020 laying down rules on harmonised marking specifications on single-use plastic products listed in Part D of the Annex to Directive 2019/904 (OJ 2020 L 428, p. 57; ‘the contested regulation’).

3        The contested regulation applies from 3 July 2021.

4        Annex IV to the contested regulation lays down the harmonised marking specifications for beverage cups as regards the position, size and design of the marking.

5        By application lodged at the Court Registry on 11 March 2021, registered under reference T‑148/21, the applicant and six other manufacturers of plastic beverage cups brought an action seeking, inter alia, annulment of the contested regulation in its entirety.

6        By a separate document, lodged at the Court Registry on 25 June 2021, the applicant made the present application for interim measures, in which it claims that the President of the General Court should:

–        declare the application admissible and well founded;

–        suspend the operation of the contested regulation and Article 7 of Directive 2019/904 as regards the marking requirements applicable to beverage cups until the decision in Case T‑148/21 is delivered;

–        in the alternative, suspend the operation of the contested regulation and Article 7 of Directive 2019/904 as regards the marking requirements applicable to beverage cups wholly made of plastic until the decision in Case T‑148/21 is delivered;

–        in addition, order the Commission to cease and desist from any communication in connection with the application of the contested regulation and of Directive 2019/904 to beverage cups until the decision in Case T‑148/21 is delivered;

–        in addition, order the Commission to take the necessary measures to ensure that the decision on the present application for interim measures is fully effective in respect of the European Parliament and the Council of the European Union as well as the Member States as regards all communication relating to the application of the contested regulation and Directive 2019/904 to beverage cups, until the decision in Case T‑148/21 is delivered;

–        in addition, order the Commission to publish, within five working days of the date of the decision on the present application for interim measures, a clear and unambiguous official communication on its dedicated websites and its other usual channels of communication, informing the public in general, and consumers in particular, of the full effects of the order made in the present case;

–        order the Commission to pay the costs of the present proceedings incurred by the applicant;

–        grant any other interim measures deemed appropriate.

7        In its observations on the application for interim measures, lodged at the Court Registry on 9 July 2021, the Commission contends that the President of the General Court should:

–        dismiss the application for interim measures as inadmissible and/or unfounded;

–        order the applicant to pay the costs.

 Law

8        It is apparent from a reading of Articles 278 and 279 TFEU, together with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he or she 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 of the General Court. 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 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 order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12 and the case-law cited).

9        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 the interim measure applied for’.

10      The judge hearing an application for interim measures may thus 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, which means that an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures 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).

11      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).

12      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.

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

14      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 Courts. To attain that objective, urgency must, generally, be assessed in the light of the need for an interlocutory order to avoid serious and irreparable harm 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).

15      It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.

16      In the present case, in the first place, the applicant claims that the condition relating to urgency must be relaxed, according to the case-law, if it is excessively difficult to prove serious and irreparable harm and, a fortiori, if that legal standard is irreconcilable with the right to effective interim judicial protection under Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). That relaxation, it submits, is justified in the present case in order to ensure effective judicial protection in the sui generis EU legal order based on the rule of law and to provide a legal remedy ensuring provisional protection against an arbitrary legislative process.

17      Indeed, according to the applicant, that relaxation is justified by the following factors:

–        the existence of a particularly serious prima facie case;

–        the need to ensure effective provisional judicial protection, having regard to the risks to the unity of EU law and the resources necessary for an individual applicant to bring a series of pan-European judicial proceedings in order to apply for interim measures before the national courts of the Member States;

–        the incompatibility of the contested regulation with the objective of environmental protection laid down in Article 3 TEU and Article 191 TFEU in that it has a serious impact on the recyclable nature of beverage cups;

–        the confusion which the regulation causes for consumers, since it provides them with incorrect information and is detrimental to the good name and reputation of producers and suppliers of beverage cups.

18      In the second place, the applicant claims, first, that it has suffered serious and irreparable financial harm as a result of the global crisis due to COVID-19 and that that fact alone justifies the grant of the interim measures sought. [confidential].

19      Next, none of the different methods set out in the contested regulation for affixing the markings to beverage cups, namely the use of stickers until 4 July 2022 as well as printing, engraving and embossing, offers a satisfactory solution for continuing to sell beverage cups in the same volumes as before, even at a higher price. As a result, those methods would cause the applicant serious and irreparable technical, financial and practical harm. [confidential]. Furthermore, given the magnitude of the expected harm, which is difficult to quantify exactly, it is very questionable whether the losses could be recovered by means of an action for damages in the event of annulment by the Court of the marking requirements at issue in the main proceedings. Accordingly, not granting interim measures would in fact cause irreversible market situations and losses, which, according to the applicant, constitutes irreparable harm within the meaning of the case-law of the Court.

20      Lastly, the applicant submits that the serious and irreparable nature of the harm caused is also demonstrated by the fact that the future of the single-use plastic beverage cups industry is extremely uncertain and that the financial consequences of the markings at issue must be assessed taking into consideration those uncertainties.

21      The Commission contests the applicant’s arguments.

22      In the first place, as regards the applicant’s argument that a particularly strong prima facie case has been established and that the application of the criterion of serious and irreparable harm must therefore be regarded as irreconcilable with Article 47 of the Charter, it must be borne in mind that the relative strength of a prima facie case is not without relevance for the assessment of urgency (order of 31 January 2011, Commission v Éditions Odile Jacob, C‑404/10 P-R, not published, EU:C:2011:37, paragraph 27). However, the fact remains that, in accordance with Article 156(4) of the Rules of Procedure, the conditions relating to a prima facie case and to urgency are distinct and cumulative, with the result that the applicant still needs to prove the imminence of serious and irreparable harm.

23      According to settled case-law, a possible breach of a rule of law by a measure cannot in principle be sufficient to establish, in itself, the seriousness and irreparable nature of any harm caused by that breach. Consequently, it is not sufficient for the applicant to claim that there has been a manifest infringement of rules of law in order to establish that the conditions of urgency, namely the serious and irreparable nature of the harm which might result from that infringement, are satisfied, since that applicant is required to prove the facts that form the basis of its claim that such harm is likely (see, to that effect, order of 30 September 2011, Gollnisch v Parliament, T‑346/11 R, not published, EU:T:2011:553, paragraph 18 and the case-law cited).

24      In that context, it is for the applicant to demonstrate the imminence of serious harm which is difficult to repair or irreparable, and the mere fact that there is a prima facie case, even a particularly strong one, cannot compensate for a complete failure to demonstrate urgency, other than in very specific circumstances (see, to that effect, order of 2 May 2007, IPK International – World Tourism Marketing Consultants v Commission, T‑297/05 R, not published, EU:T:2007:118, paragraph 52 and the case-law cited).

25      It follows that the applicant’s argument cannot succeed.

26      The same is true of the applicant’s argument that, in order to ensure effective provisional judicial protection, having regard to the risks to the unity of EU law and the resources necessary to apply for interim relief before the national courts of the Member States, the Court should accept the relaxation of the condition relating to urgency. According to Article 156 of the Rules of Procedure, interim measures under Articles 278 and 279 TFEU are linked to the main proceedings, which consist, in the present case, of an application for annulment of the contested act, and do not therefore concern any national proceedings. In addition, it is unclear what national proceedings might be involved, since the applicants consider, in their application in the main proceedings, that their action is admissible on the ground that the contested act does not involve any implementing measures.

27      In any event, it should be borne in mind that national courts have the power, under certain conditions, to grant interim relief to settle or regulate the disputed legal positions or relationships with reference to a national administrative measure based on an EU regulation which is the subject of a reference for a preliminary ruling on its validity (see, to that effect, judgment of 9 November 1995, Atlanta Fruchthandelsgesellschaft and Others (I), C‑465/93, EU:C:1995:369, paragraphs 30 and 51).

28      In addition, it is necessary to reject the applicant’s arguments that the contested regulation is incompatible with the objective of protection of the environment and is a source of confusion for consumers, in so far as the harm alleged does not concern the applicant personally.

29      According to settled case-law, an applicant may not, in order to establish urgency, invoke infringement of the rights of third parties or of the general interest (see order of 26 September 2017, António Conde & Companhia v Commission, T‑443/17 R, not published, EU:T:2017:671, paragraph 35 and the case-law cited).

30      Protection of the environment and of consumers are, however, matters of general interest which do not specifically concern the applicant.

31      In the second place, as regards the serious and irreparable nature of the financial harm alleged, first, it must be recalled that harm of a pecuniary nature cannot, other than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that prevailed before he or she suffered the harm (see order of 11 September 2020, Datax v REA, T‑381/20 R, not published, EU:T:2020:414, paragraph 37 and the case-law cited). Any such harm could be remedied by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).

32      However, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the party seeking them would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light of, inter alia, the size and turnover of its undertaking and, as the case may be, the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited).

33      In addition, 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 ‘serious’, or even that the seriousness of such harm could be considered obvious, even in the absence of information concerning the size of the undertaking concerned (order of 7 March 2013, EDF v Commission, C‑551/12 P(R), EU:C:2013:157, paragraph 33).

34      In the present case, the applicant does not claim that its existence is threatened. [confidential].

35      That finding is supported by the fact that, as is apparent from the applicant’s written pleadings, its total sales are much higher than its sales of beverage cups alone. [confidential].

36      As regards the alleged loss of market share, it must be noted that, even if that harm were sufficiently probable and serious, the applicant has not adduced evidence of its irreparable nature. In particular, the applicant has not demonstrated that, in the event that the contested regulation were annulled, the presence of obstacles of a structural or legal nature would prevent it from regaining its market share (see, to that effect, order of 4 April 2006, Vischim v Commission, T‑420/05 R, not published, EU:T:2006:102, paragraph 76).

37      Second, as regards the alleged harm resulting from the global COVID-19 crisis, it must be pointed out, in that regard, that, in assessing the seriousness of the harm, the judge hearing the application for interim measures cannot confine himself or herself to having recourse, in a mechanical and rigid manner, solely to the relevant turnover, but must also examine the circumstances of each particular case and relate them, when taking his or her decision, to the harm occasioned in terms of turnover (order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 69).

38      Thus, it is well known that the world economy has suffered significantly as a result of COVID-19 and that certain sectors have been severely affected. [confidential].

39      However, even if the alleged harm were sufficiently serious, it is apparent from the case-law of the Court of Justice that, when suspension of the operation of a measure is sought, the grant of the interim measure requested is justified only where the measure at issue constitutes the decisive cause of the alleged serious and irreparable harm (order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 44).

40      It follows, as the Commission pointed out in its written observations, that the granting of interim measures cannot be based solely on financial harm suffered as a result of circumstances entirely unrelated to the subject matter of the present case, such as the COVID-19 pandemic.

41      Third, as regards the uncertainties in the beverage cup sector, it must be stated that, in the light of the case-law cited in paragraph 39 above, those uncertainties are also not linked to the subject matter of the present case but stem from the provisions of Directive 2019/904, as the applicant acknowledges in its written pleadings.

42      Consequently, like the alleged losses associated with the COVID-19 pandemic, the financial losses associated with those uncertainties cannot form part of the serious and irreparable harm allegedly suffered by the applicant, relied on in support of its application for interim measures.

43      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 the application, to rule on whether there is a prima facie case or to weigh up the interests.

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

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 8 October 2021.

*      Language of the case: English.

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