FMC v Commission (Actions for annulment - Plant protection products - Order) [2018] EUECJ T-719/17

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(Actions for annulment — Plant protection products — Implementing Regulation (EU) 2017/1496 — Non-renewal of approval of the active substance DPX KE 459 (flupyrsulfuron-methyl) — Substitution of a party in the proceedings)

DuPont de Nemours (Deutschland) GmbH, established in Neu-Isenburg (Germany), and the other applicants whose names are listed in the annex (1), represented by D. Waelbroeck, I. Antypas and A. Accarain, lawyers,

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

APPLICATION based on Article 263 TFEU, seeking annulment 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),

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,

1 On 25 March 2011, DuPont de Nemours (Deutschland) GmbH, the German subsidiary of the DuPont de Nemours group, in accordance with Article 14 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), applied for the renewal of the approval of the active substance DPX KE 459 (flupyrsulfuron-methyl; ‘FPS’).

2 FPS is a selective broad spectrum herbicide, registered for use on various cereal crops. FPS, a graminicide, can be used as a ‘pre-emergent’ and a ‘post-emergent’ herbicide.

3 FMC Corporation is a company incorporated under United States law which acquired the ‘Herbicide and insecticide’ division from Dow-DuPont, the latter having had to divest itself of it in order to comply with Commission Decision C(2017) 1946 final of 27 March 2017 declaring a concentration between The Dow Chemical Company and E.I. du Pont de Nemours and Company to be compatible with the internal market and the EEA Agreement (Case COMP/M.7932 — Dow/DuPont).

4 On 31 March 2017, E.I. du Pont de Nemours and Company, the parent company of the DuPont de Nemours group, and FMC entered into a divestment agreement in relation to the transfer of the activities of the DuPont de Nemours group in relation to certain herbicides, which included FPS (‘the divestment agreement’). The divestment agreement provided that FMC was acquiring all of the DuPont de Nemours group’s rights, titles and interests in and to all the assets and properties related to the ‘FPS’ business, including all marketing authorisations. The agreement was concluded subject to the condition precedent that all the authorisations necessary for the transaction would be obtained from the competent competition authorities. The closing of the transaction was expected on 1 November 2017.

5 On 23 August 2017, the Commission adopted Implementing Regulation (EU) 2017/1496 concerning the non-renewal of approval of FPS, in accordance with Regulation No 1107/2009, and amending Commission Implementing Regulation (EU) No 540/2011 (OJ 2017 L 218, p. 7; ‘the contested regulation’). By virtue of the contested regulation, the approval of FPS was not renewed.

6 On 23 October 2017, DuPont de Nemours (Deutschland) GmbH and 11 other companies from the DuPont de Nemours group (‘the DuPont applicants’) filed an action for annulment in respect of the contested regulation.

8 By separate document lodged at the Court Registry on 14 March 2018, FMC requested to be substituted for the DuPont applicants as applicant in the present case.

9 By documents lodged at the Court Registry on 1 June 2018 and 6 April 2018, respectively, the Commission and the DuPont applicants indicated, in essence, that they had no objections to the authorisation of FMC’s substitution for the DuPont applicants.

10 It should be noted, first of all, that neither the Statute of the Court of Justice of the European Union nor the Rules of Procedure of the General Court contains provisions explicitly governing the substitution of one party for another, with the exception of intellectual property cases.

11 However, according to settled case-law, an action for annulment brought by a legal person may be continued by the universal successor in title of that addressee, in particular in the case where a legal person ceases to exist and all its rights and obligations are transferred to another person. It must also be borne in mind that, in such circumstances, the universal successor in title is necessarily substituted automatically for its predecessor as addressee of the contested measure (see judgment of 7 March 2013, Acino v Commission, T‑539/10, not published, EU:T:2013:110, paragraph 21 and the case-law cited).

12 In the case at hand, as all the rights, titles and interests of the DuPont de Nemours group in and to all the assets and properties related to the ‘FPS’ business, including all marketing authorisations, were transferred to FMC, as is indicated in the divestment agreement, that transfer may be assimilated, for the purposes of the present proceedings, with a universal transfer (see, by analogy, judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraph 60).

13 It is true that, in certain judgments delivered in the area of competition law, the fact that the former entity continued to exist precluded the new entity from being able to continue the legal proceedings of the former entity (see, to that effect, judgments of 8 July 2004, JFE Engineering v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 48, and of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396 paragraph 73). However, that solution was justified by circumstances specific to the cases that gave rise to those judgments. Thus, in those cases, the former entity was the addressee of the contested decision, which had brought the action in that capacity, and that decision imposed a fine on the former entity. In the present case, first, the DuPont applicants did not bring the action as addressees of the contested regulation, which is an act of general application which does not specify addressees, but as holders of all the assets and properties related to the ‘FPS’ business, and, second, the contested act does not impose a fine (see, by analogy, judgment of 31 May 2018, Groningen Seaports and Others v Commission, T‑160/16, not published, EU:T:2018:317, paragraph 61).

14 In addition, as has been stated in paragraph 9 above, the DuPont applicants, former holders of all the assets and properties related to the ‘FPS’ business, have declared their agreement with the substitution and the Commission has not raised any objections.

15 In those circumstances, FMC must be authorised to substitute itself for the DuPont applicants as applicant in the present case. FMC therefore remains the only applicant in the present proceedings.

1. FMC Corporation is authorised to substitute itself for DuPont de Nemours (Deutschland) GmbH, E.I. du Pont de Nemours and Company, DuPont International Operations Sàrl, Du Pont de Nemours (France) SAS, Du Pont de Nemours (Belgium), DuPont Solutions (France) SAS, DuPont CZ s.r.o., DuPont Danmark ApS, Du Pont (UK) Ltd, Du Pont de Nemours (Nederland) BV, DuPont Sverige AB and DuPont Poland sp. z o.o. as applicant.

1 The list of the other applicants is annexed only to the version sent to the parties.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> FMC v Commission (Actions for annulment - Plant protection products - Order) [2018] EUECJ T-719/17_CO (30 November 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T71917_CO.html Cite as: EU:T:2018:893, [2018] EUECJ T-719/17_CO, ECLI:EU:T:2018:893

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