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Corte di giustizia UEsentenza

Corte di giustizia UE n. 944/2016

ECLI:EU:C:2016:597
Testo integrale del provvedimento

Testo integrale del provvedimento

62015CO0691_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA] C‑691/15 P-R,

APPLICATION for suspension of operation and interim measures under Articles 278 TFEU and 279 TFEU, brought on 24 March 2016, [OSCURATO:PERSONA], represented by P. J. Loewenthal and K. Talabér-Ritz, acting as [OSCURATO:PERSONA], with an address for service in Luxembourg, appellant, the other parties to the proceedings being: Bilbaína de Alquitranes SA, established in Luchana-Baracaldo (Spain), Deza a.s., established in Valašské Meziříčí ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] del [OSCURATO:PERSONA] SA, established in Oviedo (Spain), [OSCURATO:PERSONA] A/S, established in Nyborg ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] UK Ltd, established in Scunthorpe ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] BV, established in Uithoorn ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] basic aromatics GmbH, established in Castrop-Rauxel (Germany), [OSCURATO:PERSONA] NV, established in Zelzate ([OSCURATO:PERSONA]), [OSCURATO:PERSONA]. z o.o., established in Kędzierzyn-Koźle ([OSCURATO:PERSONA]), [OSCURATO:PERSONA], established in Doncaster ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] SA, established in Madrid (Spain), SGL [OSCURATO:PERSONA] GmbH, established in Meitingen (Germany), SGL [OSCURATO:PERSONA] GmbH, established in [OSCURATO:PERSONA] am Hallstättersee (Austria), SGL [OSCURATO:PERSONA], established in Passy (France), SGL [OSCURATO:PERSONA], SA, established in [OSCURATO:PERSONA] (Spain), SGL [OSCURATO:PERSONA] S.A., established in Racibórz ([OSCURATO:PERSONA]), ThyssenKrupp [OSCURATO:PERSONA] AG, established in Duisburg (Germany), [OSCURATO:PERSONA] erftcarbon GmbH, established in Grevenbroich (Germany), represented by K. [OSCURATO:PERSONA], C. Mereu and M. Grunchard, avocats, and P. [OSCURATO:PERSONA], [OSCURATO:PERSONA], applicants at first instance and in the present proceedings, [OSCURATO:PERSONA] (ECHA), represented by M. Heikkilä, W. Broere and C. Jacquet, acting as [OSCURATO:PERSONA], GrafTech Iberica SL, established in Navarre (Spain), represented by K. [OSCURATO:PERSONA], C. Mereu and M. Grunchard, avocats, and P. [OSCURATO:PERSONA], [OSCURATO:PERSONA], interveners at first instance, [OSCURATO:PERSONA] of [OSCURATO:PERSONA], represented by C. Thorning and N [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA], [OSCURATO:PERSONA] of Germany, represented by T. Henze and J. Möllers, acting as [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Bulterman and C. Schillemans, acting as [OSCURATO:PERSONA], interveners in the appeal,

[OSCURATO:PERSONA],

after hearing the [OSCURATO:PERSONA], M. Bobek, makes the following

[OSCURATO:PERSONA]

1. By its appeal, lodged at the [OSCURATO:PERSONA] on 17 December 2015, the [OSCURATO:PERSONA] requested the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 7 October 2015 in Bilbaína de Alquitranes and Others v [OSCURATO:PERSONA] (T‑689/13, not published, ‘the judgment under appeal’, EU:T:2015:767), by which it annulled [OSCURATO:PERSONA] (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, [OSCURATO:PERSONA] (EC) No 1272/2008 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] on classification, labelling and packaging of substances and mixtures (OJ 2013 L 261, p. 5, ‘the regulation at issue’) in so far as it classifies pitch, coal tar, high-temp. (EC No 266-028-2; ‘CTPHT’) as an [OSCURATO:PERSONA] 1 (H400) and [OSCURATO:PERSONA] 1 (H410) substance.

2. That appeal brought against a judgment annulling a regulation has had the effect, in accordance with the second paragraph of Article 60 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], of postponing the date from which the judgment under appeal takes effect until the date of the possible dismissal of that appeal, without prejudice to a party’s right to bring an application before the [OSCURATO:PERSONA] under Articles 278 TFEU and 279 TFEU for the suspension of the effects of the annulled regulation or for any other interim measures.

3. By application lodged at the [OSCURATO:PERSONA] on 24 March 2016, Bilbaína de Alquitranes SA, Deza a.s., [OSCURATO:PERSONA] del [OSCURATO:PERSONA] SA, [OSCURATO:PERSONA] A/S, [OSCURATO:PERSONA] UK Ltd, [OSCURATO:PERSONA] BV, [OSCURATO:PERSONA] basic aromatics GmbH, [OSCURATO:PERSONA] NV, [OSCURATO:PERSONA]. z o.o., [OSCURATO:PERSONA], [OSCURATO:PERSONA] SA, SGL [OSCURATO:PERSONA] GmbH (Germany), SGL [OSCURATO:PERSONA] GmbH (Austria), SGL [OSCURATO:PERSONA] (France), SGL [OSCURATO:PERSONA] SA (Spain), SGL [OSCURATO:PERSONA] S.A., ThyssenKrupp [OSCURATO:PERSONA] AG and [OSCURATO:PERSONA] erftcarbon GmbH (together ‘Bilbaína de Alquitranes and Others’) applied for interim measures under Articles 278 TFEU and 279 TFEU, seeking, in essence, the suspension of the effects of the regulation at issue.

Background to the dispute and the judgment under appeal

4. Bilbaína de Alquitranes, Dezas, [OSCURATO:PERSONA] del [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] UK, [OSCURATO:PERSONA], [OSCURATO:PERSONA] basic aromatics, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] are suppliers of CTPHT in the [OSCURATO:PERSONA]. [OSCURATO:PERSONA], [OSCURATO:PERSONA], SGL [OSCURATO:PERSONA] (Germany), SGL [OSCURATO:PERSONA] (Austria), SGL [OSCURATO:PERSONA] (France), SGL [OSCURATO:PERSONA] (Spain), SGL [OSCURATO:PERSONA], ThyssenKrupp [OSCURATO:PERSONA] and [OSCURATO:PERSONA] erftcarbon are downstream users of CTPHT for the manufacture of aluminium, carbon, graphite, ferro-alloys or steel.

5. CTPHT is the residue from the distillation of high-temperature coal tar, a black solid, composed primarily of a complex mixture of three or more membered condensed ring aromatic hydrocarbons.

CTPHT is used mainly to produce electrode binders for the aluminium and steel industry.

It is also used to produce refractories and clay targets, coating for corrosion protection, kerosene-resistant airfield applications, road construction, roofing and briquetting.

6. [OSCURATO:PERSONA] 2010, pursuant to Article 37 of [OSCURATO:PERSONA] (EC) No 1272/2008 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing [OSCURATO:PERSONA] 67/548/EEC and 1999/45/EC, and amending [OSCURATO:PERSONA] (EC) No 1907/2006 (OJ 2008 L 353, p. 1), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] submitted a dossier to the [OSCURATO:PERSONA] (ECHA) proposing, inter alia, that CTPHT should be classified as an [OSCURATO:PERSONA] 1 (H400) and [OSCURATO:PERSONA] 1 (H410) substance.

7. On 1 October 2010, that dossier was made publicly available on the ECHA website and the parties concerned were invited to submit their observations.

8. After having received those observations, ECHA referred the dossier to its [OSCURATO:PERSONA] (‘RAC’), referred to in Article 76(1)(c) of [OSCURATO:PERSONA] (EC) No 1907/2006 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of [OSCURATO:PERSONA] (REACH), establishing a [OSCURATO:PERSONA], amending [OSCURATO:PERSONA] 1999/45/EC and repealing [OSCURATO:PERSONA] (EEC) No 793/93 and [OSCURATO:PERSONA] (EC) No 1488/94 as well as [OSCURATO:PERSONA] 76/769/EEC and [OSCURATO:PERSONA] 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/2 1/EC (OJ 2006 L 396, p. 1).

9. On 21 November 2011, the RAC adopted its opinion on CTPHT, confirming the proposal submitted by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA].

The RAC thus considered that the classification of CTPHT as a substance having aquatic toxicity could not be based on data obtained in studies using the Water-[OSCURATO:PERSONA] approach, but was to be based on an alternative approach, namely to regard CTPHT as a mixture.

According to that approach, the 16 polycyclic aromatic hydrocarbon (PAH) constituents of CTPHT were analysed separately in accordance with their aquatic toxicity effects.

By applying a method consisting in finding the sum of the results obtained by the attribution of multiplication factors to the different PAHs in order to attach more weight to the highly toxic constituents of CTPHT, that analysis showed, according to the RAC’s opinion, that CTPHT had to be classified as [OSCURATO:PERSONA] 1 (H400) and [OSCURATO:PERSONA] 1 (H410).

10. On 2 October 2013, on the basis of the RAC’s opinion, the [OSCURATO:PERSONA] adopted the regulation at issue.

In accordance with Article 1(2)(a)(i) and 1(2)(b)(i) of that regulation, read together with Annexes II and IV thereto, CTPHT was classified, inter alia, as [OSCURATO:PERSONA] 1 (H400), and [OSCURATO:PERSONA] 1 (H410).

Pursuant to Article 3(3) of that regulation, that classification is to apply from 1 April 2016.

11. Bilbaína de Alquitranes and Others brought an action for the annulment of the regulation at issue, in support of which they put forward three pleas in law, the second of which alleged a manifest error of assessment.

12. In the judgment under appeal, the [OSCURATO:PERSONA] held, in essence, that the [OSCURATO:PERSONA] had committed a manifest error of assessment in that it had failed to comply with its obligation to take into consideration all the relevant factors and circumstances so as to take due account of the proportion in which the 16 PAH constituents are present in CTPHT and their chemical effects.

13. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] upheld the second part of the second plea in law and annulled the regulation at issue in so far as it classifies CTPHT as an [OSCURATO:PERSONA] 1 (H400) and [OSCURATO:PERSONA] 1 (H410) substance. Forms of order sought

14. Bilbaína de Alquitranes and Others claim that the [OSCURATO:PERSONA] of Justice should suspend the effect of the regulation at issue, if necessary even before hearing the other parties to the proceedings, make any such order as it sees fit and order the [OSCURATO:PERSONA] to pay the costs of the present proceedings.

15. [OSCURATO:PERSONA] and ECHA contend that the [OSCURATO:PERSONA] should dismiss that application and order Bilbaína de Alquitranes and Others to pay the costs of the interlocutory proceedings. The application for interim measures

16. It must be pointed out, first of all, that in accordance with the first paragraph of Article 60 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], an appeal against a judgment of the [OSCURATO:PERSONA] does not in principle have suspensory effect.

However, the second paragraph of Article 60 of that statute provides also that, by way of derogation from Article 280 TFEU, decisions of the [OSCURATO:PERSONA] declaring a regulation to be void are to take effect only as from the date of expiry of the time limit for bringing an appeal referred to in the first paragraph of Article 56 of that statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal, without prejudice, however, to the right of a party to apply to the [OSCURATO:PERSONA] of Justice, pursuant to Articles 278 TFEU and 279 TFEU, for the suspension of the effects of the regulation which has been declared void or for the prescription of any other interim measure.

17. In bringing the application for interim measures, Bilbaína de Alquitranes and Others have availed themselves of that right.

18. Principally, Bilbaína de Alquitranes and Others submit that there is, at the stage of the interlocutory proceedings, a major legal disagreement as to the legality of the regulation at issue.

According to the applicants in the interlocutory proceedings, the application of the regulation at issue must be suspended, since that regulation lacks even the appearance of legality, so that they do not even have to prove that, if the suspension requested is not granted, they will suffer serious and irreparable harm.

In addition, they submit that, in view of the manifest illegality of that regulation, the [OSCURATO:PERSONA] hearing the application for interim relief is in a position to determine ‘prima facie’ that the appeal brought by the [OSCURATO:PERSONA] against the judgment under appeal is bound to fail.

19. In that regard, it must be pointed out that Article 160(3) of the Rules of Procedure of the [OSCURATO:PERSONA] provides that the 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’.

Accordingly, the court hearing an application for interim relief may order suspension of operation of an act, or 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, so that applications for interim measures must be dismissed if any one of them is not satisfied.

The court hearing the interim application must also if necessary weigh up the interests at stake (orders of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 8 April 2014 in [OSCURATO:PERSONA] v ANKO , C‑78/14 P-R, EU:C:2014:93, paragraph 14; 14 January 2016 in AGC [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , C‑517/15 P-R, EU:C:2016:21, paragraph 21, and 2 March 2016 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑162/15 P-R, EU:C:2016:142, paragraph 21).

20. Admittedly, the more or less serious nature of a prima facie case is not without relevance for the assessment of urgency (see order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 31 January 2011 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑404/10 P-R, not published, EU:C:2011:37, paragraph 27). [OSCURATO:PERSONA], the urgency that may be pleaded by an applicant must be taken into consideration by the court hearing the application for interim measures all the more if the prima facie case raised by the pleas and arguments relied on appears particularly serious (see, inter alia, order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 23 February 2001 in Austria v [OSCURATO:PERSONA] , C‑445/00 R, EU:C:2001:123, paragraph 110).

21. The fact remains that, in accordance with Article 160(3) of the Rules of Procedure, the conditions relating to a prima facie case and to urgency are distinct and cumulative, so that the party seeking interim measures still needs to prove the imminence of serious and irreparable harm (order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P-R, EU:C:2014:1749, paragraph 41 and the case-law cited)

22. In that regard, the line of argument of Bilbaína de Alquitranes and Others is ambiguous.

23. First, the applicants in the interlocutory proceedings seem to consider that the illegality of the regulation at issue found by the [OSCURATO:PERSONA] in the judgment under appeal should be sufficient to justify granting the interim measures requested, since the arguments raised by the [OSCURATO:PERSONA] in its appeal cannot call in question that illegality.

24. However, it must be borne in mind that, although the appellate court hearing an application for interim measures, to which an application has been made by the successful party at first instance, cannot disregard the fact that the court at first instance has ruled in its favour, nevertheless it must ensure that the conditions for the grant of interim measures are fulfilled in the case of an application for such measures.

The fact that that application has been brought by the successful party at first instance, in the context of appeal proceedings brought by the other party against a judgment of the [OSCURATO:PERSONA] annulling a regulation, is irrelevant in that regard (see, to that effect, order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P R, EU:C:2014:1749, paragraph 21).

25. Since the EU legislature, by the adoption of the second paragraph of Article 60 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], decided to confer suspensive effect on the bringing of an appeal against a judgment of the [OSCURATO:PERSONA] annulling a regulation, it is not appropriate for the court hearing an application for interim measures in the context of an appeal to deprive that article of a part of its effectiveness by systematically relaxing, or even rejecting, the condition of urgency (see, to that effect, order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P R, EU:C:2014:1749, paragraph 39).

26. [OSCURATO:PERSONA], the argument of Bilbaína de Alquitranes and Others, construed in that manner, cannot be accepted.

27. Secondly, Bilbaína de Alquitranes and Others seem also to rely on the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 7 July 1981 in IBM v [OSCURATO:PERSONA] (60/81 R and 190/81 R, EU:C:1981:165), when arguing that when it must be found that the measures under challenge appear — having regard to the nature of the complaints made against them — to lack even the appearance of legality, their operation should be suspended forthwith, without the need to ascertain whether the condition relating to urgency has been met.

28. In that regard, it must be noted that, even if that case-law were applicable in the present case, the complaint raised at first instance against the regulation at issue by Bilbaína de Alquitranes and Others, on the basis of which the [OSCURATO:PERSONA] annulled that regulation in part in the judgment under appeal, was based on a manifest error of assessment by the [OSCURATO:PERSONA].

29. However, it is not apparent from the judgment under appeal that Bilbaína de Alquitranes and Others argued before the [OSCURATO:PERSONA] that such a complaint, if upheld, would have enabled it to be found that the regulation at issue lacked even the appearance of legality.

In addition, Bilbaína de Alquitranes and Others have not adduced any evidence to that effect in their application for interim measures.

Indeed, they simply explained the reasons for which, in their view, the [OSCURATO:PERSONA]’s appeal should be dismissed.

They engaged, therefore, in analysis of the prima facie case, which — in the case of an application for interim measures made, as in the present case, in the context of an appeal which has suspensive effect since it seeks to have set aside a judgment by which the [OSCURATO:PERSONA] annulled a regulation — requires the court hearing the application for interim measures made by the party which was successful at first instance to assess whether the arguments of that party seeking to have the appeal dismissed are not without merit, in that they have a sufficient prospect of success (see, to that effect, order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P R, EU:C:2014:1749, paragraph 24).

30. In such circumstances, Bilbaína de Alquitranes and Others cannot be exempted from the requirement to prove that it is urgent to grant the measures requested in order to avoid their sustaining serious and irreparable damage.

31. However, Bilbaína de Alquitranes and Others have put forward an argument in that regard only as far as [OSCURATO:PERSONA] erftcarbon is concerned.

32. [OSCURATO:PERSONA] must, therefore, dismiss the application for interim measures as regards Bilbaína de Alquitranes, Deza, [OSCURATO:PERSONA] del [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] UK, [OSCURATO:PERSONA], [OSCURATO:PERSONA] basic aromatics, [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], SGL [OSCURATO:PERSONA] (Germany), SGL [OSCURATO:PERSONA] (Austria), SGL [OSCURATO:PERSONA] (France), SGL [OSCURATO:PERSONA] (Spain), SGL [OSCURATO:PERSONA] and ThyssenKrupp [OSCURATO:PERSONA].

33. As regards [OSCURATO:PERSONA] erftcarbon, it must be ascertained whether the evidence relied upon is sufficient to show that the condition relating to urgency is met for that company, even before examining the merits of the arguments relating to a prima facie case.

34. According to Bilbaína de Alquitranes and Others, if the effects of the regulation at issue were not suspended, it would be likely to cause imminent harm to [OSCURATO:PERSONA] erftcarbon, a company which forms part of the Japanese group [OSCURATO:PERSONA].

Ltd and is exclusively involved in the manufacture of graphite electrodes from CTPHT.

35. Since 1 April 2016, the new CTPHT classification has been applicable, the direct consequence of which is, they submit, to require [OSCURATO:PERSONA] erftcarbon to ensure that its operations comply with the requirements of both [OSCURATO:PERSONA] 2012/18/EU of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing [OSCURATO:PERSONA] 96/82/EC (OJ 2012 L 197, p. 1), and [OSCURATO:PERSONA] 2008/68/EC of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 24 [OSCURATO:PERSONA] 2008 on the inland transport of dangerous goods (OJ 2008 L 260, p. 13).

36. Bilbaína de Alquitranes and Others submit that it is apparent from the report of an independent expert questioned by [OSCURATO:PERSONA] erftcarbon that the application of [OSCURATO:PERSONA] 2012/18 would require it to undertake a series of changes to its operations and organisational structure entailing both immediate and recurring financial costs.

In particular, the immediate costs linked to those changes would equate to [confidential] of the 2014 turnover of CTPHT products sold by [OSCURATO:PERSONA] erftcarbon and by the [OSCURATO:PERSONA]. group respectively, and would even outweigh the profits linked to those sales by [OSCURATO:PERSONA] erftcarbon in the last financial year.

Because of those costs, the harm suffered would be serious.

37. While the recurring costs amount to less than [confidential] , they would be definitive.

Bilbaína de Alquitranes and Others submit, relying on the expert’s report, that the nature of the tasks to be undertaken to implement the technical measures necessary for the application of [OSCURATO:PERSONA] 2012/18 is such that those tasks will bring about irreversible changes in [OSCURATO:PERSONA] erftcarbon’s operating systems.

38. In addition, because of the irreversibility of those changes, even if the appeal were to be dismissed, an action for damages could not adequately compensate the harm suffered by [OSCURATO:PERSONA] erftcarbon. [OSCURATO:PERSONA], [OSCURATO:PERSONA] erftcarbon’s fundamental right freely to choose and practice its trade would also be compromised.

39. As regards ensuring that [OSCURATO:PERSONA] erftcarbon’s operations comply with [OSCURATO:PERSONA] 2008/68, this would require that company to change the mode of transport for its products.

A substance that is classified H400/H410, or products containing that substance, should, having regard to the risk they represent, be transported under special safety conditions. [OSCURATO:PERSONA], [OSCURATO:PERSONA] erftcarbon would have to invest in the construction of specially equipped new vessels or change its mode of transport to transport by road.

40. [OSCURATO:PERSONA] and ECHA dispute that line of argument.

41. 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 [OSCURATO:PERSONA].

For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable harm to the party seeking the interim relief (order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 19 December 2013 in [OSCURATO:PERSONA] kai [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑506/13 P-R, EU:C:2013:882, paragraph 18 and the case-law cited).

It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable harm (order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P-R, EU:C:2014:1749, paragraph 37 and the case-law cited).

42. Bilbaína de Alquitranes and Others rely, in essence, on two heads of damage which, it is claimed, [OSCURATO:PERSONA] erftcarbon would suffer if the effects of the regulation at issue were not suspended.

43. As regards, first, the harm relating to the application of [OSCURATO:PERSONA] 2012/18, the [OSCURATO:PERSONA] notes that, in so far as Bilbaína de Alquitranes and Others submit that [OSCURATO:PERSONA] erftcarbon will suffer harm of a financial nature linked to bringing the company’s operations into line with that directive, it must be borne in mind that, according to settled case-law, purely pecuniary damage cannot in principle be regarded as irreparable or even as difficult to repair since it may be the subject of subsequent financial compensation (order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 15 December 2009 in Dow AgroSciences and Others v [OSCURATO:PERSONA] , C‑391/08 P(R), not published, EU:C:2009:785, paragraph 74 and the case-law cited).

It can only be otherwise if it appears that, without the interim measures sought, the applicant would be in a position that could imperil its financial viability before final judgment is given in the main action, or that its market share would be substantially affected in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs.

The existence of such circumstances permits the inference that harm of a financial nature is irreparable (see, in particular, order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 19 December 2013 in [OSCURATO:PERSONA] kai [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑506/13 P-R, EU:C:2013:882, paragraph 20).

44. In the present case, Bilbaína de Alquitranes and Others simply submit that the costs linked to bringing [OSCURATO:PERSONA] erftcarbon’s operations into line are such that they permit the inference that the financial harm suffered by [OSCURATO:PERSONA] erftcarbon is serious.

45. It must, however, be found that they have adduced no evidence to prove that, without the interim measures requested, such financial harm would also be irreparable in that it could imperil [OSCURATO:PERSONA] erftcarbon’s financial viability before final judgment is given in the main action or in that its market share would be substantially affected.

46. Bilbaína de Alquitranes and Others further submit that the changes linked to bringing [OSCURATO:PERSONA] erftcarbon’s operations into line are irreversible. From that observation, they draw a number of conclusions related to the harm sustained.

47. In particular, because of that irreversibility, first of all, the recurring costs occasioned by those changes would continue ad infinitum, so that it would be impossible to quantify the financial harm suffered and that harm would, therefore, be irreparable.

Next, the decision on the substance, even if favourable to Bilbaína de Alquitranes and Others, would lose its effectiveness as regards [OSCURATO:PERSONA] erftcarbon which would already have suffered the irreversible consequences stemming from the incorrect classification of CTPHT.

Lastly, in the light of the changes made to the company’s organisation and operating system, those changes would entail an intolerable and disproportionate infringement of its fundamental right freely to choose and practise its trade.

48. It must be noted, in that regard, that notwithstanding the importance attached by Bilbaína de Alquitranes and Others to their claim that the changes in question are irreversible, they based that claim solely on a passage from the expert report mentioned in paragraph 36 above, according to which ‘the nature of the work to be undertaken to implement the technical measures ... is such that it will bring about irreversible changes in the operating systems of the company [confidential] .

Once in place, it will be practically impossible to undo these changes.

Here again, how dee p these changes will cut in the existing systems in place will only be clear after a complete [OSCURATO:PERSONA] will be performed.’

49. However, as the [OSCURATO:PERSONA] and ECHA correctly note, no reason has been given in that report which could support its conclusion that the changes at issue are irreversible.

In addition, it even seems possible to infer from that passage that the analysis on which that report is based is only provisional, since only a complete analysis is envisaged as being capable of assessing the consequences of the changes in question on [OSCURATO:PERSONA] erftcarbon’s operating systems.

50. Since the premiss that those changes are irreversible has not been proved to the requisite legal standard, the claims based on such a premiss cannot be sufficient to prove that the harm allegedly suffered by [OSCURATO:PERSONA] erftcarbon is irreparable.

51. As regards, secondly, the harm allegedly caused by the change to the mode of transport for CTPHT required under [OSCURATO:PERSONA] 2008/68, it is sufficient to note that Bilbaína de Alquitranes and Others have not adduced any evidence which would make it possible to assess the consequences for [OSCURATO:PERSONA] erftcarbon because of the impossibility of using its own vessels to transport products containing CTPHT.

In particular, they have produced no evidence to prove that [OSCURATO:PERSONA] erftcarbon would in fact be required to invest in the construction of new vessels, without being able, for example, to entrust that transport to a third party, or even to be able to evaluate the financial consequences of the possible obligation to move from transport by inland waterway to land transport until a decision is reached in the main appeal.

52. In those circumstances, Bilbaína de Alquitranes and Others have not shown to the requisite legal standard that the measures sought are urgent.

53. [OSCURATO:PERSONA], there is no need to examine the condition relating to a prima facie case or to weigh up the interests at stake and the application for interim measures must be dismissed. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] hereby orders:

1. The application for interim measures is dismissed.

2. Costs are reserved.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62015CO0691_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑691/15 P-R, APPLICATION for suspension of operation and interim measures under Articles 278 TFEU and 279 TFEU, brought on 24 March 2016, [OSCURATO:PERSONA], represented by P. J. Loewenthal and K. Talabér-Ritz, acting as [OSCURATO:PERSONA], with an address for service in Luxembourg, appellant, the other parties to the proceedings being: Bilbaína de Alquitranes SA, established in Luchana-Baracaldo (Spain), Deza a.s., established in Valašské Meziříčí ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] del [OSCURATO:PERSONA] SA, established in Oviedo (Spain), [OSCURATO:PERSONA] A/S, established in Nyborg ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] UK Ltd, established in Scunthorpe ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] BV, established in Uithoorn ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] basic aromatics GmbH, established in Castrop-Rauxel (Germany), [OSCURATO:PERSONA] NV, established in Zelzate ([OSCURATO:PERSONA]), [OSCURATO:PERSONA]. z o.o., established in Kędzierzyn-Koźle ([OSCURATO:PERSONA]), [OSCURATO:PERSONA], established in Doncaster ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] SA, established in Madrid (Spain), SGL [OSCURATO:PERSONA] GmbH, established in Meitingen (Germany), SGL [OSCURATO:PERSONA] GmbH, established in [OSCURATO:PERSONA] am Hallstättersee (Austria), SGL [OSCURATO:PERSONA], established in Passy (France), SGL [OSCURATO:PERSONA], SA, established in [OSCURATO:PERSONA] (Spain), SGL [OSCURATO:PERSONA] S.A., established in Racibórz ([OSCURATO:PERSONA]), ThyssenKrupp [OSCURATO:PERSONA] AG, established in Duisburg (Germany), [OSCURATO:PERSONA] erftcarbon GmbH, established in Grevenbroich (Germany), represented by K. [OSCURATO:PERSONA], C. Mereu and M. Grunchard, avocats, and P. [OSCURATO:PERSONA], [OSCURATO:PERSONA], applicants at first instance and in the present proceedings, [OSCURATO:PERSONA] (ECHA), represented by M. Heikkilä, W. Broere and C. Jacquet, acting as [OSCURATO:PERSONA], GrafTech Iberica SL, established in Navarre (Spain), represented by K. [OSCURATO:PERSONA], C. Mereu and M. Grunchard, avocats, and P. [OSCURATO:PERSONA], [OSCURATO:PERSONA], interveners at first instance, [OSCURATO:PERSONA] of [OSCURATO:PERSONA], represented by C. Thorning and N [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA], [OSCURATO:PERSONA] of Germany, represented by T. Henze and J. Möllers, acting as [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Bulterman and C. Schillemans, acting as [OSCURATO:PERSONA], interveners in the appeal, [OSCURATO:PERSONA], after hearing the [OSCURATO:PERSONA], M. Bobek, makes the following [OSCURATO:PERSONA] 1. By its appeal, lodged at the [OSCURATO:PERSONA] on 17 December 2015, the [OSCURATO:PERSONA] requested the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 7 October 2015 in Bilbaína de Alquitranes and Others v [OSCURATO:PERSONA] (T‑689/13, not published, ‘the judgment under appeal’, EU:T:2015:767), by which it annulled [OSCURATO:PERSONA] (EU) No 944/2013 of 2 October 2013 amending, for the purposes of its adaptation to technical and scientific progress, [OSCURATO:PERSONA] (EC) No 1272/2008 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] on classification, labelling and packaging of substances and mixtures (OJ 2013 L 261, p. 5, ‘the regulation at issue’) in so far as it classifies pitch, coal tar, high-temp. (EC No 266-028-2; ‘CTPHT’) as an [OSCURATO:PERSONA] 1 (H400) and [OSCURATO:PERSONA] 1 (H410) substance. 2. That appeal brought against a judgment annulling a regulation has had the effect, in accordance with the second paragraph of Article 60 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], of postponing the date from which the judgment under appeal takes effect until the date of the possible dismissal of that appeal, without prejudice to a party’s right to bring an application before the [OSCURATO:PERSONA] under Articles 278 TFEU and 279 TFEU for the suspension of the effects of the annulled regulation or for any other interim measures. 3. By application lodged at the [OSCURATO:PERSONA] on 24 March 2016, Bilbaína de Alquitranes SA, Deza a.s., [OSCURATO:PERSONA] del [OSCURATO:PERSONA] SA, [OSCURATO:PERSONA] A/S, [OSCURATO:PERSONA] UK Ltd, [OSCURATO:PERSONA] BV, [OSCURATO:PERSONA] basic aromatics GmbH, [OSCURATO:PERSONA] NV, [OSCURATO:PERSONA]. z o.o., [OSCURATO:PERSONA], [OSCURATO:PERSONA] SA, SGL [OSCURATO:PERSONA] GmbH (Germany), SGL [OSCURATO:PERSONA] GmbH (Austria), SGL [OSCURATO:PERSONA] (France), SGL [OSCURATO:PERSONA] SA (Spain), SGL [OSCURATO:PERSONA] S.A., ThyssenKrupp [OSCURATO:PERSONA] AG and [OSCURATO:PERSONA] erftcarbon GmbH (together ‘Bilbaína de Alquitranes and Others’) applied for interim measures under Articles 278 TFEU and 279 TFEU, seeking, in essence, the suspension of the effects of the regulation at issue. Background to the dispute and the judgment under appeal 4. Bilbaína de Alquitranes, Dezas, [OSCURATO:PERSONA] del [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] UK, [OSCURATO:PERSONA], [OSCURATO:PERSONA] basic aromatics, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] are suppliers of CTPHT in the [OSCURATO:PERSONA]. [OSCURATO:PERSONA], [OSCURATO:PERSONA], SGL [OSCURATO:PERSONA] (Germany), SGL [OSCURATO:PERSONA] (Austria), SGL [OSCURATO:PERSONA] (France), SGL [OSCURATO:PERSONA] (Spain), SGL [OSCURATO:PERSONA], ThyssenKrupp [OSCURATO:PERSONA] and [OSCURATO:PERSONA] erftcarbon are downstream users of CTPHT for the manufacture of aluminium, carbon, graphite, ferro-alloys or steel. 5. CTPHT is the residue from the distillation of high-temperature coal tar, a black solid, composed primarily of a complex mixture of three or more membered condensed ring aromatic hydrocarbons. CTPHT is used mainly to produce electrode binders for the aluminium and steel industry. It is also used to produce refractories and clay targets, coating for corrosion protection, kerosene-resistant airfield applications, road construction, roofing and briquetting. 6. [OSCURATO:PERSONA] 2010, pursuant to Article 37 of [OSCURATO:PERSONA] (EC) No 1272/2008 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing [OSCURATO:PERSONA] 67/548/EEC and 1999/45/EC, and amending [OSCURATO:PERSONA] (EC) No 1907/2006 (OJ 2008 L 353, p. 1), the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] submitted a dossier to the [OSCURATO:PERSONA] (ECHA) proposing, inter alia, that CTPHT should be classified as an [OSCURATO:PERSONA] 1 (H400) and [OSCURATO:PERSONA] 1 (H410) substance. 7. On 1 October 2010, that dossier was made publicly available on the ECHA website and the parties concerned were invited to submit their observations. 8. After having received those observations, ECHA referred the dossier to its [OSCURATO:PERSONA] (‘RAC’), referred to in Article 76(1)(c) of [OSCURATO:PERSONA] (EC) No 1907/2006 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of [OSCURATO:PERSONA] (REACH), establishing a [OSCURATO:PERSONA], amending [OSCURATO:PERSONA] 1999/45/EC and repealing [OSCURATO:PERSONA] (EEC) No 793/93 and [OSCURATO:PERSONA] (EC) No 1488/94 as well as [OSCURATO:PERSONA] 76/769/EEC and [OSCURATO:PERSONA] 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/2 1/EC (OJ 2006 L 396, p. 1). 9. On 21 November 2011, the RAC adopted its opinion on CTPHT, confirming the proposal submitted by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. The RAC thus considered that the classification of CTPHT as a substance having aquatic toxicity could not be based on data obtained in studies using the Water-[OSCURATO:PERSONA] approach, but was to be based on an alternative approach, namely to regard CTPHT as a mixture. According to that approach, the 16 polycyclic aromatic hydrocarbon (PAH) constituents of CTPHT were analysed separately in accordance with their aquatic toxicity effects. By applying a method consisting in finding the sum of the results obtained by the attribution of multiplication factors to the different PAHs in order to attach more weight to the highly toxic constituents of CTPHT, that analysis showed, according to the RAC’s opinion, that CTPHT had to be classified as [OSCURATO:PERSONA] 1 (H400) and [OSCURATO:PERSONA] 1 (H410). 10. On 2 October 2013, on the basis of the RAC’s opinion, the [OSCURATO:PERSONA] adopted the regulation at issue. In accordance with Article 1(2)(a)(i) and 1(2)(b)(i) of that regulation, read together with Annexes II and IV thereto, CTPHT was classified, inter alia, as [OSCURATO:PERSONA] 1 (H400), and [OSCURATO:PERSONA] 1 (H410). Pursuant to Article 3(3) of that regulation, that classification is to apply from 1 April 2016. 11. Bilbaína de Alquitranes and Others brought an action for the annulment of the regulation at issue, in support of which they put forward three pleas in law, the second of which alleged a manifest error of assessment. 12. In the judgment under appeal, the [OSCURATO:PERSONA] held, in essence, that the [OSCURATO:PERSONA] had committed a manifest error of assessment in that it had failed to comply with its obligation to take into consideration all the relevant factors and circumstances so as to take due account of the proportion in which the 16 PAH constituents are present in CTPHT and their chemical effects. 13. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] upheld the second part of the second plea in law and annulled the regulation at issue in so far as it classifies CTPHT as an [OSCURATO:PERSONA] 1 (H400) and [OSCURATO:PERSONA] 1 (H410) substance. Forms of order sought 14. Bilbaína de Alquitranes and Others claim that the [OSCURATO:PERSONA] of Justice should suspend the effect of the regulation at issue, if necessary even before hearing the other parties to the proceedings, make any such order as it sees fit and order the [OSCURATO:PERSONA] to pay the costs of the present proceedings. 15. [OSCURATO:PERSONA] and ECHA contend that the [OSCURATO:PERSONA] should dismiss that application and order Bilbaína de Alquitranes and Others to pay the costs of the interlocutory proceedings. The application for interim measures 16. It must be pointed out, first of all, that in accordance with the first paragraph of Article 60 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], an appeal against a judgment of the [OSCURATO:PERSONA] does not in principle have suspensory effect. However, the second paragraph of Article 60 of that statute provides also that, by way of derogation from Article 280 TFEU, decisions of the [OSCURATO:PERSONA] declaring a regulation to be void are to take effect only as from the date of expiry of the time limit for bringing an appeal referred to in the first paragraph of Article 56 of that statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal, without prejudice, however, to the right of a party to apply to the [OSCURATO:PERSONA] of Justice, pursuant to Articles 278 TFEU and 279 TFEU, for the suspension of the effects of the regulation which has been declared void or for the prescription of any other interim measure. 17. In bringing the application for interim measures, Bilbaína de Alquitranes and Others have availed themselves of that right. 18. Principally, Bilbaína de Alquitranes and Others submit that there is, at the stage of the interlocutory proceedings, a major legal disagreement as to the legality of the regulation at issue. According to the applicants in the interlocutory proceedings, the application of the regulation at issue must be suspended, since that regulation lacks even the appearance of legality, so that they do not even have to prove that, if the suspension requested is not granted, they will suffer serious and irreparable harm. In addition, they submit that, in view of the manifest illegality of that regulation, the [OSCURATO:PERSONA] hearing the application for interim relief is in a position to determine ‘prima facie’ that the appeal brought by the [OSCURATO:PERSONA] against the judgment under appeal is bound to fail. 19. In that regard, it must be pointed out that Article 160(3) of the Rules of Procedure of the [OSCURATO:PERSONA] provides that the 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’. Accordingly, the court hearing an application for interim relief may order suspension of operation of an act, or 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, so that applications for interim measures must be dismissed if any one of them is not satisfied. The court hearing the interim application must also if necessary weigh up the interests at stake (orders of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 8 April 2014 in [OSCURATO:PERSONA] v ANKO , C‑78/14 P-R, EU:C:2014:93, paragraph 14; 14 January 2016 in AGC [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , C‑517/15 P-R, EU:C:2016:21, paragraph 21, and 2 March 2016 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑162/15 P-R, EU:C:2016:142, paragraph 21). 20. Admittedly, the more or less serious nature of a prima facie case is not without relevance for the assessment of urgency (see order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 31 January 2011 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑404/10 P-R, not published, EU:C:2011:37, paragraph 27). [OSCURATO:PERSONA], the urgency that may be pleaded by an applicant must be taken into consideration by the court hearing the application for interim measures all the more if the prima facie case raised by the pleas and arguments relied on appears particularly serious (see, inter alia, order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 23 February 2001 in Austria v [OSCURATO:PERSONA] , C‑445/00 R, EU:C:2001:123, paragraph 110). 21. The fact remains that, in accordance with Article 160(3) of the Rules of Procedure, the conditions relating to a prima facie case and to urgency are distinct and cumulative, so that the party seeking interim measures still needs to prove the imminence of serious and irreparable harm (order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P-R, EU:C:2014:1749, paragraph 41 and the case-law cited) 22. In that regard, the line of argument of Bilbaína de Alquitranes and Others is ambiguous. 23. First, the applicants in the interlocutory proceedings seem to consider that the illegality of the regulation at issue found by the [OSCURATO:PERSONA] in the judgment under appeal should be sufficient to justify granting the interim measures requested, since the arguments raised by the [OSCURATO:PERSONA] in its appeal cannot call in question that illegality. 24. However, it must be borne in mind that, although the appellate court hearing an application for interim measures, to which an application has been made by the successful party at first instance, cannot disregard the fact that the court at first instance has ruled in its favour, nevertheless it must ensure that the conditions for the grant of interim measures are fulfilled in the case of an application for such measures. The fact that that application has been brought by the successful party at first instance, in the context of appeal proceedings brought by the other party against a judgment of the [OSCURATO:PERSONA] annulling a regulation, is irrelevant in that regard (see, to that effect, order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P R, EU:C:2014:1749, paragraph 21). 25. Since the EU legislature, by the adoption of the second paragraph of Article 60 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], decided to confer suspensive effect on the bringing of an appeal against a judgment of the [OSCURATO:PERSONA] annulling a regulation, it is not appropriate for the court hearing an application for interim measures in the context of an appeal to deprive that article of a part of its effectiveness by systematically relaxing, or even rejecting, the condition of urgency (see, to that effect, order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P R, EU:C:2014:1749, paragraph 39). 26. [OSCURATO:PERSONA], the argument of Bilbaína de Alquitranes and Others, construed in that manner, cannot be accepted. 27. Secondly, Bilbaína de Alquitranes and Others seem also to rely on the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 7 July 1981 in IBM v [OSCURATO:PERSONA] (60/81 R and 190/81 R, EU:C:1981:165), when arguing that when it must be found that the measures under challenge appear — having regard to the nature of the complaints made against them — to lack even the appearance of legality, their operation should be suspended forthwith, without the need to ascertain whether the condition relating to urgency has been met. 28. In that regard, it must be noted that, even if that case-law were applicable in the present case, the complaint raised at first instance against the regulation at issue by Bilbaína de Alquitranes and Others, on the basis of which the [OSCURATO:PERSONA] annulled that regulation in part in the judgment under appeal, was based on a manifest error of assessment by the [OSCURATO:PERSONA]. 29. However, it is not apparent from the judgment under appeal that Bilbaína de Alquitranes and Others argued before the [OSCURATO:PERSONA] that such a complaint, if upheld, would have enabled it to be found that the regulation at issue lacked even the appearance of legality. In addition, Bilbaína de Alquitranes and Others have not adduced any evidence to that effect in their application for interim measures. Indeed, they simply explained the reasons for which, in their view, the [OSCURATO:PERSONA]’s appeal should be dismissed. They engaged, therefore, in analysis of the prima facie case, which — in the case of an application for interim measures made, as in the present case, in the context of an appeal which has suspensive effect since it seeks to have set aside a judgment by which the [OSCURATO:PERSONA] annulled a regulation — requires the court hearing the application for interim measures made by the party which was successful at first instance to assess whether the arguments of that party seeking to have the appeal dismissed are not without merit, in that they have a sufficient prospect of success (see, to that effect, order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P R, EU:C:2014:1749, paragraph 24). 30. In such circumstances, Bilbaína de Alquitranes and Others cannot be exempted from the requirement to prove that it is urgent to grant the measures requested in order to avoid their sustaining serious and irreparable damage. 31. However, Bilbaína de Alquitranes and Others have put forward an argument in that regard only as far as [OSCURATO:PERSONA] erftcarbon is concerned. 32. [OSCURATO:PERSONA] must, therefore, dismiss the application for interim measures as regards Bilbaína de Alquitranes, Deza, [OSCURATO:PERSONA] del [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA] UK, [OSCURATO:PERSONA], [OSCURATO:PERSONA] basic aromatics, [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA], SGL [OSCURATO:PERSONA] (Germany), SGL [OSCURATO:PERSONA] (Austria), SGL [OSCURATO:PERSONA] (France), SGL [OSCURATO:PERSONA] (Spain), SGL [OSCURATO:PERSONA] and ThyssenKrupp [OSCURATO:PERSONA]. 33. As regards [OSCURATO:PERSONA] erftcarbon, it must be ascertained whether the evidence relied upon is sufficient to show that the condition relating to urgency is met for that company, even before examining the merits of the arguments relating to a prima facie case. 34. According to Bilbaína de Alquitranes and Others, if the effects of the regulation at issue were not suspended, it would be likely to cause imminent harm to [OSCURATO:PERSONA] erftcarbon, a company which forms part of the Japanese group [OSCURATO:PERSONA]. Ltd and is exclusively involved in the manufacture of graphite electrodes from CTPHT. 35. Since 1 April 2016, the new CTPHT classification has been applicable, the direct consequence of which is, they submit, to require [OSCURATO:PERSONA] erftcarbon to ensure that its operations comply with the requirements of both [OSCURATO:PERSONA] 2012/18/EU of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 4 July 2012 on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing [OSCURATO:PERSONA] 96/82/EC (OJ 2012 L 197, p. 1), and [OSCURATO:PERSONA] 2008/68/EC of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 24 [OSCURATO:PERSONA] 2008 on the inland transport of dangerous goods (OJ 2008 L 260, p. 13). 36. Bilbaína de Alquitranes and Others submit that it is apparent from the report of an independent expert questioned by [OSCURATO:PERSONA] erftcarbon that the application of [OSCURATO:PERSONA] 2012/18 would require it to undertake a series of changes to its operations and organisational structure entailing both immediate and recurring financial costs. In particular, the immediate costs linked to those changes would equate to [confidential] of the 2014 turnover of CTPHT products sold by [OSCURATO:PERSONA] erftcarbon and by the [OSCURATO:PERSONA]. group respectively, and would even outweigh the profits linked to those sales by [OSCURATO:PERSONA] erftcarbon in the last financial year. Because of those costs, the harm suffered would be serious. 37. While the recurring costs amount to less than [confidential] , they would be definitive. Bilbaína de Alquitranes and Others submit, relying on the expert’s report, that the nature of the tasks to be undertaken to implement the technical measures necessary for the application of [OSCURATO:PERSONA] 2012/18 is such that those tasks will bring about irreversible changes in [OSCURATO:PERSONA] erftcarbon’s operating systems. 38. In addition, because of the irreversibility of those changes, even if the appeal were to be dismissed, an action for damages could not adequately compensate the harm suffered by [OSCURATO:PERSONA] erftcarbon. [OSCURATO:PERSONA], [OSCURATO:PERSONA] erftcarbon’s fundamental right freely to choose and practice its trade would also be compromised. 39. As regards ensuring that [OSCURATO:PERSONA] erftcarbon’s operations comply with [OSCURATO:PERSONA] 2008/68, this would require that company to change the mode of transport for its products. A substance that is classified H400/H410, or products containing that substance, should, having regard to the risk they represent, be transported under special safety conditions. [OSCURATO:PERSONA], [OSCURATO:PERSONA] erftcarbon would have to invest in the construction of specially equipped new vessels or change its mode of transport to transport by road. 40. [OSCURATO:PERSONA] and ECHA dispute that line of argument. 41. 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 [OSCURATO:PERSONA]. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable harm to the party seeking the interim relief (order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 19 December 2013 in [OSCURATO:PERSONA] kai [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑506/13 P-R, EU:C:2013:882, paragraph 18 and the case-law cited). It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable harm (order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014 in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑21/14 P-R, EU:C:2014:1749, paragraph 37 and the case-law cited). 42. Bilbaína de Alquitranes and Others rely, in essence, on two heads of damage which, it is claimed, [OSCURATO:PERSONA] erftcarbon would suffer if the effects of the regulation at issue were not suspended. 43. As regards, first, the harm relating to the application of [OSCURATO:PERSONA] 2012/18, the [OSCURATO:PERSONA] notes that, in so far as Bilbaína de Alquitranes and Others submit that [OSCURATO:PERSONA] erftcarbon will suffer harm of a financial nature linked to bringing the company’s operations into line with that directive, it must be borne in mind that, according to settled case-law, purely pecuniary damage cannot in principle be regarded as irreparable or even as difficult to repair since it may be the subject of subsequent financial compensation (order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 15 December 2009 in Dow AgroSciences and Others v [OSCURATO:PERSONA] , C‑391/08 P(R), not published, EU:C:2009:785, paragraph 74 and the case-law cited). It can only be otherwise if it appears that, without the interim measures sought, the applicant would be in a position that could imperil its financial viability before final judgment is given in the main action, or that its market share would be substantially affected in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs. The existence of such circumstances permits the inference that harm of a financial nature is irreparable (see, in particular, order of the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 19 December 2013 in [OSCURATO:PERSONA] kai [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑506/13 P-R, EU:C:2013:882, paragraph 20). 44. In the present case, Bilbaína de Alquitranes and Others simply submit that the costs linked to bringing [OSCURATO:PERSONA] erftcarbon’s operations into line are such that they permit the inference that the financial harm suffered by [OSCURATO:PERSONA] erftcarbon is serious. 45. It must, however, be found that they have adduced no evidence to prove that, without the interim measures requested, such financial harm would also be irreparable in that it could imperil [OSCURATO:PERSONA] erftcarbon’s financial viability before final judgment is given in the main action or in that its market share would be substantially affected. 46. Bilbaína de Alquitranes and Others further submit that the changes linked to bringing [OSCURATO:PERSONA] erftcarbon’s operations into line are irreversible. From that observation, they draw a number of conclusions related to the harm sustained. 47. In particular, because of that irreversibility, first of all, the recurring costs occasioned by those changes would continue ad infinitum, so that it would be impossible to quantify the financial harm suffered and that harm would, therefore, be irreparable. Next, the decision on the substance, even if favourable to Bilbaína de Alquitranes and Others, would lose its effectiveness as regards [OSCURATO:PERSONA] erftcarbon which would already have suffered the irreversible consequences stemming from the incorrect classification of CTPHT. Lastly, in the light of the changes made to the company’s organisation and operating system, those changes would entail an intolerable and disproportionate infringement of its fundamental right freely to choose and practise its trade. 48. It must be noted, in that regard, that notwithstanding the importance attached by Bilbaína de Alquitranes and Others to their claim that the changes in question are irreversible, they based that claim solely on a passage from the expert report mentioned in paragraph 36 above, according to which ‘the nature of the work to be undertaken to implement the technical measures ... is such that it will bring about irreversible changes in the operating systems of the company [confidential] . Once in place, it will be practically impossible to undo these changes. Here again, how dee p these changes will cut in the existing systems in place will only be clear after a complete [OSCURATO:PERSONA] will be performed.’ 49. However, as the [OSCURATO:PERSONA] and ECHA correctly note, no reason has been given in that report which could support its conclusion that the changes at issue are irreversible. In addition, it even seems possible to infer from that passage that the analysis on which that report is based is only provisional, since only a complete analysis is envisaged as being capable of assessing the consequences of the changes in question on [OSCURATO:PERSONA] erftcarbon’s operating systems. 50. Since the premiss that those changes are irreversible has not been proved to the requisite legal standard, the claims based on such a premiss cannot be sufficient to prove that the harm allegedly suffered by [OSCURATO:PERSONA] erftcarbon is irreparable. 51. As regards, secondly, the harm allegedly caused by the change to the mode of transport for CTPHT required under [OSCURATO:PERSONA] 2008/68, it is sufficient to note that Bilbaína de Alquitranes and Others have not adduced any evidence which would make it possible to assess the consequences for [OSCURATO:PERSONA] erftcarbon because of the impossibility of using its own vessels to transport products containing CTPHT. In particular, they have produced no evidence to prove that [OSCURATO:PERSONA] erftcarbon would in fact be required to invest in the construction of new vessels, without being able, for example, to entrust that transport to a third party, or even to be able to evaluate the financial consequences of the possible obligation to move from transport by inland waterway to land transport until a decision is reached in the main appeal. 52. In those circumstances, Bilbaína de Alquitranes and Others have not shown to the requisite legal standard that the measures sought are urgent. 53. [OSCURATO:PERSONA], there is no need to examine the condition relating to a prima facie case or to weigh up the interests at stake and the application for interim measures must be dismissed. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA]-[OSCURATO:PERSONA] of the [OSCURATO:PERSONA] hereby orders: 1. The application for interim measures is dismissed. 2. Costs are reserved.
Sentenza Corte di giustizia UE n. 944/2016 — Fons Iuris — Fons Iuris