ORDER OF THE VICE-PRESIDENT OF THE COURT

4 October 2024 (*)

( Appeal – Intervention – Public health – Medicinal product for human use – Decision granting marketing authorisation for the medicinal product Degarelix Accord – Action for annulment – Time limits – Force majeure or unforeseeable circumstances – Dismissal )

In Case C‑599/24 P(I),

APPEAL under the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 16 September 2024,

Accord Healthcare SL, established in Barcelona (Spain), represented by C. Drew and G. Morgan, Solicitors, and by T. Johnston, Barrister,

appellant,

the other parties to the proceedings being:

Ferring Pharmaceuticals A/S, established in Kastrup (Denmark),

applicant at first instance,

European Commission,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

Order

1        By its appeal, Accord Healthcare SL asks the Court of Justice to set aside the order of the President of the Eighth Chamber of the General Court of the European Union of 26 August 2024, Ferring Pharmaceuticals v Commission (T‑12/24, EU:T:2024:573; ‘the order under appeal’), by which the President of the Eighth Chamber dismissed Accord Healthcare SL’s application for leave to intervene in support of the form of order sought by the European Commission in Case T‑12/24.

 The procedure before the General Court and the order under appeal

2        By application lodged at the Registry of the General Court on 10 January 2024, Ferring Pharmaceuticals A/S brought an action for annulment of Commission Implementing Decision C(2023) 6669 final of 29 September 2023 granting marketing authorisation under Regulation (EC) No 726/2004 of the European Parliament and of the Council for ‘Degarelix Accord – degarelix acetate’, a medicinal product for human use.

3        By document lodged at the Registry of the General Court on 17 May 2024, Accord Healthcare applied for leave to intervene in Case T‑12/24 in support of the form of order sought by the Commission.

4        By the order under appeal, the President of the Eighth Chamber of the General Court dismissed that application for leave to intervene.

5        In paragraph 3 of that order, he stated that, in accordance with Article 143(1) of the Rules of Procedure of the General Court, an application to intervene must be submitted within six weeks of the publication of the notice referred to in Article 79 of those rules.

6        In paragraph 4 of that order, the President of the Eighth Chamber of the General Court noted that, in Case T‑12/24, that time limit had expired on 16 May 2024.

7        In paragraph 5 of that order, he concluded that Accord Healthcare’s application to intervene had to be dismissed.

 Form of order sought on appeal

8        By its appeal, Accord Healthcare claims that the Court should:

–        set aside the order under appeal; and

–        allow its application for leave to intervene in Case T‑12/24 in support of the form of order sought by the Commission.

 The appeal

 Arguments

9        In support of its appeal, Accord Healthcare raises a single ground of appeal, alleging infringement of Article 45 of the Statute of the Court of Justice of the European Union.

10      It submits that the delay in submitting the application for leave to intervene was due to exceptional circumstances beyond its control and that it adopted appropriate measures to avoid the consequences of those circumstances.

11      In the first place, the fact that the forthcoming ruling in Case T‑12/24 will have consequences for Accord Healthcare’s right to property, guaranteed by Article 17 of the Charter of Fundamental Rights of the European Union, should facilitate the recognition of exceptional circumstances under Article 45 of the Statute of the Court of Justice of the European Union.

12      In the second place, in order to guarantee Accord Healthcare’s right to be heard, account should be taken of (i) the fact that it submitted an application for leave to intervene less than 24 hours after being informed by its lawyers that the action had been brought in Case T‑12/24, (ii) the fact that the derogation period which it seeks in respect of the procedural time limit at issue is very short, and (iii) the fact that that derogation period would not adversely affect the other parties.

13      In the third place, Accord Healthcare was not notified of the fact that the action had been brought in Case T‑12/24. It cannot, therefore, be held that a diligent and informed person was supposed to consult the Official Journal of the European Union systematically in order to be immediately informed that such an action had been brought, when it was in no way foreseeable that that action would be brought, and a consultation of the summaries in the Official Journal of the European Union would not have made it possible to understand the nature of that action. The Court should, therefore, find that Accord Healthcare acted in a diligent and informed manner.

 Assessment

14      As the President of the Eighth Chamber of the General Court stated in paragraph 3 of the order under appeal, Article 143(1) of the Rules of Procedure of the General Court provides that an application to intervene must be submitted within six weeks of the publication of the notice referred to in Article 79 of those rules.

15      Accord Healthcare does not dispute that it submitted its application for leave to intervene after the expiry of the time limit laid down in Article 143(1), but submits that that application should nevertheless have been considered admissible under Article 45 of the Statute of the Court of Justice of the European Union. Under Article 45, no right is to be prejudiced in consequence of the expiry of a time limit if the party concerned proves the existence of unforeseeable circumstances or of force majeure.

16      It follows from settled case-law of the Court that the concept of ‘force majeure’ or ‘unforeseeable circumstances’, which corresponds to exceptional circumstances, contains both an objective element relating to abnormal circumstances extraneous to the person concerned, and a subjective element involving the obligation of that person concerned to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C‑103/22 P(I), EU:C:2022:399, paragraph 51).

17      In that regard, it should be noted, in the first place, that the possible consequences, for Accord Healthcare’s right to property guaranteed under Article 17 of the Charter of Fundamental Rights, of the decision to be delivered by the General Court in Case T‑12/24 are not in any event capable of demonstrating that the conditions set out in the preceding paragraphs are fulfilled. Those conditions relate solely to the nature of the circumstances which led to a procedural time limit being exceeded, and to the conduct adopted by the applicant for leave to intervene in order to guard against the consequences of those circumstances.

18      With regard, in the second place, to the argument that Accord Healthcare acted very quickly after being informed by its lawyers that the action in Case T‑12/24 had been brought, it should be noted that errors committed by an applicant’s employees or by service providers used by the applicant in the conduct of its business cannot, in so far as they do not constitute circumstances unconnected with the applicant, be relied on to demonstrate the existence of unforeseeable circumstances or of force majeure (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C‑103/22 P(I), EU:C:2022:399, paragraph 52).

19      It follows that a distinction cannot be drawn, for the purposes of the application of Article 45 of the Statute of the Court of Justice of the European Union, between, on the one hand, the conduct of the applicant for leave to intervene and, on the other hand, the conduct of its lawyers. The period of time that elapsed between that applicant’s reaction and the provision of information by its lawyers is, therefore, irrelevant in the present case.

20      In the third place, the arguments based on the fact that Accord Healthcare seeks only a very short period of derogation from the procedural time limit at issue and that that derogation period would not adversely affect the other parties cannot succeed.

21      It follows from settled case-law of the Court that the strict application of the procedural rules is not intended solely to protect the procedural rights of the parties but, more broadly, to meet the requirement of legal certainty and the need to avoid discrimination or arbitrary treatment in the administration of justice (order of the Vice-President of the Court of 17 May 2022, Shanghai Panati v EUIPO, C‑103/22 P(I), EU:C:2022:399, paragraph 54).

22      In the fourth place, the fact that Accord Healthcare was not notified that the action in Case T‑12/24 had been brought but that the public was made aware of that action through the publication, in the Official Journal of the European Union, of the notice provided for in Article 79 of the Rules of Procedure of the General Court is in no way unusual.

23      Consequently, even if Accord Healthcare had, as it maintains, acted diligently, that circumstance would not, in any event, be capable, in the light of the case-law referred to in paragraph 16 of the present order, of justifying the application of the derogation set out in Article 45 of the Statute of the Court of Justice of the European Union.

24      In the light of the foregoing, the single ground of appeal relied on by Accord Healthcare in support of its appeal must be rejected and, consequently, the appeal must be dismissed in its entirety.

 Costs

25      Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order has been adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that Accord Healthcare is to bear its own costs.

On those grounds, the Vice-President of the Court hereby orders:

1.      The appeal is dismissed.

2.      Accord Healthcare SL shall bear its own costs.

Luxembourg, 4 October 2024.

*      Language of the case: English.