C-142/95

ASSOCIAZIONE AGRICOLTORI DELLA PROVINCIA DI ROVIGO AND OTHERS v COMMISSION AND OTHERS

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 12 September 1996

1. In the present case, the appellants ' (Asso­ Po delta area. They also sought annulment of ciazione Agricoltori della Provincia di the ensuing contract signed on 31 December Rovigo, Associazione Polcsana Coltivatori 1993 between the Commission and the Ital­ Diretti di Rovigo, Consorzio Cooperative ian Ministry of the Environment. Pescatori del Polesine and Mr C. Brena) seek the setting-aside of the order of the Court of First Instance of 21 February 1995 in Case T-117/94, in which the application was declared inadmissible.

3. By the order which it is now sought to have set aside, the Court of First Instance dismissed the action brought before it as inadmissible on the ground that the appli­ cants lacked capacity to bring proceedings.

2. In the proceedings before the Court of First Instance, they sought the annulment of the decision of the Commission of 15 Octo­ ber 1993 granting financial support for actions concerning the protection of habitats 2 and of nature ('the contested decision'), in so far as it granted economic assistance to the Veneto region to carry out actions in the

5. The main stages in the elaboration of the Community acts complained of, as set out in the contested order, are as follows: 3. At the end of 1992 the Italian Republic submitted to the Commission, in accordance with Article 9(1) of Regulation No 1973/92, two proposals for actions relating to the Po delta area for which it sought financing. The area to which the proposed actions relate straddles two regions: Emilia-Romagna and Veneto. A regional park of the Po delta was '1 . By Regulation (EEC) No 1973/92 of established in Emilia-Romagna by Regional 21 May 1992 (OJ 1992 L 206, p. 1), the Law No 87 of 2 July 1988. The Veneto Council established a financial instrument region has not adopted any particular pro­ for the environment, known as "LIFE", the tection measure. Nevertheless, Article 35(4) objective of which is to contribute to the of Law No 394 of 6 December 1991, a development and implementation of Com­ framework law on protected areas, provides munity environmental policy and legislation that the regions concerned are — with the essentially by financing priority actions in agreement of the Ministry for the Environ­ the Community. The fields of action defined ment — to proceed with the establishment of in the annex to the regulation are eligible for an inter-regional park of the Po delta within financial assistance if they arc of Community two years of the Law's entry into force. The interest, contribute significantly to the same provision stipulates that if no such implementation of Community environmen­ measures are taken, central government will tal policy and meet the conditions for imple­ take steps to establish a national park in the menting the polluter-pays principle. area in question.

6. On 15 October 1993 the Commission offi­ cially adopted the framework decision, to which the various actions approved by the The grounds of the order of the Court of Commission — including the Po delta pro­ First Instance gramme — were annexed, and the break­ down of appropriations as between those actions. The decision adopted the draft meas­ ure approved by the aforesaid two commit­ tees. 6. Having confirmed that 'none of the natu­ ral persons and none of the three applicant associations is an addressee of the contested decision', the Court of First Instance pro­ ceeded to 'consider whether that decision is 7. In the meantime the Commission had of direct and individual concern to them'. negotiated the procedures for implementing the Po delta programme with the parties involved in drawing up the draft measure to be financed. On 3 and 4 June 1993, a meeting was organized at Ferrara; apart from the Commission, representatives attended from the Italian Ministry for the Environment, the 7. It held that, in so far as the contested Italian Ministry for the Coordination of decision grants financial assistance to the Agricultural, Food and Forestry Policies, the Italian Po delta programme, it is a measure Veneto region, the region of Emilia- of general scope which applies to situations Romagna, the provinces concerned and the determined objectively and has legal effects

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9. As regards the applicant associations — and assuming that they represented all the agriculturalists in the region concerned — it was held that the contested decision did not 13. The Court of First Instance observed in concern them 'individually'. that connection that none of the provisions mentioned by the applicants placed the Commission under a duty, before granting financial assistance pursuant to Regulation No 1973/92, to take account of the particular situation of each of the agriculturalists carry­ ing on activities in the areas concerned by the programme of actions financed, to take 10. In that connection, the contested order account of the particular situation of each of refers to the case-law of the Court of Justice, the associations representing them or to con­ to the effect that it cannot be accepted as a sult them. principle that an association, in its capacity as the representative of a category of traders, is individually concerned by a measure affecting the general interests of that cat­ 3 egory. 14. The Court of First Instance held that 'the absence of any duty on the Commission 3 — Order in Case 60/79 Fédération nationale des producteurs de to take account of the particular situation of vins de table et vins de pays v Commission [1979] ECR 2429 and judgment in Case 282/85 DEFI v Commission [1986] the various applicants or to consult them ECR 2469, paragraph 16. before adopting the contested decision is

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ASSOCIAZIONE AGRICOLTORI DELLA PROVINCIA DI ROVIGO AND OTHERS v COMMISSION AND OTHERS

20. The appellants complain that the Court 17. The Court of First Instance held that the of First Instance carried out an 'incorrect applicants were not parties to that contract and superficial assessment of their positions' and that it was no more of individual con­ which led it wrongly to find the action inad­ cern to them than was the contested decision missible on the ground that they lacked of 15 October 1993, of which, moreover, it capacity to bring proceedings. They base that constituted merely an implementing meas­ assertion on the arguments summarized ure. below.

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21. Regulation No 1973/92 is simply a concerned' in the elaboration of measures financial instrument for Community policy aimed at 'environmental protection'. and legislation regarding the environment. It is intended to contribute to the development and implementation of Community environ­ mental policy and legislation by financing certain priority actions in the Community.

23. Thus, as regards actions for the preserva­ tion of natural habitats, agriculturalists are given a leading role to play. Their representa­ 26. The appellants maintain that, according tive associations must therefore be 'parties to the case-law of the Court of Justice, the fact that an association has taken part, in a negotiating capacity, in the formulation of Community rules relating to a particular 4 — Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the policy is enough to confer on it the legal Council, of 1 February 1993 on a Community programme of policy and action in relation to the environment and sustain­ right to contest a Community decision able development —European Community programme of which, whilst not addressed to it directly, policy and action in relation to the environment and sustain­ able development (OJ C 138, pp. 1 and 5). concerns that policy.

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Admissibility of the appeal (b) infringement of the third subpara­ graph of Article 2(2) of Regulation No 1973/92, inasmuch as that provision requires that financial projects must 'contribute significantly to the imple­ mentation of Community environmental policy', which was not the case with the project in question; 27. The Commission submits that the appeal is inadmissible, inasmuch as 'it constitutes, in substance, a new application not made at first instance'.

(c) infringement of the second paragraph of Article 1 of Regulation No 1973/92 and misuse of powers.

33. However, it is also true that, when the Commission raised its objection of inadmis­ 37. In other words, far from merely reiterat­ sibility before the Court of First Instance, ing before the Court of Justice their pleas arguing that the applicant associations lacked advanced at first instance against the acts of the capacity to bring proceedings, they stated the Commission, the appellant associations that 'the Commission was under a duty to have acted consistently — from a procedural consult them before adopting the decision, point of view — by basing their appeal which, in their view, is sufficient to distin­ against the contested order on arguments guish them'. concerning the contents of that order and the submissions made at the hearing which pre­ ceded it.

34. That was therefore one of the main 38. This is a separate issue from the question issues dealt with in the argument before the whether or not those arguments arc suffi­ Court of First Instance, which was resolved ciently well founded in law to justify the in the order by the finding that the action for setting-aside of that order; it is precisely that annulment was inadmissible. question which is to be decided by the Court of Justice in its final judgment.

35. The contested order in fact states, inter Substance alia, that the applicants' lack of capacity to bring proceedings, as a result of not meeting the requirement of individual concern, is consistent with the absence of any obligation on the Commission to consult them during 39. Did the Court of First Instance err in the procedure for the adoption of the acts in law in finding that the applicants lacked issue. capacity to bring proceedings for annulment

41 . More particularly, I consider that, in 43 . Having regard to the conditions in environmental matters , which involve such a which the dispute arose, the order of the multiplicity of crucial, and sometimes oppos­ Court of First Instance is, as explained fur­ ing, social interests, capacity to bring pro­ ther below, in accordance with the interpre­ tation normally given to the fourth para­ graph of Article 173 of the Treaty. For that reason, the appeal should be dismissed. 5 — In his work entitled 'Le recours en annulation tics particu­ liers (article 173, deuxième alinéa du traité CIÌ): nouvelles réflexions sur l'expression "la concernent ... individuelle menť", ľeslschnft f tir Ulrich livcrltng, 1995, p. 852, Judge Moitinlio de Almeida staled: 'la Cour n'a jamais suivi les suggestions de ses avocats généraux visant à une interpréta­ 7 — Even though the conditions governing capacity to bring pro tion plus large de l'exigence d'un intérêt individuel' ('lhe cccdings differ from one Member Stale lo lhe next, the deve­ Court of Justice lias never followed the suggestions of ils lopment of legislation and case law tends to favour a broader Advocates General that a wider interpretation be given to right of access to the courts for individuals and associations the requirement of individual concern'). involved in the protection of llic environment. A concrete 6 — The Court of Justice has itself slated, in paragraph 20 of the example of this can be seen in lhe case of actions for annul Report of the Court of justice on certuni aspects of the appli ment of administrative acts adopted in ihal sphere. Certain cation of the Treaty on European Union (Luxembourg, May legal systems (Spain and Portugal) even recognize the con­ 1995): 'li may be asked, however, whether lhe righi io bring cept of the actio populáris, which permits recourse to the an action for annulment under Arliclc 173 of the EC Treaty courts for an order requiring compliance with environmental (and the corresponding provisions of lhe olhcr Treaties), legislation. The tenor of the Kith Programme is to the same which individuals enjoy only in regard to acts of direct and effect; it stales, in Chapter 9: 'Individuals and public interest individual concern to them, is sufficient to guarantee for groups should have practicable access to the courts in order them effective judicial protection against possible infringe to ensure thai their legitimate interests are protected and that ments of ihcir fundamental rights arising from the legislative prescribed environmental measures arc effectively enforced activity of the institutions.' and illegal practices stopped.'

45. The fourth paragraph of Article 173 of the EC Treaty provides that 'any natural or 'It is settled case-law that the possibility of legal person may (...) institute proceedings determining more or less precisely the num­ against a decision addressed to that person or ber or even the identity of the persons to against a decision which, although in the whom a measure [...] applies does not in any form of a regulation or a decision addressed way imply that it must be regarded as being to another person, is of direct and individual of individual concern to them, as long as it is 9 concern to the former'. established that such application takes effect by virtue of an objective legal or factual situ­ ation defined by the measure in question (see, for example, the judgment in Case C-264/91 Abertal and Others v Council [1993] ECR1-3265, paragraph 16, and the order in Case C-131/92 Arnaud and Others v Council [1993] ECR 1-2573, paragraph 13). 46. The case-law on the interpretation of that provision, going back to the judgment in 10 Plaumann v Commission, may be summa­ rized by a quotation from the judgment of 15 February 1996 in Buralux and Others v Council, 11in which the Court of Justice dis­ missed an appeal against another order of the Court of First Instance, similar to that in issue in the present case, dismissing proceed­ ings as inadmissible. For such persons to be capable of being regarded as individually concerned, their legal position must be affected because of a factual situation which differentiates them 8 — Article 4 of the contested decision states that it is addressed to the Kingdom of Denmark, the Federal Republic of Ger­ from all other persons and distinguishes many, the Hellenic Republic, the Kingdom of Spain, the them individually in the same way as a per­ French Republic, the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland. son to whom a measure is addressed (see, in 9 — Current version, as amended by Article G(53) of the Treaty particular, the judgment in Case 26/86 Deutz on European Union. and Geldermann v Council [1987] ECR 941, 10 — Judgment of 15 July 1963 (Case 25/62 [1963] ECR 95). 11 — Case C-209/94 [1996] ECR I-615. paragraph 9).'

49. The first scries of factors would be such as have a particular effect on the situation of 52. Given, therefore, that the present case the agricultural holdings or fishing activities does not involve any particular factual situa­ of persons having an interest in the area con­ tion which differentiates the appellants 'from cerned. They might be described as 'material' all other persons and distinguishes them or 'substantive' and might involve those individually in the same way as a person to aspects of the contested decision which whom a measure is addressed', there is noth­ impose on the recipient Member States cer­ ing to be gained, for the purposes of deter­ tain conditions concerning their environ­ mining whether they have capacity to chal­ mental projects, with a negative impact on lenge the decision in law, from an analysis of agricultural or fishing activities in the area its economic impact on their activities. concerned (for example, a ban on cultivation or restrictions on fishing).

53. The second series of factors as a result of which the contested decision might, in 50. Such factors would necessitate discussion theory, be of individual concern to the appel­ of the extent to which each of the individual lants concerns the formal aspects of the pro­ economic operators concerned fell to be dif­ cess by which it was elaborated, and it is on ferentiated and of the degree of impact those aspects that the appeal is based. which the contested decision entailed in that regard.

54. The central argument advanced in the 51. However, the appellants have declined to appeal is that, according to the case-law of adopt that approach, persuaded, perhaps, the Court of Justice, the fact that an associa­ that it is pointless to do so in view of the tion has taken part, in a negotiating capacity,

57. The second statement, on the other 12 — The case-law cited by the appellants has been established by hand, needs to be supported by reasons. judgments of the Court of Justice in decisions relating to competition, State aid, dumping and subsidies. In the cases in question, the Court considered the significance of the participation of third parties in the administrative pro­ cedure preceding the adoption of a decision not addressed to them, and declared that, in certain specific circumstances, such participation gave rise to a presumption that the pro­ ceedings brought by them for annulment of the decision in question were admissible. Those circumstances were held to include the existence of an express provision (contained, as a general rule, in a basic regulation) requiring the Commu­ nity institutions to consult the operators concerned before finally adopting the measure proposed. Once the parties' 58. In response to the applicants' submis­ right to bring proceedings has been thus recognized, the action may seek a review by the Community judicature not sions on this point, the Court of First only of the question whether the applicants' procedural rights have been respected but also whether the decision Instance stated, as recalled above, that none adopted is vitiated by a manifest error of assessment or mis­ use of powers (Case 26/76 Metro v Commission [1977] ECR1875, Case 191/82 Fediol v Commission [1983] ECR2913 and Case 169/84 Cofaz v Commission [1986] ECR 391). 13 — See points 14 and 30 of this Opinion.

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14 — The applicants staled that their right to participate in the procedure derived from the second indent of Article A of the Treaty on European Union, from Articles 1 and 2 of Regulation No 1973/92, from the preparatory work preced- ing the adoption of that regulation, from points 10 and 18 of the Fifth Environment Action Programme, from the — expressly state, with regard to the long- third recital in the preamble to Directive 92/43, from the resolution of the European Parliament of 10 July 1987 on term objectives to be pursued in order to the establishment and conservation of Community nature reserves (OJ 1987 C 246, p. 121) and from Article 7 of the achieve sustainable development and the proposal for a regulation COM(91)0028 establishing a targets and results to be achieved up to financial instrument for the environment (LIFE) (OJ 1991 C 267, p. 211). the year 2000: 'Those objectives and tar-

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gets do not constitute legal commitments between the Member States and the Com­ [...] Neither should all the actions indi­ munity institutions where, as in the present cated require legislation at Community case, it is the former who propose the 15 16 or national level.' projects for which aid is to be granted.

63. As regards the second statement (con­ cerning the absence of any duty to engage in consultation), the Fifth Programme acknowl­ 66. In such cases, the 'natural' field of action edges that the Community institutions are for the economic agents concerned is at under no general obligation to consult indi­ national level, where they can assert their viduals, or associations such as the appel­ interests with a view to shaping, in one form lants, during the procedure leading to the or another, the content of the national pro­ adoption of financial aid measures in favour posals or the actions resulting therefrom. of the Member States.

16 — Article 9 of Regulation No 1973/92 provides that proposals for actions to be financed arc to be submitted to the Com­ munity by the Member States. However, the Commission may ask any legal or natural persons established in the Community to submit applications for assistance in respect of measures of particular interest to the Community by means of a notice published in the Official Journal of the European Communities. In the latter case, the Commission 65. In my view, it is consistent with the is required to forward to the Member States any proposals received. nature of Community financial aid for the 17 — In support of that assertion, they have lodged various docu­ preparatory negotiations to take place ments from the Italian provincial and national authorities. Those documents request the associations operating in the sectors concerned to submit comments on the standards of protection to be applied to the park and provide for the creation of a special body with responsibility for its man­ agement, within which those associations arc to be repre­ 15 — Point 12 of the summary. sented.

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68. It is likewise at national level that the No 1973/92 so as to encompass the partici­ economic agents concerned (and possibly pation of individuals and other economic environmental protection associations) may agents potentially affected by the national — indeed, must — state their response to measures for which that aid was granted. any illegalities vitiating the national actions That being so, the legal argument underlying 18 for which Community aid is granted. the appeal loses its basis.

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