T-122/96

Commission of the European Communities, represented by Eugenio de March, Legal Adviser, and Paolo Ziotti, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos G6mez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for partial annulment of Commission Regulation (EC) No 887/96 of 15 May 1996, amending Regulation (EEC) No 2677/85 laying clown implementing rules in respect of the system of consumption aid for olive oil (OJ 1996 L 119, p. 16 and OJ 1985 L 254, p. 5, respectively),

• Language of the case: Italian.

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1 Regulation N o 136/66/EEC of the Council of 22 September 1966 (OJ, English Special Edition 1965-1966, p. 221, hereinafter 'Regulation N o 136/66') established a common organization of the markets in oils and fats. Council Regulation (EEC) N o 1562/78 of 29 June 1978 amending Regulation N o 136/66/EEC (OJ 1978 L 185, p. 1, hereinafter 'Regulation N o 1562/78'), introduced a system of aids for olive oil. More specifically, as regards the marketing of the oil, it established a sys- tem providing for the grant of consumption aid to ensure that olive oil is sold at prices which are competitive with the prices of seed oils.

2 According to Article 1 of Council Regulation (EEC) N o 3089/78 of 19 December 1978 laying down general rules in respect of aid for the consumption of olive oil (OJ 1978 L 369, p. 12, hereinafter 'Regulation N o 3089/78'), that aid is to be

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FEDEROLIO v COMMISSION

granted only to approved olive-oil packaging plants. Pursuant to Article 11 (2) and (3) of Regulation N o 136/66 as amended by Council Regulation (EEC) N o 1917/80 of 15 July 1980 (OJ 1980 L 186, p. 1, hereinafter 'Regulation N o 1917/80') it is to be granted at the request of the undertaking concerned or at the request of trade organizations recognized by the Member State concerned. For the purpose of applying the consumption aid system a Member State may recognize one or more trade organizations. Those organizations then assist in determining the quan- tities of canned or bottled olive oil eligible for aid, under the supervision of the Member State concerned. Packaging undertakings not belonging to a trade organi- zation can have the work done by an organization of their own choice. In such cases, the organizations in question have the power to apply for and receive aid for those undertakings.

6 As regards, more specifically, the conditions for grant of aid relating to type and quality provided for in Article 4(l)(a) of Regulation N o 3089/78, the Commission adopted Regulation (EEC) N o 2568/91 of 11 July 1991 on the characteristics of olive oil and olive-residue oil and on the relevant methods of analysis (OJ 1991 L 248, p. 1, rectification OJ 1992 L 347, p. 69, hereinafter 'Regulation N o 2568/91').

7 As regards the supervisory measures intended for the detection of fraud, the first subparagraph of Article 5(1) of Commission Regulation (EEC) N o 2677/85 of 24 September 1985 laying down implementing rules in respect of the system of consumption aid for olive oil (OJ 1985 L 254, p. 5, hereinafter 'Regulation N o 2677/85'), as amended by Commission Regulation N o 1008/92 of 23 April 1992 (OJ 1992 L 106, p. 12, hereinafter 'Regulation N ó 1008/92'), provides that Member States are to check by sampling, using the methods set out in the Annexes to Regulation N o 2568/91, that bottled or canned oil meets one of the definitions referred to in Article 4(l)(a) of Regulation N o 3089/78, namely extra virgin olive oil, virgin olive oil, olive oil and olive-residue oil.

s As regards the system of penalties, Article 5(2) of that regulation, as amended by Regulation N o 1008/92, was drafted in the following terms before the regulation at issue entered into force:

'Where the competent authority in each Member State finds that the oil in ques- tion does not meet one of the definitions referred to in paragraph 1 as a result of blending or other chemical processes intended to render oil not eligible for con- sumption aid so eligible, the competent authority shall forthwith withdraw the plant's approval for a period of one to five years depending on the gravity of the

'2. Where the competent authority in any Member State finds that the oil in ques- tion does not meet any of the definitions referred to in paragraph 1:

— if the quality ascertained meets one of the other definitions set out in the Annex to Regulation N o 136/66/EEC, it shall apply a penalty equal to between 20% and 80% of the monthly average of consumption aid applied for in the 12 months preceding that in which the samples were taken, depending on the seri- ousness of the infringement;

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— in all other cases, it shall immediately withdraw the undertaking's approval for a period of one to five years, depending on the seriousness of the infringement, any other penalties notwithstanding. In addition, the undertaking in question shall be required to pay the Member State an amount equal to twice the average monthly consumption applied for in the 12 months preceding that in which samples were taken.

The penalties provided for in the first subparagraph shall not apply where the packaging undertaking proves to the satisfaction of the Member State that the fail- ure of the oil to meet the definitions in question is the result of exceptional cir- cumstances beyond the undertaking's control.

1 2 In the present case it seeks the partial annulment of Regulation N o 887/96 in so far as Article 1, amending the first indent of Article 5(2) of Regulation N o 2677/85, introduced a system of penalties with respect to packaging undertakings which are recognized under Article 2 of Regulation N o 3089/78 when the oil in respect of which aid was granted does not exhibit the characteristics laid down by the Com- munity rules in order to benefit from such aids.

Procedure and forms of order sought by the parties

1 3 The applicant lodged the originating application in the present case on 6 August 1996.

H In that application it claims that the Court of First Instance should:

— annul the part of the regulation at issue which lays down a system of penalties linked to substantively strict liability, that is to say non-conformity of the product with the characteristics set out in the tables annexed to Regulation N o 2568/91, without specifying that such non-conformity must be imputable to an act on the part of the party on whom the penalty is imposed;

— similarly, annul all measures linked to the aforementioned measure, whether adopted before, at the time of, or after that measure;

i6 In its observations on the plea of inadmissibility, lodged on 19 November 1996, the applicant contended that the Court of First Instance should:

— dismiss the plea and, alternatively, reserve it for the final judgment;

— fix a hearing for oral argument to be heard on the plea of inadmissibility raised by the Commission.

Admissibility of the action

Arguments of the parties

i7 The Commission recalls the wording and the purpose of the fourth subparagraph of Article 173 of the EC Treaty concerning the right of individuals to bring pro- ceedings in respect of regulations and the characteristics distinguishing a regulation from a decision which have been identified by the Court of Justice and by the Court of First Instance. It stresses that the contested provision specifies and varies the penalties to be applied by the competent authorities of the Member States in respect of oil-packaging undertakings where, following an inspection by the national inspection authorities, the oil in respect of which an application for con- sumption aid has been made is found not to meet the characteristics laid down by the Community rules in order to be eligible for such aid. The provision is intended to ensure that the penalties applied are commensurate with the varying degrees of gravity of the irregularities detected and, at the same time, to ensure that they con- stitute a sufficient deterrent to carrying out fraudulent transactions at the expense of Community funds. It consequently applies to objectively defined situations which produce legal effects with respect to persons envisaged in a general and abstract manner, that is to say all undertakings which satisfy the conditions laid down by Regulation N o 3089/78 and have been recognized by the Member States for the purposes of consumption aid or could be so recognized in due course.

22 Second, Federolio's position cannot in any way be assimilated to that of the applicant in Case C-313/90 CIRFS and Others v Commission [1993] ECR 1-1125, paragraphs 28 to 30, whose interest in bringing proceedings against a decision on aids was recognized, not only in the light of the role which it had played in the

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procedure prior to the proceedings, but also on the basis of the fact that that asso- ciation had been the Commission's interlocutor and that its position in its capacity as a negotiator of the discipline had therefore been affected by the contested decision. From that point of view, the mere fact that Federolio exchanged corre- spondence with the Commission concerning the proposed amendments to Regu- lation N o 2677/85 and that it submitted comments on them is not sufficient to accord it a legitimate interest in bringing proceedings, since it was in no way the Commission's interlocutor with regard to the adoption of the regulation at issue.

23 Third, this case does not concern a group action brought through the association by some of its members who could have brought individual proceedings in their own right. In contrast to the situation in Joined Cases T-447/93, T-448/93 and T-449/93 AITEC and Others v Commission [1995] ECR 11-1971, paragraph 62, the applicant association has not submitted that the individual situation of any (or, possibly, all) of the associated undertakings is such as to differentiate them from other undertakings in the sector.

24 Finally, in the present case, the case-law derived from the judgment in Case C-309/89 Codomiu v Council [1994] ECR 1-1853 cannot apply because, in con- trast to the regulation at issue in that case, Regulation N o 887/96 did not prejudice any specific right of the association and its members.

28 Federolio claims, first, that its role is not exclusively to act as the spokesperson for its members' interests. O n the contrary, it is constantly required to act as mediator, conciliator and filter of conflicting interests amongst packaging undertakings. That being so, it fulfils an institutional role which is legally recognized by the Italian State and consists, first, in continuous and active involvement, alongside the com- petent authorities, in the development and dissemination of national and Commu- nity policies for the promotion of a native product, whilst exposing and condemn- ing abuse and fraud when appropriate and, second, permanently informing and advising its members.

29 It stresses that it is a trade organization recognized under Article 11 of Regulation N o 136/66 and that, as such, on the basis of an ad hoc agreement, it is responsible for the payment of aids to packaging undertakings. For that reason also, it has a specific interest of its own in the proper organization and operation of the system of consumption aid as a whole.

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30 Second, it is apparent from the case-law both of the Community courts and the courts of the Member States that an association can have an interest which is not limited to that of its members and have duties and interests which are not the sum of those of its various components, but belong to the trade category taken as a whole.

3i As regards Italy, more specifically, the Corte di Cassazione (Court of Cassation) expressly confirmed the principle that a corporation of persons constituted so as not to exceed the bounds of the objects recognized as proper to a legal person has legal capacity to bring proceedings (Cassazione Civile, judgment of 12 May 1973, Soc. Acque Caraci del Fasano v Consorzio Utenti Acque del Fasano, Foro Italiano 1973, I, p. 816).

34 In that respect, the Community case-law concerning challenges to Commission decisions on State aids and anti-dumping measures attaches particular importance to two factors. First, that the undertaking or trade association was the source of the complaint which led to the opening of the investigation procedure, that its views were heard during that procedure and that they largely determined the con- duct of it (to that effect, in respect of anti-dumping measures, see Case 264/82 Timex v Council [1985] ECR 849; that principle was extended to the procedure referred to in Article 93 of the Treaty by the judgment in Case 169/84 Cofaz and Others v Commission [1986] ECR 391). Second, in the case of anti-dumping meas- ures, that the regulation itself acknowledged that an association whose members have been affected by the dumping has a legitimate interest in seeking protective measures.

35 A s regards participation in the p r o c e d u r e , t h e C o u r t of Justice held in the j u d g - m e n t in Cofaz and Others v Commission, cited at p a r a g r a p h 34 above, t h a t t h e applicant could only bring p r o c e e d i n g s u n d e r t w o circumstances:

(1) active participation in the investigation procedure,

(2) significant jeopardy to its market position.

36 At first sight, therefore, the existence of an interest in bringing proceedings appears to depend on external factors which, in any event, are not necessarily linked to the substantive situation of the association. Indeed, the Court and the Court of First Instance have repeatedly held that participation in the investigation can be

39 Since the judgment in Fediol v Commission (cited at paragraph 21 above), it has been regarded as of decisive import that Council Regulation (EEC) N o 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1979 L 339, p. 1) expressly grants trade associations a number of procedural rights.

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40 The grounds of that judgment are suggestive of two different orders of consider­ ation.

What is now important is only that the contested measure should produce effects for the applicant. If the measure affects it in such a way that the harm suffered is capable of putting it in a position which differs substantially from that of the per­ sans to whom the measure is addressed, its capacity to bring proceedings under the fourth paragraph of Article 173 of the Treaty must be acknowledged.

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43 Second, if formal reference to the association is the necessary condition for its capacity to bring proceedings under the fourth paragraph of Article 173 of the Treaty to be recognized, and even though the Community measure contains no such recognition, that conformity is none the less recognized under Italian law, which confers specific tasks and fonctions on Federolio which, in coordination with those of the competent administrative authorities, effectively contribute to the regulation and development of the olive-oil market.

44 The relevance of such recognition at national level is confirmed by Community case-law. ln his Opinion in Fediol v Commission, cited at paragraph 21 above, Advocate General Rozès, considering whether or not the trade association had capacity to bring proceedings for the purposes of the second paragraph of Article 173 of the Treaty (now the fourth paragraph), affirmed that in that respect it was not necessary to refer to formal legal personality, but that inquiry must be made as to whether the association in question is recognized by law and endowed with cer­ tain powers in order to fulfil the duties entrusted to it (ECR, at 2937, 2939 and 2940).

47 Furthermore, in the interests of procedural organization and legal certainty the Court of First Instance should hold the application admissible in order to avoid a multiplicity of actions in respect of the measures imposing penalties, which will form the basis for numerous references to the Court of Justice concerning the validity of the regulation, such as those resulting in the judgment in Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415). That would also involve the additional risk of conflicting judg­ ments being delivered by the various national courts which are, in any event con­ siderably less able than the Community courts to reach a decision in full knowl­ edge of the facts (see the Opinion of Advocate General Jacobs in Extramet Industrie v Council, cited at paragraph 42 above, ECR 2507, paragraphs 71 and 73). Finally, Community case-law has stated on a number of occasions that Article 173 of the Treaty should not be interpreted restrictively.

Findings of the Court

48 Article 114 of the Rules of Procedure provides that, if a party so requests, the Court of First Instance may give a decision on admissibility, a preliminary issue not going to the substance of the case. In accordance with paragraph 3 of that article, the remainder of the proceedings are to be oral, unless the Court of First Instance decides otherwise. In the present case, the Court of First Instance has suf­ ficient information from examination of the documents on the file and a decision will be given on the application without opening the oral procedure.

53 Such provisions are already measures of general application within the meaning of Article 189 of the Treaty. They apply to objectively defined situations and involve legal effects with respect to categories of persons defined in a general and abstract manner, namely the undertakings which package olive oil, which are recognized

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under Article 2 of Regulation No 3089/78 and to which consumption aid for olive oil is granted.

54 ln accordance with well-settled case-law, the general application and thus the leg­ islative nature of a measure are not called into question by the fact that it is pos­ sible to determine the number or even the identity of the persons to whom it applies at a given moment with a greater or lesser degree of precision, as long as it is established that it is applied by virtue of an objective legal or factual situation defined by the measure in relation to the objective of the latter (Case 6/68 Zuckerfabrik Watenstedt v Council [1968] ECR 409, 415; Case 64/69 Compagnie Française Commerciale et Financière v Commission [1970] ECR 221, paragraph 11, Case 101/76 Koninklijke Scholten Honig v Council and Commission [1977] ECR 797, paragraph 23, and order in Case T-183/94 Cantina Cooperativa fra Produttori Vitivinicoli di Torre di Mosto and Others v Commission [1995] ECR 11-1941, para­ graph 48).

55 In the present case, the Court finds that, notwithstanding the relatively small num­ ber of packaging undertakings receiving consumption aid at the time when it was adopted, the regulation at issue provides for penalties to be imposed on the basis of an objective situation, namely the fact that the quality and/or type of oil declared does not correspond with the quality and/or type specified by the appli­ cable legislation, which is defi.ned with reference to the objective of the regulation, namely the prevention and repression of fraud according to the gravity of the infringement. Furthermore, the number of undertakings affected by the contested regulation can always change.

59 In the present case it should therefore be ascertained whether the applicant is affected by the regulation at issue by virtue of certain attributes which are peculiar to it or whether circumstances exist in which it is differentiated from all other per­ sans with regard to that regulation.

60 As regards, more specifically, actions brought by associations, these have been held to be admissible in at least three types of situation, namely:

(a) where a legal provision expressly grants trade associations a series of proce­ dural rights (Fediol v Commission, cited at paragraph 21 above, paragraphs 28 to 30, and CCE de Vittel and Others v Commission, cited at paragraph 58 above, paragraphs 39 to 42);

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(b) where the association represents the interests of undertakings which would be entitled to bring proceedings in their own right (AITEC and Others v Com­ mission, cited at paragraph 23 above, paragraph 62);

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which does not satisfy the conditions laid down by the fourth paragraph of Article 173 of the Treaty (order of the Court of Justice in Case C-87/95 P CNPAAP v Council [1996] ECR I-2003, paragraph 38 and orders in Greenpeace and Others v Commission, cited at paragraph 32 above, paragraph 51 and Cantina Cooperativa fra Produttori Vitivinicoli di Torre di Mosto and Others v Commission, cited at paragraph 54 above, paragraph 59). To hold otherwise would mean that the admis­ sibility of an action for annulment no longer depended on the desire of the Com­ munity legislature to involve certain traders and/or trade associations in the pro­ cess of preparing acts of the institutions, but on an autonomous decision of the national authorities based on the interests of the Member State concerned rather than on the public interest of the Community.

64 Furthermore, even assuming that the assignment by national authorities of certain tasks and/or duties to an association may be held to be a factor which serves to distinguish an association individually for the purposes of the fourth paragraph of Article 173 of the Treaty, the fact none the less remains that that situation Îs not sufficient to distinguish the applicant individually, since ît has not established how its position differs from that of any other association in the Community entrusted with tasks and/or duties enjoying like recognition at national level.

65 As regards the second justification (see paragraph 60, under (b), above) for the admissibility of the action, inasmuch as the association represents the interests of undertakings which are, themselves, individually affected, the applicant considers that the packaging undertakings in receipt of consumption aid, of which there are a thousand, constituted an easily identifiable group on the date on which the regu­ lation at issue entered into force and are therefore directly and individually affected by its adoption. In those circumstances, Federolio's right to bring pro­ ceedings is based on the specific interest of its members, which it re.presents.

68 On that point, it should be borne in mind that, according to settled case-law, an association set up to promote the collective interests of a category of persons can­ not be considered to be individually concerned, within the meaning of the fourth paragraph of Article 173 of the Treaty, by a measure affecting the general interests of that category, and, consequently, may not bring an action for annulment when its members could not do so individually Qoined Cases 19/62, 20/62, 21/62 and 22162 Fédération Nationale de la Boucherie en Gros et du Commerce en Gros des Viandes and Others v Council [1962] ECR 491, 499 and Case 72/74 Union Syndi­ cale and Others v Council [1975] ECR 401, paragraph 17; order in Case 60/79 Fédé­ ration Nationale des Producteurs de Vins de Table et Vins de Pays v Commission [1979] ECR 2429, 2432; Case 282/85 DEFI v Commission [1986] ECR 2469, para­ graph 16; order in Case 117/86 UFADE v Council and Commission [1986] ECR p. 3255, paragraph 12; AITEC and Others v Commission, cited at paragraph 23 above, paragraphs 58 and 59). None the less, the existence of particular circum­ stances, such as the role played by an association in a procedure leading to the adoption of an act within the meaning of Article 173 of the Treaty, may justify

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admitting an action brought by an association whose members are not directly and individually concerned by the act at issue, particularly when its position as nego­ tiator is affected by it (Van der Kooy and Others v Commission, cited at paragraph 60 above, paragraphs 21 to 24, and CIRES and Others v Commission, cited at para­ graph 22 above, paragraphs 28 to 30).

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incarne, resulting from the application of the new system of penalties, assuming it is to be proven, could not jeopardize the viability of Federolio as an association (see, by analogy, the judgment in CCE de Vittel and Others v Commission, cited at paragraph 58 above, paragraph 52). Finally, Federolio has not established how its capacity as an organization responsible for the payment of aids is different from that of other organizations performing the same task in Italy or elsewhere in the Community and distinguishes it individually for the purposes of the fourth para­ graph of Article 173 of the Treaty.

72 The applicant is therefore not individually distinguished by any of the criteria adopted by the case-law concerning the admissibility of actions for annulment brought by associations.

73 On the basis of its analysis of the judgments in Fediol v Commission, cited at para­ graph 21 above, Cofaz and Others v Commission, cited at paragraph 34 above, AITEC and Others v Commission, cited at paragraph 23 above, Extramet Industrie v Council, cited at paragraph 42 above, and Codorniu v Council, cited at paragraph 24 above, the applicant none the less considers that, since its situation is no differ­ ent from that of the applicant associations in those cases and, in particular, in Fediol v Commission, the Court of First Instance should recognize its capacity to bring proceedings against the regulation at issue. According to the applicant, it would be contrary to the principle of non-discrimination to base a trade associa­ tion's right to bring proceedings on a concept of individual interest which varies according to the legal basis of the regulation at issue.

not be appropriate for the Court to pronounce on the merits of this system'. In those circumstances, the fact that the admissibility of an action for annulment brought by an association representing the interests of certain undertakings may depend on the relevant regulatory framework - since, in the context of a Com­ munity measure of a legislative nature, it can distinguish itself individually by par­ ticipating in the administrative procedure preceding the adoption of the contested act, whilst, in a different context, it would not be able to do so in the absence of a legislative provision providing for such participation - does not constitute a breach of the principle of equality provided that it has not been established that, by so acting, the Community legislature infringed general principles of Commu­ nity law, such as the right to be heard. The very nature of the process of preparing legislative acts and of such acts themselves, as measures of general application, is such that the participation, by virtue of those principles, of the persons and/or associations affected is not required, their interests being deemed to be represented by the political authorities called upon under the Treaty to adopt those acts.

75 That view is confirmed, at least implicitly, by the judgment in Joined Cases C-15/91 and C-108/91 Buck/ and Others v Commission [1992] ECR 1-6061, para­ graphs 28 to 30). ln that case, which concerned an action for annulment of a Com­ mission regulation, the applicants claimed that their position was analogous to that of traders faced with a regulation introducing anti-dumping duties, and that the Court of Justice had, in its judgments in that field, accepted that individuals may seek the annulment of such a regulation.

78 Finally, the applicant cannot daim that declaring the action admissible would avoid the risk of a multiplicity of actions in respect of measures imposing penalties and a risk of conflicting judgments from the various national courts. Even if it is estab­ lished that such a risk exists, this cannot justify a change in the sy stem of remedies which is established by Article 173 of the Treaty and which is designed to confer on the Community Court the power to review the legality of acts of the institu­ tions. T hat situation could not in any event constitute a ground for declaring admissible an action for annulment brought by a natural or legal person which does not satisfy the conditions laid down by the fourth paragraph of Article 173 (see, by analogy, the orders in CNPAAP v Council, cited at paragraph 63 above, paragraph 38 and Greenpeace and Others v Commission, cited at paragraph 32 above, paragraph 51).

79 In that respect, the procedure laid down in Article 177 of the Treaty specifically enables legal and natural persans to challenge the validity of acts of the institutions when they are not entitled to bring an action for annulment under Article 173 of the Treaty, whilst avoiding the risk of conflicting decisions from the various national courts.

80 It follows from all the foregoing considerations that the applicant is not individu­ ally concemed by the regulation at issue. T he application must therefore be dis­ missed as inadmissible.

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Costs

Luxembourg, 30 September 1997.

H. Jung R. Garcfa-Valdecasas

Registrar President

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