T-137/96

VALIO v COMMISSION

O R D E R O F T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE 14 October 1996 *

In Case T-l37/96 R,

Valio Oy, a company incorporated under Finnish law, established at Helsinki, rep- resented by Francis Herbert and Daniel M. Tomasevic, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Carlos Zeyen, 67 Rue Ermesinde,

applicant,

v

T H E P R E S I D E N T O F THE C O U R T O F FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal background, facts and procedure

1 The company Valio O y (hereinafter 'Valio') produces compound fats, which it sells on the Finnish market under the trade marks 'Voimanini' and 'Voilevi', registered in 1979 and 1987 respectively and used by the company since then.

2 O n 1 January 1996 Council Regulation (EC) N o 2991/94 of 5 December 1994 lay- ing down standards for spreadable fats (OJ 1994 L 316, p. 2, hereinafter 'the Regu- lation') entered into force. Based on Article 43 of the EC Treaty, it lays down mar- keting standards for solid fats intended for human consumption (butter, margarine and compound fats). According to its preamble, it aims to avoid confusion for the consumer by limiting the use of terms such as, inter alia, 'butter', 'margarine' and 'compound fats' to certain product categories with clearly defined compositions and fat contents.

5 However, the first indent of the third subparagraph of Article 2(2) provides that the above provisions are not to apply to 'the designation of products the exact nature of which is clear from traditional usage and/or when the designations are clearly used to describe a characteristic quality of the product'. Article 8 of the Regulation gives the Commission power to adopt detailed rules for the application of the Regulation in accordance with the management committee procedure laid down in Article 30 of Regulation (EEC) N o 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (OJ, English Special Edition 1968 (I), p. 176) and Article 38 of Regulation N o 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organization of the market in oils and fats (OJ, English Special Edition 1965-1966, p . 221). Under Article 8, those detailed rules for the application of the Regulation may in particular include the list of the products referred to in the first indent of the third subparagraph of Article 2(2), on the basis of the lists sent to the Commission b y the Member States.

6 Article 10 of the Regulation states: 'Member States shall specify the effective penal- ties to be imposed in the case of breach of the provisions of this Regulation and, where appropriate, the national measures relevant to its enforcement. Member States shall inform the Commission of the penalties by 1 January 1997.'

7 In the present case, it is common ground that the products sold by Valio under the 'Voimariini' and 'Voilevi' trade marks do not satisfy the criteria for butter which are defined in the Regulation. Their packaging thus includes, in addition to the brand name, the sales description prescribed by the Regulation, namely 'blend' and 'half-fat blend', 'rasvaseos' and 'rasvaseos 40' in Finnish, and the composition of the product, as can be seen from the case-file.

io In a letter of 25 June 1996 addressed to the Permanent Representative of the Republic of Finland to the European Union, the Commission informed him, in reply to his letter of 5 March 1996 and to the questions raised at the last manage- ment committee meeting, that the provision in Article 2(2) of the Regulation reserving certain sales descriptions, such as 'butter' or 'margarine', for products whose composition conformed with the precise definition in the annex to the Regulation could 'also apply to certain trade marks which include the term butter, margarine, etc., and which were registered before the Regulation. Their use may not continue. Such a practice would lead to complete confusion among consumers and would nullify the effect of [the Regulation].' It concluded that, having regard to the above facts, 'the Finnish trade marks "Voimariini", "Voilevi" [and three other marks not belonging to the applicant] may no longer be used'.

1 1 In a letter of 22 August 1996 addressed to the applicant and others, enclosing the Commission's letter of 25 June 1996, the Finnish Elintarvikevirasto (Food Office) noted that the Regulation had entered into force on 1 January 1996 and continued:

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'The Elintarviketeollisuus ry (Food Industry Association), after discussing the matter with the Elintarvikevirasto, has notified the transitional periods regarded as possible in practice with respect to the changes to composition and labelling ... The Elintarvikevirasto will send the instructions for supervision of the Regulation to the municipal supervisory authorities during September.

Law

i4 Under the combined provisions of Articles 185 and 186 of the Treaty and Article 4 of Council Decision 88/591 /ECSC, EEC, Euratom of 24 October 1988 establish- ing a Court of First Instance (OJ 1988 L 319, p. 1), as amended by Council Deci- sions 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21) and 94/149/ECSC, E C of 7 March 1994 (OJ 1994 L 66, p. 29), the Court may, if it considers that circumstances so require, order the operation of the contested act to be suspended or prescribe any necessary interim measures.

is Article 104(1) of the Rules of Procedure provides that an application to suspend operation of a measure is admissible only if the applicant is challenging that meas- ure in proceedings before the Court of First Instance. Article 104(2) provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Such measures must be provisional in the sense that they do not prejudge the decision on the substance of the case (see the order of the Presi- dent of the Court of First Instance in Case T-41/96 R Bayer v Commission [1996] E C R 11-381, paragraph 13).

The allegation that the main application is manifestly inadmissible

Arguments of the parties

u The applicant submits that it is settled law that the question of the admissibility of the main application should not be examined in proceedings relating to an applica- tion for interim measures, so as not to prejudge the substance of the case (see the orders of the President of the Court of Justice in Case 65/87 R Pfizer v Commis- sion [1987] E C R 1691 and Case 160/88 R Fédération Européenne de U Santé Ani- male and Others v Council [1988] ECR 4121). In the present case the main appli- cation is for annulment of a decision which is of direct and individual concern to the applicant. It cannot be regarded as manifestly unfounded and the question of admissibility therefore does not arise in the context of these proceedings for interim measures.

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case, the undertakings concerned could not have conceived, from reading the Regulation, that it might also apply to registered trade marks. There was thus no reason for those undertakings to envisage the possibility of bringing a direct action against the Regulation within two months from its publication. Furthermore, they would have been faced with the difficulty of showing that the Regulation was of direct and individual concern to them.

2i Moreover, contrary to the Commission's assertions, it was clear from the Finnish authorities' letter to the applicant of 22 August 1996 that those authorities consid- ered that they were bound by the Commission's decision contained in the letter of 25 June 1996. That is why they requested the undertakings concerned to cease using certain registered trade marks which had been in use for many years. More precisely, in reply to a question by the President of the Court on the procedure for the implementation of the Regulation by the Finnish authorities, the applicant stated that no formal decision had yet been adopted, but the Finnish authorities had in their letter of 22 August 1996 asked the undertakings concerned what mea- sures they intended to take in view of the Commission's letter of 25 June 1996.

22 In that context the applicant could be deprived of all judicial protection if the main application were to be declared inadmissible. Thus, on the basis of the judgment in Case C-188/92 TWD Textilwerke Deggendorf [1994] E C R 1-833, which now con- stitutes firm authority, as may be seen from the Opinion of Advocate General Jacobs of 19 September 1996 in Case C-178/95 Wiljo v Belgium [1997] ECR 1-585, at 1-587, the applicant might not be allowed to bring its claims in the national courts, on the ground that it should have challenged the Commission's decision contained in the letter at issue.

26 At the request of the President of the Court, the Commission also explained that the list of products benefiting from the derogation referred to in the third subpara- graph of Article 2(2), which it is empowered to draw up under Article 8 of the Regulation on the basis of the lists sent to it by the Member States, is a single list which is to be established after examining all the lists communicated by the Mem- ber States. The Commission had received all the lists drawn up by the Member States, including that from the Finnish authorities, which did not include the 'Voi- levi' and 'Voimariini' marks. The Commission was currently in the process of finalizing the first draft of the Ust which it would submit to the management com- mittee.

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Findings of the President

27 It is settled case-law that, in principle, the issue of the admissibility of the main action should not be examined in proceedings relating to an application for interim measures. It should be reserved for the examination of the main application, unless it is apparent at first sight that the latter is manifestly inadmissible, so as not to prejudge the Court's decision on the substance of the case (see the order of the President of the Court of Justice in Case C-l 17/91 R Bosman v Commission [1991] E C R 1-3353, paragraph 7, and, as the most recent authority, the order of the Presi- dent of the Court of First Instance in Case T-75/96 R Söktas v Commission [1996] E C R 11-859, paragraph 16).

28 In the present case, having regard to the circumstances of the case and the argu- ments of the parties, the President must examine whether the main application for the annulment of the 'decision' contained in the Commission's letter of 25 June 1996 is to be considered as being at first sight manifestly inadmissible.

32 Unlike the definition of the detailed rules of application, the implementation of the provisions of the Regulation, in particular the prohibition of the use of the reserved sales descriptions for products which do not meet the corresponding requirements set out in the annex to the Regulation, falls within the exclusive com- petence of the Member States. That power of the Member States not only to take individual decisions in implementation of the Regulation but also to adopt general implementing measures is confirmed by Article 10 of the Regulation: 'Member States shall specify the effective penalties to be imposed in the case of breach of the provisions of this Regulation and, where appropriate, the national measures rel- evant to its enforcement. Member States shall inform the Commission of the pen- alties by 1 January 1997.'

33 In that legal context, it must be determined whether, under the system of the Regulation, the contested letter may prima facie be construed as constituting a decision adopted by the Commission under Article 8 of the Regulation, as the applicant suggests, or whether it is on the contrary prima facie merely a non- binding opinion on the interpretation of the Regulation, issued by the Commis- sion at the request of the competent national authorities in the context of the cooperation required by Article 5 of the Treaty.

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34 In the present case, neither the content nor the form nor the context of the con- tested letter suggests a Commission decision under Article 8 of the Regulation. The letter expressly states that its object is to give information to the Member State concerned, at the latter's request, for the application of the Regulation. It concerns in particular the interpretation of the second subparagraph of Article 2(2), which prescribes that 'the sales descriptions in the annex [are to] be reserved for the products defined therein'. It states that that provision also applies to certain trade marks which contain, for example, the word 'butter'. It concludes that the Finnish product names 'Voilevi' and 'Voimariini' may no longer be used.

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37 It follows that the contested letter cannot be regarded as a decision capable of affecting the applicant's legal position.

38 Since it is for the competent national authorities to adopt the decisions in imple- mentation in particular of the prohibition laid down in the second subparagraph of Article 2(2) of the Regulation, it will be for the applicant, if the national authorities adopt the non-binding interpretation suggested by the Commission in the letter at issue, to make use at the appropriate time of the remedies available in national law to challenge in the national courts the measures taken with respect to it.

39 The national court will then be able to refer, if appropriate, the question of the interpretation or validity of the Regulation to the Court of Justice.

40 In that respect, the present case may be distinguished from the situation in point in TWD Textilwerke Deggendorf, cited by the applicant at the hearing. Unlike that case, no decision in implementation of the prohibition laid down in the second subparagraph of Article 2(2) of the Regulation was adopted in the present case by the Commission — which had no competence to do so — with respect to the applicant's trade marks at issue here. Under those circumstances, the measures implementing that provision of the Regulation are not amenable to direct review by the Community judicature, since it is for the competent national court to review the validity of the national measures implementing the Regulation (see the judgment in Case T-271/94 Branco v Commission [1996] ECR 11-749, paragraph 53).

hereby orders:

1. The application for interim measures is dismissed.

2. The costs are reserved.

Luxembourg, 14 October 1996.

H . Jung A. Saggio

Registrar President