T-14/97

Denkavit France SARL, a company incorporated under French law, established at Montreuil-Bellay (France),

Sobeval Viande SA, a company incorporated under French law, established at Périgueux (France),

Serval SA, a company incorporated under French law, established at Sainte-Eanne (France),

* Language of the case: French.

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Coopagri Bretagne, a company incorporated under French law, established at Landerneau (France),

Collet et Compagnie SA, a company incorporated under French law, established at Châteaubourg (France),

Kermené SA, a company incorporated under French law, established at Saint- Jacut-du-Mené (France), and

Vals SA, a company incorporated under French law, established at Champagne (France),

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SOFIVO AND OTHERS v COUNCIL

Commission of the European Communities, represented by Gérard Berscheid, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

intervener,

APPLICATION for annulment of Article 1(4) of Council Regulation (EC) No 2222/96 of 18 November 1996 amending Regulation (EEC) No 805/68 on the common organisation of the market in beef and veal (OJ 1996 L 296, p. 50),

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THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

2 As consumer demand was unlikely to recover quickly, the Council took the view that market balance should be restored by reducing production.

3 With that end in view Council Regulation (EC) No 2222/96 of 18 November 1996 amending Regulation (EEC) No 805/68 on the common organisation of the mar­ ket in beef and veal (OJ 1996 L 296, p. 50), was adopted.

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SOFIVO AND OTHERS v COUNCIL

4 As the eighth recital in its preamble indicates, it aims to bring about a reduction in the number of finished animals offered on the market, with greater encouragement for withdrawal and/or marketing of young, light animals.

5 To that end, Article 1(4) of Regulation No 2222/96 replaces Article 4i of Regu­ lation (EEC) No 805/68 of 27 June 1968 on the common organisation of the mar­ ket in beef and veal (OJ, English Special Edition 1968 (I), p . 187), and authorises the granting of two types of premiums. The amended article provides, first, for a processing premium in respect of young male calves originating in the Community which are withdrawn from production, as a rule, before they are over 10 days old, and, under certain conditions, before they are 20 days old (Article 4i(1)), and, sec­ ond, an early marketing premium for calves which is granted on the slaughter, in a Member State, of each calf 'of a weight of not more than the average slaughter weight of calves in the Member State concerned, less 15 % ' (Article 4i(2)).

9 The applicants are companies incorporated under French law involved in the pro­ duction of veal for human consumption.

10 They seek the annulment of Regulation No 2222/96, or at least of Article 1(4) thereof, in so far as that provision requires the Member States to pay an early mar­ keting premium for calves where their slaughter weight is not more than the aver­ age slaughter weight for calves as it appears in the statistics for 1995 in the Member State concerned, the weight of the animal being established by reference to the carcase specifications used to determine veal production in 1995, when, in the absence of a common definition of veal for human consumption or reliable uni­ form statistics at Community level, there are, in the applicants' submission, no objective data on the basis of which carcases from different Member States might be compared.

1 1 They complain that the application of that criterion entails discrimination against producers of veal operating in France in comparison with those operating in the Netherlands, who are their main competitors, since the reference weight fixed on that basis is, in the case of animals slaughtered in France, too low to allow normal marketing, with the result that receipt of the premium is incompatible with the normal marketing of the carcases, whereas the reference weight applicable to car­ cases of animals slaughtered in the Netherlands is sufficiently high for that coun­ try's producers to receive the premium whilst marketing their carcases normally, in particular, on the French market where they meet consumer requirements.

15 By order of the President of the Fifth Chamber of the Court of First Instance of 11 June 1997, the Commission was granted leave to intervene in support of the forms of order sought by the defendant.

16 In their applications the applicants claim that the Court of First Instance should:

— annul Regulation No 2222/96 or, at least, Article 1(4) thereof;

— order the Council to pay the costs.

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Arguments of the parties

20 The Council claims that the applications are inadmissible in that, first, the con­ tested measure does not constitute a decision and, second and third, the applicants are neither individually nor directly concerned by the contested measure.

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SOFIVO AND OTHERS v COUNCIL

21 The Commission reiterates the arguments relied on by the Council and raises two further arguments alleging that the applicants have no interest in bringing proceed­ ings and have given insufficient grounds for their applications, in that the subject- matter of the actions covers provisions other that Article 1(4) of Regulation No 2222/96.

22 The applicants submit that they are individually affected by Regulation No 2222/96. They base their argument, first, on the fact that the early marketing pre­ mium for veal was applied at very short notice, namely as from 1 December 1996, Regulation No 2222/96 having been published in the Official Journal on 21 November 1996. Veal production requires an industrial and marketing infrastruc­ ture which, the applicants submit, cannot be created within such a short period. It thus seems highly unlikely that the legislation can apply to new producers who only commenced business after the adoption of Regulation No 2222/96. Such does not, moreover, seem to have been the intention of the authors of that regulation since it is intended to limit production. The regulation, therefore, applies to per­ sons whom it was perfectly possible to identify when it was enacted.

24 The applicants submit, further, that Regulation No 2222/96 concerns them directly. It does not allow Member States any discretion. The truth of this claim is evidenced in three ways. First, the Member States are obliged to apply at least one of the two premiums. Second, the choice between the two premiums is further­ more purely theoretical inasmuch as States not affected by embargo measures are forced to adopt the early marketing premium in preference to the market with­ drawal premium. In practice only the United Kingdom and Ireland, which are affected by the embargo, and Portugal which does not produce veal, have opted for the second premium. Third, since Regulation No 2222/96 makes payment of the premium conditional upon a slaughter weight of not more than an average slaughter weight determined on the basis of statistics from 1995, that is to say from a year which has already passed, it removes any discretion from the Member States as they are not in a position to influence the rate of the premium.

Findings of the Court

25 Under Article 114 of the Rules of Procedure, the Court of First Instance is to give a decision on admissibility without considering the substance of the case, if a party makes an application to that effect. Under Article 114(3), unless the Court of First Instance otherwise decides, the remainder of the proceedings is to be oral. In this case, the Court considers that it has obtained sufficient information from examina­ tion of the documents on the court file to be able to give a decision without open­ ing the oral procedure.

30 In establishing one of the conditions governing the grant of the premium, the con­ tested provision thus applies, as a part of the mechanism set up by the regulation, to objectively determined situations and has legal effects on categories of persons envisaged in general and abstract terms, in the present case, traders bringing calves to slaughter in Member States which opt for the application of that premium. It therefore displays the features of a measure of general application within the mean­ ing of Article 189 of the Treaty.

31 The general application and hence the legislative nature of a measure are not called in question by the fact that it is possible 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 its objective (see, for example, order of 18 December 1997 in Case C-409/96 P Sven-

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ges Betodlares Centralförening and Henrikson v Commission [1997] ECR I-7531, paragraph 37; orders of 29 June 1995 in Case T-183/94 Cantina Cooperativa fra Produttori Vitivinicoli di Torre di Mosto and Others v Commission [1995] ECR II-1941, paragraph 48, and Federolio v Commission, cited above, paragraph 55).

32 In the present case, notwithstanding the more or less limited number of traders eligible to receive the early marketing premium for veal when Regulation No 2222/96 was adopted, the Court cannot but find that the regulation provides for the premium to be granted on the basis of an objective situation, that is to say the bringing to slaughter of calves of a weight of not more than the average slaughter weight of calves in the Member State concerned, less 15 %, a situation defined by reference to the objective of the regulation, that is to say, to restore balance to the market in beef and veal which has suffered serious disruption as a result of a drop in consumption. Moreover, the number of traders affected by the regulation at issue is always Hable to change subsequently.

37 In the present case, the Court of First Instance finds that, even if the contested provision of Regulation No 2222/96 were, as the applicants assert, such as to affect their situation by reason of its factual consequences on their position on the mar­ ket, that circumstance would not suffice to differentiate them from all other per­ sons, since they would be in the same situation as all other economic agents bring­ ing calves to slaughter in France. The provision thus concerns them only by reason of their objective status of economic agents active in the sector contemplated by the regulation, in the same way as any other economic agent carrying on the same activity (Case 34/88 Cevap and Others v Council [1988] ECR 6265, paragraph 15, and Case C-10/95 P Asocarne v Council [1995] ECR I-4149, paragraph 42).

38 It follows from the foregoing considerations that the contested provision of Regu­ lation No 2222/96 cannot be held to be of individual concern to the applicants.

39 As that condition of admissibility is not fulfilled in the present case, the objection of inadmissibility raised by the Council must be upheld and the actions dismissed as inadmissible, without there being any need to rule on the pleas alleging that the

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applicants were not directly concerned by Regulation No 2222/96, that they had no interest in bringing proceedings and that their applications did not state suffi­ cient grounds under Article 19 of the EC Statute of the Court of Justice and Article 44(1 )(c) of the Rules of Procedure of the Court of First Instance.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby orders:

1. The applications are dismissed as inadmissible.

2. The applicants shall bear their own costs and shall be jointly and severally liable to pay the costs incurred by the Council. The Commission shall bear its own costs.

Luxembourg, 25 June 1998.