T-109/97

ORDER OF 15. 9. 1998 — CASE T-109/97

O R D E R O F T H E C O U R T O F FIRST INSTANCE (Second Chamber) 15 September 1998 *

In Case T-109/97,

Molkerei Großbraunshain GmbH and Bene Nahrungsmittel GmbH, companies incorporated under German law, established in Altenburg, Germany, represented by Michael Loschelder and Thilo Klingbeil, Rechtsanwälte, Cologne, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

applicants,

supported by

II - 3536

MOLKEREI GROSSBRAUNSHAIN AND BENE NAHRUNGSMITTEL ν COMMISSION

supported by

Molkerei und Weichkäserei K.-H. Zimmermann GmbH, a company incorpo- rated under German law, established in Falkenhain, Germany, represented by Philipp Lotze and Stefan Lehr, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of René Foltz, 6 Rue Heinrich Heine,

intervener,

A P P L I C A T I O N for annulment of Commission Regulation (EC) N o 123/97 of 23 January 1997 supplementing the Annex to Commission Regulation (EC) N o 1107/96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation (EEC) N o 2081/92 (OJ 1997 L 22, p. 19), in so far as it registers the protected designation of origin ‘Alt- enburger Ziegenkäse’ for a too extensive geographical area,

Order

Legal background and facts of the case

1 Council Regulation (EEC) N o 2081/92 of 14 July 1992 on the protection of geo- graphical indications and designations of origin for agricultural products and food- stuffs (OJ 1992 L 208, p. 1) lays down, according to Article 1, rules on the Com- munity protection of designations of origin and geographical indications for certain agricultural products and foodstuffs.

2 Article 2(2)(a) of Regulation N o 2081/92 defines a designation of origin as the name of a region, a specific place or, in exceptional cases, a country, used to describe an agricultural product or a foodstuff originating in that region, specific place or country, the quality or characteristics of which are essentially or exclu- sively due to a particular geographical environment with its inherent natural and human factors, and the production, processing and preparation of which take place in the defined geographical area.

3 Registration as a protected designation of origin of the name of an agricultural product or foodstuff, which must satisfy the conditions laid down by Regulation N o 2081/92 and in particular comply with the specification defined in Article 4, confers generally on producers established in the defined geographical area the exclusive right to use that name (Articles 1 to 4 and 13 of the regulation).

II - 3538

II - 3539

ORDER OF 15. 9. 1998 — CASE T-109/97

3. Member States may maintain national protection of the names communicated in accordance with paragraph 1 until such time as a decision on registration has been taken.'

6 In accordance with Article 18, Regulation N o 2081/92 entered into force 12 months after the date of its publication in the Official Journal, which was 24 July 1992.

7 O n the basis of Article 17 of Regulation N o 2081/92, the Commission adopted Regulation (EC) N o 123/97 of 23 January 1997 supplementing the Annex to Com- mission Regulation (EC) N o 1107/96 on the registration of geographical indica- tions and designations of origin under the procedure laid down in Article 17 of Regulation (EC) N o 2081/92 (OJ 1997 L 22, p. 19). The annex to that regulation includes in point A, under the heading 'Cheeses', 'Germany', the protected desig- nation of origin (PDO) 'Altenburger Ziegenkäse' (goat cheese made in the Alten- burg region, which must contain a minimum percentage of goats' milk).

8 Registration by the Commission of the name 'Altenburger Ziegenkäse' was pre- ceded by several legislative and administrative measures in Germany:

— The ministry rejected that request by letter of 13 July 1995 and explained the reasons for the definition of the contested geographical area.

— O n 9 August 1995 the applicants complained to the Commission, asking for an action for failure to fulfil obligations to be brought against Germany under Article 169 of the EC Treaty. They argued that the German regulations on cheese infringed Regulation N o 2081/92 by not limiting the area of manufac- ture of 'Altenburger Ziegenkäse' to the district of Altenburger Land but including other districts such as Wurzen.

II - 3541

ORDER OF 15. 9. 1998 — CASE T- 109/97

— The Commission's Directorate General for Agriculture (DG VI) replied by let- ter of 18 March 1996 that it would recommend that the Commission take no action on the complaint, but would ask the Federal Republic of Germany for further information on the geographical area of manufacture in question. By letters of 31 July, 12 November and 28 November 1996, the Federal Republic of Germany gave the Commission further information on the point.

Procedure and forms of order sought by the parties

II - 3542

MOLKEREI GROSSBRAUNSHAIN AND BENE NAHRUNGSMITTEL ν COMMISSION

1 1 By separate document lodged at the Registry of the Court of First Instance on 14 July 1997, the Commission raised a plea of inadmissibility pursuant to Article 114 of the Rules of Procedure.

12 By documents lodged on 29 September and 2 October 1997 respectively, Molkerei und Weichkäserei Κ.-Η. Zimmermann G m b H (hereinafter 'Zimmermann') and Freistaat Thüringen {Land of Thuringia) sought leave to intervene, the former in support of the form of order sought by the defendant and the latter in support of the form of order sought by the applicants.

1 3 By order of the President of the Second Chamber of the Court of First Instance of 24 March 1998, Zimmermann and the Land of Thuringia were granted leave to intervene, their observations being restricted exclusively to the question of the admissibility of the application.

14 The Commission claims that the Court should:

ORDER OF 15. 9. 1998 — CASE T-109/97

16 Zimmermann claims that the Court should:

— dismiss the application as inadmissible, without considering the substance;

— order the applicants to pay the costs, including those of the intervener in sup- port of the form of order sought by the defendant.

17 The Land of Thuringia contends that the Court should:

— primarily, declare the application admissible;

The plea that Regulation No 123/97 does not affect the applicants' rights

19 The Commission and Zimmermann contend that Regulation N o 123/97 does not affect the applicants' rights but, on the contrary, confers legal benefits on them. Registration of the name 'Altenburger Ziegenkäse' as a protected designation of origin replaces national protection, previously ensured by the German regulations on cheese, by Community protection. The fact that Regulation N o 123/97 does not give the applicants an exclusive right to the name 'Altenburger Ziegenkäse', which -would enable them to prevent any competitor, for example Zimmermann, from using it, does not affect their rights either. Any designation of origin is by its nature a 'collective' designation, that is, a designation which may be made use of by all producers established within the defined geographical area for marketing products in accordance with the prescribed conditions of manufacture.

20 The applicants reply that they do not seek to be given exclusive use of the designa- tion 'Altenburger Ziegenkäse', nor for other manufacturers of that cheese estab- lished in a correctly defined area to be prohibited from using it. They merely wish for the geographical area covered by that designation to be reduced, corresponding to the name of the product, to the district of Altenburger Land.

21 According to the applicants, the argument that the contested regulation amounts to an extension to Community level of the national protection ensured by the Ger- man regulations on cheese is incorrect. There is no hierarchical relationship between Community protection under Regulations N o 2081/92 and N o 123/97 and protection ensured by German national law. Whether registrations may be car- ried out under Regulation N o 2081/92 depends exclusively on the formal and sub- stantive requirements of that regulation.

24 They consider that Regulation N o 123/97 also does not affect the applicants by reason of certain attributes which are peculiar to them or by reason of circum- stances in which they are differentiated from all other persons (within the meaning of Case 25/62 Plaumann ν Commission [1963] E C R 95, at p. 107). First, the fact that the applicants are, according to their own statements, the only manufacturers of 'Altenburger Ziegenkäse' in the district of Altenburg does not confer on them any attribute peculiar to them, but merely means that at present they have no com- petitors in that district, which is a factual circumstance not dependent on them which may change at any moment. Second, the legislative nature of a measure is not called into question by the fact that it is possible to determine more or less precisely the number or even the identity of the persons to whom it applies, as long as it is established that it applies by virtue of an objective legal or factual situ- ation defined by it in relation to its purpose (order of 23 November 1995 in Case C-10/95 Ρ Asocarne ν Council [1995] E C R I-4149, paragraph 30). In the Commis-

II - 3546

MOLKEREI GROSSBRAUNSHAIN AND BENE NAHRUNGSMITTEL ν COMMISSION

sion's view, that is the case here, since Regulation N o 123/97 applies to the appli­ cants because they manufacture 'Altenburger Ziegenkäse'. Consequently, the applicants are not distinguished individually by the contested regulation in the same way as the addressee of a decision.

II-3547

ORDER OF 15. 9. 1998 — CASE T-109/97

wrongful use of the designation. According to the applicants and the Land of Thuringia, the protection made available by a protected designation of origin should not be assessed differently from that of a registered trade mark. Both cases concern individual protected rights within the field of industrial and commercial property. The protection given by the designation would be incomplete, or even ineffective, if the undertakings concerned could not apply for judicial review of the legal form given to that protection by legislative measures of the Community insti- tutions.

28 The applicants and the Land of Thuringia stress that in any event manufacture of 'Altenburger Ziegenkäse' is limited — as the Commission too was aware before it adopted the contested regulation — to a defined area and there are only two manufacturers, industrial production in the district of the same name being under- taken only by the applicant Molkerei Großbraunshain. In contrast with extensive designations such as feta cheese and Spanish wine from the Rioja region, the area at issue in the present case is small. The number of manufacturers established inside and outside the district in question is also limited, known, and unchanged for an indefinite period. That 'Altenburger Ziegenkäse' might be made in future by new producers in the district of Altenburger Land is so unlikely, in view of exist- ing conditions of manufacture, that it is a purely theoretical possibility, and may thus be excluded.

29 They conclude that the contested regulation can only be regarded as an individual decision of the Commission whose consequences are such that it directly and indi- vidually affects the applicants' interests.

32 In the Commission's submission, the fact that they addressed a complaint to it and were 'heard' in that connection does not give the applicants a right to bring

II - 3549

ORDER OF 15. 9. 1998 — CASE T-109/97

proceedings either. Their complaint was directed at having the Commission bring an action against the Federal Republic of Germany for failure to fulfil obligations, under Article 169 of the Treaty; that complaint thus was not a condition laid down by Regulation N o 2081/92 for registration of the name 'Altenburger Ziegenkäse'. Even if the applicants did 'take part' in the adoption of the contested regulation by reason of their complaint, it would be contrary to the wording and spirit of Article 173 of the Treaty to allow every individual who has taken part in the preparation of a measure of a legislative character subsequently to bring proceedings against that measure (order in Asocarne ν Council, cited in paragraph 24 above, paragraph 40).

33 Finally, according to the Commission, the applicants are wrong in submitting that they have a right to bring proceedings because, after Regulation N o 123/97 was adopted, 'no further action' was taken on the complaint which they had lodged with the Commission. First, it is scarcely conceivable that a decision to take no further action on a complaint aimed at the bringing of an action under Article 169 of the Treaty could give the complainant the right to bring proceedings under the fourth paragraph of Article 173 of the Treaty. Second, the adoption of the con­ tested regulation did not bring about the decision to take no further action on the complaint.

35 The applicants and the Land of Thuringia criticise the Commission for wrongly treating the letter of 9 August 1995 (see paragraph 9 above) as a complaint request­ ing it to initiate the procedure under Article 169 of the Treaty. It would not have been difficult for the Commission, using a reasonable interpretation, to realise that what the applicants wanted was not to have to suffer the consequences of a wrong definition of the area covered by the designation at issue, as it already appeared in the German regulations on cheese and as the Federal Republic of Germany pro­ posed that it be registered pursuant to Article 17 of Regulation N o 2081/92. The Commission could not seriously have considered that the applicants, first, envis­ aged that an action should be brought against Germany under Article 169 of the Treaty on the ground that the German regulations on cheese were incompatible with Community law and, second, regarded as just and reasonable a regulation — extending to the territory of the Community — registering the designation under Regulation N o 2081/92. The Commission should thus at least have considered whether the applicants intended their letter of 9 August 1995 as a request made in the context of the procedure, then already pending, applicable under that regula­ tion. Consequently, the Commission should have asked for clarification.

36 According to the applicants and the Land of Thuringia, the Commission is wrong in disputing that the adoption of the contested regulation led to the decision to take no further action on the complaint before it. While D G VI did indeed pro­ pose that the complaint procedure be closed, the Commission has not yet taken a decision on the complaint; at any rate, no corresponding decision has been addressed to the applicants. The Commission could decide the question, if the con­ tested regulation were maintained, only by terminating the procedure. It would be absurd for the Commission to start an action under Article 169 against the Federal Republic of Germany on the ground that the German regulations on cheese were incompatible with Community law while at the same time introducing similar rules at Community level.

38 O n this point, the Commission and Zimmermann state that the ordinary proce- dure defined in Article 5 et seq. of Regulation N o 2081/92 and the shortened pro- cedure under Article 17 of that regulation are wholly distinct and subject to fun- damentally different conditions. The question which of those two types of procedure applies in a particular case is not within the Commission's discretion. Where a Member State, in this instance the Federal Republic of Germany, makes use of its right under Article 17(1) of Regulation N o 2081/92 to communicate des- ignations to the Commission within six months of the entry into force of that regulation, the Commission is obliged, under Article 17(2), to ascertain whether those designations comply with the conditions of Articles 2 and 4 and then, if they do, to register them, following the procedure under Article 15. The second sen- tence of Article 17(2) expressly states that Article 7 is not to apply. Consequently, in the shortened procedure, other Member States and individuals do not have an opportunity to state their views.

39 The Commission and Zimmermann, finally, dispute the applicants' argument that if their action for annulment is inadmissible, they are deprived of all possibility of judicial review. The applicants would remain free to apply to the national courts and to seek a ruling from the Court of Justice under Article 177 of the Treaty. In first place, the applicants — who do not claim that an application to the national courts was ruled out — are of the opinion that the German regulations on cheese are also contrary to German law. Second, about three years passed between the communication by the German authorities of the designation at issue and the

40 The applicants submit that the Commission's reasoning is a vicious circle. It is not a question of abstract reflections on the relationship between the ordinary proce- dure under Article 5 et seq. and the simplified procedure under Article 17 of Regu- lation N o 2081/92, nor of the fact that the simplified procedure in fact does not provide for rights for third parties. Rather, it is the Commission's choice of the simplified procedure which is itself wrong, since the legal conditions for that pro- cedure under Article 17(1) were not satisfied in the case of the registration of the designation 'Altenburger Ziegenkäse'. According to the applicants and the Land of Thuringia, if the Commission had correctly examined the communication from the Federal Republic of Germany concerning that registration, it would have found that the conditions for such a registration were not met. The Commission should thus have rejected the communication and, because the time-limit provided for by Article 17(1) had expired, should have requested Germany to make a fresh applica- tion under Article 5 et seq. of Regulation N o 2081/92. Since the Commission sim- ply took over the communication made by the Federal Republic of Germany, it chose the wrong procedure and thereby cut down the applicants' procedural rights.

41 In this connection, the applicants and the Land of Thuringia add that the Federal Republic of Germany created the conditions for registration using the simplified procedure only at the last moment, by amending the regulations on cheese shortly

II - 3554

MOLKEREI GROSSBRAUNSHAIN AND BENE NAHRUNGSMITTEL ν COMMISSION

The plea of lack of interest in bringing proceedings

44 The Commission submits, finally, that the applicants have no interest in bringing proceedings for annulment of the contested regulation. Even if the area of manu­ facture were defined in the way sought by the applicants, that is, limited to the district of Altenburger Land, they could not prevent a competitor or competitors from setting up there and also making 'Altenburger Ziegenkäse' in accordance with the prescribed conditions and marketing it under that name. In other words, even if the applicants won their case, they would not enjoy the exclusive legal right they seek for the contested designation of origin.

45 The applicants state that that argument is a misunderstanding of the real extent of their request. They do not claim the designation 'Altenburger Ziegenkäse' for themselves. Their concern is merely, by virtue of the requirements of Regulation N o 2081/92 and in the interest of consumers, to prevent designations of origin which are recognised by consumers and are in general use from being defined dif- ferently by the legislature without examining the material circumstances. Since, because of the special characteristics of the district of Altenburger Land and the product of the same name, the applicants are themselves concerned, they have an obvious interest in bringing proceedings in the present case.

Findings of the Court

49 In the present case, the Court must therefore analyse the nature of Regulation N o 123/97 and in particular its intended or actual legal effect.

50 The aim of the regulation is to confer inter alia on the product 'Altenburger Ziegenkäse' the protection given to designations of origin under Regulation N o 2081/92, a designation of origin being defined by Article 2(2)(a) of that regulation as inter alia the name of a region used to describe a product originating in that region, the quality or characteristics of which are essentially or exclusively due to the geographical environment with its inherent natural and human factors, and the production of which takes place in the defined geographical area. As the Commis- sion rightly observes, the contested regulation, far from being addressed to specific traders such as the applicants, gives all undertakings whose products meet the pre- scribed geographical and quality requirements the right to market them under the protected designation of origin 'Altenburger Ziegenkäse'.

II - 3556

MOLKEREI GROSSBRAUNSHAIN AND BENE NAHRUNGSMITTEL ν COMMISSION

51 That provision is thus clearly a measure of general application within the meaning of the second paragraph of Article 189 of the Treaty. It applies to objectively deter­ mined situations and produces its legal effects with respect to categories of persons envisaged generally and in the abstract (see, to that effect, the order of 19 June 1995 in Case T-107/94 Kik ν Council and Commission [1995] E C R II-1717, para­ graph 35, and the case-law cited there), namely all undertakings which manufac­ ture a product with objectively defined characteristics.

II - 3557

ORDER OF 15. 9. 1998 — CASE T-109/97

54 Moreover, the applicants' argument concerning the unchanging number of manu­ facturers is no more than a mere supposition. There is nothing to prevent the num­ ber of undertakings affected by the regulation from being subject to later varia­ tions. The fact that when the regulation was adopted it concerned a limited number of undertakings is thus not capable of distinguishing those undertakings individually, since they are in a situation comparable with that of any other under­ taking which might in future find an economic interest in entering the market in question by meeting the specific conditions for manufacture of the product at issue (see, to that effect, the order of 11 January 1995 in Case T-116/94 Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e Procuratori ν Council [1995] E C R II-1, paragraph 28).

55 Furthermore, the economic benefits of the protection conferred by the contested regulation, which may improve the position on the market in cheese, are enjoyed not only by the manufacturers of 'Altenburger Ziegenkäse' but also by the pro- ducers of the cows' and goats' milk which is processed into 'Altenburger Ziegen- käse'. These are the 'natural and human factors' within the meaning of Article 2(2)(a) of Regulation N o 2081/92 to which the quality or characteristics of the product concerned are essentially or exclusively due.

56 Regulation N o 123/97 is therefore, by its nature and application, a legislative mea- sure and not a decision within the meaning of the fourth paragraph of Article 189 of the Treaty.

60 The applicants have not challenged the lawfulness of the latter legislative procedure on the ground that it infringes the lawful rights of participation which all traders concerned by the registration of a protected designation of origin should have. Moreover, a complaint directed at the absence of participation by the persons affected in that legislative procedure cannot be accepted in any event. Neither the procedure for drawing up legislative measures nor the legislative measures them­ selves, as measures of general application, require, by virtue of the general prin­ ciples of Community law such as the right to a hearing, the participation of the persons affected, since their interests are deemed to be represented by the political authorities called upon to adopt those measures (order in Case T-122/96 Federolio ν Commission [1997] E C R II-1559, paragraph 75).

61 In those circumstances, for the present action directed against Regulation N o 123/97, which was adopted following a legislative procedure in which the traders

II - 3559

ORDER OF 15. 9. 1998 — CASE T-109/97

concerned have no procedural rights, to be admissible, it is not sufficient for the applicants merely to submit that the conditions for the application of Article 17 of Regulation N o 2081/92 were not met in the present case and to draw the conclu­ sion that the Commission should therefore have used the other legislative proce­ dure, laid down by Articles 5 to 7, which would have given them procedural rights and the consequent right to bring proceedings. That argument challenges the legal basis of the contested regulation and thus concerns the substance of the case.

II - 3560

MOLKEREI GROSSBRAUNSHAIN AND BENE NAHRUNGSMITTEL ν COMMISSION

64 O n the contrary, in Germany, protection of the designation 'Altenburger Ziegen­ käse' by the regulations on cheese likewise resulted from a legislative procedure, in which the competent federal ministry had to obtain, and did obtain, the approval of the Bundesrat (the second chamber of Parliament, in which the German Länder are represented). As may be seen from the case-file, the question of the geographi- cal area of 'Altenburger Ziegenkäse' was expressly discussed in the Bundesrat before being decided at both national and Community level in the way challenged by the applicants.

65 That being so, the Commission cannot be criticised for abuse of procedure by not objecting, when adopting the contested regulation, to the definition of the geo- graphical area at issue made by the German legislature. That definition concerns only a comparatively small area in the middle of Germany, so that it may reason- ably be accepted that the German legislature was better placed than the Commu- nity legislature to define the geographical area, taking account of the particular fea- tures of production and marketing in the region.

66 Consequently, the fact that the Commission chose the legislative procedure under Article 17 instead of that under Articles 5 to 7 of Regulation N o 2081/92 for the adoption of the contested regulation cannot distinguish the applicants individually for the purposes of the fourth paragraph of Article 173 of the Treaty.

67 Next, since Article 17 of Regulation N o 2081/92 does not give traders such as the applicants any rights of a procedural nature, the mere fact that before adopting the contested regulation the Commission received comments from the applicants on the subject of the geographical area at issue and replied to those comments is also incapable of distinguishing them individually from all other traders.

69 Moreover, the provisions at issue in the present case are fundamentally different from the very specific provisions in the anti-dumping field which confer on certain traders a specific role in the procedure leading up to the imposition of anti­ dumping duties. The reference to Sinochem Heilongjiang ν Council (cited in para­ graph 34 above), a case concerning a Chinese exporting company which the Com­ mission had on its own initiative officially included in its preparatory investigation, is therefore irrelevant. The same applies to the reference to Case 264/82 Timex ν Council and Commission [1985] E C R 849, paragraphs 14 and 15, in which an action in an anti-dumping case brought by a complainant was held admissible inter alia by reason of the rights given to complainants by the basic regulation and the active role played by that complainant in the preliminary anti-dumping investiga­ tion; in addition, the anti-dumping duty imposed was based on the individual situ­ ation of that complainant. Finally, Extramet Industrie ν Council (cited in para­ graph 34 above), in which an action brought in an anti-dumping case by an independent importer was held admissible, is characterised by the particular fea­ tures of anti-dumping law and of that importer's economic and competitive posi­ tion, so that it cannot be applied to the present case.

70 The Court of Justice admittedly held in Codorniu ν Council, cited in paragraph 25 above and relied on by the applicants, that a provision of a legislative character may, in certain circumstances, be of individual concern to certain traders in so far as it adversely affects their specific rights (see the order in Asocame ν Council, cited in paragraph 24 above, paragraph 43, and Case T-482/93 Weber ν Commis­ sion [1996] E C R II-609, paragraph 67). In the present case, however, it is sufficient

71 O n the last point, it is true that the definition of a too extensive geographical area may in theory cause a reduction in the real value of a designation of origin which was previously restricted to a smaller geographical area, and possibly affect the specific rights of the undertakings in the smaller geographical area which use that designation. In the present case, however, it was for the applicants to produce, at the admissibility stage, specific evidence that that might be the case with respect to them. Given that Zimmermann has manufactured and marketed the product in question under the name 'Altenburger Ziegenkäse' or the similar name 'Alten- borger Zeege' since 1936, and that the applicants have not succeeded at national level in having that designation restricted to a smaller geographical area, namely the district of Altenburger Land, it is clear that the applicants have not produced any evidence to show that the contested provisions weakened their rights in the way described above. Consequently, the applicants can also not be regarded as being distinguished individually from the point of view of a possible infringement of their specific rights.

72 O n this point, the present case differs from the case of Bergpracht Milchwerk and Others ν Commission currently pending before this Court (registered as Case T-141/96), which concerns an action brought by German undertakings for the annulment of Commission Regulation (EC) N o 1107/96 of 12 June 1996 on the registration of geographical indications and designations of origin under the pro­ cedure laid down in Article 17 of Council Regulation (EEC) N o 2081/92 (OJ 1996 L 148, p. 1), in so far as it reserves the protected designation of origin 'feta' to cheese manufactured in Greece. Unlike those German undertakings, the applicants have not been forced to cease using a designation which they have used for a long time.

76 While the Court of Justice indeed held in those two cases that the parties con­ cerned, within the meaning of Article 93(2) of the Treaty, must be regarded as indi­ vidually concerned by decisions not to initiate the procedure under that provision, that remedy was allowed them in their capacity as undertakings competing with actual beneficiaries of State aid, since the applications in both cases concerned the lawfulness of Commission decisions finding that the grant of specific aid was com­ patible with the common market. In the present case, by contrast, as the Court has already found in paragraphs 51 and 52 above, the contested regulation introduces protection, with respect to an objectively determined product, whose potential beneficiaries are defined only in a general and abstract manner. A competition

II - 3564

MOLKEREI GROSSBRAUNSHAIN AND BENE NAHRUNGSMITTEL ν COMMISSION

situation disrupted by authorisation of an individual aid paid to an undertaking's competitors, such as was behind the two judgments cited by the applicants, is thus not present in this case, since the number of undertakings concerned by the con­ tested regulation is not, as a matter of law, confined to one of the applicants on the one hand and Zimmermann on the other (see, to that effect, Case T-398/94 Kahn Scheepvaart ν Commission [1996] E C R II-477, paragraphs 48 and 49, with refer­ ence to a general aid scheme).

77 Accordingly, the applicants are not individually concerned by the contested regula­ tion, and the action must therefore be held to be inadmissible, without there being any need to examine whether that regulation actually affects them adversely as a matter of law and whether they have an interest in bringing proceedings.

pleadings. Since the applicants have been unsuccessful and the Commission and Zimmermann have asked for costs, the applicants must be ordered to bear their own costs and jointly and severally the costs incurred by the Commission and Zimmermann. Under Article 87(4) of the Rules of Procedure, the Land of Thur- ingia is to bear its own costs.

O n those grounds,

T H E C O U R T O F FIRST INSTANCE (Second Chamber)

hereby orders:

1. The action is dismissed as inadmissible;

2. The applicants are ordered to bear their own costs and jointly and severally the costs incurred by the Commission and by the intervener Molkerei und Weichkäserei K.-H. Zimmermann GmbH;