T-173/98

Council of the European Union, represented by Ignacio Diez Parra and Antonio Tanca, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Alessandro Morbilli, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

* Language of the case: Spanish.

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APPLICATION for the partial annulment of Council Regulation (EC) No 1638/98 of 20 July 1998, amending Regulation No 136/66/EEC on the establishment of a common organisation of the market in oils and fats (OJ 1998 L 210, p. 32),

1 On 22 September 1966 the Council adopted Regulation No 136/66/EEC on the establishment of a common organisation of the market in oils and fats (OJ, English Special Edition 1965-1966, p. 221, hereinafter 'the basic regulation'). In particular, the basic regulation set up a common organisation of the markets in olive oil, structured around a system of guaranteed prices and production aid. II - 3360

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2 Several subsequent amendments were made to the mechanisms introduced by the basic regulation. The common organisation of the olive oil markets, as amended, laid down schemes in respect of intervention prices, production aid, consumption aid and storage, as well as imports and exports.

3 Article 92 of the Act of Accession of the Kingdom of Spain and the Portuguese Republic to the European Communities, signed on 12 June 1985, contained transitional arrangements for the application of the basic regulation to operators established in Spain (OJ 1985 L 302, p. 9).

4 On 17 February 1997 the Commission submitted a Note to the Council and to the European Parliament on the olive and olive oil sector (including the economic, cultural, regional, social and environmental aspects), the current common organisation of the markets, the need for reform and the alternatives envisaged [COM (97) 0057-C4-0096/97]. In its Note, the Commission explains that reform is needed owing to a predictable surplus of produce, the impossibility of absorbing that surplus into the Community market, the reduction in exports imposed by undertakings given in connection with the World Trade Organisation and the difficulty of monitoring the aid scheme and preventing fraud.

8 The applicant brought this action by application lodged at the Court Registry on 20 October 1998.

9 By separate document lodged at the Court Registry on 23 December 1998, the Council raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court. The applicant submitted its observations on the objection of inadmissibility on 22 February 1999. II - 3362

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10 By application lodged at the Court Registry on 4 June 1999, the Commission applied for leave to intervene in support of the form of order sought by the Council.

1 1 By applications lodged at the Court Registry on 17, 21 and 22 June 1999, the Diputación Provincial de Jaén, the Junta de Comunidades de Castilla-La Mancha and the Consejo de Gobierno de la Comunidad Autónoma de Andalucía applied for leave to intervene in support of the form of order sought by the applicant.

Forms of order sought

— dismiss the action as manifestly inadmissible;

— order the applicant to pay the costs.

14 In its observations on the objection of inadmissibility, the applicant contends that the Court should:

— dismiss the objection of inadmissibility raised by the Council;

— order the Council to pay the costs;

— in the alternative, reserve the decision on the objection of inadmissibility for the final judgment. II - 3364

17 The Council claims, second, that the applicant is not individually concerned. It states that the applicant is an association whose objective is to protect the general interests of its members, which does not constitute sufficient grounds for the admissibility of the action (order of the Court of Justice in Case 117/86 UFADE ν Council and Commission [1986] ECR 3255 and judgment of the Court of First Instance in Joined Cases T-447/93, T-448/93 and T-449/93 AITEC and Others ν Commission [1995] ECR 11-1971). N o r may the applicant use the position it claims to have as a negotiator to show that it has a legal interest in bringing proceedings in this case. Finally, the applicant cannot maintain that it has substituted itself for its members, who themselves have a right of action, since they are not individually concerned by the contested regulation either. In any event, that regulation does not affect the applicant by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons, since all Community traders carrying out the same activities as its members are affected in exactly the same way (orders of the Court

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of Justice in Case 34/88 Cevap and Others ν Council [1988] ECR 6265 and in Case 160/88 Federation Européenne de la Santé Animale and Others ν Council [1988] ECR 6399; judgment of the Court of Justice in Case C-152/88 Sofrimport ν Commission [1990] ECR I-2477, paragraph 10). Nor may the applicant rely on the judgment of the Court of Justice in Case C-309/89 Codorniu ν Council [1994] ECR 1-1853), since the contested regulation has not adversely affected any specific rights of either the applicant or its members.

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Article 173 of the Treaty and of the case-law (Codorniu ν Council, cited above, paragraph 19; order of the Court of Justice in Case C-10/95 Ρ Asocarne ν Council [1995] ECR 1-4149, paragraph 43; judgments of the Court of First Instance in Case T-482/93 Weber ν Commission [1996] ECR 11-609, para­ graph 56, and in Case T-298/94 Roquette Frères ν Council [1996] ECR 11-1531; order of the Court of First Instance in Case T-207/97 Berthu ν Council [1998] ECR 11-509).

24 Third, the applicant invokes the existence of a matter of Community public interest in order to establish the admissibility of its action, relying on the II - 3367

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judgments of the Court of Justice in Joined Cases 106/63 and 107/63 Toep f er and Getreide-Import ν Commission [1965] ECR 405, in Case 62/70 Bock ν Commission [1971] ECR 897, and in Case 11/82 Piraiki-Patraiki ν Commission [1985] ECR 207, according to which an applicant to whom the contested measure is not addressed is nevertheless deemed to be individually concerned by it to the extent that it contains rules having retroactive effect, as in the present case, and if, in the course of its adoption, the institution concerned acted incorrectly. The applicant contends that, in the present case, the procedure followed prior to the adoption of the contested regulation is 'marked by errors' and by a certain misuse of powers, since the rules laid down in the contested regulation do not correspond to the stated objectives. The applicant therefore asks the Court to determine, for reasons relating to the Community public interest, whether the Council did indeed adopt a legislative act without any factual basis, as appears from the contested measure.

25 Fourth, the applicant claims that, by declaring its action inadmissible, the Court would deny it any means of defence and infringe its fundamental right, and that of its members, to effective judicial protection. The applicant explains that, under the Spanish legal system, that right has the status of a fundamental principle. In this regard it states, in particular, that, since neither the Spanish State nor the autonomous communities of which it is composed have adopted measures to implement the contested regulation, it has not the slightest opportunity of bringing before the national courts proceedings in which a reference might be made under Article 177 of the EC Treaty (now Article 234 EC) for a preliminary ruling on the validity of the contested regulation.

28 In this connection, the applicant points out that the Kingdom of Spain formally refused to initiate the legal proceedings it is entitled to bring under Community law against the contested regulation when asked to do so by the autonomous community of Andalusia.

29 It also states, in that regard, that the Member States do not need to adopt any measures to implement the withdrawals envisaged by the contested regulation, such as those of the intervention scheme, the consumption aid scheme, aid to small producers, the maximum guaranteed quantity for the Community and aid for new plantings from 1 May 1998. Furthermore, since Article 39 et seq. of the Treaty, on which the applicant relies, do not have direct effect, the Community

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court is the only court which can protect its rights (see the judgment of the Court of Justice in Case C-321/95 Ρ Greenpeace Council and Others ν Commission [1998] ECR 1-1651, paragraph 33).

30 In any event, since the contested regulation has a period of validity of three years, it would be pointless to bring an action before a Spanish court, given the time it takes for the Court of Justice to give judgment on a question referred for a preliminary ruling.

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and of 29 April 1999 in Case T-120/98 Alee ν Commission [1999] ECR II-1395, paragraph 17) that the fourth paragraph of Article 173 of the Treaty allows individuals to challenge any decision which, although in the form of a regulation, is of direct and individual concern to them. The objective of that provision is in particular to prevent the Community institutions from being able, merely by choosing the form of a regulation, to preclude an individual from bringing an action against a decision which concerns him directly and individually, and thus to make it clear that the choice of form may not alter the nature of a measure (see the judgment of the Court of Justice in Joined Cases 789/79 and 790/79 Calpak and Società Emiliana Lavorazione Frutta ν Commission [1980] ECR 1949, paragraph 7, and the order of the Court of First Instance in Case T-476/93 FRSEA and FNSEA ν Council [1993] ECR 11-1187, paragraph 19). It is also settled case-law that the test for distinguishing between a regulation and a decision is whether or not the measure in question is of general application (see the judgment of the Court of Justice in Case 307/81 Alusuisse ν Council and Commission [1982] ECR 3463, paragraph 8).

35 It is therefore necessary to determine the nature of the contested measure in the present case.

36 Although the applicant denies that the contested regulation is legislative in nature, it nevertheless accepts that the measure aims to amend the mechanisms of the common organisation of the markets in the oils and fats sector established by the basic regulation, as amended, and also defines its field of application in a generalised and abstract manner. The provisions of the contested regulation thus have legal consequences for traders operating in those markets. They are, therefore, a priori, measures of general application within the meaning of Article 189 of the Treaty.

41 The alleged unreliability of the information on the basis of which the Council adopted the contested regulation, even if proved, cannot affect that conclusion.

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42 Moreover, the applicant does not claim that the consequence of the alleged unreliability of the information is that the contested regulation in reality only affects the position of its members. It is also clear from the application that the applicant bases this argument on the first recital of the contested regulation, which states: 'whereas in February 1997 the Commission submitted a commu- nication to the European Parliament and the Council on the olive and olive oil sector concluding that the current common organisation of the market in oils and fats needed reform; whereas that communication and the options for reform set out therein have been discussed within the Community institutions; whereas opinions concur on the need for reform; whereas, however, with a view to determining the best approach, more reliable information must be obtained, in particular on the number of olive trees in the Community, the areas planted and yields; whereas, given the time required to gather and analyse such data, the Commission has undertaken to submit a proposal for reform in the course of 2000 for application from the 2001/02 marketing year'. Taken in context, therefore, this passage does not have the scope attributed to it by the applicant, since it shows that the Council intends to effect a thorough reform of the common organisation of the markets in the oils and fats sector only after taking steps to gather all the information needed for that purpose. Consequently, the argument put forward by the applicant is irrelevant to an assessment of the admissibility of its action for annulment.

47 Furthermore, as the Court of First Instance points out in its order in Federolio ν Commission, cited above (paragraph 61), actions brought by associations may, in this context, be held admissible in at least three kinds of circumstances:

— when a legal provision expressly grants a series of procedural powers to trade associations;

— when the association represents the interests of undertakings which would, themselves, be entitled to bring proceedings;

— when the association is distinguished individually because its own interests as an association are affected, in particular because its negotiating position has been affected by the measure whose annulment is being sought.

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50 Second, the applicant has not established that its members are affected by the contested regulation by reason of certain attributes which are peculiar to them or by reason of factual circumstances in which they are differentiated from all other persons. In that regard it need merely be pointed out that the fact that the regulation may, at the time it was adopted, have affected those of the applicant's members then operating in the olive oil markets and, in some circumstances, caused them to cease trading, cannot differentiate them from all the other operators in the Community, since they are in an objectively determined situation comparable to that of any other trader who may enter those markets now or in the future (order in Federolio ν Commission, cited above, paragraph 67). The contested regulation concerns the applicant's members only on the basis of their objective capacity as operators trading in those markets, in the same way as all the other operators who trade in them.

51 The fact that the measure at issue may have different material consequences for the various persons to whom it applies is not in itself inconsistent with its legislative nature if that situation is objectively determined, as in the present case

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(see the order of the Court of First Instance in Case T-100/94 Michailidis and Others ν Commission [1998] ECR 11-3117, paragraph 61).

52 As regards the special protection which, according to the applicant, is afforded to its members under Article 39 et seq. of the Treaty, it must be pointed out that those provisions do not provide any such protection. Furthermore, the applicant has failed to specify in what respect those articles provide protection and has merely referred to Article 39(2) of the Treaty in its application.

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of Justice in Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others ν Commission [1988] ECR 219, paragraphs 21 to 24, and in Case C-313/90 CIRFS and Others ν Commission [1993] ECR 1-1125, paragraphs 28 to 30).

55 In this case, it should be pointed out that the tasks described by the applicant are entrusted to it by its members, who unquestionably have the power to determine its management and duties and also, therefore, to specify the interests it must defend. The applicant further claims that the contested regulation affects its position as a negotiator in that, following the adoption of the measure, it will not represent as many olive growers as in the past. In these circumstances, the interests which the applicant considers peculiar to itself are indistinguishable from those of its members.

56 It must also be observed that the contested regulation does not affect the specific interests of the applicant as a body responsible for protecting the interests of traditional olive growers. The activities of the applicant, which is not an undertaking operating in the olive oil market, cannot be subject to amendment under the regulation. Nor has the applicant shown how its position as a body responsible for protecting the interests of traditional olive growers differs from that of other bodies having the same responsibilities in Spain or in other Member States and differentiates it for the purposes of the fourth paragraph of Article 173 of the Treaty.

57 Nor, in the present case, does the judgment in AIUFFASS and AKT ν Commission, cited above, assist the applicant in establishing the admissibility of its action. In that case, which related to State aid, the Court of First Instance referred to the capacity of the two applicants as interested persons for the purposes of Article 93(2) of the EC Treaty (now Article 88(2) EC) and their

61 The argument that no effective legal protection is afforded consists of the complaint that there are no legal remedies under national law which make it possible, if necessary, to review the legality of the contested regulation by means of a reference for a preliminary ruling under Article 177 of the Treaty.

62 It must be pointed out, in this connection, that the principle of equality for all persons subject to Community law in respect of the conditions for access to the II - 3378

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Community judicature by means of the action for annulment requires that those conditions do not depend on the particular circumstances of the judicial system of each Member State. In this regard it should also be observed that, in accordance with the principle of sincere cooperation laid down in Article 5 of the EC Treaty (now Article 10 EC), the Member States are required to implement the complete system of legal remedies and procedures established by the EC Treaty to permit the Court of Justice to review the legality of measures adopted by the Community institutions (see, on this point, the judgment in Les Verts v Parliament, cited above, paragraph 23).

63 However, these factors do not provide the Court of First Instance with a reason for departing from the system of remedies established by the fourth paragraph of Article 173 of the Treaty, as interpreted by case-law, and exceeding the limits imposed on its powers by that provision.

64 Moreover, the applicant cannot validly base any argument on the possible length of proceedings under Article 177 of the Treaty. That circumstance cannot justify a change in the system of remedies and procedures established by Articles 173, 177 and 178 of the EC Treaty (now Article 235 EC) which is designed to give the Court of Justice the power to review the legality of acts of the institutions. In no case can such an argument enable 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 of the Treaty to be declared admissible (order of the Court of Justice in Case C-87/95 P CNPAAP v Council [1996] ECR I-2003, paragraph 38).

Costs

68 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is t o be ordered t o pay the costs if they have been asked for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered t o pay the costs, as applied for by the Council.

69 In view of the fact that it is n o t necessary t o adjudicate o n the applications t o intervene, the Diputación Provincial de Jaén, the Junta de Comunidades de Castilla-La M a n c h a , the Consejo de Gobierno de la C o m u n i d a d A u t ó n o m a de Andalucía a n d the Commission will bear their o w n costs. II - 3380

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On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

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