C-41/99

OPINION OF MRS STIX-HACKL — CASE C-41/99 P

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 8 February 2001 1

I — Introduction Article 46 of Council Regulation (EEC) No 1785/81 4 with effect from the 2001/02 marketing year.

1. In the present case, the appellants (Sadam Zuccherificio Divisione della SECI SpA, Sadam Castiglionese SpA, Sadam 3. Article 46 of Regulation No 1785/81 Abruzzo SpA, Zuccherificio del Molise authorised the Italian Republic and the SpA and Società Fondiaria Industriale Kingdom of Spain to grant adjustment aid Romagnola SpA) are contesting the order in particular to producers of sugar beet, made on 8 December 1998 2 by the Court under the conditions which it defines. of First Instance in Case T-39/98, in which their application was dismissed as inadmis- sible.

In the order against which the present appeal has been brought, the Court of First With regard to the conditions of admissi- Instance held the application brought bility, the appellants are of the view that before it to be inadmissible on the ground they satisfy the three criteria laid down by that the applicants lacked standing to bring Advocate General Van Gerven in Case an action for annulment. The Court viewed C-213/91 Abertal and Others v Commis- Regulation No 2613/97 as a measure of sion. 7 First, the regulation has legal effects general application and concluded that equivalent to those of a decision, in that it none of the applicant companies are indi- completely abolishes the adjustment aid for vidually concerned by this regulation. The sugar beet producers and for sugar compa- application was dismissed as inadmissible nies as of the marketing year 2001. Sec- since, in the opinion of the Court of First ondly, the regulation adversely affects the Instance, the applicants did not meet the appellants because it is of direct 'concern' conditions governing the admissibility of an to the sugar companies in southern Italy. action for annulment laid down in the Thirdly, these legal effects follow from the fourth paragraph of Article 173 of the EC regulation itself and are not the conse- Treaty (now the fourth paragraph of Arti- quence of any act of a Community institu- cle 230 EC). tion or Member State. The appellants therefore conclude that the appeal is admis- sible and ask the Court of Justice to give a ruling on the merits of the case.

29 January 1999. Secondly, the Court of of the case, they submit that there is no First Instance refers to the situation of question of re-examination. Furthermore, it sugar beet producers several times in its would be difficult for the appellants to rely order and thus misunderstands their eco- on other arguments when the Court of First nomic activity. According to the appellants, Instance considered the application inad- these references prove a misunderstanding missible. of their proper identity because they are not producers of sugar beet but companies that process sugar beet and produce sugar. The Court of First Instance consequently trans- posed the reasoning it had applied in Case T-38/98 to their case, Case T-39/98, with- out giving any reason as to why Article 2 of Regulation No 2613/97 is not of direct and individual concern to them as companies that process sugar beet and produce sugar. 8. As far as the alleged confusion of the two cases by the Court of First Instance is concerned, the Council draws attention to the fact that in these cases, the Court of First Instance employed the same, tradi- tional methods of examining the admissi- bility of an action for annulment brought by natural or legal persons. Since the applicants in both cases used the same arguments, the Court of First Instance 6. The Council counters by pointing out could not have done otherwise than con- that the appeal adopts word for word the clude, in the same terms, that the applica- pleas in law advanced before the Court of tion was inadmissible. First Instance in the hope that the Court of Justice will re-examine the case. That is contrary to Article 51 of the EC Statute of the Court of Justice and to Article 112 of the Rules of Procedure of the Court of Justice. The Court of Justice should there- fore dismiss the appeal as clearly inadmis- sible in accordance with Article 119 of its Rules of Procedure. 9. The Council stresses, finally, that an order regarding inadmissibility is a final act that can be challenged before the Court of Justice. Therefore, it is not appropriate to distinguish between judgments and orders, as is being done by the appellants. The same conditions of appeal apply in both cases. An appeal that is confined to repro- 7. The appellants submit that the Court of ducing the pleas in law and arguments First Instance confined itself to an exam- raised before the Court of First Instance ination of admissibility. As the Court of should consequently be dismissed as inad- First Instance did not rule on the substance missible.

11. It has consistently been held that an appeal which simply repeats or reproduces 13. The appellants are contesting the order verbatim the pleas in law and arguments by challenging its legal basis. The appel- already submitted to the Court of First lants base their appeal namely on argu- Instance does not meet that requirement; ments that relate to the contents of the such an appeal merely seeks, in reality, order and indirectly also to the previous reconsideration of the application submit- proceedings before the Court of First Instance. 8 — Sec Case C-303/96 P Bermudi v Parliament [1997] ECU I-1239, paragraph 36. 9 — See Case C-403/95 P Obst v Commission [1998] ECK I-27, 10 — Case C-317/97 P Smanor and Others v Commission paragraph 17. [1998] ECR I-4269 paragraph 21.

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B — Substance decision of direct and individual concern to the applicant. It has consistently been held that the criterion for distinguishing between a regulation and a decision must be sought in the general application or 14. It must therefore be examined whether otherwise of the measure in question. 12 A the Court of First Instance acted unlawfully measure has general application if it applies by denying the applicants the right to to an objectively determined situation and challenge Regulation No 2613/97. entails legal effects for categories of persons regarded generally and in the abstract. 13

18. Article 2 of Regulation No 2613/97 entails legal effects for categories of persons defined generally and in the abstract, that is 16. Under the fourth paragraph of Arti- to say, for Member States and those natural cle 173 of the Treaty, the admissibility of and legal persons active in a particular an action for annulment brought by a economic sector. The latter also includes natural or legal person against a regulation owners of undertakings that process sugar depends on whether the contested regula- tion is, in terms of its legal effects, a 12 — Case C-168/93 Gibraltar and Gibraltar Development v Council [1993] ECR I-4009, paragraph 11. 11 —See the article quoted by Advocate General Ruiz-Jarabo 13 — Case 307/81 Alusuisse Italia v Council and Commission Colomer in his Opinion in Case C-142/95 P Associazione [1982] ECR 3463, paragraph 9, and Case C-321/95 P agricoltori della provincia di Rovigo and Others v Greenpeace Council and Others v Commission [1998] Commission [1996] ECR I-6669, I-6679. ECR I-1651 paragraph 27 et seq.

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beet and produce beet sugar, with whom way or whether it would affect it exclu- these proceedings are concerned. That does sively. not, however, alter the general application of the provision in any way.

20. In the light of the case-law, it must therefore be examined whether Article 2 of Regulation No 2613/97 is of concern to the If the legal situation under Regulation appellants by reason of certain attributes No 1101/95 is compared with the rules in which are peculiar to them or by reason of force in other parts of Italy, it is apparent particular circumstances in which, with that the effects of Article 2 of Regulation regard to that provision, they are differ- No 2613/97 might be felt more severely in entiated from all other persons. southern Italy, and thus by the appellants, since the gradual reduction of authorised aid provided for in Regulation No 1101/95 is less pronounced than in other regions. The fact, however, that the contested measure may have different specific effects In the present case, the criterion of material for the various individuals to whom it concern must be considered. However, it is applies does not call into question its not clear from the submissions of the legislative nature. 16 appellants whether and to what extent Article 2 of Regulation No 2613/97 would affect their legal position in a particular 15 —Case C-209/94 P Btiralux and Others v Council [1996] ECR I-615 paragraph 24; Advocate General Ruiz-Colo- mer in his Opinion in Case C-142/95 P (cited in footnote 11 I-6669, I-6681). 14 — Case C-309/89 Cordormu v Council [1994] ECR I-1853, 16 — Case C-409/96 P Sveriges Betodlares md Henrikson v paragraph 20. Commission [1997] LCR I-7531, paragraph 37.

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22. Nor does the fact that the appellants remedy available to them if they were are owners of undertakings that process denied the right to contest Regulation sugar beet and produce beet sugar, and not No 2613/97 is incorrect. In the case of producers of sugar beet, with the resultant legal proceedings before a national court particularities of their economic activity, regarding the application of the regulation mean that they are individually concerned. 'there is nothing to prevent [them] from questioning the validity of the Community regulation'. 19

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V — Costs Procedure of the Court of Justice, the appellants should be ordered to pay the costs if the Court dismisses the appeal. 27. Under Article 69(2) read in conjunc- tion with Article 118 of the Rules of

VI — Conclusion

28. In the light of the foregoing, I propose that the Court:

(1) dismiss the appeal;