T-114/99

ORDER OF 9. 11. 1999 — CASE T-114/99

ORDER OF THE COURT OF FIRST INSTANCE (First Chamber) 9 November 1999 *

In Case T-114/99,

CSR Pampryl SA, a company incorporated under French law, established in La Courneuve, France, represented by Dominique Couturier-Heller, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Pierrot Schlitz, 4 Rue Béatrix de Bourbon,

applicant,

ν

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

composed of: B. Vesterdorf, President, C.W. Bellamy and M. Vilaras, Judges, Registrar: H. Jung,

makes the following

Order

Legal background

1 Article 1 of Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1, hereinafter 'Regulation No 2081/92') lays down Community rules on the protection of designations of origin and geographical indications of certain agricultural products and certain foodstuffs. II - 3335

4 Articles 5 to 7 of Regulation No 2081/92, as amended by Council Regulation (EC) No 535/97 of 17 March 1997 (OJ 1997 L 83, p. 3), establishes a registration procedure allowing any group, which is defined as any association of producers and/or processors working with the same agricultural products or foodstuffs or, under certain conditions, any natural or legal person, to apply for registration of a protected designation of origin or protected geographical indication for the agricultural products or foodstuffs which they produce or obtain and which originate in the specific geographical area, in the Member State in which the specific geographical area is situated. The Member State checks that the application is justified and forwards it to the Commission which, if it considers that the name qualifies for protection, publishes in the Official Journal of the European Communities the information specified in Article 6(2) of Regulation No 2081/92.

5 Article 6(3) of Regulation No 2081/92 provides:

'If no statement of objection is notified to the Commission in accordance with Article 7, the name shall be entered in a register kept by the Commission entitled II - 3336

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"Register of protected designations of origin and protected geographical indications", which shall contain the names of the groups and inspection bodies concerned.'

6 Article 7 of Regulation No 2081/92, as amended by Regulation No 535/97 of 17 March 1997, provides:

— or shows that the registration of the name proposed would jeopardise the existence of an entirely or partly identical name or of a mark or the existence of products which have been legally on the market for at least five years preceding the date of the publication provided for in Article 6(2),

— or indicates the features which demonstrate that the name whose registration is applied for is generic in nature.

5. Where an objection is admissible within the meaning of paragraph 4, the Commission shall ask the Member States concerned to seek agreement between themselves in accordance with their internal procedures within three months. If:

(a) agreement is reached, the Member States in question shall communicate to the Commission all the factors which made agreement possible together with the applicant's opinion and that of the objector. Where there has been no change to the information received under Article 5, the Commission shall proceed in accordance with Article 6(4). If there has been a change, it shall again initiate the procedure laid down in Article 7;

(b) no agreement is reached, the Commission shall take a decision in accordance with the procedure laid down in Article 15, having regard to traditional fair II - 3338

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1 1 By letter dated 13 October 1998 the applicant sent the competent French authority a statement of objection to the registration, on the basis of Article 7 of Regulation No 2081/92, and asked for it to be forwarded to the Commission within the prescribed period, that is to say, by 18 October 1998. According to the applicant, the registration application infringes Article 2 of Regulation No 2081/92 in that it applies to a product which has no specific features as regards its recommended method of manufacture and also in that the specifications enclosed with it impose an unduly restrictive manufacturing procedure.

12 A copy of the statement of objection was forwarded to the Commission by the applicant's lawyer on the same day.

13 By letter dated 16 October 1998 the Head of the Production and Markets Department of the Production and Trade Division of the French Ministry of Agriculture and Fisheries notified the applicant that its objection did not comply with the conditions for admissibility laid down in Article 7(3) of Regulation No 2081/92 and would not, therefore, be forwarded to the Commission, given, in particular, that the grounds on which it was formulated had already been taken into consideration during the procedure to recognise the designation of origin at national level. On 16 December 1998, the applicant initiated proceedings for annulment of that decision before the French Council of State.

14 By letter and fax of 19 October 1998, the Director-General of Directorate- General (DG VI) for Agriculture of the Commission notified France's permanent representative at the European Union that, on 13 and 15 October 1998, his staff had received copies of three statements of objection to the registration application in question, among them that of the applicant. He pointed out that, if registration of the relevant names would jeopardise the existence of a mark or of products II - 3340

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18 By a separate document filed at the Court Registry on 5 July 1999, the Commission raised an objection of inadmissibility under Article 114 of the Rules of Procedure.

19 On 31 August 1999, the applicant submitted to the Court Registry its written observations in response to the objection of inadmissibility.

20 The applicant claims that the Court should:

— reject the objection of inadmissibility or, alternatively, reserve a decision on the Preliminary objection for the final judgment;

— annul the contested regulation in so far as it registers the names 'Pays d'Auge/ Pays d'Auge-Cambremer';

Admissibility of the action

Arguments of the parties

23 The Commission maintains that the action is inadmissible on the grounds that the contested regulation is a measure of general application, that the applicant is not in a situation which differentiates it from any other person and that the applicant is not involved in the registration procedure at Community level.

24 Firstly, the contested regulation, like the parent Regulation No 2081/92, is a measure of general application within the meaning of Article 249 EC. It is addressed not to specific traders but to all producers likely to benefit from the name in question and also to all those who, although they have used the name, no longer satisfy the conditions laid down by the Community legislation. As the regulation is a legislative measure, the action is therefore inadmissible, in accordance with established case-law (judgment of the Court of Justice of 6 October 1982 in Case 307/81 Alusuisse ν Council and Commission [1982] ECR 3463; the orders of the Court of 23 November 1995 in Case C-10/95 Ρ Asocarne ν Council [1995] ECR I-4149, and 24 April 1996 in Case C-87/95 Ρ CNP ΑΑΡ ν Council [1996] ECR I-2003; judgment of the Court of First Instance of 10 July 1996 in Case T-482/93 Weber ν Commission [1996] ECR II-609; see, in particular, with regard to regulations concerning the registration of protected designations of origin or protected geographical indications, orders of the Court of first Instance of 15 September 1998 in Case T-109/97 Molkerei Grossbraun-

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26 Thirdly, the present case cannot be compared with Case 191/82 Fediol ν Commission [1983] ECR 2913. In that case, the Commission had refused to initiate the anti-subsidy proceedings prescribed, at Community level, by the regulation in question, even though the regulation specifically granted any undertaking or association of undertakings a series of procedural rights, such as the right to lodge a complaint, the right to have their complaint examined and the right to obtain certain information. On the other hand, in the present case the objection procedure laid down by Article 7 of Regulation No 2081/92 is conducted before the competent authority of the Member State in which the objector resides or is established, during the preparatory examination stage of the registration application. The objector may submit his observations only to that authority, which is required only 'to consider the comments or objection within the deadlines laid down'. Moreover, if the objection is 'admissible', a term which refers to its substance, the Member States concerned are asked to seek agreement between themselves, without the intervention of the individuals involved (see the order in Molkerei Grossbraunshain and Bene Nahrungsmittel ν Commission, paragraph 60).

27 The Commission also points out that, although Article 7(3) of Regulation No 2081/92 grants to 'any legitimately concerned natural or legal person' the opportunity of objecting to registration, the 13th recital expressly refers to 'any

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person individually and directly concerned'. This expression, which is based on the wording of Article 230 EC, must mean that the conditions for admissibility of the objection are to be interpreted more restrictively. Moreover, a Council regulation cannot broaden the conditions for admissibility laid down by the Treaty.

32 The applicant goes on to explain that it has sold cider under the name 'Pays d'Auge' for a long time. It produces more than a million bottles a year, which puts it in a dominant position in relation to the other producers in the region, whose total annual production, taking all the marks together, is only 400 000 bottles. It considers, therefore, that it is in a special position under the contested regulation, which reserves the monopoly on use of the name at issue to a group of producers from which the applicant is excluded.

33 The applicant also claims that the persons specifically addressed by the legislative act in connection with which the contested regulation was adopted or by the regulation itself are, as a matter of principle, entitled to bring an action for annulment of the regulation inasmuch as they are in circumstances which differentiate them from any other person, as referred to in the judgment of the Court of Justice in Case 25/62 Plaumann ν Commission [1963] ECR 95, 107).

34 The 13th recital of Regulation N o 2081/92 states that 'the registration procedure should enable any person individually and directly concerned in a Member State to exercise his rights by notifying the Commission of his opposition', and Article 7 of the Regulation defines the persons concerned as either 'all persons who can demonstrate a legitimate economic interest' (paragraph 2) or 'any legitimately concerned natural or legal person' (paragraph 3).

35 In this case, the applicant is legitimately concerned by the registration of the names 'Pays d'Auge/Pays d'Auge-Cambremer' which has the effect of prohibiting the applicant from selling its cider under the name 'Pays d'Auge', even though it is the leading producer and seller of cider from the region.

ORDER OF 9. 11. 1999 — CASE T-114/99

Findings of the Court

40 Article 114 of the Rules of Procedure provides that the Court may, if a party so requests, give a ruling on inadmissibility without going into the substance of the case. Under Article 114(3), this will be an oral procedure, unless a decision is taken to the contrary. In this instance, the Court considers that an examination of the documents in the case has clarified the situation sufficiently for it to be able to rule on the claim without commencing oral proceedings.

41 Under the fourth paragraph of Article 230 EC, the admissibility of an action for annulment brought against a regulation by a natural or legal person is subject to the condition that the contested regulation is, in actual fact, a decision which concerns that person directly and individually. The Court has consistently held that the criterion for distinguishing between a regulation and a decision has to be sought in the general application or otherwise of the measure in question (orders in Asocarne ν Council, paragraph 28, and CNPΑΑΡ ν Council, paragraph 33). A measure is of general application if it applies to objectively determined situations and produces its legal effects with respect to categories of persons envisaged generally and in the abstract (see the judgment in Weber ν Commission, paragraph 55).

44 Nevertheless, the possibility remains that a provision which, by virtue of its nature and scope, is a legislative measure may be of individual concern to natural or legal persons if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and thereby distinguishes them individually, just as in the case of the addressee of a decision (judgments in Codorniu ν Council, paragraphs 19 and 20, and Weber ν Commission, paragraph 56).

45 In this respect, the applicant points out that for many years it has used in France the name 'Pays d'Auge' to market the cider it produces and that it is a leader in the market concerned. It considers, therefore, that it is in a special position with regard to the contested regulation, as was the applicant company in the case leading to the judgment in Codorniu ν Council, cited above.

46 However, the fact that the applicant controls a large part of the market in question is not in itself enough to differentiate it from any other trader affected by

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48 In the present case, however, the applicant has not shown, or even claimed, that it has used the geographical name on which it relies in the exercise of a similar specific right which it acquired at national or Community level before the adoption of the contested regulation and which the regulation affected in the way described in the aforementioned case-law.

49 The applicant also points out that it is 'legitimately concerned' within the meaning of Article 7(3) of Regulation No 2081/92, that it objected on this

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ground to the registration of the name in question by sending a duly substantiated statement to the competent authority of the Member State in which it is established, and that, since the objection was not forwarded to the Commission, there has been an infringement of the procedural safeguards specifically granted to it by Article 7. The applicant submits that these circumstances are enough to establish the admissibility of the present action.

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Although, under Article 7(3) of the regulation, any legitimately concerned natural or legal person may also object to the proposed legislation, he must do so by sending a duly substantiated statement to the competent authority of the Member State in which he resides or is established. The provision does not require the Member State concerned to forward to the Commission the objection which has been submitted to it in this way, but merely to take the necessary measures 'to consider' the objection within the deadlines laid down. Furthermore, although the 13th recital of Regulation No 2081/92 provides that 'the registration procedure should enable any person individually and directly concerned in a Member State to exercise his rights by notifying the Commission of his opposition', such notification is given 'through the Member State'. No provision in Article 7 of Regulation No 2081/92 authorises the Commission to consider an objection notified to it by anyone other than a Member State. Lastly, where an objection is acknowledged to be 'admissible' within the meaning of Article 7(4) of Regulation No 2081/92, Article 7(5) provides that the Commis­ sion is to ask the Member States concerned to seek agreement between themselves; it makes no provision for any intervention by individuals.

54 It should be added that the provisions of Article 7 of Regulation No 2081/92 concerning the right of individuals to object differ fundamentally from the very specific provisions relating to dumping and subsidies, which give certain traders a special role in Community procedures to adopt anti-dumping or anti-subsidy measures (see the judgment in Fediol ν Commission, paragraphs 16 and 25). Consequently, reference to that judgment is irrelevant to the present case.

58 That is so where the competent national authority decides not to forward to the Commission an objection submitted to it by an individual under Article 7(3) of Regulation No 2081/92. It follows from the foregoing (see paragraph 53 above) that the Commission is bound by that decision and may not consider an objection communicated to it by any person other than a Member State.

59 Accordingly, subject to the possibility of bringing proceedings before the Court of Justice under Article 226 EC, it is for the national courts alone, where

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appropriate after obtaining a preliminary ruling from the Court, to rule on the lawfulness of the national measure at issue (see the judgment in Oleificio Borelli ν Commission, paragraph 13) and on the possible liability of the Member State if it is claimed that the measure has caused loss.

60 It should be pointed out that the applicant brought an action before the French Council of State against the decision of the competent French authority not to forward its objection to the Commission and, on 21 June 1999, lodged a complaint with the Commission seeking the initiation of proceedings under Article 226 EC against the French Republic for failure to fulfil its obligations, on the grounds that, by taking the aforementioned decision, it contravened Article 7 of Regulation No 2081/92.

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber)

hereby orders:

1. The action is dismissed as inadmissible.

2. It is unnecessary to consider the application for leave to intervene made by the French Republic.

3. The applicant is ordered to bear its own costs and also those incurred by the Commission.