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common organisation of the markets in 7. As the third recital in the preamble to regard to agricultural products, in particu- Regulation No 2200/96 states, the system lar fruit and vegetables. The relevant regu- of quality standards is intended by the lations are in two tiers. A basic regulation Community legislature to provide 'a refer- has been adopted by the Council whilst the ence framework that encourages fair trad- Commission, pursuant to powers conferred ing and market transparency and also on it by the Council Regulation, has made eliminates products of unsatisfactory regulations laying down detailed quality quality from the market.' Compliance with standards for specific types of fruit and these standards thus also helps to improve vegetable. These quality standards specify the profitability of production. 4 details of various labelling requirements, including variety names.

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(EEC) No 291/92 of 6 February 1992 7 in an obvious position on one side of the amended the list of varieties in such a way packaging, either indelibly printed directly that it was thenceforth to be regarded as on to the package or on a label which is an 'non-exhaustive'. The objective of that integral part of or firmly affixed to the amendment is stated in the first recital in package. the preamble to that regulation as being to make clear that 'those standards apply to all varieties of table grapes intended to be consumed fresh in the Community.' That served to dispel the doubts which had previously existed — when the list was still exhaustive — as to whether grapes of non-listed varieties were outside the ambit of the quality standards altogether. Com- mission Regulation (EC) No 888/97 of 16 May 1997 8 amended certain provisions of the standards for fresh fruit and veg- etables, in particular as regards identifica- tion of the packer/dispatcher and origin of Article 6 the produce.

At the retail stage, where products are packaged the information particulars required shall be legible and conspicuous.

10. Articles 5 and 6 of Regulation No 2200/96 9 provide as follows:

Products may be presented unpackaged, provided that the retailer displays with the goods offered for sale a card showing prominently and legibly the information particulars specified in the quality stan- dards relating to: ' 1 . The information particulars required by the quality standards must be shown legibly

'The holder of products covered by the quality standards adopted may not display 13. The plaintiffs in the main proceedings, such products or offer them for sale, or Antonio Muñoz y Cia SA and Superior deliver or market them in any other manner Fruiticola SA, both established in Spain and within the Community than in conformity hereinafter together referred to as 'Muñoz', with those standards. The holder shall be grow and market grapes on a large scale. responsible for observing such conformity. Since 1987 they have sold their produce in the United Kingdom and elsewhere.

14. The defendants in the main proceedings ... ' 10 are Frumar Limited and its parent company

10 — Article 3(1) of Regulation No 1035/72 was in analogous 11 — Inspectorate responsible for overseeing the marketing of terms. horticultural products.

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Redbridge Produce Marketing Limited 17. Muñoz made several complaints to the (hereinafter together referred to as 'Fru- Horticultural Marketing Inspectorate con- mar'). Frumar imports vegetables and fruit cerning the incorrect marking of those into the United Kingdom and distributes products by Frumar. However, the Inspec- them to large retailers such as Teseo, Asda torate took no action in that connection. and Sainsbury.

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The preliminary question issues of the organisation of the market in fruit and vegetables and concerns the operation of Community law in relation to matters which to a considerable extent still come within the scope of national law. 21. By order of 14 June 2000, received at In my view the question is threefold, the Court Registry on 26 June 2000, the namely: Court of Appeal of England and Wales (Civil Division) accordingly referred the following question to the Court for a preliminary ruling:

— Can a person claim under a Commu- nity regulation a right to compliance by another person with a provision of that 'Does Council Regulation (EC) No 2200/96 regulation? (and did Council Regulation (EEC) No 1035/72 when it was in force) give rise to a legal duty resting upon persons who trade in a fruit or a vegetable within the Community to comply with the require- ments as regards variety name laid down by a quality standard which is applicable to — If that question is answered affirm- that fruit or vegetable, which a national atively, does Community law require court should enforce in civil proceedings that that person should also be able to brought at the suit of a person who is a enforce that right? substantial grower within the Community of the fruit or vegetable concerned?'

— If both those questions are answered affirmatively: to what extent does Community law require the national IV — Assessment legal order to provide a right of action?

Preliminary 23. The first stage is closely related to the doctrine of the direct effect of regulations. Under Article 249 EC regulations are binding in their entirety and directly appli- 22. As I stated in the introduction the cable in the Member States. Accordingly, question raised transcends the specific regulations impose on legal and natural

26. None of that means, moreover, that the 24. The second stage concerns the enforce- objective and content of Regulation ment of provisions of regulations. Pursuant No 2200/96, and the quality standards to the obligations imposed on them based on it, are not significant in connec- Member States have appointed supervisory tion with the reply to be given to the authorities and, apart from that, also have preliminary question. In the present case it to ensure that regulations are observed. must be established in particular to what Within the limits defined by Community extent the quality standards for fruit and law they are free to determine the penalty vegetables (also) extend to protecting com- in the case of an infringement of Commu- peting undertakings and the extent to nity law and also, in a proper case, to which those standards can also actually decide not to impose a penalty. To what afford that protection. Objective and con- extent can the intervention of the civil tent delineate the framework within which courts at the suit of a person seeking to the reply to the question raised must be enforce the regulation by means of private- given. law remedies be regarded as an acceptable or even necessary adjunct to enforcement by means of the public law?

Framework: objective and content of Regu- lation No 2200/96 25. The third stage concerns access to the courts. Access by individuals to the courts is governed primarily by national pro- cedural law. The Court is called upon to 27. Regulation No 2200/96 introduces, state the requirements under Community inter alia, a system of common quality

standards for fruit and vegetables. Those under several names which detracts from standards apply to all table grapes which transparency of the market in table grapes are delivered fresh to the consumer. A and affects operations in the chain of feature of that system is that the fruit and distribution. It may be presumed that vegetables, in this case grapes, are to be Muñoz suffers damage as a result. The identifiable under their own variety names High Court (England and Wales) does not when marketed. It is also clear from as yet appear to be persuaded of the Regulation No 1730/87 that varieties of existence of damage. That court's reason- grapes listed in the annex to that regulation ing is that, in view of the fact that names of must be marketed under the name men- grape varieties are not generally known to tioned in the annex or under one of the the public, the offer for sale of the same synonyms mentioned therein. As the Com- grape variety under several names would mission correctly states in its written not have an effect on sales. However that observations, those requirements apply as may be, it is a situation which in my view is soon as the produce leaves the area of likely in any event to affect distribution and production and continue to apply at all that is a factor capable of occasioning marketing stages. It follows from Article 6 damage to Muñoz. of Regulation No 2200/96 that the require- ment to indicate the variety name also applies when grapes are offered unpack- aged for sale by a retailer. The holder of the products, in this case Frumar, is responsible for compliance with the standards, as is stated in the fifth recital in the preamble to the regulation. 29. The question then arises as to whether that damage is the consequence of the disregard of an interest which the regu- lation seeks to protect. In order to answer that question I will first of all consider the objectives of the regulation and sub- sequently the aim and content of the common agricultural policy and the com- mon organisation of the markets which are an essential component part of that policy. 28. Non-compliance with that marking requirement and also with other require- ments under the regulation, such as division according to class of quality, can damage the interests of both consumers and com- peting undertakings. The main proceedings concern the latter. In its written observa- tions Muñoz gives evidence of its specific interest in compliance by its competitor, in 30. The third recital in the preamble to this case Frumar, with the quality stan- Regulation No 2200/96 states the objec- dards. Frumar's method of dealing results tives of the common quality standards. In in the same variety of grape being marketed its written observations Muñoz infers

33. In order to implement the objectives of the common agricultural policy organi- sation of the markets has been effected in 31. The Commission also mentions the a number of sectors. In the first place that twentieth recital in the preamble to the organisation of the markets creates legal regulation in which it is stated that 'the relationships between producers of and rules of the common market organisation dealers in agricultural products, on the should be complied with by all operators to one hand, and Community and national whom they apply, otherwise their impact authorities, on the other. However, these will be distorted...'. As the Commission organisations of the market are also con- rightly states, the system of quality stan- cerned with relations between producers dards is effective only if the standards are and between dealers. The clearest examples applied at all marketing stages. of that 'horizontal' effect are to be found in the quota arrangements which form part of the organisation of the markets. Thus, under the organisation of the markets in sugar 13 the Member States may transfer sugar quota between undertakings. It is self-evident that the transfer of a quota from one undertaking to another directly affects the relationship between both undertakings. The same is true of the transfer of a milk quota 14 where a dairy 32. The objective pursued by the regulation holding is taken over. The quota available must naturally be viewed in light of the to that holding is transferred together with objectives of the common agricultural pol- icy stated in Article 33 EC. In itself this catalogue of specific and disparate objec- 13 — See Article 12 of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the tives, both social and economic in nature, markets in the sugar sector (OJ 2001 L 178, p. 1). provide little guidance for the purposes of 14 — See Article 7 of Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the the reply to be given to the referring court. milk and milk products sector (OJ 1992 L 405, p. 1).

34. Another feature of the market organi- sations which I consider relevant to the present case is the fact that the market organisations are characterised by detailed The first stage: direct effect of regulations rules within which the responsibility of and the right to secure compliance in producers and dealers is closely defined. situations characterised by horizontal effect They are able to acquire precise knowledge of the rules which they must observe. Moreover, there are few exceptions to the system which are attributable to matters within the sphere of the producers and dealers themselves. Frequently, only force majeure is accepted as a justificatory 37. The Court has on many occasions and ground. from various perspectives expressed a view on the doctrine of direct effect. The ques- tion whether a Community provision has direct effect depends in the first place on the content of the provision whereby the Court naturally takes account of the scope of the provision. In sum, provisions of primary and secondary Community law may have direct effect if they are couched in clear, precise and unconditional terms. 35. In sum, Regulation No 2200/96 and Such provisions are by their nature apt to the quality standards for table grapes based be invoked before the national courts by a on it (also) pursue the objective of pro- natural or legal person without there being tecting fair trading, thus, at the same time any need for further implementing provi- regulating relations between producers and sions. 15 between dealers. Moreover, the content of the obligations flowing from the regulation is precisely determined and is not subject to 15 — See, for example, recent judgment of 18 October 2001 in exceptions. Case C-441/99 Gharehueran [2001] ECR I-7687.

41. The Court is thereby in fact stating that a provision of a regulation has direct effect 40. I shall begin by referring to the case- as between citizens. Already in a judgment law on directives. The Court has on many occasions expressed a view on the direct effect of directives. The essence of that 17 — The standard judgment in this area is in Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraphs 20 et seq., reaffirmed in particular in Case C-443/98 Unilever [2000] ECR I-7535. 16 — Judgment in Case 222/82 Apple and Pear Development 18 — Paragraph 24 of the judgment in Faccini Dori (cited at Council [1983] ECR 4083. footnote 17).

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of 14 December 1971 19 the Court stated as ming from a condition laid down by an follows: 'By reason of their nature and their individual employer on the recruitment of function in the system of the sources of staff. Nor does the fact that some Treaty Community law, all regulations have direct provisions are formally addressed to the effect and are, as such, capable of creating Member States preclude rights from being individual rights which national courts conferred on individuals who have an must protect.' interest in seeking to ensure compliance with the obligations thus laid down.

42. As to that, Muñoz is right when it states in its written observations as follows: by adopting a regulation rather than a directive the Community legislature intends to impose obligations directly on traders not to act in such a way as to distort trade. The main intention is thus not to require Member States to set up inspectorates.

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Treaty on the free movement of goods.' 24 47. It must be examined on a case-by-case By means of this case-law the Court has basis whether a provision of a regulation established that, even where provisions of confers rights on individuals. In that con- competition law are not involved, EC law nection it is immaterial whether the person directly impinges on private legal relations. concerned is relying on that right in pro- ceedings against the authorities or against another person. Regard must always be had to whether the provision by its content and purport affords protection to the interests which he is invoking in law. There must be a link between the interest on which the 45. Thus, a directly applicable provision of person concerned is relying and the pro- Community law normally has effect as tection afforded by a provision of a regu- between citizens. At the same time it is lation. In that connection I take the view clear to me — except in the case of direc- that the requirements to be satisfied sub- tives — that the distinction between hori- stantively by that link do not need to be too zontal and vertical effect is not a meaning- stringent. First, a provision of a regulation ful one. I would go one step further: the often protects several interests. That is true, question is whether the concept of direct for example, of Article 3(1) of Regulation effect is still in fact relevant in the case of No 2200/96 which extends protection to binding provisions of regulations, such as both fair trading and the consumer. Sec- in this case Article 3(1) of Regulation ondly, too strict a test would be detrimental No 2200/96. Such provisions form part of to the direct effect of regulations. the national legal order and thus also apply to legal relationships between persons. 25

fair trading and to protect the rights of such enforcement, having regard to the competing undertakings if they suffer loss parameters set by Community law. Those as a result of an infringement of the parameters, which I shall mention below, regulation. As to content Article 3(1) of are conditioned by the requirement of the the regulation is unconditional and suffi- efficacy of Community law: effective ciently precise. The provision forms part of enforcement in the Member States is a the national legal order and has effect as precondition of the operation of Commu- between citizens. In those circumstances a nity law. person has the right under Community law to compliance by another with a provision of the regulation. None the less, there must be a link between the interest invoked by the person concerned and the protection afforded by the provision of a regulation. 52. The regulation provides primarily for a system of enforcement under public law by or under the responsibility of the Member States. In that connection I would point in particular to the following articles of the regulation:

Second stage: enforcement

— Article 7 of the regulation requires the Member States to appoint authorities with responsibility for carrying out checks; 50. Now that it has been established that a person has such a right under Community law, the question arises as to the extent to which the person concerned must be enabled to assert that right. In other words the question is whether Community law also requires the Member States to enable — Under Article 38 the Member States persons concerned to seek to have the are obliged to carry out checks; provisions of the regulation enforced in civil proceedings.

In the United Kingdom enforcement is a Community law are to be penalised under matter for the Horticultural Marketing conditions, both procedural and substan- Inspectorate which is the appointed super- tive, which are analogous to those appli- visory authority. cable to comparable infringements of like seriousness of national law. In that con- nection the choice of penalties remains within the Member States' discretion but the penalties must be effective and have deterrent effect but must also be propor- tionate. The latter requirement is to ensure that penalties are not so disproportionately heavy as to disrupt the market. Under 53. The obligation to secure enforcement certain circumstances Member States must of regulations — and not only pursuant to also be able to decide not to impose the abovementioned provisions — stems penalties. from the structure of Community law. Legislation is enacted at Community level which it is then for the Member States to implement and enforce. The Community institutions are not equipped with suffi- 55. It is not to be inferred from the ciently comprehensive administrative regulation itself, as the Commission also machinery. Moreover, competences in pro- stated in its written observations, that cedural administrative law and criminal enforcement by the authorities of the law have still only to a limited degree been Member States has to be the sole method transferred to the European Union. Under of supervision. In other words, the regu- Article 10 EC the Member States are lation grants no monopoly in regard to obliged to secure implementation and enforcement. Nor is any such monopoly to enforcement. be inferred from the context of Regulation No 2200/96. Nor is that altered by the fact that the regulation itself solely makes provision for enforcement by means of public law. Community law does not operate on the notion that enforcement by means of private law is precluded where provision is made expressis verbis solely for enforcement under public law. In that 54. The Member States enjoy a margin of connection Community law appears to discretion in carrying out those tasks. On differ from English law which — save for the one hand, that discretion is circum- exceptions — does not permit civil pro- scribed by the terms of the abovementioned ceedings to be brought in a case where provisions of the regulation and, on the breach of a national legislative provision other, by the requirements of Community attracts a criminal sanction. 28 law in regard to enforcement of regu- lations. According to settled case-law, 2 7 the latter are as follows: infringements of 28 — I refer here to 'breach of a statutory duty'. In the case of an infringement of directly effective Community law that prohibition is not applied consistently in the United Kingdom. See, for example, the judgment in The Scotch 27 —See for example Case C-326/88 Hansen [1990] ECR Whisky Association v J.D. Vintners [1997] ELR 446, at I-2911, paragraph 17. p. 448.

60. I do not see why an undertaking should not be able to institute civil proceedings if it alleges that it has suffered loss as a result of the infringement of Article 3(1) by a 58. In its written observations the Com- mission draws an analogy with competition 29 — See for example Opinion of Advocate General Van Gerven law. Within the framework of Articles 81 in Case C-234/89 Delimitis [1991] ECR I-935.

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competing undertaking. Article 3(1) lends regulation must have the opportunity of itself well to being applied independently securing enforcement of that provision in by the national courts. For, as I stated at the civil courts provided of course that the paragraph 49 the content of Article 3(1) of interest of the person concerned which is Regulation No 2200/96 is precisely deter- affected is one which Community law seeks mined and failure by the supervisory auth- to protect. Only then is the full effective- ority to enforce the regulation does not give ness of Community law ensured. Enforce- a producer or dealer the right to infringe ment by the civil courts forms a useful and the rule. In that way enforcement by the necessary adjunct to enforcement by the civil courts, just as in the case of compe- authorities of the Member State. tition law, forms a useful and necessary adjunct to enforcement, in this case, by the national supervisory authority. For it can- not be the case that a private person on whom rights are conferred under a provi- sion should be wholly dependent for the vindication of those rights on the readiness of a supervisory authority to take enforce- Third stage: right of action under the ment action. national legal order

must be a link between the interest relied action can also have a preventive effect and on and the protection afforded under a can promote compliance with Community provision of a regulation. It may already be law. inferred from this that it is a matter of importance from the point of view of Community law that there should be a legal right of action under the national legal order. 68. The requirements concerning access to the national courts by an interested third party which have, as a matter of Commu- nity law, to be met may to a large extent be inferred from the conditions governing access to the Community judicature itself. I will first of all examine this aspect. 30 66. The second stage in this Opinion con- cerned enforcement. I stated that enforce- ment by the civil courts forms a useful and necessary adjunct to enforcement by the authorities of the Member State. Civil 69. By its very nature the Court's case law enforcement ensures the full effectiveness predominantly concerns decisions. For the of Community law. Viewed from this fourth paragraph of Article 230 EC confers perspective also Community law requires on a natural or legal person the right to there to be a right of action under the institute proceedings against a decision national legal order. addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

interests of a category of persons could not on State aid. 33 It has held that, in addition be considered to be directly and individ- to the undertaking in receipt of aid, com- ually concerned, for the purposes of the peting undertakings are also individually fourth paragraph of Article 173 of the concerned by a Commission decision ter- Treaty [now Article 230 EC], by a measure minating a procedure initiated under affecting the general interests of that cat- Article 88(2) of the Treaty with regard to egory, and was therefore not entitled to individual aid, where those undertakings bring an action for annulment where its have played a significant role in that members could not do so individually.' 31 procedure, provided that their position on the market is significantly affected by the aid which is the subject of the decision at issue. Moreover, certain associations of economic operators which have played a significant role in the procedure under Article 88(2) of the Treaty have been 71. Interested third parties have locus recognised as individually concerned by standi only where a 'decision affects them such a decision, inasmuch as they are by reason of certain attributes which are affected in their capacity as negotiators. peculiar to them, or by reason of factual The conditions laid down by the Court in circumstances which differentiate them these judgments are twofold. First, there from all other persons and thereby dis- must be an actual economic interest; sec- tinguish them individually in the same way ondly, the third party concerned must as the person addressed.' 32 The effect of already at an earlier pre-litigious stage have this decision is that an organisation such as availed itself of its opportunities for Greenpeace, which is concerned with gen- influencing the decision-making procedure. eral environmental issues, does not have I would also point out that in that specific locus standi. The same is true, for example, situation an action by an employers' of trade unions or employers' organi- organisation would be admissible. sations, even though they are founded on the premise that those whom they represent are individually concerned by the contested decision.

wrist-watches originating in the Soviet other remedies, such as in a proper case, the Union. The regulation at issue particularly right to lodge a complaint. affected Timex because, as the Court stated, Timex was the leading manufac- turer of mechanical wrist-watches in the Community and the only remaining manu- facturer in the United Kingdom. A further factor in that case was that Timex had 76. In my view, under those circumstances lodged a complaint at an earlier stage of the national law must also afford a right of decision-making process. action to an interested third party who has suffered loss as a result of the infringement of a provision of a Community regulation. In that connection the condition must apply that the interest demonstrated is an interest protected by the regulation. It may likewise 74. The special interest of a third party be inferred from Community law that a which differentiates that party from others person initiating proceedings may not be is, it is true, construed narrowly in the discriminated against in regard to a person case-law. A good example is afforded by bringing proceedings in a comparable but the recent judgment of the Court of First purely national dispute. National pro- Instance in Sociedade Agrícola dos Arinhos cedural law may require the person con- and Others v Commission. 35 In that case a cerned to demonstrate an actual economic number of Portuguese breeders of fighting interest which is protected by a regulation bulls brought an action against the export and differentiates that person from other ban on bulls which had been imposed by economic operators. National procedural the Commission in connection with the law may also require the interested third BSE problem. The action was declared party to avail itself first of other rights of inadmissible since the breeders of fighting recourse. bulls could not be differentiated from other economic operators in the same field. Those breeders had also lodged a complaint during the preceding decision-making pro- cess. 77. If national procedural law does not satisfy the requirements mentioned in the preceding paragraph, it is liable to be set aside by Community law. 75. I draw the following inferences from this recapitulation of the case-law. A third party has access to the Community judica- ture if that party can show an actual economic interest which, moreover, differ- 78. Under the circumstances of the main entiates him from other economic oper- proceedings which I have outlined earlier in ators. A further requirement is that the this Opinion, that means that national law person concerned has first made use of must afford to a party such as Muñoz access to the court for the purposes of civil proceedings against a competitor for 35 — Cases T-38/99 to T-50/99 Sociedade Agrícola dos Arinhos infringement of Article 3(1) of Regulation and Others v Commission [2001] ECR II-585. No 2200/96.