BIB.ORDER
T-269/9761997B02690001.00013107131148TORDER OF 9. 9. 1998 — CASE T-269/97
AZIENDA AGRICOLA TRE E MEZZO AND BAZZOCCHI v COMMISSION
Order of the Court of First Instance (First Chamber)
9 September 1998(*)
In Case T-269/97,
Azienda Agricola Tre e Mezzo, an agricultural holding governed by Italian law, established in Forlì (Italy),
and
Carlo Bazzocchi, farmer, residing in Cesena (Italy),
represented by Carlo Piccoli and Fabrizio Fabbri, of the Forlì-Cesena Bar, and François Turk, of the Luxembourg Bar, with an address for service in Luxembourg at the latter's Chambers, 13a Avenue Guillaume,
applicants,Commission of the European Communities, represented by Francesco P. Ruggeri Laderchi, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,APPLICATION for the partial annulment of Commission Regulation (EC) No 1488/97 of 29 July 1997 amending Council Regulation (EEC) No 2092/91 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (OJ 1997 L 202, p. 12),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),
composed of: B. Vesterdorf, President, R. M. Moura Ramos and P. Mengozzi, Judges,
Registrar: H. Jung,
makes the following
Order
Legal framework
1Article 6(1 )(b) of Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (OJ 1991 L 198, p. 1, ‘the basic regulation’) provides that, in organic production:
‘only products composed of substances listed in Annexes I and II may be used as plant-protection products, detergents, fertilisers, or soil conditioners; they may be used only under the specific conditions laid down in Annexes I and II in so far as the corresponding use is authorised in general agriculture in the Member States concerned in accordance with the relevant Community provisions or national provisions in conformity with Community law’.
2Annex IIb to the basic regulation contains an exhaustive list of products which may be used for the purpose of pest and disease control in the organic production of agricultural products.
3On 29 July 1997, the Commission adopted Regulation (EC) No 1488/97 amending Council Regulation (EEC) No 2092/91 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (OJ 1997 L 202, p. 12, ‘the contested regulation’). That regulation, inter alia, amended Annex IIb to the basic regulation by excluding a number of products which may be used for the purpose of pest and disease control (‘the excluded products’).
Procedure and forms of order sought by the parties
4By application lodged at the Court Registry on 13 October 1997, the applicants — who use organic methods in Romagna to grow apples of a specific variety known as the ‘florina’ apple and, in so doing, normally use one of the excluded products in order to protect them from pests and diseases — brought this action for the annulment of the contested regulation in so far as the new wording of Annex IIb to the basic regulation no longer refers to the excluded products.
5By document lodged at the Court Registry on 5 January 1998, the Commission raised a plea of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance. It claimed that the Court should:
- —
dismiss the application as inadmissible;
- —
order the applicants to pay the costs.
6The applicants submitted their observations on the plea of inadmissibility on 23 March 1998. In those observations they contended that the Court should:
- —
dismiss the plea of inadmissibility or, in the alternative, reserve its decision for the final judgment;
- —
order the Commission to pay the costs or, in the alternative, order the parties to bear their own costs.
Admissibility of the application
Summary of the arguments of the parties
7The Commission submits that, since the contested regulation is a measure which applies in general and in the abstract, its provisions are not of individual concern to the applicants within the meaning of the fourth paragraph of Article 173 of the EC Treaty. Consequently, the application should be dismissed as inadmissible.
8In response to that submission, the applicants contend that the contested regulation is of individual concern to them ‘in so far as it affects them by reason of certain personal characteristics and certain circumstances which are such as to distinguish them from farmers as a whole and to identify them’. They state that they use organic methods to grow a specific variety of apple known as the ‘florina’ apple, which differs from other varieties in particular ‘as regards the products which may be used to protect it against harmful organisms’. Moreover, the ‘florina’ apple is grown in a region, Romagna, ‘with a microclimate which would not readily be found elsewhere and which is inextricably linked to the defence mechanisms of the plant life and the presence of harmful organisms’. In the light of those particular circumstances, the applicants form part of a ‘small class of identified or identifiable operators’ who, as a result of the prohibition on use of the excluded products, will be ‘precluded from obtaining an “organic producer” label when the plantations begin to bear fruit’.
Findings of the Court
9Article 114 of the Rules of Procedure provides that a party may apply to the Court of First Instance for a decision on admissibility not going to the substance of the case. Under Article 114(3), the remainder of the proceedings are to be oral, unless the Court decides otherwise. In the present case, the Court considers that it has sufficient information from its examination of the documents before it and that there is no need to open the oral procedure.
10According to settled case-law of the Court of Justice and the Court of First Instance, the fourth paragraph of Article 173 of the Treaty entitles individuals to contest 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, merely by choosing the form of a regulation, from being able to exclude an application by an individual against a decision of direct and individual concern to him and thus to make clear that the choice of form cannot change the nature of a measure (see, for example, the judgment of the Court of Justice in Joined Cases 789/79 and 790/79 Calpak 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 II-1187, paragraph 19).
11Furthermore, the Court of Justice and the Court of First Instance have consistently held that the general applicability, and thus the legislative nature, of a measure is not called into question by the fact that it is possible to determine to a greater or lesser degree the number or even the identity of the persons to whom that measure applies at any given time, as long as it is established that it applies to them by virtue of an objective legal or factual situation defined by the measure in relation to its purpose (see, for example, the judgment of the Court of Justice in Case 26/86 Deutz und Geldermann ν Council [1987] ECR 941, paragraph 8, and the order of the Court of First Instance in FRSEA and FNSEA ν Council, cited above, paragraph 19).
12The Court of Justice and the Court of First Instance have held with equal consistency that, in order for economic operators to be regarded as being individually concerned by the measure whose annulment they seek, their legal position must be affected by reason of circumstances which differentiate them from all other persons and distinguish them individually in the same way as an addressee (see, in this connection, the judgment of the Court of Justice in Case C-309/89 Codorniu ν Council [1994] ECR I-1853, paragraph 20, and the order of the Court of First Instance in Case T-183/94 Cantina Cooperativa fra Produttori Vitivinicoli di Torre di Mosto ν Commission [1995] ECR II-1941, paragraph 49).
13In the present case, contrary to the applicants' submission, the contested regulation, far from affecting them by reason of certain attributes which are peculiar to them or by reason of circumstances which differentiate them from all other operators, is addressed in abstract and general terms to undetermined classes of persons and applies to objectively determined situations. It is directed to the applicants only in their objective capacity as producers of organic agricultural products, in the same way as any other operator who is actually or potentially in an identical situation.
14First of all, examination of the documents before the Court has disclosed nothing to show that the applicants, in so far as they use organic methods to grow a specific variety of apple which is said to be different from other varieties, in particular as regards the products which may be used to protect it against pests and diseases, form part of a small class of producers in the Community. Moreover, it must be pointed out that the contested regulation affects not only producers but also persons who market organic products and consumers.
15Secondly, examination of the documents before the Court has likewise disclosed nothing of a scientific nature to show that the place where the applicants grow ‘florina’ apples is to be regarded as special in the sense that, as the applicants claim, the ‘microclimate’ of the region in question cannot be found elsewhere and is ‘inextricably linked’ to use of the excluded products for the purpose of combating apple pests and diseases. Furthermore, the applicants have not adduced evidence to show that the excluded products cannot be replaced by other similar products included in the new wording of Annex IIb to the basic regulation.
16Similarly, in so far as the applicants appear to maintain that they are individually concerned by the contested regulation inasmuch as, after it has entered into force, the apple plantations protected by means of the excluded products will no longer be able to produce apples which can be described as organic, it is clear that such a situation, even assuming it to be proved, would in any event not be sufficient to differentiate the position of the applicants from that of all other operators in the sector.
17It follows from all of the foregoing that the contested regulation concerns the applicants only in their objective capacity as producers of organic products, in the same way as any other economic operator trading on the same market, and that, since the applicants have in no way proved that they are individually concerned by that regulation, the plea of inadmissibility raised by the Commission must be upheld.
Costs
18Under the first paragraph of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants have been unsuccessful and the Commission has applied for costs, the applicants must be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber)
hereby:
- 1.Dismisses the application as inadmissible;
- 2.Orders the applicants to pay the costs.