Opinion of the Advocate General — ECLI:EU:C:2017:635
Date: 2017-09-06
Language of the case: Spanish
Subject matter: Agriculture and Fisheries
Procedure: Action for annulment;Appeal - unfounded
Origin: Spain

Summary — Judgment of the Court (Grand Chamber), 13 March 2018 1. Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures — Definition — Criteria for assessment (Art. 263, fourth para., TFEU) 2. Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures — Definition — Commission regulation identifying an active substance as a candidate for substitution pursuant to Regulation No 1107/2009 — Included (Art. 263, fourth para, TFEU; European Parliament and Council Regulation No 1107/2009, Arts 20(1) and 24(2); Commission Regulation No 2015/408) 3. Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures — Definition — No requirement for an implementing measure to have the regulatory act in question as its legal base (Art. 263, fourth para, TFEU) 4. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Criteria — Commission regulation identifying an active substance as a candidate for substitution pursuant to Regulation No 1107/2009 — Action brought by an importer of the substance at issue — Not individually concerned — Inadmissibility (Art. 263, fourth para, TFEU; European Parliament and Council Regulation No 1107/2009, Art. 80(7) and Annexe II, point 4; Commission Regulation No 2015/408, Recital 2 and Art. 1; Council Directive 91/414, Annex I) 5. Fundamental rights — Right to effective judicial protection — Review of legality of EU measures — Procedures — Protection of that right by the EU judicature or by the national courts according to the legal nature of the contested measure — Possibility of using an annulment action or reference for a preliminary ruling on validity (Art. 19(1) TEU; Arts 263, fourth para, TFEU, 267 TFEU and 277 TFEU; Charter of Fundamental Rights of the European Union, Arts 47 and 51(1)) 1. See the text of the decision. (see paras 42-47) 2. The fact that a regulatory act of the European Union entails implementing measures, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, such that certain legal effects of that regulation only materialise through those measures, does not exclude that that regulation produces, in the legal situation of a natural or legal person, other legal effects, which do not depend on the adoption of implementing measures. The legal effects of Regulation 2015/408 on implementing Article 80(7) of Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market and establishing a list of candidates for substitution as regards the duration of the validity of the renewal of approval of metalaxyl will only materialise, in respect of an importer of metalaxyl, through the intermediary of implementing measures. It follows from the provisions of Regulation No 1107/2009, in particular Article 24(2) thereof, that the classification of metalaxyl as a candidate for substitution by Regulation 2015/408 is without prejudice to the application of the procedure for the renewal of approval of that substance. That procedure requires, in the same way as the procedure for the renewal of approval of an active substance which is not included on the list annexed to Regulation 2015/408, the adoption of a regulation by the Commission, pursuant to Article 20(1) of Regulation No 1107/2009. In those circumstances, a Commission regulation on the renewal of approval of candidates for substitution, such as metalaxyl, is an implementing measure of Regulation 2015/408, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU. The effects of Regulation 2015/408 on the performance, by the Member States, of a comparative assessment of the health or environmental risks of plant protection products containing metalaxyl compared with a substitute product or a non-chemical method of pest control or prevention will not be made with respect to an importer of metalaxyl except through the intermediary of measures taken by the competent authorities of the Member States and such acts constitute, therefore, implementing measures within the meaning of the final limb of the fourth paragraph of Article 263 TFEU. (see paras 52, 57, 58, 61, 66) 3. The wording of the final limb of the fourth paragraph of Article 263 TFEU does not require, for a measure to be classified as an implementing measure of a regulatory act, that that act is the legal base of that measure. The same measure may be an implementing measure both of the act the provisions of which constitute its legal base and of a different act where all or part of the legal effects of the latter act will be produced, vis-à-vis an applicant, only through the intermediary of that measure. (see para. 72) 4. Persons other than those to whom a decision is addressed may claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if that decision 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 by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision. The fact that the Council of the European Union or the Commission was obliged, pursuant to specific provisions, to take into account the consequences of the act that they proposed to adopt on the situation of certain individuals could be capable of distinguishing those persons, where it is proven that they are prejudiced by that act owing to a factual situation that differentiates them from all other persons. As regards an action brought by an importer of metalxayl against Regulation 2015/408 on implementing Article 80(7) of Regulation (EC) No 1107/2009 concerning the placing of plant protection products on the market and establishing a list of candidates for substitution, the mere fact that the applicant had participated in the procedure that led to the inclusion of metalaxyl in Annex I to Directive 91/414 is not capable of distinguishing it as regards the regulation at issue. That applicant is concerned by Regulation 2015/408 simply because of its objective quality as importer of metalaxyl and seller of products containing that substance, on the same basis as any other economic operator that is, actually or potentially, in an identical situation. (see paras 87, 89, 90, 91) 5. See the text of the decision. (see paras 101-107, 109)