Order — ECLI:EU:C:2009:95
Date: 2009-02-17
Language of the case: German
Court formation: Sixth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Intellectual, industrial and commercial property;Trans-European networks
Concepts: Applications by natural or legal persons;Right to a judicial remedy
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary of the Order 1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them (Art. 230, fourth para., EC) 2. Community law – Principles – Right to effective judicial protection 1. Natural or legal persons can claim to be concerned individually only if the contested provision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from any other person and by virtue of these factors distinguishes them individually just as in the case of the addressee of a decision. Where a contested measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders. On that question, the number and the identity of the persons potentially concerned by a Commission decision reserving an internet domain name for use by the Community institutions and bodies could not be known definitively or even be determined. According to the procedure provided for in Regulation No 874/2004 laying down public policy rules concerning the implementation and functions of the ‘.eu’ Top Level Domain and the principles governing registration, each domain name on the list is reserved not merely in regard to holders of prior rights but also in regard to the general public. Similarly, the question whether the persons concerned by that decision are identified or identifiable is to be assessed at the date on which the decision at issue was adopted. The fact that a person participates in the process by which a Community measure is adopted does not differentiate him individually in regard to the measure in question except where Community rules have provided procedural guarantees in favour of that person. Thus, once a provision of Community law requires that, in adopting a decision, a procedure must be followed in which a natural or legal person may possibly claim rights, including the right to be heard, the special legal position which that person enjoys has the effect of differentiating him individually within the meaning of the fourth paragraph of Article 230 EC. Although it is true that Regulation No 874/2004 provides for a period of early and reserved registration of domain names in favour of holders of prior rights, it provides no procedural guarantee which may be analysed as a vested right. Consequently, an applicant cannot rely on the provisions of that regulation to argue that they ‘differentiate’ him within the meaning of the fourth paragraph of Article 230 EC. (see paras 41-43, 50, 53-54) 2. An individual to whom a Commission decision is not of direct and individual concern and whose interests could not therefore be affected by that measure cannot invoke the right to judicial protection in relation to that decision. (see para. 60)