Opinion of the Advocate General — ECLI:EU:C:2017:444
Date: 2017-06-08
Language of the case: German
Subject matter: Agriculture and Fisheries;Environment;Fisheries policy
Procedure: Action for annulment;Appeal - successful
Origin: Germany

summary of the pleas in law relied on. The summary of the pleas relied on must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. (12) 71. In my opinion, with the exception of the pleas relating to Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation, Binca’s initial application before the General Court fails to meet those requirements. In particular, that application failed to identify the provisions in relation to which Binca took issue. 72. It cannot be excluded that, in some circumstances, an applicant’s summary of the pleas in law relied on may be considered sufficiently clear and precise, despite not listing explicitly and individually every provision of concern. However, that is not so in the present case. In that regard, although Binca’s application does make it clear that its concern is the discriminatory nature of the contested regulation, the nature and source of that discrimination is far from self-evident when reading the contested regulation. For that reason, it was incumbent on Binca to clearly identify the provisions it considered to be discriminatory and albeit succinctly, why, in order to meet the requirements of Article 44(1) of the Rules of Procedure of the General Court. 73. Nor can that impreciseness in the initial application be remedied by the specific references to other provisions of the contested regulation contained in Binca’s response to the Commission’s plea of inadmissibility. In accordance with Article 48(2) of the Rules of Procedure of the General Court, (13) no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. (14) 74. For the above reasons, I consider that Binca’s application for annulment should be considered inadmissible to the extent that it seeks the annulment of the contested regulation, with the exception of Article 1(1) thereof, modifying Article 25e(4) of the implementing regulation. 75. Before turning to Binca’s alleged existence of an interest to act as regards the annulment of that latter provision, two points are worth clarifying. First, the fact that Binca has challenged the entire contested regulation but has failed to meet the conditions of admissibility in relation to most of that act does not in itself deprive Binca of an interest to act in relation to Article 1(1) thereof, modifying Article 25e(4) of the implementing regulation. (15) Second, I do not see any particular problem of severability of Article 1(1) of the contested regulation and no argument to that effect has been made. As a result, it would in theory be possible to annul that provision and leave the remainder of the contested regulation intact. (16) 3. Existence of an interest to act 76. ‘Interest to act’ requires that some benefit will accrue to the applicant in case their action is successful. (17) A personal benefit establishing an interest to act can be either factual or legal. I have set out in detail elsewhere why I consider that that conclusion follows clearly from the case-law. (18) I will not repeat those reasons in detail here. 77. However, it is worthwhile noting that, at the oral hearing, the Commission accepted that where an EU measure grants certain advantages to market operators, their competitors may have an ‘interest to act’ in seeking annulment of that measure. The Commission did attach conditions to admitting such an interest. It considered that the competitive relationship must be ‘patent’, and elsewhere that the advantage to competitors must be ‘manifest’. I will turn to these conditions further below. However, at this stage, what is key is that interest to act may be factual in nature as a matter of principle. It may consist in a commercial benefit that would result from the annulment of the contested measure. 78. Does Binca have such a ‘factual’ interest to act in obtaining the annulment of Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation? 79. The Commission considers that it does not. It raises two points in that regard. First, Binca is a downstream importer of fish, and not in competition with those operators allegedly advantaged by the contested regulation. To establish an interest to act in a case like the present, the competitive relationship must be ‘patent’ or ‘blatant’. Second, the type of fish Binca imports — pangasius — is in any event not in competition with other types of fish that Binca considers to have been given an advantage by the contested regulation. To establish an interest to act in a case like the present, the alleged competitive disadvantage must be ‘manifest’. 80. I disagree with that interpretation of the notion of interest to act and the attaching conditions. I do not consider that, in order to establish interest to act, there must inevitably be a direct competitive relationship or a fortiorithat it must be ‘patent’ or ‘blatant’ or result in ‘manifest’ advantage to a competitor as alleged by the Commission. I see no basis for such requirements. (19) 81. Three further observations are worth making in that regard. 82. First, it seems to me perfectly plausible that, in some cases, where an EU act confers advantages on certain operators, not only competitors but also upstream and downstream actors will suffer serious commercial repercussions. If a product is negatively impacted by an EU measure in fact, it is simply artificial to say that that negative impact would as a general proposition be restricted to one particular level of the supply chain. That will depend on the specific factual nexus of the individual case. 83. Second, according to the facts as established by the General Court, the precise nature of Binca’s role in the supply chain is more complex than that of ‘mere’ importer. In that regard, the contested order confirms that Binca actually supplies the food used to produce the fish that it then purchases. (20) 84. Third, as confirmed by the Commission at the oral hearing, the organic labelling requirements to which importers of aquaculture products are subject incorporate the production requirements imposed by the contested regulation. For that reason, and contrary to what is argued by the Commission, it is not possible for the purposes of establishing admissibility to divide operators into producers, which are ‘addressees’ of the contested regulation and its requirements, and other operators, which are not. 85. Those observations in my view underline the need to avoid additional general requirements relating to the nature of relevant competitive relationships from being inferred as conditions to the establishment of an interest to act. 86. Whatever its precise role in the supply chain, in order to establish interest to act, Binca must show that it would derive a personal benefit,legal or factual from the annulment of Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation. 87. It is clear from recitals 3 and 4 of the contested regulation that the exceptions included in that provision are intended to facilitate the ongoing production of organic fish that would otherwise be interrupted. Annulment of the contested regulation would eliminate those exceptions and make it harder, even impossible, to produce certain types of fish ‘organically’ in the sense of the basic regulation and implementing acts. 88. However, such an annulment would only be of benefit to Binca and be capable of giving rise to an interest to act if: (i) those exceptions are of no use or less use to the production of fish imported by Binca, and (ii) the fish imported by Binca compete with products that do benefit from the exceptions. 89. Binca has made a prima facie case on both of those points. That is, in my opinion, sufficient to establish interest to act. 90. As regards (i), Binca explained before the General Court in relation to Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation, that the specific tides and topography of the Mekong delta mean that wild aquaculture juveniles cannot be captured in the same way as in European waters (with the exception of pilot projects and small-scale research). As regards (ii), although the precise competitive relationship between organic pangasius and other fish is unclear, it seems at first sight to be a reasonable proposition that organic fish of one type compete with organic fish of another type. Binca is obviously not importing clementines or ball bearings (or even non-organic fish). (21) 91. Both of the above points have been contested by the Commission. In particular, as regards the competitive relationship between pangasius and other fish, the Commission spoke at length at the oral hearing, referring to economic studies, merger control assessments, fish fingers and fine Italian restaurants. 92. However, the need for such detailed debate confirms that on this point, the arguments have spilled over into a separate discussion on substance, assessing whether or not Binca has, in fact, been discriminated against and what may be the reasons for the legislative differentiation operated by the Commission. 93. Establishing interest to act in this type of case should require no more of the applicant than a prima faciedemonstration of negative impact of the contested act on it (implying the existence of a personal benefit from the act’s annulment). The purpose of the interest to act requirement is to have a preliminary screening to weed out actions in the public interest and actions seeking legal opinions or posing a general or hypothetical question. (22) A preliminary screening that can be carried out only with a detailed CAT scan cannot be really called ‘preliminary’ any more. 94. Two additional, concluding remarks are due. First, in arguing against the existence of interest to act in this case, the Commission raised the spectre of ‘actio popularis’. That concern is, in my opinion, easily dismissed. An actio popularis is an action brought by a member of the public in the public interest. It appears rather clearly from its written observations that Binca is not just any member of the public. It is active on the relevant markets and has been for many years. Nor is it acting purely in the general public interest. It is acting in its own commercial interest. 95. Second, the real concern of the Commission appears to be that the threshold for interest to act should not be set ‘too low’, as that might open the floodgates to masses of actions for annulment. Again, such concerns are easily dismissed. As a matter of definitional principle, the existence of ‘interest to act’ should not be tweaked in order to ensure a certain level of litigation. The question is whether the applicant would derive a personal benefit, in law or in fact, from the annulment. Moreover, ‘interest to act’ is only one of several cumulative conditions of admissibility. It should indeed be treated as the least demanding being, in essence, as mentioned above, a preliminary screening mechanism. 96. In the light of the foregoing, the General Court erred in law in holding that Binca did not have an interest to act as regards the annulment of Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation. VII. Conclusion 97. I propose that the Court: – set aside the order of the General Court of the European Union of 11 March 2016, Binca Seafoods v Commission (T‑94/15, not published, EU:T:2016:164) in so far as it rejects the Appellant’s action for annulment of Article 1(1) of Commission Implementing Regulation (EU) No 1358/2014 of 18 December 2014 amending Regulation (EC) No 889/2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 as regards the origin of organic aquaculture animals, aquaculture husbandry practices, feed for organic aquaculture animals and products and substances allowed for use in organic aquaculture; – dismiss the remainder of the appeal; – refer the case back to the General Court; – order that costs be reserved. 1 Original language: English. 2 Commission Regulation of 18 December 2014 amending Regulation (EC) No 889/2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 as regards the origin of organic aquaculture animals, aquaculture husbandry practices, feed for organic aquaculture animals and products and substances allowed for use in organic aquaculture (OJ 2014 L 365, p. 97). 3 Council Regulation of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1). 4 Commission Regulation of 5 September 2008 laying down detailed rules for the implementation of Council Regulation No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2008 L 250, p. 1). 5 Commission Regulation of 5 August 2009 amending Regulation No 889/2008 laying down detailed rules for the implementation of Council Regulation No 834/2007, as regards laying down detailed rules on organic aquaculture animal and seaweed production (OJ 2009 L 204, p. 15). 6 Commission Regulation of 24 October 2013 amending Regulation No 889/2008 laying down detailed rules for the implementation of Council Regulation No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2013 L 283, p. 15). 7 Commission Regulation of 17 December 2013 amending Regulation No 889/2008 laying down detailed rules for the implementation of Council Regulation No 834/2007 as regards the use of non-organic aquaculture juveniles and non-organic seed of bivalve shellfish in organic aquaculture (OJ 2013 L 343, p. 29). 8 Specifically those species listed in Annex XIIIa (see Article 25a inserted by the first modifying regulation). Those species include pangasius (Section 9 of Annex XIIIa). 9 Due to problems relating to spontaneous egg-laying without the use of hormones. 10 Judgment of 22 May 2008, Evonik Degussa v Commission and CouncilEvonik Degussa v Commission and CouncilEvonik Degussa v Commission and Council(C‑266/06 P, not published, EU:C:2008:295, paragraph 103). 11 Now Article 21 of the Statute of the Court of Justice and Article 76 of the Rules of Procedure of the General Court. 12 See judgment of 21 March 2002, Joynson v CommissionJoynson v CommissionJoynson v Commission (T‑231/99, EU:T:2002:84, paragraph 154); order of 19 September 2016, Gregis v EUIPO — DM9 Automobili (ATS)Gregis v EUIPO — DM9 Automobili (ATS)Gregis v EUIPO — DM9 Automobili (ATS) (T‑5/16, not published, EU:T:2016:552, paragraph 18). 13 Now Article 84(1) of the Rules of Procedure of the General Court. 14 Order of 14 April 2016, KS Sports v EUIPOKS Sports v EUIPOKS Sports v EUIPO (C‑480/15 P, not published, EU:C:2016:266, paragraph 23). 15 See, in that sense, judgment of 12 September 2002, Europe Chemi-Con (Deutschland) v CouncilEurope Chemi-Con (Deutschland) v CouncilEurope Chemi-Con (Deutschland) v Council (T‑89/00, EU:T:2002:213, paragraph 35). 16 See, on that point, judgment of 12 April 2013, Du Pont de Nemours (France) and Others v CommissionDu Pont de Nemours (France) and Others v CommissionDu Pont de Nemours (France) and Others v Commission (T‑31/07, not published, EU:T:2013:167). 17 Judgment of 18 December 1997, ATM v Commission (T‑178/94, EU:T:1997:210, paragraphs 59 to 62). 18 Opinion of Advocate General Bobek in Bionorica and Diapharm v CommissionBionorica and Diapharm v CommissionBionorica and Diapharm v CommissionBionorica and Diapharm v CommissionBionorica and Diapharm v CommissionBionorica and Diapharm v Commission(C‑596/15 P and C‑597/15 P, EU:C:2017:297, points 49 to 52). That proposition also follows from the fact that there are a range of types of non-material factual interests accepted by the Court as giving rise to an interest to act, such as morale or future prospects (see judgments of 27 June 1973, Kley v CommissionKley v CommissionKley v CommissionKley v Commission (35/72, EU:C:1973:73, paragraph 4), and of 28 May 1998, W v Commission (T–78/96 and T–170/96, EU:T:1998:112, paragraph 47). 19 Indeed, when questioned specifically on the need for a ‘blatant’ competitive relationship at the oral hearing, the Commission confirmed there was no basis for that requirement in the case-law. 20 Paragraphs 41 and 42 of the contested order. 21 The circumstances are therefore different from those in the Andechser Molkerei case, where the Court considered that the appellant had failed to substantiate its allegation that organic and non-organic yoghurts were in competition, those products being subject to two very different regulatory regimes (see judgment of 4 June 2015, Andechser Molkerei Scheitz v CommissionAndechser Molkerei Scheitz v CommissionAndechser Molkerei Scheitz v Commission (C‑682/13 P, not published, EU:C:2015:356, paragraphs 35 to 37). 22 Van Raepenbusch, S., ‘L’Intérêt à agir dans le contentieux communautaire’, in Mélanges en hommage à Georges Vandersanden, Brussels, Bruyant, 2008, p. 381.