62002TO0231_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case T-231/02,
Piero Gonnelli,
residing at Reggello (Italy),
and
Associazione Italiana Frantoiani Oleari (AIFO),
established in Rome (Italy), represented by U. Scuro, lawyer,
applicants,
v
Commission of the European Communities, represented by C. Cattabriga and C. Loggi, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for the annulment of Commission Regulation (EC) No 1019/2002 on marketing standards for olive oil (OJ 2002 L 155, p. 27),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of:  J. Azizi, President, M. Jaeger and F. Dehousse, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Legal context
1. Article 35(1) of Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organisation of the markets in oils and fats (OJ, English Special Edition 1965-1966, p. 221), as amended, requires, for the marketing of olive oils and olive pomace oils in each of the Member States, in trade within the Community and with third countries, the use of the descriptions and definitions annexed to that regulation. Article 35(2) adds that only the oils referred in points 1(a) and (b), 3 and 6 of the annex may be marketed at the retail stage.
2. On 13 June 2002, pursuant to Article 35a of Regulation No 136/66, which provides that, for olive oil as for all other products covered by the common organisation of the markets in oils and fats, the Commission may adopt marketing standards concerning such matters as classification according to quality, packaging and presentation, the Commission adopted Regulation (EC) No 1019/2002 on marketing standards for olive oil (OJ 2002 L 155, p. 27, ‘Regulation No 1019/2002’ or ‘the contested regulation’).
3. Regulation No 1019/2002 lays down rules for the retail marketing of olive oils and olive pomace oils with the aim, first, of guaranteeing the authenticity of the olive oils which are sold and adequate information for consumers and, second, avoiding any risk of distortion of competition in the market for edible olive oils.
4. Under Article 2 of Regulation No 1019/2002, these oils must be presented to the final consumer in packaging of a maximum capacity of 5 litres and fitted with an opening system that can no longer be sealed after the first time it is opened. However, the Member States may set a maximum capacity exceeding 5 litres in respect of packaging for collective establishments such as hospitals and canteens.
5. Under the same Article 2, the packaging must be labelled in accordance with Articles 3 to 6 of the contested regulation.
6. Under Article 3 of that regulation, the labelling must bear, in addition to the trade description in accordance with Article 35 of Regulation No 136/66, the following information on the category of oil in clear and indelible lettering:
‘(a) extra virgin olive oil: “superior category olive oil obtained directly from olives and solely by mechanical means”;
(b) virgin olive oil: “olive oil obtained directly from olives and solely by mechanical means”;
(c) olive oil composed of refined olive oils and virgin olive oils: “oil comprising exclusively olive oils that have undergone refining and oils obtained directly from olives”;
(d) olive pomace oil: “oil comprising exclusively oils obtained by treating the product obtained after the extraction of olive oil and oils obtained directly from olives”
or “oil comprising exclusively oils obtained by processing olive pomace oil and oils obtained directly from olives”’.
7. Article 4 governs the designation of origin on the labelling (i.e. the reference to a geographical area on the packaging or the label attached to it). The labelling is authorised only for extra virgin and virgin olive oil and generally consists of a reference to a Member State, the Community or a third country. A reference to a regional geographical area is authorised for products which have a protected designation of origin or a protected geographical indication under Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (OJ 1992 L 208, p. 1). The names of brands or firms whose registration was applied for no later than 31 December 1998 under First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 159, p. 60), or no later than 31 May 2002 under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) are not however considered to be designations of origin covered by Regulation No 1019/2002.
8. Article 4 also provides that the designation of origin mentioning a Member State or the Community must correspond to the geographical area in which the olives concerned were harvested or in which the mill where the oil was extracted from the olives is situated. If the olives are harvested in a Member State or third country other than that in which the mill where the oil was extracted from the olives is situated, the designation of origin is to contain the following wording:
‘(extra) virgin olive oil obtained in (the Community or the name of the Member State concerned) from olives harvested in (the Community or the name of the Member State or country concerned).’
9. In the case of blends of extra virgin olive oils or virgin olive oils in which more than 75% originated in the same Member State or in the Community, the main origin may be designated followed by an indication of the minimum percentage (75% or more) which is actually from the main place of origin.
10. In addition to the designation of origin, packagings may also bear optional particulars. However, some of them are subject to special conditions. Thus, under Article 5 of the contested regulation, the words ‘first cold pressing’ may appear only for virgin or extra virgin olive oils obtained at a temperature below 27°C from a first mechanical pressing of the olive paste by a traditional extraction system using hydraulic presses. The words ‘cold extraction’ may appear only for virgin or extra virgin olive oils obtained at a temperature below 27°C by percolation or centrifuging of the olive paste. Particulars of organoleptic properties may appear on the labelling only if they are based on the results of a method of analysis provided for in Commission Regulation (EEC) No 2568/91 of 11 July 1991 on the characteristics of olive oil and olive-residue oil and on the relevant methods of analysis (OJ 1991 L 248, p. 1). Finally, an indication of the acidity or maximum acidity may appear only if it is accompanied by an indication, in lettering of the same size and in the same visual field, of the peroxide value, the wax content and the ultraviolet absorption, determined in accordance with Regulation No 2568/91.
11. Other requirements concerning the labelling and trade description of oils referred to in points 1(a) and (b), 3 and 6 of the annex to Regulation No 136/66 are set out in Article 6 of the contested regulation. Thus, Article 6 provides that, where the presence of oils in a blend of olive oil and other vegetable oils is highlighted on the labelling elsewhere than in the list of ingredients, using words, images or graphics, the blend concerned must bear the following trade description: ‘blend of vegetable oils (or the specific names of the vegetable oils concerned) and olive oil’, directly followed by the percentage of olive oil in the blend. The presence of olive oil may be highlighted by images or graphics on the labelling of a blend only where it accounts for more than 50% of the blend concerned.
12. Where olive pomace oil is present, the same provisions apply, mutatis mutandis, with the words ‘olive pomace oil’ replacing ‘olive oil’.
Procedure and forms of order sought by the parties
13. The applicants brought the present action by application received by the Registry of the Court of First Instance on 2 August 2002.
14. The applicants are, first, a miller who owns an agricultural enterprise whose business is the pressing of olives and sale of the oil, in his triple capacity as a producer and consumer of olive oil and as President of the Associazione Italiana Frantoiani Oleari (Italian Association of Oil Pressers, ‘AIFO’) and, second, AIFO.
15. The applicants claim, in substance, that the contested regulation is illegal for misuse of powers within the meaning of Article 230 EC and for infringement of Article 253 EC, in so far as it does not permit the attainment of the declared objective of safeguarding freedom of competition in the internal market for edible olive oils and protecting consumers. The regulation favours the maintenance or even the strengthening of the dominant positions held by large undertakings in the sector concerned and does not provide consumers with guarantees as to the provenance and quality of the product.
16. By separate document lodged at the Court Registry on 30 October 2002, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance. The applicants lodged their observations on the objection on 4 December 2002.
17. The applicants claim that the Court should:
– annul Regulation No 1019/2002;
– alternatively, annul Articles 2, 3, 4, 5 and 6 of the same regulation.
18. In the objection of inadmissibility, the Commission contends that the Court should:
– dismiss the application as inadmissible;
– order the applicants to pay the costs of the action.
Law
19. Under Article 114(1) of the Rules of Procedure, if a party applies to the Court for a decision on inadmissibility, the Court may give a decision without going to the substance of the case. Under Article 114(3), the remainder of the proceedings is to be oral, unless the Court otherwise decides. In the present case, the documents on the Court file provide sufficient information to rule upon the defendant’s application without opening the oral procedure.
Admissibility
Arguments of the parties
20. The Commission submits that the application is inadmissible because the contested regulation is not of individual concern to the applicants.
21. The applicants contend that they are the ‘direct, immediate and specific addressees’ of the contested regulation. As it aims to protect consumers and provides for the marketing of olive oil, it particularly and directly affects the situation of Mr Gonnelli as a final consumer and as the operator of an oil mill as well as the situation of AIFO, the formal addressees of the said regulation.
22. In addition, Regulation No 1019/2002 is of the nature of a decision, limiting the rights of, and creating obligations for, the applicants.
23. The applicants claim that they have the capacity to bring proceedings in the sense that the contested regulation is of direct and individual concern to them within the meaning of the case‑law (Case C-358/89 Extramet Industrie
v Council
[1991] ECR I-2501, paragraph 13; Case C-309/89 Codorniu
v Council
[1994] ECR I‑1853; and Case T-177/01 Jégo-Quéré
v Commission
[2002] ECR II-2365).
24. In this connection, the applicants submit that the contested regulation favours large growers in an unreasonable and excessive way, to the detriment of small producers.
25. They also contend that the regulation imposes obligations on them and limits their rights.
26. They add that the annulment they seek could procure an advantage for them (Case C-174/99 P Parliament
v Richard
[2000] ECR I-6189, paragraph 33) by removing unreasonable obstacles to production affecting the business of small and medium-sized oil producers and, for consumers, by eliminating inadequate safeguards relating to the labelling of the product.
27. Finally, in their observations on the objection of inadmissibility, the applicants claim, in essence, that if the Court were to rule their application inadmissible, they would have no judicial remedy at all. This would be a breach of the right to an effective remedy which every individual has whose rights and freedoms, according to the applicants, are guaranteed by the law of the European Union. The right to an effective remedy is recognised by Articles 6 and 13 of the European Charter of Fundamental Rights, which forms part of the principles common to the Member States within the meaning of Article 6 of the Treaty on European Union, which is now embodied in Article 47 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000. On this point, the applicants cite the judgment in Jégo-Quéré
v Commission, cited in paragraph 23 above, arguing for a broad interpretation of the right to a remedy, and submit that a national court cannot annul Community measures.
The Court’s assessment
28. Under the fourth paragraph of Article 230 EC, ‘any natural or legal person may ... institute proceedings against a decision 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’.
29. It has consistently been held that the criterion for distinguishing between a regulation and a decision must be sought in the general application or otherwise of the measure in question and that an act has general application if it applies to objectively determined situations and entails legal effects for categories of persons regarded generally and in the abstract (see Case C-41/99 P Sadam Zuccherifici and Others v Council
[2001] ECR I-4239, paragraph 24; and the orders in Case T‑114/99 CSR Pampryl
v Commission [1999] ECR II-3331, paragraph 41, Case T‑45/02 DOW AgroSciences
v Parliament and Council
[2003] ECR II-1973, paragraph 31, and Case T-264/03 R Schmoldt and Others
v Commission [2003] ECR II-0000, paragraph 59).
30. In the present case, it cannot be disputed that the conteste d regulation is a legislative measure. The provisions it contains, in particular the rules for the retail marketing of olive oil in relation to packaging, labelling and description, are set out in general and abstract terms and have the object of laying down specific rules for the retail marketing of particular categories of olive oils and olive pomace oils. As these provisions apply without distinction to all undertakings working in the sectors of the production and marketing of oils and aim to protect the interests of all consumers, the regulation is clearly a legislative measure of general effect applicable to objectively determined situations. This measure, which is intended to produce legal effects for categories of persons regarded generally and in the abstract, is indeed a legislative measure in the strict sense.
31. However, the fact that the contested measure is legislative by nature and does not constitute a decision within the meaning of Article 249 EC is not in itself sufficient to exclude the possibility that an individual may bring an action for annulment against it ( Codorniu
v Council, cited in paragraph 23 above, paragraph 19, and Case C-451/98 Antillean Rice Mills
v Council
[2001] ECR I-8949, paragraph 49; and orders in Case T‑223/01 Japan Tobacco and JT International v Parliament and Council
[2002] ECR II-3259, paragraph 29, and Case T-167/02 Établissements Toulorge
v Parliament and Council
[2003] ECR II‑1111, paragraph 26).
32. In certain circumstances, even a legislative measure applying to all the traders concerned may be of direct and individual concern to some of them, in which case it is in the nature of a decision ( Extramet Industrie v Council, cited in paragraph 23 above, paragraph 13; Codorniu
v Council, cited in paragraph 23 above, paragraph 19; and the order in Japan Tobacco and JT International v Parliament and Council, cited in paragraph 31 above, paragraph 29).
33. It is therefore necessary to ascertain whether, in the present case, the documents on the file show that the contested regulation is of concern to the applicants by reason of characteristics peculiar to them or whether a factual situation exists which distinguishes them, by reference to the said regulation, from all other persons.
34. First, it is necessary to consider the admissibility of the proceedings brought by Mr Gonnelli in his capacity as a producer and consumer of olive oil.
35. It has consistently been held that natural and legal persons can claim to be individually concerned by a measure only if they are affected by it by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (order in Case C-258/02 P Bactria
v Commission [2003] ECR I‑0000, paragraph 34, and the judgment in Antillean Rice Mills
v Council, cited in paragraph 31 above, paragraph 49).
36. As the Court of Justice observed in the judgment in Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 37, if that condition is not fulfilled, a natural or legal person does not, under any circumstances, have standing to bring an action for annulment of a regulation (see, in that regard, the order in Case C-87/95 P CNPAAP
v Council
[1996] ECR I‑2003, paragraph 38).
37. In the present case, the provisions of the contested regulation are set out generally, apply to objectively determined situations and entail legal effects for categories of persons regarded generally and in the abstract.
38. The contested regulation is of concern to the applicant, Mr Gonnelli, only in his objective capacity as a consumer or producer respectively, in the same way as any other consumer or trader active in the sector in question. The fact that a regulation affects an individual’s legal situation is not sufficient to differentiate him from persons in general (order in Case T-178/01 Di Leonardo
v Commission [2002] not published in the ECR, paragraph 51).
39. This conclusion is not confuted by the argument of the applicant, Mr Gonnelli, that the rights which he claims to have and of which he would be deprived by the contested regulation are supposedly specific.
40. In this connection, it must be observed that the contested regulation, Article 2 of which prohibits the bulk marketing of olive oil from the mill and imposes constraints on packaging, the opening system and labelling, applies without distinction to all undertakings operating in the production and marketing chain for oil, whether they are small or large producers of oil. Consequently, the applicant is wrong in claiming that the contested regulation gives rise to constraints for small producers only.
41. Likewise it does not appear from the contested regulation that it affects consumers’ interests by creating confusion in their minds when ascertaining the categories of oils because, on the contrary, it aims to inform consumers as to the type of oil offered, as is clear from the third recital in the preamble to the contested regulation, and protects them generally in the same way.
42. Consequently, this is unlikely to distinguish Mr Gonnelli from all other traders covered by the contested regulation, whose rights and obligations are affected in the same way.
43. This conclusion cannot be confuted by the applicant’s argument that the provisions of the regulation have a direct effect on his situation, in particular where ‘they make it optional to show designations of origin (Article 4) and the percentage of mixed oils (Article 6), and permit descriptions which do not determine the quality to be shown on the label (Article 5)’, because these matters form part of the substance of the case and have no effect at all on determining whether the applicant is distinguished from other traders.
44. In any case, even assuming that these allegations are found to be true in substance, it would have to be concluded that the regulation penalises Mr Gonnelli in his consumer capacity just like any other consumer. The applicant has adduced no proof of circumstances suggesting that the damage allegedly suffered is likely to differentiate him from all other consumers affected by the contested regulation in the same way as him.
45. Regarding Mr Gonnelli’s argument that the contested regulation favours large growers in an unreasonable and excessive manner to the detriment of small producers, it is sufficient to observe that this fact cannot on its own, in any case, differentiate the applicants within the meaning of the case‑law cited above. It is not sufficient that certain traders may be more affected economically by a measure than their competitors for them to be considered to be individually concerned by it (order in Case T-11/99 Van Parys and Others
v Commission
[1999] ECR II-2653, paragraphs 50 and 51). Even if the applicant’s assertion that the measures provided for by the contested regulation are likely to have significant economic consequences for him proves to be well founded, the fact remains that similar consequences arise for the other small producers of olive oil (see, to that effect, Case C-142/00 P Commission
v Nederlandse Antillen
[2003] ECR I-3483, paragraph 77).
46. Finally, it must be observed that Mr Gonnelli’s reference to the fact that the outcome of the proceedings may procure an advantage for him by removing unreasonable obstacles to production affecting small and medium-sized producers and certain gaps in consumer protection has no connection with the question whether the applicants are individually concerned by the contested measure, but is relevant only for determining whether the applicant has a vested and present interest in bringing an action for annulment (Case T-138/89 NBV and NVB
v Commission
[1992] ECR II-2181).
47. It follows that the applicant, Mr Gonnelli, is not in a factual situation which distinguishes him from all other traders and all other consumers and that he is not individually affected by the contested measure.
48. With regard, secondly, to the admissibility of the action brought by AIFO, it must be observed that an association formed to promote the collective interests of a category of persons cannot be deemed to be individually concerned by a measure affecting the general interests of that category when they are not individually affected (see the order in Schmoldt and Others
v Commission, cited in paragraph 29 above, paragraph 84). As Mr Gonnelli, like the other producer members of the association, is not individually concerned, the association of which they are members cannot be concerned either. Consequently, the applicant association has adduced no evidence to show that it is individually concerned.
49. Likewise, although the existence of special circumstances, such as the role of an association in connection with a procedure which led to the adoption of a measure within the meaning of Article 230 EC, may justify the admissibility of an action brought by an association whose members are not individually concerned by the contested measure, in particular where its position as negotiator was affected by that measure (see, to that effect, Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others
v Commission
[1988] ECR 219, paragraphs 21 to 40; Case C‑313/90 CIRFS and Others
v Commission [1993] ECR I-1125, paragraphs 28 to 30; and the order in Schmoldt and Others v Commission, cited in paragraph 29 above, paragraph 88), the file does not show, and the applicant has not asserted, that that is the case here.
50. It follows that the applicants cannot be considered to be individually concerned within the meaning of the case‑law of the Court of Justice.
51. However, it is necessary to determine whether, as the applicants maintain, this conclusion is called into question by the requirement of effective judicial protection.
52. In this connection, the Court observes that, as the Court of Justice stated in the judgment in Unión de Pequeños Agricultores v Council
(cited in paragraph 36 above, paragraph 44), the EC Treaty, in Articles 230 and 241, on the one hand, and in Article 234, on the other, established a complete system of legal remedies and procedures designed to permit a review of the legality of measures adopted by the institutions, by entrusting such review to the Community Courts (see also Case 294/83 Les Verts
v Parliament
[1986] ECR 1339, paragraph 23). Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230 EC, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community Courts under Article 241 EC or to do so before the national courts and ask them, since they themselves have no jurisdiction to declare those measures invalid (Case 314/85 Foto-Frost
[1987] ECR 4199, paragraph 20), to refer a question to the Court of Justice for a preliminary ruling.
53. Apart from the fact that it is incumbent on the Member States to provide for a complete system of remedies and procedures to safeguard the right to effective judicial protection, the Court of Justice has also ruled that it is not acceptable to adopt an interpretation of the rules of admissibility laid down in Article 230 EC to the effect that an action for annulment will be admissible where it can be shown, following an examination by the Community judicature of the national procedural rules, that those rules do not allow the individual to bring proceedings to contest the validity of the Community measure at issue (order in Bactria
v Commission, cited in paragraph 35 above, paragraph 58). Such an approach would require the Community judicature, in each individual case, to examine and interpret national procedural law, which would go beyond its jurisdiction when reviewing the legality of Community measures (see Unión de Pequeños Agricultores
v Council, cited in paragraph 36 above, paragraph 43).
54. Finally, in any case, the Court of Justice has clearly shown (see Unión de Pequeños Agricultores
v Council, cited in paragraph 36 above) that, regarding the condition of individual interest laid down by the fourth paragraph of Article 230 EC, although this last condition must be interpreted in the light of the principle of effective judicial protection (see, to that effect, Case 222/84 Johnston
[1986] ECR 1651) by taking account of the various circumstances that may distinguish an applicant individually, such an interpretation cannot have the effect of setting aside the condition in question, which is expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community judicature.
55. While it is, admittedly, possible to envisage a system of judicial review of the legality of Community measures of general application different from that established by the founding Treaty and never amended as to its principles, it is for the Member States, if necessary, in accordance with Article 48 EU, to reform the system currently in force.
56. Therefore the applicants cannot plead that, if the action for annulment were found to be inadmissible, they would have no means of defending their rights before a court, and in any case they have adduced no proof of this.
57. Furthermore, in their observations on the objection of inadmissibility, the applicants cannot maintain that, to remedy this alleged lack of judicial protection, the Italian Constitutional Court could refrain from applying Community measures contrary to the fundamental rights proclaimed in the national Constitution since, in accordance with settled case‑law, Community law has primacy over national law (Case 6/64 Costa
[1964] ECR 614).
58. The requirement of effective judicial protection cannot therefore cast doubt on the conclusion that the action must be dismissed as manifestly inadmissible since the contested measure is not of individual concern to the applicants.
Decision on costs
Costs
59. Under 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, they must be ordered to pay the costs, as applied for by the Commission.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. The applicants are ordered to pay their own costs and those incurred by the defendant.