ORDER OF THE PRESIDENT OF THE GENERAL COURT
13 November 2020 (*)
(Application for interim measures – Regulation (EC) No 561/2006 – Absence of direct or individual concern – Inadmissibility of the main action – Inadmissibility)
In Case T‑646/20 R,
NG, and the other applicants whose names are indicated in the annex (1),
represented by R. Martens, lawyer,
applicants,
v
European Parliament,
Council of the European Union,
defendants,
APPLICATION under Articles 278 and 279 TFEU seeking suspension of the operation of Regulation (EU) 2020/1054 of the European Parliament and of the Council of 15 July 2020 amending Regulation (EC) No 561/2006 as regards minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) No 165/2014 as regards positioning by means of tachographs (OJ 2020 L 249, p. 1),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and form of order sought
1        The first 13
applicants are professional drivers engaged in long-distance international transport of goods. Their place of residence is situated in Romania.
2        The 14th, 15th, 16th and 17th
applicants are transport undertakings established in Romania, with their operational centres – where their drivers are normally based and where their drivers’ regular weekly rest period begins – also situated in Romania.
3        The 18th
applicant is the Uniunea Naţională a Transportatorilor Rutieri din România (National Union of Road Hauliers from Romania), the professional employers’ organisation of the Romanian road transport industry.
4        On 31 July 2020, Regulation (EU) 2020/1054 of the European Parliament and of the Council of 15 July 2020 amending Regulation (EC) No 561/2006 as regards minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) No 165/2014 as regards positioning by means of tachographs (OJ 2020 L 249, p. 1) (‘the contested regulation’) was published.
5        Pursuant to Article 1(6)(c) of the contested regulation,
Article 8(8) of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1) is replaced by the following:
‘8.      The regular weekly rest periods and any weekly rest period of more than 45 hours taken in compensation for previous reduced weekly rest periods shall not be taken in a vehicle. They shall be taken in suitable gender-friendly accommodation with adequate sleeping and sanitary facilities.
Any costs for accommodation outside the vehicle shall be covered by the employer.’
6        Pursuant to Article 1(6)(d) of the contested regulation, the following paragraph is inserted in Article 8 of Regulation No 561/2006:
‘8a.      Transport undertakings shall organise the work of drivers in such a way that the drivers are able to return to the employer’s operational centre where the driver is normally based and where the driver’s weekly rest period begins, in the Member State of the employer’s establishment, or to return to the drivers’ place of residence, within each period of four consecutive weeks, in order to spend at least one regular weekly rest period or a weekly rest period of more than 45 hours taken in compensation for reduced weekly rest period.
However, where the driver has taken two consecutive reduced weekly rest periods in accordance with paragraph 6, the transport undertaking shall organise the work of the driver in such a way that the driver is able to return before the start of the regular weekly rest period of more than 45 hours taken in compensation.
The undertaking shall document how it fulfils that obligation and shall keep the documentation at its premises in order to present it at the request of control authorities.’
7        By application lodged at the Court Registry on 23 October 2020, the applicants brought an action for annulment of the contested regulation.
8        By a separate document, lodged at the Court Registry on 26 October 2020, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the General Court should:
–        order the suspension of the operation of the contested regulation with immediate effect, in accordance with Article 157(2) of the Rules of Procedure of the General Court,
until a final judgment against which no appeal is possible has been delivered
on the underlying application for suspension;
–        order the suspension of the operation of the contested regulation, in accordance with Article 156 of the Rules of Procedure,
until a final judgment against which no appeal is possible has been delivered
on the main application for annulment;
–        reserve the costs.
Law
General considerations
9        It is apparent from a combined reading of Articles 278 and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing the application for interim measures may, if he or she considers that circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that a judge hearing an application for interim measures may order suspension of the application of an act contested before the General Court or prescribe interim measures (see order of the President of the General Court of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 17 and the case-law cited).
10      The first sentence of Article 156(3) of the Rules of Procedure provides that applications for interim measures
are to
state
‘the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
11      The judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative and, consequently, an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of the Vice-President of the Court of Justice of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 21 and the case-law cited).
12      In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of the President of the Court of Justice of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
13      Having regard to the material in the case file, the judge hearing the application for interim measures considers that he has all the information necessary to rule on the present application for interim measures, without there being any need for the Parliament and the Council to submit their observations and to hear oral argument from the parties beforehand.
14      In the present case, it is necessary, first, to consider whether the application for interim measures
is admissible.
Admissibility of the application for interim measures
15      In accordance with the provisions of Article 156(1) of the Rules of Procedure, an application for interim measures is admissible only if it is made by a party to a case before the General Court. That rule means that the main action from which the application for interim measures is derived can actually be examined by the court adjudicating on the substance (order of the President of the General Court of 20 June 2014, Wilders v Parliament and Council, T‑410/14 R, not published, EU:T:2014:564, paragraph 18 and the case-law cited).
16      It is settled case-law that the question of the admissibility of the main action is not to be examined in proceedings for interim relief but is to be reserved for the examination of the main action, unless it is apparent at first sight that the main action is manifestly inadmissible. To determine admissibility at the interlocutory stage in cases where the admissibility of the main action cannot prima facie be ruled out would be tantamount to prejudging the General Court’s decision on the main action (see order of the President of the General Court of
4 February 1999, Peña Abizanda and Others
v
Commission, T‑196/98 R, EU:T:1999:18, paragraph 10 and the case-law cited).
17      Inadmissibility for lack of locus standi in proceedings constitutes a ground involving a question of public policy which may, and even must, be raised of its own motion by the EU
judicature (see order of the President of the Court of Justice of 15 December 2009, Dow AgroSciences and Others v Commission, C‑391/08 P(R), not published, EU:C:2009:785, paragraph 39
and the case-law cited).
18      Such an examination of the admissibility of the main action is necessarily brief, because the proceedings for interim relief are by nature urgent, and the question of admissibility can be considered only on the basis of the facts adduced by the applicant. The decision of the judge hearing an application for interim relief does not, however, prejudge the decision to be made by the General Court on hearing the main action (see order of the President of the General Court of 27 January 2009, Intel v Commission, T‑457/08 R, not published, EU:T:2009:18, paragraph 47
and the case-law cited).
19      In the present case, the applicants claim
that the contested regulation, first, prohibits them to take their regular weekly rest periods in their vehicle and obliges them to take those regular weekly rest periods in prescribed accommodation and, second, obliges them to return within each period of four consecutive weeks to Romania in order to spend a regular weekly rest period. The applicants submit
that the contested regulation has a detrimental impact on them and infringes the Treaties, multiple rules of law, and essential procedural requirements.
20      The applicants submit that the contested regulation directly produces effects on their legal position and therefore, pursuant to the fourth paragraph of Article 263
TFEU, they are directly and individually concerned by the contested regulation and have standing and interest to lodge the application for annulment.
21      The fourth paragraph of Article 263 TFEU provides that ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
22      The fourth paragraph of Article 263 TFEU thus distinguishes three situations in which an action for annulment brought by a natural or legal person may be declared admissible and it is necessary to examine whether one of those situations exists in the present case.
23      It must be stated at the outset that, as the applicants are not the addressees of the contested regulation, they do not have a right of action by virtue of the first situation referred to in the fourth paragraph of Article 263 TFEU.
24      Furthermore, as regards the third situation, according to the case-law, the expression ‘regulatory act’ within the meaning of the fourth paragraph of Article 263 TFEU does not encompass legislative acts (judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 61, and of 25 October 2011, Microban International and Microban (Europe) v Commission, T‑262/10, EU:T:2011:623, paragraph 21).
25      In that regard, it must be borne in mind that the distinction between a legislative act and a regulatory act is based on the criterion of the procedure, legislative or not, which led to its adoption (order of 6 September 2011, Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, EU:T:2011:419, paragraph 65).
26      Article 289(1) and (3) TFEU provides that legal acts adopted under the procedure defined in Article 294 TFEU, referred to as ‘the ordinary legislative procedure’, are to constitute legislative acts.
27      In the present case, it is apparent from the citations in the preamble to the contested regulation that the legal basis of that regulation is Article 91 TFEU and that it was adopted jointly by the Parliament and the Council under the ordinary legislative procedure.
28      It follows that the contested regulation, in so far as it was adopted in accordance with the ordinary legislative procedure, is a legislative act and not a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.
29      Consequently, the applicants do not have a right of action against the contested regulation by virtue of the third situation referred to in the fourth paragraph of Article 263 TFEU.
30      It follows that the applicants may bring an action for annulment under the fourth paragraph of Article 263 TFEU only if the contested regulation is of direct and individual concern to them, those conditions being cumulative.
31      In that regard, it should be noted that a physical or legal person is individually concerned by an act which is not addressed to that person only if that act affects that person by reason of certain attributes which are peculiar to that person or by reason of circumstances in which that person is differentiated from all other persons and by virtue of those factors distinguishes that person individually just as in the case of the person addressed (see, to that effect, judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107, and of 25 July 2018, Georgsmarienhütte and Others, C‑135/16, EU:C:2018:582, paragraph 31).
32      However, it should be borne in mind that the fact that a provision is, by its nature and scope, a provision of general application inasmuch as it applies to the economic operators concerned in general, does not of itself prevent that provision from being of individual concern to some of those operators (judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 58, and of 23 April 2009, Sahlstedt and Others v Commission, C‑362/06 P, EU:C:2009:243, paragraph 29).
33      According to the case-law, where the 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 that group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of economic operators,
and that can be the case particularly when the decision alters rights acquired by the individual prior to its adoption (judgments of 17 January 1985, Piraiki-Patraiki and Others v Commission, 11/82, EU:C:1985:18, paragraph 31, and of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 60).
34      It must therefore be determined whether the contested regulation
is of general application and, where necessary, whether it affects the applicant as a member of a group of persons who were identified or identifiable when it was adopted
by reason of criteria specific to the members of that group.
35      First, under the second paragraph of Article 288 TFEU, a regulation such as the contested regulation
is of general application, is binding in its entirety and is directly applicable in all Member States.
36      Second, as regards the criteria established by the case-law cited in paragraph 33 above, it should be noted that the contested regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and road safety.
37      Furthermore, the situations and persons to which the contested regulation applies are objectively determined.
It is stated in Articles 2
and 3 of Regulation No 561/2006, as amended by the contested regulation, that it covers
the carriage by road of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3.5 tonnes; the carriage by road of passengers by vehicles which are constructed or permanently adapted for carrying more than nine persons including the driver, and are intended for that purpose; and, as from 1 July 2026, the carriage by road of goods in international transport operations or in cabotage operations, where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 2.5 tonnes.
38      It is apparent from the foregoing that the categories of persons to whom the contested regulation applies are also envisaged generally and in the abstract.
39      In the present case, the first 17
applicants are concerned by the contested regulation solely in their capacity as professional drivers engaged in long-distance international transport of goods, that is to say, on the basis of a situation which is objectively envisaged by the contested regulation, without the legislature having taken any account of the individual situation of those economic operators. In addition, the new rules laid down by
Article 1(6)(c) and (d) of the contested regulation concerning rest periods are set out in general terms and apply without distinction to any economic operator who comes within the scope of the contested regulation.
40      It is clear that the persons affected by those rules were neither identified nor identifiable at the time when that regulation was adopted.
Economic operators
belonging to an open category of this kind cannot be considered to be individually concerned by the measure at issue (see, to that effect, order of 23 November 2015, Beul v Parliament and Council, T‑640/14, EU:T:2015:907, paragraph 46 and the case-law cited).
41      Furthermore, it must be pointed out that the applicants do not put forward any factor capable of distinguishing them individually.
42      The applicants, who are all nationals of or companies established in Romania, merely claim that due to their peripheral location in the EU, they are in an entirely different situation to
nationals and companies of Central- and Western-European Member States and that the contested regulation
is intrinsically liable to affect the applicants more than other nationals and companies in the EU.
The applicants submit that the contested regulation would significantly erode the profitability of Romanian international road freight transport companies due to a higher cost base driven by additional expenses with hotel accommodation and mandatory homecoming, safe parking of trucks, additional administrative staff and drivers that would be required to comply with the new requirements.
43      However, those
circumstances are not such as to distinguish the applicants individually from any other economic operator active on the same market with
regard to the contested regulation and, in any event, do not differentiate them
from their
direct competitors who are also established in Romania or other peripheral locations within the EU. In those circumstances, it cannot be considered prima facie that the applicants form part of a limited class, within the meaning of the case-law cited in paragraph 33 above.
44      As regards the admissibility of the action brought by the last applicant, the National Union of Road Hauliers, it must be observed that, according to the case-law, an action for annulment brought by an association entrusted with defending the collective interests of its members may be admissible in three types of situation only, namely, first, where this is expressly recognised to be the case in a legal provision (see, to that effect, order of 10 December 2004,
EFfCI v Parliament and Council, T‑196/03, EU:T:2004:355, paragraph 42), second, where the undertakings that it represents or some of those undertakings themselves have standing to bring proceedings or, third, where it can prove an interest of its own (see, to that effect, judgment of 22 June 2006,
Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 56 and the case-law cited, and order of 24 June 2014,
PPG and SNF v ECHA, T‑1/10 RENV, not published, EU:T:2014:616, paragraph 30). However, the applicants have not put forward
any arguments relying on one or more of those three situations in order to demonstrate the admissibility of the action for annulment brought by the National Union of Road Hauliers.
45      In the light of those considerations, it must be concluded that the applicants are not individually concerned by the contested regulation.
46      Consequently, as the criteria of direct and individual concern are cumulative requirements of admissibility, where this is examined with regard to the second situation envisaged by the fourth paragraph of Article 263 TFEU, it is unnecessary to consider whether the applicants are directly concerned by the contested regulation.
47      It follows from all of the foregoing that the applicants do not have standing under the fourth paragraph of Article 263 TFEU.
48      In the light of the foregoing, the applicants have not
demonstrated that the main action for annulment
is
not, prima facie, manifestly
inadmissible.
49      Consequently, in accordance with the case-law cited in
paragraphs 15 to 18 above, it must be held that the application for interim measures is inadmissible and must be dismissed.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.
2.      The costs are reserved.
Luxembourg, 13 November 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.
1 The list of the other applicants is annexed only to the version sent to the parties.