62004TO0170_EN
Parties
Grounds
Operative part
Parties
In Case T-170/04,
Confederazione nazionale dei consorzi volontari per la tutela delle denominazioni di origine e delle indicazioni geografiche tipiche dei vini italiani (FederDoc),
established in Rome, Italy,
Consorzio per la tutela dei vini Valpolicella,
established in San Floriano, Italy,
Consorzio tutela denominazione Frascati Soc. consortile coop. rl,
established in Frascati, Italy,
Consorzio del vino Brunello di Montalcino,
established in Montalcino, Italy,
Cantina cooperativa di Montefiascone Soc. coop. rl,
established in Montefiascone, Italy,
Azienda agricola Ruggiero Giuseppa ‘Masseria Felicia’ Snc,
established in Carano di Sessa A., Italy,
Michele Moio fu Luigi Srl,
established in Mondragone, Italy,
Consorzio vino Chianti Classico,
established in Radda in Chianti, Italy,
Consorzio tutela vini DOC Colli Piacentini,
established in Piacenza, Italy,
Cantine grotta del sole Srl, established in Quarto, Italy,
Val Calore Soc. coop. rl,
established in Castel San Lorenzo, Italy,
Consorzio tutela Morellino di Scansano,
established in Scansano, Italy,
Consorzio tutela vini Gambellara DOC,
established in Gambellara, Italy,
Consorzio tutela dei vini Soave e Recioto di Soave,
established in Soave, Italy,
Azienda vitivinicola eredi Ing. Nicola Guglierame,
established in Pornassio, Italy,
Cooperativa agricola di Riomaggiore, Manarola, Corniglia, Vernazza e Monterosso,
established in Riomaggiore, Italy,
Consorzio per la tutela dei vini di Valtellina,
established in Sondrio, Italy,
Consorzio tutela vini DOC ‘Breganze’,
established in Breganze, Italy,
Consorzio volontario per la tutela del vino Marsala,
established in Marsala, Italy,
Consorzio vini Valdichiana, established in Arezzo, Italy,
Consorzio del vino nobile di Montepulciano, established in Montepulciano, Italy,
represented by L. Spagnuolo Vigorita, P. Tanoni and R. Gandin, avocats,
applicants,
v
Commission of the European Communities,
represented by M. Nolin and V. Di Bucci, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for the annulment or, in the alternative, partial annulment of Commission Regulation (EC) No 316/2004 of 20 February 2004 amending Regulation (EC) No 753/2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products (OJ 2004 L 55, p. 16),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
composed of H. Legal, President, P. Mengozzi and I. Wiszniewska-Białecka, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Legal context
1. The general rules governing the protection and use of the traditional terms designating wines are established by Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (OJ 1999 L 179, p. 1). In accordance with the fifth indent of point (1)(b) of Part B of Annex VII to the Regulation, the labelling of the products obtained in the Community may be supplemented, in the case of table wines with geographical indication and quality wines produced in specified regions (psr), with other traditional terms, in accordance with the provisions laid down by the Member State of production
2. The detailed rules for the application of Regulation No 1493/1999, and in particular the rules applicable to the protection of traditional terms, which include the additional traditional terms, were laid down in Commission Regulation (EC) No 753/2002 of 29 April 2002 laying down certain rules for applying Council Regulation (EC) No 1493/1999 as regards the description, designation, presentation and protection of certain wine sector products (OJ 2002 L 118, p. 1).
3. Under Article 23 of Regulation No 753/2002, ‘“other traditional terms” means additional terms traditionally used in producer Member States to designate, in the case of wines referred to in [Title IV of the Regulation], the production or ageing method or the quality, colour, type of place, or a particular event linked to the history of the wine concerned and defined in a Member State’s legislation for the purposes of designating the wines concerned originating in its territory’.
4. Annex III to Regulation N° 753/2002 established a list of the traditional terms of eight producer Member States (Germany, Austria, Spain, France, Greece, Italy, Luxembourg and Portugal) which were recognised and protected. The list was divided in two: List A and List B. For Italy, List A specified 43 traditional terms in the quality wine psr category. List B specified, for Italy, the 17 traditional terms referred to by the applicants and intended to apply to the quality wine psr category, namely: Amarone, Cannellino, Brunello, Est! Est!! Est!!!, Falerno, Governo all’uso toscano, Gutturnio, Lacryma Christi, Lambiccato, Morellino, Recioto, Sciacchetrà – or Sciac-trà –, Sforzato – or Sfurzat –, Torcolato, Vergine, Vino Nobile, Vin Santo. That list could be supplemented or amended following notification from the Member States to the Commission, in accordance with Article 24(7) of Regulation No 753/2002.
5. Under Article 24(2) of Regulation No 753/2002, the traditional terms listed in Annex III are reserved for the wines to which they are linked and are to be protected against:
‘(a) all misuse, imitation or evocation, even if the protected term is accompanied by an expression such as “kind”, “type”, “style”, “imitation”, “brand” or similar;
(b) any other unwarranted, false or misleading indication as to the nature or essential qualities of the wine on the inner or outer packaging, advertising material or any documents relating to it;
(c) any other practice liable to mislead the public, in particular to give the impression that the wine qualifies for the protected traditional term’.
6. Article 24(3) of Regulation No 753/2002 provides that a traditional term listed in Annex III may not be used in the description on the labelling of a wine which does not qualify for that traditional term. However, an exception is provided in the second subparagraph of Article 24(3) in the case of trade marks legally registered in good faith in the Community before the date of publication of Regulation No 753/2002 and that have actually been in use in good faith since their registration.
7. The third subparagraph of Article 24(4) of Regulation No 753/2002 provides that each traditional term listed in Annex III is to be linked to one or more particular categories of wine, one such category being quality wines psr. It also states that, if the quality wines psr are not already included in another category of wine, the protection of a traditional term is to apply only to the designation of wines other than liqueur wines, sparkling wines, aerated sparkling wines, semi-sparkling wines and aerated semi-sparkling wines.
8. Article 24(5) and (6) of Regulation No 753/2002 laid down the conditions which the traditional terms had to satisfy to qualify for inclusion in Lists A and B, respectively, of Annex III.
9. In accordance with Article 24(5), prior to its amendment by Commission Regulation (EC) No 316/2004 of 20 February 2004 amending Regulation No 753/2002 (OJ 2004 L 55, p. 16, ‘the contested Regulation’), a traditional term had to fulfil the following conditions in order to qualify for inclusion in Annex III(A):
‘(a) be specific in itself and precisely defined in the Member State’s legislation;
(b) be sufficiently distinctive and/or enjoy an established reputation on the Community market;
(c) have been traditionally used for at least 10 years in the Member State in question;
(d) be used for one or more Community wines or categories of Community wine’.
10. To qualify for inclusion in List B of Annex III, traditional terms must, in accordance with Article 24(6) of Regulation No 753/2002, prior to its amendment by the contested Regulation, not only fulfil the conditions laid down in paragraph 5, and set out above, but also ‘be used for a wine with a geographical indication and must identify that wine as originating in that region or locality within the territory of the Community, where a given quality, reputation or other characteristic of the wine, as expressed by the traditional term concerned, is essentially attributable to that geographical origin’.
11. Article 24(8) of Regulation No 753/2002 laid down the conditions to be fulfilled and procedure to be followed if producers from third countries were to be allowed to designate their products using traditional terms from List A of Annex III.
12. The contested Regulation amended Regulation No 753/2002 in order to take into consideration the reservations expressed in respect of the Regulation by a number of wine-producing third countries. More specifically, the purpose of the amendments was to respond to the request made by those countries, in connection with the implementation of certain agreements concluded within the World Trade Organisation, that the use of certain traditional terms should be opened to them.
13.
Article 1(4) of the contested Regulation amended Article 24 of Regulation No 753/2002, replacing the introductory phrase in paragraph 5 and deleting paragraphs 6 and 8. These amendments mean the disappearance of the distinction between Lists A and B of Annex III. The conditions governing the inclusion of a traditional term of a Member State in Annex III are now those which previously applied to inclusion in List A, while the rules relating to third country wines have been transferred to Article 37(1) of Regulation No 753/2002 as amended by Article 1(10) of the contested Regulation.
14. The new Article 37(1)(e) of Regulation No 753/2002 authorises wine producers from third countries to use the additional traditional terms contained in the current list which includes the terms previously contained in Lists A and B of Annex III. The amended provision reads as follows:
‘1. For the purposes of Annex VII(B)(2) to Regulation (EC) No 1493/1999, the labelling of wine originating in third countries (excluding sparkling wines, aerated sparkling wines and aerated semi-sparkling wines but including wines of over-ripe grapes) and grape musts in fermentation made in third countries for direct human consumption bearing a geographical indication in accordance with Article 36 may be supplemented by the following:
...
(e) in the case of wines of third countries and grape musts in fermentation for direct consumption from third countries, additional traditional indications:
(i) other than those listed in Annex III, in accordance with the rules applicable to wine producers in the third country concerned, including those emanating from representative trade organisations; and
(ii) listed in Annex III, provided that the conditions of use conform to the rules applicable to wine producers in the third country concerned, including those emanating from representative trade organisations, and meet the following requirements:
– these countries have made a substantiated request to the Commission and forwarded the relevant rules justifying recognition of the traditional indications,
– they are specific in themselves,
– they are sufficiently distinctive and/or enjoy an established reputation in the third country concerned,
– they have been traditionally used for at least 10 years in the third country in question,
– they are used for one or more categories of wine of the third country in question,
– the rules laid down by the third country are not such as to mislead consumers about the indication concerned.
In addition, some traditional indications listed in Annex III can be used on the labelling of wines carrying a geographical indication and originating in third countries in the language of the third country of origin or in another language, where use of a language other than the official language of the country is regarded as traditional in connection with a traditional indication if the use of that language is provided for in the legislation of the country concerned and if that language has been used continuously for the traditional indication for at least 25 years.
Article 23 and paragraph 2, paragraph 3, the second subparagraph of paragraph 4 and paragraph 6(c) of Article 24 shall apply mutatis mutandis.
For each traditional indication referred to in point (ii) the countries concerned are indicated in Annex III.
...’
Procedure and forms of order sought
15. By application lodged at the Registry of the Court of First Instance on 18 May 2004, the applicants brought the present action.
16. The applicants, of whom there are 21, are the following:
– FederDoc (Confederazione nazionale dei consorzi volontari per la tutela delle denominazioni di origine e delle indicazioni geografiche tipiche dei vini italiani), an association governed by private law which joins together into a confederation the voluntary consortia of Italian wine producers and whose object, according to its memorandum and articles, is to provide support of all kinds to those consortia and to take steps to ensure the legal protection of the Italian appellations at both national and international level;
– seven Italian producers who produce and market a quality wine psr using one of the 17 additional traditional terms previously listed in List B of Annex III to Regulation No 753/2002 (‘the Italian producers’);
– 13 voluntary consortia, whose task is to promote the Italian quality wines psr amongst the public and consumers, by publicising their designation, so as to differentiate them from the other wines competing in the market. These consortia (‘the voluntary consortia’) must also protect, including by means of legal proceedings, the appellation for which each of them has been set up, in accordance with Italian Law No 164 of 10 February 1992 concerning the rules governing the appellations of wines.
17. By separate document lodged at the Court Registry on 28 July 2004, the Commission raised an objection of inadmissibility pursuant to Article 114 of the Rules of Procedure of the Court of First Instance.
18. On 24 September 2004, the applicants submitted their observations on that objection .
19. In their application, the applicants claim that the Court of First Instance should:
– annul the contested Regulation in its entirety or, in the alternative, annul points (3), (8)(a), (9), (10) and (18) of Article 1 thereof;
– order the Commission to pay the costs.
20. In its objection of inadmissibility, the Commission contends that the Court of First Instance should:
– dismiss the action as inadmissible;
– order the applicants to pay the costs.
21. In their observations on the objection of inadmissibility, the applicants claim that the Court of First Instance should:
– dismiss the objection of inadmissibility and order that the proceedings continue;
– in the alternative, order joinder of the plea of inadmissibility with the claim on the substance, and order that the proceedings continue.
Law
22. Under Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Under Article 114(3), the remainder of the proceedings is to be oral unless the Court decides otherwise. In the present case, the Court considers that the information in the documents before it is sufficient for there to be no need to open the oral procedure.
Arguments of the parties
23. The Commission maintains that the action is inadmissible on the ground that the contested Regulation is not of individual concern to the applicants.
24. The Italian producers cannot invoke individual attributes or particular circumstances which differentiate them from all other persons.
25. Similarly, the voluntary consortia are not entitled to bring an action for annulment, since none of their members has an individual interest in challenging the contested Regulation.
26. Finally, FederDoc, as a confederation of voluntary consortia, is inadmissible for the same reasons as its members.
27. The applicants consider that the action is admissible. The removal of the distinction between Lists A and B of Annex III to Regulation No 753/2002 harms the interests of the Italian producers, because it puts an end to the possibility of preventing third country producers from marketing wines within the Community using one of the terms in question.
28. Furthermore, the circumstances of the case are essentially the same as those in Case C-309/89 Codorniu v Council [1994] ECR I-1853. The Italian producers produce and market a wine using one of the 17 additional traditional terms in question, which are distinctive signs, equivalent to collective trade marks conferring an exclusive right, even though this is shared between the producers authorised to invoke it.
29. The voluntary consortia, for their part, have the task of organising and coordinating the activities of groups of persons concerned with the production and marketing of each appellation and of protecting the appellation or appellations for which they have been specifically set up. According to the applicants, their action is admissible because those consortia represent the interests of undertakings which are individually concerned and because a legal provision expressly confers on them a number of rights of a procedural nature.
30. As for FederDoc, it is apparent from its memorandum and articles that the task of that association is to afford legal protection to the Italian appellations at both national and international level, and that it is individually concerned in the same way as the voluntary consortia.
31. Moreover, the applicants consider that it is necessary to adopt a broader interpretation of the fourth paragraph of Article 230 EC than that given to it since the judgment in Case 25/62 Plaumann v Commission
[1963] ECR 197, and to interpret that provision in accordance with the principle of effective judicial protection. Furthermore, they refer to the final draft of the Treaty establishing a Constitution for Europe signed in Rome on 29 October 2004 (OJ 2004 C 310, p. 1), which provides for an amendment to the fourth paragraph of Article 230 EC, by removing the obligation to prove individual concern in the case of actions brought against regulatory acts which do not entail implementing measures.
Findings of the Court
32. The fourth paragraph of Article 230 EC provides that ‘any natural or legal person may … institute proceedings … against a decision which, although in the form of a regulation ..., is of direct and individual concern to [that person]’.
The nature of the contested provisions
33. According to settled case-law, the criterion for distinguishing between a regulation and a decision must be sought in the general application or otherwise of the act in question (Joined Cases 16/62 and 17/62 Conféderation nationale des producteurs de fruits et légumes and Others v EEC Council
[1962] ECR 901, p. 918, and Case T-139/01 Comafrica and Dole Fresh Fruit Europe v Commission [2005] ECR II-409, paragraph 87). A measure is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract ( Comafrica and Dole Fresh Fruit Europe, paragraph 87; see also to that effect Case C-244/88 Usines coopératives de déshydratation du Vexin and Others
v Commission
[1989] ECR 3811, paragraph 13).
34. In the present case, the contested Regulation – and, more particularly, the provisions of which the applicants seek annulment in the alternative – entails a reduction in the level of protection afforded to the 17 additional traditional terms initially included in List B of Annex III. Under Article 24(6) of Regulation No 753/2002, to qualify for inclusion in List B, those traditional terms had not only to fulfil the conditions laid down in Article 24(5), referred to in paragraph 8 above, but also to ‘be used for a wine with a geographical indication and … identify that wine as originating in that region or locality within the territory of the Community, where a given quality, reputation or other characteristic of the wine, as expressed by the traditional term concerned, is essentially attributable to that geographical origin’. The terms in List B could therefore be used only for wines originating in specific regions or localities within the territory of the Community, and authorised producers had the right to object to the marketing within the Community of wines originating from third countries using those traditional terms. Following the amendments made to Regulation No 753/2002 by the contested Regulation, in particular by Article 1(4) thereof, the additional traditional terms, which were previously on List B of Annex III, may now be used – once they have fulfilled the conditions laid down in Regulation No 753/2002, as amended – by third country wine producers.
35. However, the applicants are not the only persons concerned by the amendments made by the contested Regulation. That Regulation also applies to all the other Italian wine producers – current and future – lawfully authorised to use the Italian traditional terms. Furthermore, since it is a measure whose application is neither limited to Italian territory nor limited in time, it does not concern only Italian producers but also produces its legal effects vis-à-vis an unknown number of producers from other Member States who currently use, and will use in the future, terms which were originally contained on List B of Annex III. In addition to the 17 Italian terms, that list contained terms used for wines produced in Germany, Austria, Spain, France, Greece and Portugal.
36. The contested Regulation thus constitutes a measure of general application within the meaning of the second paragraph of Article 249 EC, hence a measure of a legislative nature. It applies to objectively defined situations and produces legal effects for categories of economic operators who satisfy a number of conditions defined in a general and abstract manner (see to that effect the orders in Case C‑447/98 P Molkerei Großbraunshain and Bene Nahrungsmittel v Commission [2000] ECR I-9097, paragraph 67, and Case T-370/02 Alpenhain-Camembert-Werk and Others v Commission [2004] ECR II-2097, paragraph 55, and the case-law cited therein. That general application is also to be inferred from the purpose of the legislation at issue, which is to lay down the rules for using the traditional terms and for their protection throughout the European Community.
37. That finding is unaffected by the applicants’ claims that the provisions of the contested Regulation lose their general and abstract nature owing to the discretion inherent in the application of certain criteria for recognising the existence of a traditional term and to the fact that third country wines may use a term only after the name of the third country has been included in Annex III. Indeed, as stated above, those provisions also concern other producers who currently use additional traditional terms and who will use them in the future.
The locus standi
of the applicants
38. According to the case-law, even if a provision is, by nature and by virtue of its scope, of a legislative nature in that it applies to the traders concerned in general, that does not prevent it from being of individual concern to some of them. That is so where the measure in question affects specific natural or legal persons 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 (see to that effect Codorniu v Council, paragraphs 19 and 20, and Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 36, and the case-law cited therein).
39. It is therefore necessary, taking each in turn, to consider whether the Italian producers, the voluntary consortia and FederDoc establish such a situation.
– Individual concern of the Italian producers
40. In the present case, the Italian producers claim that the removal of the distinction between Lists A and B of Annex III to Regulation No 753/2002 has reduced the level of protection afforded to the 17 additional traditional terms relating to Italy, included in List B of Annex III, which they alone were authorised to use within the Community, and thus harms their interests. However, that situation does not permit the inference that the Italian producers are distinguished individually in the same way as the addressee of a decision. The removal of that distinction affects the Italian producers in the same way as it affects all the other Community producers whose wines may use the terms previously on List B of Annex III.
41. It should also be pointed out that the fact that a regulation affects the legal situation of an individual is not sufficient to differentiate that individual from persons in general (Order of the Court of First Instance in Case T-231/02 Gonnelli and AIFO v Commission [2004] ECR II-1051, paragraph 38).
42. In the present case, the existence of judicial protection for identified traditional terms which have been placed on a closed list is not such as to differentiate the Italian producers from all the other Community producers of quality wines psr bearing additional traditional terms. Since the latter are in the same position as the Italian producers, they may invoke that protection for themselves in respect of their own traditional terms and they experience the same reduction in protection for their traditional terms which were on List B of Annex III to Regulation No 753/2002.
43. Similarly, even if the measures laid down by the contested Regulation are liable to have significant economic consequences for the applicants, the fact nevertheless remains that those measures will have similar consequences for the other quality wine psr producers in the Community (see, to that effect, Case C-142/00 P Commission v Nederlandse Antillen
[2003] ECR I-3483, paragraph 77, and the order in Gonelli and AIFO v Commission, paragraph 45). Consequently, the effects which the applicants consider to be harmful to the Italian producers are not such as to differentiate them from the other economic operators concerned.
44. In any event, the fact that certain operators are economically more affected by a measure than their competitors does not suffice for them to be regarded as individually concerned by that measure (orders in Case T-11/99 Van Parys and Others v Commission [1999] ECR II-2653, paragraph 50, and in Case T-196/03 EFfCI v Parliament and Council [2004] ECR II-4263, paragraph 47).
45. Furthermore, and by the same token, it cannot be inferred that, because the Italian producers are empowered to invoke exclusive rights, they are individually concerned within the meaning of Codorniu .
46. In Codorniu, the applicant was prevented, by a measure of general application, from using the graphic mark which it had registered and used traditionally over a long period prior to the adoption of the regulation at issue, so that it was differentiated from all the other economic operators. It is true that the definition of the right to use traditional terms has features in common with the right conferred by registration of a collective trade mark. However, it cannot be inferred from that similarity that the position of the Italian producers is identical or analagous to that of the applicant in Codorniu . In the light of the exclusive right conferred by registration of a trade mark, the applicant in that case, following the adoption of the regulation at issue, was in an entirely different position as compared with all the other economic operators.
47. That is not the position in the present case. Unlike the contested regulation in Codorniu, the contested Regulation in this case does not distinguish one individual person but also produces legal effects in respect of all the wine producers – current and future – lawfully authorised to use the 17 Italian traditional terms, and in respect of all the other producers of other Member States who currently use the terms originally on List B of Annex III, and who will do so in the future. Accordingly, the position of the Italian producers – the applicants in this case – is not exceptional in the same way as the position of the applicant in Codorniu .
48. It follows that the contested Regulation concerns the Italian producers only in their objective capacity as producers of quality wine psr. Consequently, since they have failed to establish an individual interest, the Italian producers do not have locus standi
to challenge the contested Regulation.
– Individual concern of voluntary consortia
49. According to the case-law, actions brought by associations are admissible in three types of situations: where the association represents the interests of undertakings which, for their part, have locus standi ; where the association is differentiated by reason of the impact on its own interests as an association in particular because its position as a negotiator has been affected by the measure of which the annulment is sought; or where a legal provision expressly confers on professional associations a number of rights of a procedural nature (orders in Case T-122/96 Federolio v Commission [1997] ECR II-1559, paragraph 61, and in EFfCI, paragraph 42).
50. It should be pointed out with regard to the first situation that, according to the case-law, an association formed to promote the collective interests of a category of persons cannot be regarded as individually concerned by a measure affecting the general interests of that category when they are not individually affected (see to this effect the orders in Gonelli and AIFO, paragraph 48, and in EFfCI, paragraph 43). In the present case, it is apparent from the analysis set out above that the members of the voluntary consortia have not established that the contested Regulation affected them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons.
51. As regards the second situation, although it is true that the existence of special circumstances, such as the participation of an association in a procedure leading to the adoption of a measure within the meaning of Article 230 EC, may provide grounds for the admissibility of an action brought by an association whose members are not individually concerned by the contested measure, in particular because its position as a negotiator has been affected by the measure (Order in EFfCI, paragraph 42; see also 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 24), it is not apparent from the documents before the Court that that is the position in the present case and, moreover, the applicants have not made any submissions to that effect.
52. Finally, with regard to the third situation, the voluntary consortia likewise cannot be individually concerned by the contested Regulation on the ground that a legal provision confers on them a number of rights of a procedural nature. First, the contested Regulation was adopted by the Commission without the voluntary consortia participating in that procedure. Secondly, the voluntary consortia do not claim any right of a procedural nature conferred on them by the common organisation of the market in the wine products sector or by any other Community legislation, contrary to the requirements of the case-law cited in paragraph 49 above. Lastly, they cannot invoke, in that regard, their specific tasks and functions as recognised by their national law to justify an amendment to the system of legal remedies established by Article 230 EC and intended to confer on the Community court competence to review the legality of acts of the institutions; otherwise, the admissibility of an action for annulment might depend on an independent decision taken by the national authorities in the interests of the Member State concerned rather than in the general interest of the Community (see, to that effect, Federolio, paragraph 64).
53. In the light of the foregoing, the voluntary consortia cannot be regarded as individually concerned by the contested Regulation.
– Individual concern of FederDoc
54. The considerations relating to the locus standi of the voluntary consortia are also applicable to the admissibility of the action brought by FederDoc, since it is a federation of voluntary consortia. FederDoc likewise did not play a special role in the procedure for the adoption of the contested Regulation, and the specific provisions of FederDoc’s memorandum and articles are therefore irrelevant to this assessment. Accordingly, FederDoc, like all the other applicants, cannot be regarded as individually concerned within the meaning of the settled case-law of the Court of Justice and the Court of First Instance.
Conclusion
55. It is evident from the foregoing that none of the applicants has established that it is individually concerned by the contested Regulation or by the individual provisions of which annulment is sought in the alternative.
56. The applicants’ arguments relating to the need for a broader interpretation of the fourth paragraph of Article 230 EC and to the requirements of effective judicial protection, cannot affect that conclusion. The Court confirmed its settled case-law concerning the interpretation of the fourth paragraph of Article 230 in Case C‑263/02 P Commission v Jégo-Quéré
[2004] ECR I-3425, and in Unión de Pequeños Agricultores . Furthermore, although the condition, laid down in the fourth paragraph of Article 230 EC, that an applicant must be individually concerned must be interpreted in the light of the principle of effective judicial protection 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 (see Pequeños Agricultores, paragraph 44).
57. Lastly, cognisance cannot be taken of the argument put forward by the applicants regarding Article III-365(4) of the draft Treaty establishing a Constitution for Europe, since that legislation is not yet in force.
58. It follows from the foregoing considerations that the contested Regulation cannot be considered to be of individual concern to the applicants within the meaning of the fourth paragraph of Article 230 EC and that the action must therefore be dismissed, in its entirety, as inadmissible.
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 Commission has applied for costs and the applicant has been unsuccessful, the latter must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Fourth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. The applicants shall bear their own costs and those of the Commission.
Luxembourg, 28 June 2005.