Case T-37/04 R

Região autónoma dos Açores

v

Council of the European Union

(Proceedings for interim relief – Fisheries – Council Regulation (EC) No 1954/2003 – Application for partial suspension and other interim measures – Admissibility – Urgency – Intervention)

Order of the President of the Court of First Instance, 7 July 2004

Summary of the judgment

1. Procedure – Intervention – Persons having an interest – Intervention in the context of an application for suspension of operation – Application relating to Regulation No 1954/2003 in so far as it affects Azorean waters – Fishing cooperatives operating in Azorean waters – Territorial association for the protection of the Azorean archipelago – Admissibility – Conditions – International association for the protection of the environment – Inadmissibility

(Statute of the Court of Justice, Art. 40, second para.; Regulation No 1954/2003)

2. Applications for interim measures – Suspension of operation of a measure – Conditions of admissibility – Prima facie admissibility of the main action – Summary assessment of the main action by the court hearing the application for interim measures

(Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

3. Actions for annulment – Natural or legal persons – Action brought by a regional authority – Region endowed with legal personality under national law – Region having capacity to bring an action

(Art. 230, fourth para., EC)

4. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Regulation on the management of fisheries in certain zones – Action brought by a regional authority in one of the zones affected by the regulation – Admissibility – Conditions

(Art. 230, fourth para., EC; Council Regulation No 1954/2003)

5. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Balancing of interests involved – Suspension of operation of a measure of general application – Assessment of the consequences of suspension on a large number of interested persons as against the necessity of the measure for the applicant

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Regulation No 1954/2003)

6. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Availability of other measures that could be adopted by the Commission or Member States – No urgency

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Regulation No 1954/2003)

1. An interest in the result of a case, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice, means a direct and present interest in the decision on the claims. In particular, it is necessary to ascertain whether the prospective intervener is directly affected by the measure in question and that his interest in the result of the case is certain. Associations may be admitted to intervene to protect the interests of their members in cases raising matters of principle capable of affecting those interests.

In the context of an application for the suspension of Regulation No 1954/2003 on the management of the fishing effort relating to certain Community fishing areas and resources, in so far as it affects Azorean waters, such an interest is justified by a limited-liability cooperative constituted as an organisation of producers, the principal aim of which is to defend the interests of its members, who are mainly fishermen active in the Azores. Such an interest is also justified by a non‑profit‑making association for the protection of the environment whose principal responsibilities are, inter alia, the study and the protection of the national and cultural heritage of the Azorean archipelago and the protection of the fish population and marine ecosystems of that archipelago.

On the other hand, an application for intervention by an international organisation for the protection of the environment is inadmissible where its aims and activities cover large geographic areas and are not focused exclusively or mainly in Azorean waters. The scope of the interests of such an international organisation is too wide and general to be significantly affected by the outcome of proceedings for the suspension of a regulation affecting only Azorean waters.

(see paras 59-60, 63, 69-70)

2. Although it is true that the question of the admissibility of the main action should not, in principle, be examined in the context of proceedings for interim relief, so as not to prejudge the merits of the case, it may nevertheless be necessary, in order for an application to suspend the operation of a measure to be declared admissible, for the applicant to prove the existence of certain matters permitting the prima facie conclusion that the main action to which his application for interim relief relates is admissible, so as to prevent him from obtaining, by way of proceedings for interim relief, the suspension of the operation of a measure which the Court of First Instance may subsequently refuse to annul, his action having been ruled inadmissible when examined on its merits.

Such an examination of the admissibility of the main action is necessarily summary because the proceedings for interim relief are by nature urgent. Indeed, in the context of proceedings for interim relief, the admissibility of the main action can only be assessed on a prima facie basis, the aim being to examine whether the applicant has adduced sufficient elements which justify the prima facie conclusion that the admissibility of the main action cannot be excluded. The judge hearing the interim measures action should therefore only declare that action inadmissible where admissibility of the main action can be wholly excluded. Otherwise, to rule, at the stage of the proceedings for interim relief, on the admissibility of the main action, when its admissibility is not, prima facie, wholly excluded, would be tantamount to prejudging the Court of First Instance’s decision in respect of that action.

(see paras 108-110)

3. To the extent that it has legal personality under national law, a region may, in principle, bring an action for annulment under the fourth paragraph of Article 230 EC, which provides that 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.

(see para. 112)

4. A measure of general application such as a regulation can be of individual concern to natural and legal persons, within the meaning of the fourth paragraph of Article 230 EC, only if it affects them 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.

In particular, in the context of an action for annulment brought by a region such as the Autonomous Region of the Azores against Regulation No 1954/2003 on the management of the fishing effort relating to certain Community fishing areas and resources, in so far as it affects Azorean waters, the general interest which such a region, an entity responsible for certain economic affairs within its jurisdiction, in particular fisheries, may have in obtaining a result that is favourable for its economic prosperity is not sufficient on its own to enable it to be regarded as being individually concerned, for the purposes of the fourth paragraph of Article 230 EC. Nor is it sufficient, in order to show individual concern, that the applicant benefits from specific Treaty protection (namely, Article 299(2) EC) or that the contested measure mentions the applicant expressly and specifically or indeed that the Council had to take the applicant’s situation into account in adopting the contested regulation

The applicant needs to show on the facts that it is affected by the contested measure by reason of a factual situation which differentiates it from all other persons, including other outermost regions. Prima facia, that may be the case if the applicant is able to show that the contested regulation will affect its legal situation significantly and immediately to the extent that, as a result of the application of that regulation, it will be deprived of the power to legislate in the area of fisheries, and its fishing activities, which form a significant part of its economy, will be affected, and that its situation is peculiar in so far as its marine ecosystem and fishing activities are concerned.

(see paras 116-120)

5. In the context of an application for suspension of a regulation containing a measure of general application such as Regulation No 1954/2003 on the management of the fishing effort relating to certain Community fishing areas and resources, the judge hearing the application for interim measures must assess the consequences of a suspension on very large numbers of interested persons against the necessity of the requested interim measures to prevent the serious and irreparable damage alleged by the applicant pending the resolution of the main action.

Account also needs to be taken of the fact that where the Council, as the legislator, enjoys a significant margin of discretion and judicial review is accordingly confined to examining whether there has been a manifest error or misuse of power or whether the authority in question has clearly exceeded the bounds of its discretion, the judge hearing the application for interim measures should not, other than in a situation of obvious urgency, override the Council’s assessment without running the risk of encroaching upon that institution’s power of assessment.

The balance of the interests involved therefore means that the Court may substitute its own assessment for that of the Council only in exceptional circumstances requiring a particularly sound prima facie case and clear urgency.

(see paras 135-138, 193, 195)

6. The urgency of an application for interim measures must be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party seeking relief. Particularly where harm depends on the occurrence of a number of factors, it is enough for that harm to be foreseeable with a sufficient degree of probability.

In an application for suspension of a regulation such as Regulation No 1954/2003 on the management of the fishing effort relating to certain Community fishing areas and resources, such interim measures are unnecessary if there are other more appropriate and proportionate avenues available such as emergency measures adopted by the Commission or Member States in the context of the Common Fisheries Policy and the applicant can take action in order to secure such measures.

(see paras 141, 194)