Case T-447/05

Société des plantations de Mbanga SA (SPM)

v

Commission of the European Communities

‛Common organisation of the market — Bananas — Arrangements for the importation of bananas originating in ACP countries into the territory of the European Union — Regulation (EC) No 2015/2005 — Actions for annulment — Locus standi — Inadmissibility’

Order of the Court of First Instance (Fifth Chamber), 12 January 2007 II-5

Summary of the Order

For an action for annulment brought by a natural or legal person to be admissible, that person must have a vested and present interest in the annulment of the contested act. Such an interest is present only if the annulment of the measure is of itself capable of having legal consequences, which cannot be ruled out in the case of a regulation which is not applicable to a certain category of economic operators established in a non-member country and carrying on no economic activity in the territory of the Member States. Under Article 233 EC the institution whose act has been declared void is required to take the necessary measures to comply with the judgment, which may lead it to take adequate steps to restore the applicant to its original situation or to avoid the adoption of an identical measure. The institution concerned is required to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act. Under those circumstances, the annulment of an act on the ground that it does not take account of a specific category of economic operators, which requires the institution which adopted the act to adopt the measures necessary to give effect to the judgment, can affect the economic operators legal position. (see paras 52-54, 57, 59)

The provisions of a legislative act, such as a regulation, applying to all economic operators concerned can, in certain circumstances, be of individual concern to certain of them. In those circumstances, a Community measure could be of a legislative nature and, at the same time, vis-à-vis some of the traders concerned, in the nature of a decision. This is not the case, however, for Regulation No 2015/2005 on imports of bananas originating in ACP countries under the tariff quota opened by Regulation No 1964/2005 on the tariff rates for bananas, during January and February 2006, in respect of an independent banana operator established in a non-member country and carrying on no economic activity in the territory of the Member States and having no historic reference in regard to the Community rules for the importation of bananas applicable until 31 December 2005. First, that regulation concerns the applicant only in its objective status as an undertaking which produces and markets ACP bananas, in the same way as any other independent operator established in an ACP country and carrying on the same business; that status is not sufficient in itself to establish that the applicant is individually concerned by the regulation in question. Secondly, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question. Third, the finding that the Commission was required, in so far as the circumstances of the case so permitted, to take account, at the time the regulation in question was adopted, of the negative effects which it might have, in particular, on the undertakings concerned does not discharge the applicant from the burden of proving that it is affected by the contested regulation by reason of a factual situation which differentiates it from all other persons. (see paras 66, 69, 71, 77)