Case T‑481/11

Kingdom of Spain

v

European Commission

‛Agriculture — Common organisation of the markets — Fruit and vegetables sector — Citrus fruits — Action for annulment — Confirmatory measure — New and substantial facts — Admissibility — Conditions for marketing — Provisions concerning marking — Indications of preserving agents or other chemical substances used in post-harvest processing — Standard recommendations adopted by the United Nations-Economic Commission for Europe’

Summary — Judgment of the General Court (Eighth Chamber), 13 November 2014

Agriculture — Common organisation of the markets — Products processed from fruit and vegetables — Marketing conditions — Obligation to label citrus fruits having been subject to post-harvest treatment with preservatives or other chemical substances — Obligation applying both to citrus fruits destined for the EU markets and those destined for non-member countries — No breach of principle of proportionality

Agriculture — Common organisation of the markets — Products processed from fruit and vegetables — Marketing conditions — Obligation to label citrus fruits, but not other fruits or vegetables — No breach of the principle of equal treatment — Citrus fruits having particular features capable of placing them in a different position from that of other fruits and vegetables

Actions for annulment — Action against a decision refusing to withdraw or amend an earlier act — Inadmissibility — Meaning of confirmatory decision — Reexamination for the purposes of verifying the justification for maintaining an earlier decision following the modification or a legal or factual situation arising in the meantime — Exclusion

It is clear from the actual wording of Article 263 TFEU, as from its aim which is to guarantee legal certainty, that a measure which has not been challenged within the time-limit for bringing proceedings becomes definitive. That definitive nature concerns not only the measure itself, but also any later measure which is merely confirmatory. As regards the circumstances in which a measure is regarded as merely confirmatory of a previous measure, that is the case if the measure at issue contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed. A measure is regarded as adopted after a re-examination of the circumstances, which prevents it from being confirmatory in nature, where that measure was adopted either at the request of the person concerned, or at the initiative of its author, on the basis of substantial factors which were not taken into account at the time of adoption of the preceding measure. A factor must be classified as new both where that factor did not exist at the time of adoption of the earlier measure and where that factor already existed when the earlier measure was adopted but, for whatever reason, including a failure by the author of that measure to act diligently, was not taken into consideration at the time of its adoption. To be substantial in nature, that factor must be capable of substantially altering the legal situation as considered by the authors of the earlier measure. In other words, the factor concerned must be capable of substantially altering the conditions which governed the earlier measure, such as, in particular, a factor that raises doubts as to the merits of the approach adopted by that measure. Consequently, since a measure which depends on whether the factual and legal circumstances which led to its adoption continue to apply must be capable of forming the subject-matter of a request for re-examination, in order to establish whether its retention is justified, a re-examination seeking to verify whether a previously-adopted measure remains justified in the light of a change in the legal or factual situation which has taken place in the meantime leads to the adoption of a measure which is not purely confirmatory of the earlier measure, but constitutes a measure open to challenge which could be the subject of an action for annulment under Article 263 TFEU. (see paras 27, 28, 36, 38-40)

The adoption of a standard by the United Nations Economic Committee for Europe (UNECE) entails no obligation for the EU Member States, all of which are UNECE Member States. Consequently, Article 113(2) of Regulation No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products should be interpreted, in accordance with its clear and unambiguous wording, as meaning that the Commission has discretion when adopting, at EU level, marketing standards for one or more products. Since, in regard to the common agricultural policy, the Community institutions are recognised as having a discretionary power which reflects their responsibilities in this matter, it should be concluded that the discretion available to the Commission, under the abovementioned provision, is also broad. However, under that provision, it is for the Commission, when exercising that broad discretion, to take into account, inter alia, standards adopted within the UNECE. Furthermore, the non-binding nature of those standards explains the use of the term ’Standard recommendations’ in that provision. Consequently, since the Commission is not required, under the said Article 113(2) to adopt, at EU level, a marketing standard for citrus fruit using wording identical to that of UNECE, it cannot be criticised for having infringed the Regulation No 1234/2007 and, therefore, the principle of the hierarchy of norms. (see paras 79-81)

See the text of the decision. (see para. 95)

It is clear from the wording of Article 113(2)(a)(iii) of Regulation No 1234/2007 that the marketing standards which the Commission may provide for are established taking account, in particular, of the interest of consumers to receive adequate and transparent product information. Furthermore, efforts to achieve objectives of the common agricultural policy cannot disregard requirements relating to the public interest such as the protection of consumers or the protection of the health and life of humans and animals, requirements which the EU institutions must take into account in exercising their powers. It cannot therefore be accepted that the Commission has misused the procedure relating to the adoption of marketing standards in accordance with Article 113 of Regulation No 1234/2007, in order to enact a provision designed to protect consumers, the adoption of which does not fall within its powers. (see paras 99, 100)

See the text of the decision. (see paras 107-109, 114)

See the text of the decision. (see paras 125-127, 136)

See the text of the decision. (see paras 152, 153)