Order of the Court of 7 December 1988. - Joseph Flourez and others v Commission of the European Communities. - Inadmissibility. - Case 138/88.



European Court reports 1988 Page 06393



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Action for annulment - Natural or legal persons - Acts of direct and individual concern to them - Directive prohibiting the use in livestock farming of certain substances having a hormonal action - Action brought by producers of beef and veal - Inadmissible

( EEC Treaty, Art . 173, second paragraph; Council Directive 88/146 )

Summary

Directive 88/146, prohibiting the use in livestock farming of certain substances having a hormonal action, is not of individual concern, within the meaning of the second paragraph of Article 173 of the Treaty, to producers of beef and veal . Such persons may not therefore bring an action for the annulment of that directive .

Parties

In Case 138/88

( 1 ) Joseph Flourez, residing in Lescure, Saint-Pardoux-La-Rivière,

( 2 ) Michel Leblond, residing in Le Grand Malbos - Le Rayet, Villereal,

( 3 ) Jean-Pierre Bayssette, residing at Le Gua à Labruguière,

( 4 ) Gilbert Lhaumond, residing in Marcillac Quentin, Sarlat,

represented by Dubos-Pelissié-Prunier and Marie-Christine Hervé-Porchy, of the Rouen Bar and by Marc Baden, of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 24 rue Marie-Adélaïde,

applicants,

v

Council of the European Communities, represented by Jacques Delmoly, Principal Administrator in the Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Joerg Kaeser, Director of Legal Affairs at the European Investment Bank, boulevard Konrad-Adenauer, Kirchberg,

defendant,

APPLICATION for a declaration that Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action is void,

THE COURT

composed of : O . Due, President, T . Koopmans, R . Joliet, T . F . O' Higgins and F . Grévisse, Presidents of Chambers, Sir Gordon Slynn, G . F . Mancini, C . N . Kakouris, F . A . Schockweiler, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias, M . Díez de Velasco and M . Zuleeg, Judges,

Advocate General : C . O . Lenz

Registrar : J.-G . Giraud

after hearing the views of the Advocate General

makes the following

Order

Grounds

1 By an application lodged at the Court Registry on 17 May 1988 Mr Joseph Fourez and Others brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Council Directive 88/146 of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action is void ( Official Journal 1988, L 70, p . 16 ).

2 By a document lodged at the Court Registry on 11 July 1988 the Council raised an objection of inadmissibility under Article 91 ( 1 ) of the Rules of Procedure and asked the Court to give a ruling on this objection without hearing argument on the merits .

3 Council Directive 85/649 of 31 December 1985 prohibiting the use in livestock farming of certain substances having a hormonal action ( Official Journal 1985, L 382, p . 228 ) enacted an outright ban on the administration of substances having a hormonal effect .

4 By judgment of 23 February 1988 in Case 68/86 United Kingdom v Council (( 1988 )) ECR 855, the Court, in proceedings brought by the United Kingdom of Great Britain and Northern Ireland under the first paragraph of Article 173 of the EEC Treaty, declared void Directive 85/649 on the ground that the Council had infringed an essential procedural requirement by failing to observe the procedure provided for by Article 6 ( 1 ) of the Council' s Rules of Procedure .

5 On 7 March 1988 the Council adopted the disputed directive, the content of which is identical to the abovementioned Directive 85/649 .

6 The main point made by the Council in its application is that directives are immune from challenge by individuals by reason of the wording of the second paragraph of Article 173 of the Treaty, which, unlike the first paragraph, mentions only decisions and regulations .

7 In the alternative the Council submits that the applicants cannot be individually concerned by a directive, which, by its very nature, is an act of general application authorizing the Member States to adopt national provisions and applying generally and in the abstract .

8 The applicants have not submitted any observations on the objection of inadmissibility . In their application they submit that they are individually and directly concerned on the ground that the contested directive was adopted after the number of animals concerned within the Community had been calculated and consequently after the producers had been counted and identified . Moreover, the directive is directly applicable because it leaves no discretion to the Member States .

9 Article 91 ( 3 ) of the Rules of Procedure provides that the remainder of the proceedings concerning a preliminary objection are to be oral unless the Court decides otherwise . In the present case the Court considers that it is sufficiently informed and that there is no need to open the oral procedure .

10 It should be recalled that under the second paragraph of Article 173 of the EEC Treaty 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 him .

11 All of the applicants are beef and veal producers . Without its being necessary to examine the other questions at issue between the parties, it must be stated that the contested directive is manifestly not of individual concern to the applicants .

12 The Court has consistently held that in order for persons to be regarded as individually concerned by an act their legal position must be affected by reason of a factual situation which distinguishes them individually just as in the case of the person addressed . However, the disputed decision only concerns the applicants in their objective character of producers of beef and veal, like on any other producer or trader who is in an identical situation .

13 In those circumstances, the application must be dismissed as inadmissible .

Decision on costs

Costs

14 Under Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the applicants have failed in their submissions, they must be ordered to pay the costs .

Operative part

On those grounds,

THE COURT

hereby :

( 1 ) Dismisses the application as inadmissible;

( 2 ) Declares that the applicants are jointly and severally liable for the costs .

Luxembourg, 7 December 1988 .