OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 8 June 2017 ( 1 )

Case C‑268/16 P

Binca Seafoods GmbH

v

European Commission

(Appeal — Regulation (EC) No 834/2007 — Production and labelling of organic products — Regulation (EC) No 889/2008 and Implementing Regulation (EU) No 1358/2014 — Interest to act — Notion of personal benefit)

I. Introduction

1. Binca Seafoods GmbH (‘Binca’) is an importer of pangasius — a type of catfish — from Vietnam. Implementing Regulation (EU) No 1358/2014 (‘the contested regulation’) ( 2 ) is the last in a series of regulations modifying the detailed rules for the production and labelling of ‘organic’ fish.

2. The contested regulation contains specific exceptions allowing certain fish to be called ‘organic’ even when they involve non-organic production aspects (for example, the use of wild-caught juveniles to replenish stocks). The contested regulation was adopted shortly before the expiry of a general transition period, which had created a broad exception: products using established production methods — including Binca’s — could be described as ‘organic’, where those methods would otherwise not respect the requirements for ‘organic’ production.

3. Binca brought an action for annulment of the contested regulation before the General Court. The thrust of Binca’s case before the General Court was that the specific exceptions in the contested regulation were discriminatory. This is because they were useful for the production of some species, but not for the production of pangasius. Unable to benefit from those specific exceptions, or from the broader exception under the soon-to-expire general transition period, Binca could no longer label its products as ‘organic’.

4. By order of 11 March 2016, Binca Seafoods v Commission (T‑94/15, not published, EU:T:2016:164), the General Court dismissed Binca’s application for annulment as inadmissible for lack of interest to act (‘the contested order’). In the contested order, the General Court stated that Binca’s action sought to extend the general transition period. The General Court held that, since the annulment action could not lead to an extension of the transition period, it could not create the benefit sought by Binca. Therefore, Binca lacked interest to act.

5. In its appeal Binca requests the annulment of both the contested order and the contested regulation. As regards the contested order, Binca’s main argument is essentially that the General Court gave insufficient and/or incoherent reasons for its finding of lack of interest to act. The meaning of the notion ‘interest to act’ is thus central to this appeal.

II. Legal framework

A. Regulation No 834/2007

6. Regulation (EC) No 834/2007 ( 3 ) is the basic regulation on organic production and labelling of organic products (‘the basic regulation’).

7. Article 2 of the basic regulation includes the following definitions: ‘For the purposes of this Regulation, the following definitions shall apply: (a) “organic production” means the use of the production method compliant with the rules established in this Regulation, at all stages of production, preparation and distribution; … (d) “operator” means the natural or legal persons responsible for ensuring that the requirements of this Regulation are met within the organic business under their control; …’

8. Article 15 of the basic regulation, entitled ‘Production rules for aquaculture animals’, provides: ‘1. In addition to the general farm production rules laid down in Article 11, the following rules shall apply to aquaculture animal production: (a) with regard to the origin of the aquaculture animals: (i) organic aquaculture shall be based on the rearing of young stock originating from organic broodstock and organic holdings; (ii) when young stock from organic broodstock or holdings are not available, non-organically produced animals may be brought onto a holding under specific conditions; … (c) with regard to breeding: … (iii) species-specific conditions for broodstock management, breeding and juvenile production shall be established; … 2. The measures and conditions necessary for the implementation of the production rules contained in this Article shall be adopted in accordance with the procedure referred to in Article 37(2).’

9. Title IV (Articles 23 to 26) lays down various labelling requirements, including restrictions on the use of the term ‘organic’, compulsory indications and use of logos.

10. Title VI (Articles 32 and 33) on trade with third countries sets out the conditions under which products may be imported as organic from outside the EU. These essentially require the substantive conditions of the basic regulation to be met, or for equivalent guarantees to be provided.

11. Article 38 empowers the Commission to adopt detailed rules for the implementation of the basic regulation. Article 42 provides that the basic regulation applies from 1 January 2009.

B. The implementing regulations

12. The basic regulation was first implemented by Regulation (EC) No 889/2008 ( 4 ) (‘the implementing regulation’). The implementing regulation initially excluded from its scope products originating from aquaculture (Article 1(2)(a)).

13. The implementing regulation was subsequently modified four times by Regulation (EC) No 710/2009 ( 5 ) (‘the first modifying regulation’), Implementing Regulation (EU) No 1030/2013 ( 6 ) (‘the second modifying regulation’), Implementing Regulation (EU) No 1364/2013 ( 7 ) (‘the third modifying regulation’) and Regulation No 1358/2014, namely the contested regulation. Each of these modifying regulations is considered in turn below.

1. First modifying regulation

14. The first modifying regulation extended the scope of the implementing regulation to some aquaculture animals ( 8 ) and integrated into it specific production rules for those under Title II, Chapter 2a, entitled ‘Aquaculture animal production’. Article 25e of that chapter entitled ‘Origin and management of non-organic aquaculture animals’ set out the exceptional conditions under which non-organic aquaculture animals could be involved in the production process. In particular, Article 25e(3) provided for the possibility of using a digressive percentage of non-organic aquaculture juveniles: 80% until the end of 2011, 50% until the end of 2013 and 0% by the end of 2015 (referred to hereafter as ‘the rule on the digressive use of non-organic aquaculture juveniles’). Article 25e(4) specified the restrictive conditions under which the collection of wild aquaculture juveniles is permitted. In its original version, the text of Article 25e provided: ‘1. For breeding purposes or for improving genetic stock and when organic aquaculture animals are not available, wild caught or non-organic aquaculture animals may be brought into a holding. Such animals shall be kept under organic management for at least three months before they may be used for breeding. 2. For on-growing purposes and when organic aquaculture juvenile animals are not available non-organic aquaculture juveniles may be brought into a holding. At least the latter two thirds of the duration of the production cycle shall be managed under organic management. 3. The maximum percentage of non-organic aquaculture juveniles introduced to the farm shall be: 80% by 31 December 2011, 50% by 31 December 2013 and 0% by 31 December 2015. 4. For on-growing purposes the collection of wild aquaculture juveniles is specifically restricted to the following cases: (a) natural influx of fish or crustacean larvae and juveniles when filling ponds, containment systems and enclosures; (b) European glass eel, provided that an approved eel management plan is in place for the location and artificial reproduction of eel remains unsolved.’

15. Recital 9 of the first modifying regulation provided that: ‘Given the early stage of organic aquaculture animal production organic broodstock is not available in sufficient quantities. Provision should be made for the introduction of non-organic broodstock and juveniles under certain conditions.’

16. The first modifying regulation applied from 1 July 2010 (Article 2) but also inserted into the implementing regulation a new Article 95(11) which provided for a transitional regime (‘transition period’). The transition period was to end at the latest on 1 July 2013. It effectively opened up the possibility for the continued operation of existing production units until that date according to the previous regime and the retention of their ‘organic’ status, subject to certain conditions. That article is as follows: ‘11. The competent authority may authorise for a period expiring on 1 July 2013, those aquaculture animal and seaweed production units which are established and produce under nationally accepted organic rules before entry into force of this Regulation, to keep their organic status while adapting to the rules of this Regulation, provided there is no undue pollution of the waters with substances not allowed in organic production. Operators benefiting from this measure shall notify the facilities, fishponds, cages or seaweed lots which are concerned to the competent authority.’

17. Article 2 of the first modifying regulation also set out that, if duly justified, further modifications could be made to the implementing regulation from 1 July 2013 (which were subsequently made by the second and third modifying regulations, and the contested regulation).

2. Second modifying regulation

18. The second modifying regulation extended the transition period from 1 July 2013 to 1 July 2015. This was done because of the complexity of the field and the need for more time to examine proposals for changes to the rules (recitals 2 to 4).

19. The second modifying regulation did not alter the rule on the digressive use of non-organic aquaculture juveniles (contained in Article 25e(3) of the implementing regulation).

3. Third modifying regulation

20. The third modifying regulation modified the rule on the digressive use of non-organic aquaculture juveniles (contained in Article 25e(3) of the implementing regulation). Specifically, it extended the date from 31 December 2013 to 31 December 2014, until which time the use of non-organic aquaculture juveniles of up to 50% was permitted. The date by which that percentage had to be reduced to 0% remained 31 December 2015.

21. The third modifying regulation did not alter the transition period provided for in Article 95(11) of the implementing regulation.

4. Contested regulation

22. The contested regulation changed various provisions of the implementing regulation. In particular, it modified the situations in which the collection of wild aquaculture juveniles is permitted by amending Article 25e(4) of the implementing regulation, adding a new 25e(4)(c): ‘4. For on-growing purposes the collection of wild aquaculture juveniles is specifically restricted to the following cases: (a) natural influx of fish or crustacean larvae and juveniles when filling ponds, containment systems and enclosures; (b) European glass eel, provided that an approved eel management plan is in place for the location and artificial reproduction of eel remains unsolved; (c) the collection of wild fry of species other than European eel for on-growing in traditional extensive aquaculture farming inside wetlands, such as brackish water ponds, tidal areas and coastal lagoons, closed by levees and banks, provided that: (i) the restocking is in line with management measures approved by the relevant authorities in charge of the management of the fish stocks in question to ensure the sustainable exploitation of the species concerned, and (ii) the fish are fed exclusively with feed naturally available in the environment.’

23. That modification was explained in recitals 3 and 4 of the contested regulation as follows: ‘(3) Under Article 15(1)(a)(ii) of Regulation (EC) No 834/2007, non-organically produced animals may be brought onto a holding under specific conditions, when young stock from organic broodstock or holdings are not available. Regulation (EC) No 889/2008 lays down the specific restrictions as regards wild caught aquaculture animals, including the collection of wild aquaculture juveniles. Some traditional practices of extensive fish farming in wetlands, such as brackish water ponds, tidal areas and coastal lagoons, closed by levees and banks, have existed for centuries and are valuable in terms of cultural heritage, biodiversity conservation and economic perspective for the local communities. Under certain conditions, those practices do not affect the stock status of the species concerned. (4) Therefore, the collection of wild fry for on-growing purposes in those traditional aquaculture practices is considered to be in line with the objectives, criteria and principles of organic aquaculture production, provided that management measures approved by the relevant authority in charge of the management of the fish stocks in question are in place to ensure the sustainable exploitation of the species concerned, that restocking is in line with those measures, and that the fish are fed exclusively with feed naturally available in the environment.’

24. The contested regulation also modified Article 25k of the implementing regulation, in particular by authorising for carnivorous aquaculture animals the use of food made from certain other fish (Article 25k(1)(e)) and the use of histidines (Article 25k(5)) in the following terms: ‘Specific rules on feeds for carnivorous aquaculture animals 1. Feed for carnivorous aquaculture animals shall be sourced with the following priorities: … (e) feed products derived from whole fish caught in fisheries certified as sustainable under a scheme recognised by the competent authority in line with the principles laid down in Regulation (EU) No 1380/2013 of the European Parliament and of the Council. … 5. Histidine produced through fermentation may be used in the feed ration for salmonid fish when the feed sources listed in paragraph 1 do not provide a sufficient amount of histidine to meet the dietary needs of the fish and prevent the formation of cataracts.’

25. The contested regulation did not alter the rule on the digressive use of non-organic aquaculture juveniles (contained in Article 25e(3) of the implementing regulation).

26. The contested regulation did not change the transition period provided for in Article 95(11) of the implementing regulation.

III. Facts and administrative procedure

27. The facts and administrative procedure are described in paragraphs 37 to 48 of the contested order.

28. Binca is a German undertaking. It imports pangasius produced in Vietnam into Germany, as an organic product. Binca resells the fish to customers in Germany, Austria and Scandinavia. Since 2005, Binca has bought pangasius certified as organic by IMO Suisse according to standards defined by Naturland.

29. Binca buys frozen pangasius through an intermediary established in Vietnam, also certified as organic. The intermediary processes and freezes the fish. It then invoices Binca for the product delivered to it, which Binca then exports to Europe. During the production process, Binca purchases the fish food ingredients itself, which it delivers to the intermediary, and deducts the corresponding amount from the purchase price paid to the intermediary.

30. In September 2014, Binca wrote to the Commission proposing modifications to the implementing regulation. In particular, it proposed an alteration of the rule on the digressive use of non-organic aquaculture juveniles (Article 25e(3) of the implementing regulation), extending the possible use of such juveniles until 2021.

31. In October 2014, the Commission informed Binca by letter that the process of modification of the implementing regulation was underway and the positions of the Member States and interested parties would be taken into account.

32. The contested regulation was adopted on 18 December 2014.

33. By letter of 18 February 2015, Binca requested, with reference to Article 265 TFEU, that the Commission extend the transition period foreseen in Article 95(11) of the implementing regulation to 1 January 2018 for pangasius originating from Vietnam.

34. Binca brought its action for annulment of the contested regulation before the General Court on 19 February 2015.

35. By letter of 22 April 2015, the Commission informed Binca that it did not intend to extend the transition period again or to modify the rule on the digressive use of non-organic aquaculture juveniles.

IV. The proceedings before the General Court and the contested order

A. Arguments of the parties

36. In its action for annulment, Binca alleged that it had been discriminated against. Had the transition period simply been allowed to expire in relation to all producers, such discrimination would not have occurred. Instead, the contested regulation provided for certain specific transitional measures and derogations, which in practice benefited Binca’s competitors, but did not provide any transitional measures and derogations which benefited Binca. Nor did the contested regulation extend the transition period. Those transitional measures and derogations, which Binca alleged in practice benefited only other organic aquaculture, concerned in particular the origin of juveniles.

37. Binca claimed that other operators could continue to use organic labelling under conditions which were in practice not available to Binca. In this regard, Binca specifically referred to unequal treatment between production in the Mekong delta as opposed to brackish European zones.

38. Binca considered itself to be directly affected by the contested regulation because it was subject to the body of EU rules on organic aquaculture and would, as a result of the contested regulation, be deprived of the possibility of marketing its products as organic.

39. Binca argued before the General Court that the contested regulation violates its freedom to conduct business and the principle of non-discrimination (invoking Articles 16, 20 and 21 of the Charter of Fundamental Rights of the European Union) and violates the principle of good faith (since the Commission knew that the purely organic farming of pangasius was still impossible ( 9 )). Binca also argued that the Commission did not respect the mandate given to it by the Council since it failed to adequately take into account the state of technical development of organic farming when determining the appropriate transition period. Finally, Binca invoked restrictions on international trade.

40. On 21 May 2015 the Commission lodged a plea of inadmissibility against Binca’s action for annulment. Binca submitted observations in response to that plea on 9 July 2015.

41. In its plea of inadmissibility, the Commission alleged that the action did not respect the requirements of Article 44(1) of the General Court’s Rules of Procedure (now Article 76), being insufficiently precise to allow the Commission to prepare its defence. In that regard, the Commission argued that the action did not contain any indication of why the contested regulation should be annulled, other than in relation to Article 1(1) thereof (modifying Article 25e(4) of the implementing regulation).

42. The Commission also argued that Binca lacked any interest to act and was not directly concerned by the contested regulation.

43. In relation to direct concern, the Commission considered that, as an importer rather than a producer of pangasius, Binca was not directly affected by the allegedly discriminatory rule on the use of juveniles, of which it sought the annulment. The provisions may have repercussions on Binca’s economic activity, but not directly on its legal situation.

44. As regards interest to act, the Commission argued that even if Article 1(1) of the contested regulation (modifying Article 25e(4) of the implementing regulation) were found to be discriminatory and annulled, that would not affect Binca’s legal situation. The transition period would still expire.

45. In response to the Commission’s arguments on direct concern, Binca argued that it was directly affected by the contested regulation because it was prevented from marketing pangasius as an organic product. That contrasted with the situation of its competitors who, through the provisions of the contested regulation, were able to maintain existing production methods and the marketing of products as organic. Consumers, for whom different species of organic fish are interchangeable, would stop buying Binca’s products and turn to its competitors.

46. Binca stated that, contrary to what was argued by the Commission, it did not seek an extension of the transition period for itself. Binca recognised that this could not be obtained via an action for annulment. Instead, it sought an end to what it perceived to be discrimination brought about by the contested regulation.

47. As regards the competitive relationship in practice, Binca noted that, had it not been for the contested regulation, producers of salmon and trout could no longer sell their products as organic. In that regard, Binca pointed to the authorisation granted to those producers to use histidine and food made from other fish to satisfy their nutritional needs (in Article 1(3) and (5) of the contested regulation, modifying respectively Article 25k(1)(e) and Article 25k(5) of the implementing regulation).

48. Binca stated that it had not challenged the end of the transition period because it could no longer do so (that was fixed by previous modifying regulations). In any event, it could not have done so at the time because the grant of that period was of benefit to it and because the transition period itself did not discriminate between operators.

B. The contested order

49. In the contested order, the General Court states that Binca is in essence seeking an extension of the transition period (paragraph 67).

50. The General Court goes on to observe that the contested regulation did not modify the transition period or change the timetable as regards the rule on digressive use of juveniles (Article 95(11) and Article 25e(3) of the implementing regulation respectively) (paragraphs 68 and 69).

51. The General Court observes that Binca itself admits it cannot obtain an extension of the transition period through an action for annulment. In those conditions, the General Court concludes that annulment of the contested regulation would not allow Binca to import pangasius as an organic product and so concludes that it has no interest in the annulment. The action is therefore inadmissible (paragraphs 72 and 73).

52. The General Court adds that, in order to contest the transition period, Binca should have challenged the first and/or second modifying regulations on the basis that the Commission had an obligation to foresee in those acts a longer transition period. It should have asked the Court, by application of Article 264 TFEU, to suspend annulment pending adoption of a new act with a longer transition period.

V. Proceedings before the Court

53. By its appeal, Binca asks the Court to set aside the contested order and to annul the contested regulation. The Commission asks the Court to reject the appeal and order Binca to pay the costs.

54. Binca raises 15 separate arguments in its appeal which can be summarised under the following headings: – First set of arguments: incoherent or insufficient reasoning consisting in: (a) the failure to take into account the arguments relating to protection of competition and violation of the principle of equal treatment, and (b) an erroneous restatement of the purpose of the action; – Second set of arguments: failure by the General Court to recognise the admissibility of the action as an action aimed at protecting competition; – Third set of arguments: violation of the right to effective judicial protection and Article 47 of the Charter of Fundamental Rights and specifically a failure to consider the merits of the case; – Fourth set of arguments: violation of the right to a public hearing; – Fifth set of arguments: violation of the freedom to conduct business and the right to equal treatment.

55. Concerning the first set of arguments, Binca maintains that the General Court wrongly failed to take into account its arguments based on unequal treatment at the stage of admissibility and incorrectly presented its action as aiming at obtaining an extension of the transition period. The Commission considers that the General Court adequately dealt with Binca’s arguments and did not commit any error of law. The Commission considers that the General Court was correct to conclude that Binca would not obtain any advantage from the annulment.

VI. Assessment

56. Only the first set of arguments of appeal mentioned above requires, detailed attention. The remainder of the appeal is, in my opinion, either manifestly inadmissible or manifestly unfounded.

1. Insufficiency and/or incoherency of the General Court’s reasoning

57. As confirmed in paragraph 1 of the contested order, the application brought before the General Court in Case T‑94/15 seeks the annulment of Regulation No 1358/2014.

58. In paragraphs 72 and 73 of the contested order, the General Court holds: (i) that the annulment of the contested regulation will not allow Binca to import organically labelled pangasius into the EU, and (ii) Binca has no interest in the annulment of the contested regulation.

59. I agree with the first of these statements. I disagree with the second.

60. Contrary to what is clearly implied by the combination of paragraphs 72 and 73, I understand that Binca’s alleged interest to act in the present case does not consist in obtaining the right to be able to import products into the EU. Instead, Binca’s alleged interest to act consists in neutralising the discriminatory effects of the contested regulation through its annulment. In other words, Binca is being prevented from labelling its products as organic, and others should be ‘handicapped’ in the same way. That would not be ideal for Binca, but would, Binca claims, at least remove the distortion of competition that negatively affects it which results/stems from the contested regulation.

61. The contested order simply does not address that argument. Instead it ‘requalifies’ the aim of the action, despite the clear wording in the action, and then dismisses that requalified aim as inadmissible, while not dealing with the issue of the interest to act in relation to the originally stated aim of the action.

62. It is correct that the General Court is not under an obligation to address explicitly each and every argument made by the parties. ( 10 ) However, alleged discrimination in the contested regulation is Binca’s main claim. Failure by the General Court to address even briefly the possible negative impact on Binca resulting from that discrimination, and Binca’s corresponding interest in having the contested regulation annulled, is, in my view, a serious omission in the reasoning.

63. It is true that the General Court does summarise Binca’s arguments in that regard (see paragraphs 58 to 63 of the contested order). It does not, however, respond to them. Nor does the reasoning set out in paragraph 77 of the contested order, which was referred to by the Commission in its written pleadings and also discussed during the hearing, provide any further enlightenment. That paragraph simply states that, in assessing Binca’s interest to act to obtain an extension of the transition period, the situation of its competitors’ is irrelevant.

64. Again, however, Binca does not argue that the benefit it would derive from the annulment of the contested regulation resides in a possible extension of the transition period. Instead its alleged benefit consists in the termination of what it considers to be discriminatory provisions in that regulation.

65. I consider that some of the confusion in that regard stems from the General Court’s insistence that what Binca is really complaining about is the Commission’s refusal to extend the transition period (see in particular paragraph 67 of the contested order). Binca has not helped itself in that regard. As the Commission noted, it iteratively stated in its application that the ideal scenario would be an extension of the transition period. However, despite those references, it is absolutely clear from the application and paragraph 1 of the contested order that the object of the application is indeed annulment of the contested regulation.

66. It follows from the above that the reasoning contained in the contested order is insufficient. Binca’s first set of arguments is founded.

67. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, before referring the case back to the General Court, the Court of Justice can at this stage already give judgment in relation to the existence of an interest to act. In relation to other aspects of the case, the Court is not in a position, at this stage of the proceedings, to deliver a judgment.

68. For the reasons I set out below, I consider that the application should be rejected as inadmissible in so far as it seeks annulment of provisions of the contested regulation other than Article 1(1) thereof, modifying Article 25e(4) of the implementing regulation (see (2) below). In relation to Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation, I consider that Binca does have an interest to act as regards the annulment of that provision (see (3) below).

2. Scope of the application for annulment

69. By its action Binca seeks annulment of the entire contested regulation. In its initial application before the General Court, the only provision of the contested regulation in relation to which Binca presented any specific arguments was Article 1(1), modifying Article 25e(4) of the implementing regulation. Subsequently, in its response to the Commission’s plea of inadmissibility, Binca also presented specific arguments in relation to Article 1(3) and (5) of the contested regulation, inserting respectively Article 25k(1)(e) and Article 25k(5) into the implementing regulation. At the oral hearing on appeal, Binca confirmed that it sought annulment principally of Article 1(1), but also of Article 1(3) and (5) of the contested regulation.

70. Article 19 of the Statute of the Court of Justice and Article 44(1) of the Rules of Procedure of the General Court ( 11 ) require that an application for annulment contains a summary of the pleas in law relied on. The summary of the pleas relied on must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. ( 12 )

71. In my opinion, with the exception of the pleas relating to Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation, Binca’s initial application before the General Court fails to meet those requirements. In particular, that application failed to identify the provisions in relation to which Binca took issue.

72. It cannot be excluded that, in some circumstances, an applicant’s summary of the pleas in law relied on may be considered sufficiently clear and precise, despite not listing explicitly and individually every provision of concern. However, that is not so in the present case. In that regard, although Binca’s application does make it clear that its concern is the discriminatory nature of the contested regulation, the nature and source of that discrimination is far from self-evident when reading the contested regulation. For that reason, it was incumbent on Binca to clearly identify the provisions it considered to be discriminatory and albeit succinctly, why, in order to meet the requirements of Article 44(1) of the Rules of Procedure of the General Court.

73. Nor can that impreciseness in the initial application be remedied by the specific references to other provisions of the contested regulation contained in Binca’s response to the Commission’s plea of inadmissibility. In accordance with Article 48(2) of the Rules of Procedure of the General Court, ( 13 ) no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. ( 14 )

74. For the above reasons, I consider that Binca’s application for annulment should be considered inadmissible to the extent that it seeks the annulment of the contested regulation, with the exception of Article 1(1) thereof, modifying Article 25e(4) of the implementing regulation.

75. Before turning to Binca’s alleged existence of an interest to act as regards the annulment of that latter provision, two points are worth clarifying. First, the fact that Binca has challenged the entire contested regulation but has failed to meet the conditions of admissibility in relation to most of that act does not in itself deprive Binca of an interest to act in relation to Article 1(1) thereof, modifying Article 25e(4) of the implementing regulation. ( 15 ) Second, I do not see any particular problem of severability of Article 1(1) of the contested regulation and no argument to that effect has been made. As a result, it would in theory be possible to annul that provision and leave the remainder of the contested regulation intact. ( 16 )

3. Existence of an interest to act

76. ‘Interest to act’ requires that some benefit will accrue to the applicant in case their action is successful. ( 17 ) A personal benefit establishing an interest to act can be either factual or legal. I have set out in detail elsewhere why I consider that that conclusion follows clearly from the case-law. ( 18 ) I will not repeat those reasons in detail here.

77. However, it is worthwhile noting that, at the oral hearing, the Commission accepted that where an EU measure grants certain advantages to market operators, their competitors may have an ‘interest to act’ in seeking annulment of that measure. The Commission did attach conditions to admitting such an interest. It considered that the competitive relationship must be ‘patent’, and elsewhere that the advantage to competitors must be ‘manifest’. I will turn to these conditions further below. However, at this stage, what is key is that interest to act may be factual in nature as a matter of principle. It may consist in a commercial benefit that would result from the annulment of the contested measure.

78. Does Binca have such a ‘factual’ interest to act in obtaining the annulment of Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation?

79. The Commission considers that it does not. It raises two points in that regard. First, Binca is a downstream importer of fish, and not in competition with those operators allegedly advantaged by the contested regulation. To establish an interest to act in a case like the present, the competitive relationship must be ‘patent’ or ‘blatant’. Second, the type of fish Binca imports — pangasius — is in any event not in competition with other types of fish that Binca considers to have been given an advantage by the contested regulation. To establish an interest to act in a case like the present, the alleged competitive disadvantage must be ‘manifest’.

80. I disagree with that interpretation of the notion of interest to act and the attaching conditions. I do not consider that, in order to establish interest to act, there must inevitably be a direct competitive relationship or a fortiori that it must be ‘patent’ or ‘blatant’ or result in ‘manifest’ advantage to a competitor as alleged by the Commission. I see no basis for such requirements. ( 19 )

81. Three further observations are worth making in that regard.

82. First, it seems to me perfectly plausible that, in some cases, where an EU act confers advantages on certain operators, not only competitors but also upstream and downstream actors will suffer serious commercial repercussions. If a product is negatively impacted by an EU measure in fact, it is simply artificial to say that that negative impact would as a general proposition be restricted to one particular level of the supply chain. That will depend on the specific factual nexus of the individual case.

83. Second, according to the facts as established by the General Court, the precise nature of Binca’s role in the supply chain is more complex than that of ‘mere’ importer. In that regard, the contested order confirms that Binca actually supplies the food used to produce the fish that it then purchases. ( 20 )

84. Third, as confirmed by the Commission at the oral hearing, the organic labelling requirements to which importers of aquaculture products are subject incorporate the production requirements imposed by the contested regulation. For that reason, and contrary to what is argued by the Commission, it is not possible for the purposes of establishing admissibility to divide operators into producers, which are ‘addressees’ of the contested regulation and its requirements, and other operators, which are not.

85. Those observations in my view underline the need to avoid additional general requirements relating to the nature of relevant competitive relationships from being inferred as conditions to the establishment of an interest to act.

86. Whatever its precise role in the supply chain, in order to establish interest to act, Binca must show that it would derive a personal benefit, legal or factual from the annulment of Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation.

87. It is clear from recitals 3 and 4 of the contested regulation that the exceptions included in that provision are intended to facilitate the ongoing production of organic fish that would otherwise be interrupted. Annulment of the contested regulation would eliminate those exceptions and make it harder, even impossible, to produce certain types of fish ‘organically’ in the sense of the basic regulation and implementing acts.

88. However, such an annulment would only be of benefit to Binca and be capable of giving rise to an interest to act if: (i) those exceptions are of no use or less use to the production of fish imported by Binca, and (ii) the fish imported by Binca compete with products that do benefit from the exceptions.

89. Binca has made a prima facie case on both of those points. That is, in my opinion, sufficient to establish interest to act.

90. As regards (i), Binca explained before the General Court in relation to Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation, that the specific tides and topography of the Mekong delta mean that wild aquaculture juveniles cannot be captured in the same way as in European waters (with the exception of pilot projects and small-scale research). As regards (ii), although the precise competitive relationship between organic pangasius and other fish is unclear, it seems at first sight to be a reasonable proposition that organic fish of one type compete with organic fish of another type. Binca is obviously not importing clementines or ball bearings (or even non-organic fish). ( 21 )

91. Both of the above points have been contested by the Commission. In particular, as regards the competitive relationship between pangasius and other fish, the Commission spoke at length at the oral hearing, referring to economic studies, merger control assessments, fish fingers and fine Italian restaurants.

92. However, the need for such detailed debate confirms that on this point, the arguments have spilled over into a separate discussion on substance, assessing whether or not Binca has, in fact, been discriminated against and what may be the reasons for the legislative differentiation operated by the Commission.

93. Establishing interest to act in this type of case should require no more of the applicant than a prima facie demonstration of negative impact of the contested act on it (implying the existence of a personal benefit from the act’s annulment). The purpose of the interest to act requirement is to have a preliminary screening to weed out actions in the public interest and actions seeking legal opinions or posing a general or hypothetical question. ( 22 ) A preliminary screening that can be carried out only with a detailed CAT scan cannot be really called ‘preliminary’ any more.

94. Two additional, concluding remarks are due. First, in arguing against the existence of interest to act in this case, the Commission raised the spectre of ‘actio popularis’. That concern is, in my opinion, easily dismissed. An actio popularis is an action brought by a member of the public in the public interest. It appears rather clearly from its written observations that Binca is not just any member of the public. It is active on the relevant markets and has been for many years. Nor is it acting purely in the general public interest. It is acting in its own commercial interest.

95. Second, the real concern of the Commission appears to be that the threshold for interest to act should not be set ‘too low’, as that might open the floodgates to masses of actions for annulment. Again, such concerns are easily dismissed. As a matter of definitional principle, the existence of ‘interest to act’ should not be tweaked in order to ensure a certain level of litigation. The question is whether the applicant would derive a personal benefit, in law or in fact, from the annulment. Moreover, ‘interest to act’ is only one of several cumulative conditions of admissibility. It should indeed be treated as the least demanding being, in essence, as mentioned above, a preliminary screening mechanism.

96. In the light of the foregoing, the General Court erred in law in holding that Binca did not have an interest to act as regards the annulment of Article 1(1) of the contested regulation, modifying Article 25e(4) of the implementing regulation.

VII. Conclusion

97. I propose that the Court: – set aside the order of the General Court of the European Union of 11 March 2016, Binca Seafoods v Commission (T‑94/15, not published, EU:T:2016:164) in so far as it rejects the Appellant’s action for annulment of Article 1(1) of Commission Implementing Regulation (EU) No 1358/2014 of 18 December 2014 amending Regulation (EC) No 889/2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 as regards the origin of organic aquaculture animals, aquaculture husbandry practices, feed for organic aquaculture animals and products and substances allowed for use in organic aquaculture; – dismiss the remainder of the appeal; – refer the case back to the General Court; – order that costs be reserved.

( 1 ) Original language: English.

( 2 ) Commission Regulation of 18 December 2014 amending Regulation (EC) No 889/2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 as regards the origin of organic aquaculture animals, aquaculture husbandry practices, feed for organic aquaculture animals and products and substances allowed for use in organic aquaculture (OJ 2014 L 365, p. 97).

( 3 ) Council Regulation of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1).

( 4 ) Commission Regulation of 5 September 2008 laying down detailed rules for the implementation of Council Regulation No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2008 L 250, p. 1).

( 5 ) Commission Regulation of 5 August 2009 amending Regulation No 889/2008 laying down detailed rules for the implementation of Council Regulation No 834/2007, as regards laying down detailed rules on organic aquaculture animal and seaweed production (OJ 2009 L 204, p. 15).

( 6 ) Commission Regulation of 24 October 2013 amending Regulation No 889/2008 laying down detailed rules for the implementation of Council Regulation No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2013 L 283, p. 15).

( 7 ) Commission Regulation of 17 December 2013 amending Regulation No 889/2008 laying down detailed rules for the implementation of Council Regulation No 834/2007 as regards the use of non-organic aquaculture juveniles and non-organic seed of bivalve shellfish in organic aquaculture (OJ 2013 L 343, p. 29).

( 8 ) Specifically those species listed in Annex XIIIa (see Article 25a inserted by the first modifying regulation). Those species include pangasius (Section 9 of Annex XIIIa).

( 9 ) Due to problems relating to spontaneous egg-laying without the use of hormones.

( 10 ) Judgment of 22 May 2008, Evonik Degussa v Commission and Council (C‑266/06 P, not published, EU:C:2008:295, paragraph 103).

( 11 ) Now Article 21 of the Statute of the Court of Justice and Article 76 of the Rules of Procedure of the General Court.

( 12 ) See judgment of 21 March 2002, Joynson v Commission (T‑231/99, EU:T:2002:84, paragraph 154); order of 19 September 2016, Gregis v EUIPO — DM9 Automobili (ATS) (T‑5/16, not published, EU:T:2016:552, paragraph 18).

( 13 ) Now Article 84(1) of the Rules of Procedure of the General Court.

( 14 ) Order of 14 April 2016, KS Sports v EUIPO (C‑480/15 P, not published, EU:C:2016:266, paragraph 23).

( 15 ) See, in that sense, judgment of 12 September 2002, Europe Chemi-Con (Deutschland) v Council (T‑89/00, EU:T:2002:213, paragraph 35).

( 16 ) See, on that point, judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission (T‑31/07, not published, EU:T:2013:167).

( 17 ) Judgment of 18 December 1997, ATM v Commission (T‑178/94, EU:T:1997:210, paragraphs 59 to 62).

( 18 ) Opinion of Advocate General Bobek in Bionorica and Diapharm v Commission (C‑596/15 P and C‑597/15 P, EU:C:2017:297, points 49 to 52). That proposition also follows from the fact that there are a range of types of non-material factual interests accepted by the Court as giving rise to an interest to act, such as morale or future prospects (see judgments of 27 June 1973, Kley v Commission (35/72, EU:C:1973:73, paragraph 4), and of 28 May 1998, W v Commission (T–78/96 and T–170/96, EU:T:1998:112, paragraph 47).

( 19 ) Indeed, when questioned specifically on the need for a ‘blatant’ competitive relationship at the oral hearing, the Commission confirmed there was no basis for that requirement in the case-law.

( 20 ) Paragraphs 41 and 42 of the contested order.

( 21 ) The circumstances are therefore different from those in the Andechser Molkerei case, where the Court considered that the appellant had failed to substantiate its allegation that organic and non-organic yoghurts were in competition, those products being subject to two very different regulatory regimes (see judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission (C‑682/13 P, not published, EU:C:2015:356, paragraphs 35 to 37).

( 22 ) Van Raepenbusch, S., ‘L’Intérêt à agir dans le contentieux communautaire’, in Mélanges en hommage à Georges Vandersanden, Brussels, Bruyant, 2008, p. 381.