Keywords

Summary



Keywords

1. Actions for annulment – Interest in bringing proceedings – Interest assessed at the time when the action was brought – Expiry of the contested act during the proceedings – Measure which served as the basis of the national enforcement measures concerning the applicant – Interest in bringing proceedings not lost

(Art. 230, fourth para., EC)

2. Procedure – Act repealing and replacing the contested act during the proceedings – Request to adapt the claim for annulment

(Art. 230, fifth para., EC; Rules of Procedure of the General Court, Arts 111 and 113)

3. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of being directly and individually concerned by a general measure – Conditions – Classification, by Directive 2004/73, of a substance as a dangerous substance

(Art. 230, fourth para., EC; Council Directive 67/548; Commission Directive 2004/73)

4. Non-contractual liability – Conditions – Unlawfulness – Action for damages based on the unlawfulness of the classification, by Directive 2004/73, of a substance as a dangerous substance

(Art. 288, second para., EC)

Summary

1. An applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which the action will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, otherwise there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it. Thus, the possible expiry of a measure in the course of proceedings seeking its annulment does not in itself mean that the European Union judicature must declare that there is no need to adjudicate for lack of purpose or for lack of interest in bringing proceedings at the date of the delivery of the judgment.

In an action for annulment, where the act whose annulment is sought has already produced binding legal effects at national level, and since only an annulment judgment has the effect of eliminating the measure in question retroactively from the legal order as if it had never existed, the mere finding that that act is repealed or has lapsed, or even a finding that it is unlawful in the context of an application for damages, are not sufficient to protect the applicant seeking annulment from national enforcement measures taken in respect of him, which have as their legal basis national rules adopted by the Member State in question to comply with the obligation to transpose the contested act because, in contrast to a judgment annulling a measure, such findings, in principle, only have a prospective effect limited to the action for damages in question and do not retroactively eliminate the legal basis of those measures.

(see paras 84, 86-89)

2. Where a decision is, during the proceedings, replaced by another decision with the same subject-matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law. However, an adaptation of the claims for annulment after the expiry of the period for bringing an action provided for under the fifth paragraph of Article 230 EC would be incompatible with that provision. In accordance with the principles of legal certainty and equality of persons before the law, the fifth paragraph of Article 230 EC enshrines a mandatory time-limit which is permanent, absolute and may not be extended. Any derogation from or extension of that period granted by the European Union judicature, albeit unanimously agreed by the parties, would therefore be contrary to the unequivocal wording and scheme of that provision and to the intention of the framers of the Treaty. In addition, the mandatory criteria, as laid down in Articles 111 and 113 of the Rules of Procedure of the General Court, under which it is to declare inadmissible either an action for annulment or an action to amend the claims seeking annulment, may not be interpreted restrictively, so as to avoid the possibility that – contrary to the principles of legal certainty and the equality of persons before the law – the mandatory requirements of the Treaty governing, inter alia, the period of time within which actions must be brought, could be evaded.

Thus, a request to amend claims made by an applicant who, either deliberately or negligently, failed to bring an action for annulment against the act which was adopted in the course of the proceedings or to request the corresponding adaptation of his claims seeking annulment within the period laid down for bringing an action in that regard, even though he was clearly in a position to do so and could reasonably have been expected to undertake such a step, is manifestly late and must be rejected as inadmissible. The fact that the proceedings already initiated were stayed, pursuant to Article 77(a) and the first paragraph of Article 79(1) of the Rules of Procedure of the General Court, when the act adopted in the course of the proceedings was published, is irrelevant, since that staying of proceedings could not affect the expiry of the period for bringing an action referred to in the fifth paragraph of Article 230 EC.

(see paras 94-97)

3. The fact that a measure is, by its nature and scope, a provision of general application inasmuch as it applies to the economic operators concerned in general, does not prevent that provision from being of individual concern to some of them within the meaning of the fourth paragraph of Article 230 EC. Thus, where a decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of that group, those persons may be individually concerned by that measure inasmuch as they form part of a limited class of economic operators. However, the fact that it is possible to determine more or less precisely the number, or even the identity, of the persons to whom a measure applies, by no means implies that that measure must be regarded as being of individual concern to those persons, where it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question.

Thus, the participation of an applicant in the procedure leading to the adoption, by Directive 2004/73, adapting to technical progress for the twenty-ninth time Council Directive 67/548/EEC, on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, of the classification of n-propyl bromide as a highly flammable substance toxic for human reproduction, does not suffice, in the absence of procedural rights provided by the relevant legislation to the applicant, to prove his capacity to bring legal proceedings against that directive. In those circumstances, the applicant cannot claim to be distinguished individually by the contested act, all the more so because he was not responsible for the initial classification of the abovementioned substance, nor for that made in Directive 2004/73.

The conditions which allow it to be concluded that a limited class of operators is affected by that classification are clearly not fulfilled in the absence of reliable details concerning the identity, number and situation of the operators concerned, and in particular whether they enjoy a position on the market or similar pre-existing rights and whether they suffer negative effects similar to those affecting the applicant.

Furthermore, the fact that certain operators are more affected economically by a measure of general application than others is not sufficient to distinguish them individually from all other operators, since the application of that measure takes effect by virtue of an objectively determined situation. The mere fact that an applicant may lose a major source of revenue as a result of new legislation does not prove that he is in a specific situation and is not sufficient to establish that that legislation applies to him individually, the applicant having to adduce proof of circumstances which make it possible to consider that the harm allegedly suffered is such as to distinguish him individually from all other economic operators concerned by that legislation in the same way as he is. Consequently, the fact that an applicant may suffer, as a result of the entry into force and application of the contested classification, major economic loss, cannot justify, in itself, a finding that he is individually concerned. Equally, he cannot be distinguished individually solely on the ground that he focused his economic activity on a particular substance as long as other operators, the number and identity of whom are not defined, are affected by that legislation, where the group to which they belong may change as a result of the contested classification, which affects their products in the same way as it affects the applicant’s product.

In addition, an applicant’s pre-existing right based on the exclusive right to use a patented invention based on a product containing the abovementioned substance is also not capable of distinguishing him in the same way as an addressee of the contested directive. The possible existence of an actual or individual right, including a right of ownership, whose scope or exercise is potentially affected by the contested measure, is not as such capable of distinguishing the rightholder individually, in particular where other operators may enjoy similar rights and hence be in the same situation as that rightholder.

(see paras 101, 103-104, 106, 109-112, 114, 116)

4. The non-contractual liability of the European Union for unlawful conduct on the part of its organs, within the meaning of the second paragraph of Article 288 EC, depends on fulfilment of a set of conditions, namely the unlawfulness of the conduct alleged against the institutions, the fact of damage and the existence of a causal link between that conduct and the damage complained of. Given the cumulative nature of those conditions, the action must be dismissed in its entirety where one of those conditions is not satisfied.

In that regard, concerning an action for damages based on the illegality of the classification, by Directive 2004/73, adapting to technical progress for the twenty-ninth time Council Directive 67/548/EEC, on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, of n-propyl bromide as a highly inflammable substance toxic for human reproduction, the illegality cannot be established where, in a previous judgment, the Court has rejected, in the light of the questions referred to it for a preliminary ruling, the pleas seeking to call into question the validity of the contested classification, which are renewed in essence by the applicant in the context of its damages claim. Where the subject-matter of proceedings before the General Court largely overlaps with that of other proceedings brought before the Court of Justice, where both the applicant and the defendant institution participated in both procedures, where the measure the validity of which is called into question is identical, where the complaints seeking its annulment or lack of validity are essentially the same and where the Court of Justice has confirmed the legality of the contested act, the General Court may no longer call that assessment into question.

(see paras 122-123, 137-138)