Order of the Court of 7 December 1988. - Fédération européenne de la santé animale and others v Council of the European Communities. - Admissibility. - Case 160/88.



European Court reports 1988 Page 06399



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Action for annulment - Natural or legal persons - Acts of direct and individual concern to such persons - Directive prohibiting the use in livestock rearing of certain substances having a hormonal action - Application to the Court by manufacturers and distributors of the prohibited substances - Inadmissibility

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

Summary

Directive 88/146 prohibiting the use in livestock farming of certain substances having a hormonal action is not of direct and individual concern, for the purposes of the second paragraph of Article 173 of the Treaty, to the manufacturers and distributors of the prohibited substances . Consequently, such persons are not entitled to bring an action for its annulment .

Parties

In Case 160/88

( 1 ) Fédération européenne de la santé animale ( Fedesa ), whose statutory office is at 1 rue Defacqz, 1050 Brussels ( Belgium ),

( 2 ) Distrivet SA, whose registered office is at 35 Boulevard des Invalides, 75007 Paris, ( France ),

( 3 ) Pitman Moore Inc ., whose registered office is in Northbrook, Illinois, United States of America,

all represented by Christopher Carr QC, Thomas Sharpe, barrister-at-law, and Eduard Marissen, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Elvinger, Hoss and Prussen, 15 Côte d' Eich,

applicants,

v

Council of the European Communities, represented by B . Hoff-Nielsen, Legal Adviser, and M . Sims, a member of the Council' s Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Joerg Kaeser, Manager of the Legal Directorate of the European Investment Bank, 100, boulevard Konrad-Adenauer,

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 ( Official Journal 1988, L 70, p . 16 ) 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 2 June 1988, the Fédération européenne de la santé animale ( Fedesa ), Distrivet SA and Pitman Moore Inc . 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 .

2 By a document received at the Court Registry on 25 August 1988, the Council raised an objection of inadmissibility under Article 91 ( 1 ) of the Rules of Procedure and requested the Court to rule on that objection without examining the substance of the case .

3 Council Directive 85/649/EEC of 31 December 1985 prohibiting the use in livestock farming of certain substances having a hormonal action ( Official Journal 1985, L 382, p . 228 ), which laid down the principle of an absolute prohibition on the administration of substances having a hormonal action, was to be transposed by the Member States into their national legal systems by 1 January 1988 at the latest .

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

5 On 7 March 1988 the Council adopted the contested directive, the terms of which are identical to those of Directive 85/649, also as regards the time-limit set for its transposition into national law .

6 In its application on a procedural issue, the Council' s main contention is that directives are excluded from the ambit of individual actions for annulment in view of the wording of the second paragraph of Article 173 of the EEC Treaty which, unlike the first paragraph of that article, refers only to decisions and regulations .

7 In the alternative, the Council contends that the applicants cannot be directly and individually concerned by a directive which constitutes, by nature, a measure of general application which applies in a general and abstract manner to objectively determined situations . It is only by virtue of the national implementing measures that individuals acquire rights or are subject to obligations . Where, moreover, as in this case, the directive imposes obligations, it cannot in any event have direct effect .

8 The applicants maintain that the second paragraph of Article 173 of the EEC Treaty does not preclude the possibility of instituting proceedings against a directive . In that regard, they state that observance of "the principles of law and justice and the rule of law" should lead to a broad interpretation of the second paragraph of Article 173 . In this case, to dismiss their application as inadmissible, particularly without opening the oral procedure, would constitute a denial of justice .

9 In support of that assertion, they claim to have a considerable and substantial interest in bringing their action in so far as their right and freedom to carry on a commercial activity, which is legal and of general benefit, are destroyed by illegal provisions . Apart from the applicants' immediate interest, the existence of locus standi should be determined by the gravity of the wrong alleged, the seriousness of the rights and interests affected and the extent of the damage suffered . Accordingly, the issue of admissibility should, in this instance, be considered together with the substance of the case .

10 Whilst considering that, with regard to locus standi, the question whether the contested measure is of a general or individual nature is secondary to the interests at issue, the applicants emphasize that the constituent elements of the directive at issue correspond to those of a decision because it is so precise and so detailed that it leaves no discretion to the Member States, at least so far as the applicants are concerned . Finally, they contend that, whatever effects the directive may have upon other persons or other activities, they constitute in themselves virtually the whole of the category, identified and known to the Council, of manufacturers and distributors of veterinary medicinal products . The undertakings concerned are an isolated group specifically affected by the prohibition imposed by the directive and its retroactive entry into force .

11 By virtue of Article 91 ( 3 ) of the Rules of Procedure, the remainder of proceedings in respect of the preliminary objection is to be oral, unless the Court decides otherwise . The Court considers that in this case it has sufficient information at its disposal and there is no need to open the oral procedure as requested by the applicants .

12 It should first be pointed out 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 adopted in the form of a regulation, is of direct and individual concern to him .

13 Distrivet and Pitman Moore are companies which manufacture and distribute veterinary medicinal products, including the hormones referred to in the contested directive . Fedesa is an association whose membership includes such companies . Without there being any need to examine all the matters argued by the parties, it must be held that the contested directive is manifestly not of individual concern to the applicants .

14 The Court has consistently held that, for a person to be individually concerned by a measure, his legal position must be affected because of circumstances which distinguish him individually just as in the case of the person addressed . The directive at issue does not concern the applicants except in their objective capacity as manufacturers and distributors of veterinary medicinal products in the same way as any other trader in an identical situation .

15 The application must therefore be dismissed as inadmissible .

Decision on costs

Costs

16 Under Article 69 ( 2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . As the applicants have been unsuccessful in their submissions, they must be ordered to bear the costs jointly and severally .

Operative part

On those grounds,

THE COURT

hereby :

( 1 ) Dismisses the application as inadmissible;

( 2 ) Orders the applicants jointly and severally to bear the costs .

Luxembourg, 7 December 1988 .