CELEX: 62015TO0584(01)
Language: en
Date: 2016-09-14 00:00:00
Title: Order of the General Court (Second Chamber) of 14 September 2016.#Pagkyprios organismos ageladotrofon (POA) Dimosia Ltd v European Commission.#Action for annulment — Application for registration of a protected designation of origin (‘Halloumi’ or ‘Hellim’) — Decision to publish in the Official Journal, C series, an application for registration of a protected designation of origin pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 — Preparatory measure — Measure not open to challenge — Inadmissibility.#Case T-584/15.

ORDER OF THE GENERAL COURT (Second Chamber) 
14 September 2016 (*)
(Action for annulment — Application for registration of a protected designation of origin (‘Halloumi’ or ‘Hellim’) — Decision to publish in the Official Journal, C series, an application for registration of a protected designation of origin pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 — Preparatory measure — Measure not open to challenge — Inadmissibility)
In Case T‑584/15,

Pagkyprios organismos ageladotrofon Dimosia Ltd (POA), established in Latsia (Cyprus), represented by N. Korogiannakis, lawyer,
applicant,
v

European Commission, represented by A. Lewis and J. Guillem Carrau, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of the Commission’s decision to publish in the Official Journal of the European Union (OJ 2015 C 246, p. 9) application for registration No CY/PDO/0005/01243, introduced by the Republic of Cyprus, inasmuch as it found that that application met the conditions laid down by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1), as referred to in Article 50(1) of that regulation,
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro, President, S. Gervasoni and L. Madise (Rapporteur), Judges, 
Registrar: E. Coulon,
makes the following

Order

 Legal framework

1        Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1) establishes, in Article 4, a scheme for protected designations of origin and protected geographical indications for the benefit of certain agricultural products and certain foodstuffs. 

2        Article 5(1) of Regulation No 1151/2012 defines a ‘designation of origin’ as a name which identifies a product originating in a specific place, region or, in exceptional cases, a country, whose quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors and the production steps of which all take place in the defined geographical area.

3        Registration as a protected designation of origin (PDO) of the name of an agricultural product or a foodstuff, which must meet the conditions laid down by Regulation No 1151/2012 and, in particular, conform to the specification set out in Article 7 of that regulation, confers protection on that name at EU level. That protection is defined in Article 13(1) of that regulation.

4        The registration procedure comprises two stages. In the first stage, the application for registration of names is subject to scrutiny at national level. That stage is governed by Article 49 of Regulation No 1151/2012, which states the following:
‘1.      Applications for registration of names under the quality schemes referred to in Article 48 may only be submitted by groups who work with the products with the name to be registered. ... 
2.      ... the application shall be addressed to the authorities of that Member State.
The Member State shall scrutinise the application by appropriate means in order to check that it is justified and meets the conditions of the respective scheme.
3.      As part of the scrutiny referred to in the second subparagraph of paragraph 2 of this Article, the Member State shall initiate a national opposition procedure that ensures adequate publication of the application and that provides for a reasonable period within which any natural or legal person having a legitimate interest and established or resident on its territory may lodge an opposition to the application.
The Member State shall examine the admissibility of objections ...
4.      If, after assessment of any opposition received, the Member State considers that the requirements of this Regulation are met, it may take a favourable decision and lodge an application dossier with the Commission. It shall in such case inform the Commission of admissible oppositions received from a natural or legal person that have legally marketed the products in question, using the names concerned continuously for at least five years preceding the date of the publication referred to in paragraph 3.
The Member State shall ensure that its favourable decision is made public and that any natural or legal person having a legitimate interest has an opportunity to appeal.
The Member State shall ensure that the version of the product specification on which its favourable decision is based, is published, and shall provide electronic access to the product specification.
With reference to protected designations of origin and protected geographical indications, the Member State shall also ensure adequate publication of the version of the product specification on which the Commission takes its decision pursuant to Article 50(2).’

5        In the second stage, the application is subject to scrutiny by the European Commission and, if the conditions laid down by Regulation No 1151/2012 are met, publication for opposition. That procedure before the Commission, to which this action relates, is governed by Article 50, headed ‘Scrutiny by the Commission and publication for opposition’, which provides as follows:
‘1.      The Commission shall scrutinise by appropriate means any application that it receives pursuant to Article 49, in order to check that it is justified and that it meets the conditions of the respective scheme ... 
2.      Where, based on the scrutiny carried out pursuant to the first subparagraph of paragraph 1, the Commission considers that the conditions laid down in this Regulation are fulfilled, it shall publish in the Official Journal of the European Union:
(a)      for applications under the scheme set out in Title II [Protected Designations of Origin and Protected Geographical Indications], the single document and the reference to the publication of the product specification;
...’

6        Publication in the Official Journal of the European Union triggers an ‘opposition procedure’ in accordance with Article 51 of Regulation No 1151/2012, which states the following:
‘1.      Within three months from the date of publication in the Official Journal of the European Union, the authorities of a Member State or of a third country, or a natural or legal person having a legitimate interest and established in a third country may lodge a notice of opposition with the Commission.
Any natural or legal person having a legitimate interest, established or resident in a Member State other than that from which the application was submitted, may lodge a notice of opposition with the Member State in which it is established within a time limit permitting an opposition to be lodged pursuant to the first subparagraph.
A notice of opposition shall contain a declaration that the application might infringe the conditions laid down in this Regulation ...
The Commission shall forward the notice of opposition to the authority or body that lodged the application without delay.
2.      If a notice of opposition is lodged with the Commission and is followed within two months by a reasoned statement of opposition, the Commission shall check the admissibility of this reasoned statement of opposition.
3.      Within two months after the receipt of an admissible reasoned statement of opposition, the Commission shall invite the authority or person that lodged the opposition and the authority or body that lodged the application to engage in appropriate consultations for a reasonable period that shall not exceed three months.
The authority or person that lodged the opposition and the authority or body that lodged the application shall start such appropriate consultations without undue delay. They shall provide each other with the relevant information to assess whether the application for registration complies with the conditions of this Regulation. If no agreement is reached, this information shall also be provided to the Commission.
...
4.      Where, following the appropriate consultations referred to in paragraph 3 of this Article, the details published in accordance with Article 50(2) have been substantially amended, the Commission shall repeat the scrutiny referred to in Article 50 ...’

7        Article 52 of Regulation No 1151/2012, headed ‘Decision on registration’, provides as follows:
‘1.      Where, on the basis of the information available to the Commission from the scrutiny carried out pursuant to the first subparagraph of Article 50(1), the Commission considers that the conditions for registration are not fulfilled, it shall adopt implementing acts rejecting the application. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2).
2.      If the Commission receives no notice of opposition or no admissible reasoned statement of opposition under Article 51, it shall adopt implementing acts, without applying the procedure referred to in Article 57(2), registering the name.
3.      If the Commission receives an admissible reasoned statement of opposition, it shall, following the appropriate consultations referred to in Article 51(3), and taking into account the results thereof, either:
(a)      if an agreement has been reached, register the name by means of implementing acts adopted without applying the procedure referred to in Article 57(2), and, if necessary, amend the information published pursuant to Article 50(2) provided such amendments are not substantial; or
(b)      if an agreement has not been reached, adopt implementing acts deciding on the registration. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2).
4.      Acts of registration and decisions on rejection shall be published in the Official Journal of the European Union.’

8        Article 57 of Regulation No 1151/2012 provides as follows:
‘1.      The Commission shall be assisted by the Agricultural Product Quality Policy Committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2.      Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.’

9        Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13) provides as follows:
‘1.      Where the examination procedure applies, the committee shall deliver its opinion by the majority laid down in Article 16(4) and (5) of the Treaty on European Union and, where applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles.
2.      Where the committee delivers a positive opinion, the Commission is to adopt the draft implementing act.
3.      Without prejudice to Article 7, if the committee delivers a negative opinion, the Commission shall not adopt the draft implementing act. Where an implementing act is deemed to be necessary, the chair may either submit an amended version of the draft implementing act to the same committee within two months of delivery of the negative opinion, or submit the draft implementing act within one month of such delivery to the appeal committee for further deliberation.
4.      Where no opinion is delivered, the Commission may adopt the draft implementing act, except in the cases provided for in the second subparagraph. Where the Commission does not adopt the draft implementing act, the chair may submit to the committee an amended version thereof.
...’
 Background to the dispute

10      The applicant, Pagkyprios organismos ageladotrofon Dimosia Ltd (POA), is an organisation of cattle farmers who produce cow’s milk and meat. It was established and registered in 2004 and has 157 members, which corresponds to approximately 75% of the total number of Cypriot producers of cow’s milk. On average, 54 million litres of that milk are used, per year, in Cyprus in the production process for the cheese known as ‘halloumi’. This is a particular type of Cypriot cheese, which is made in a certain way and has a particular taste, texture and cooking properties. The applicant is the principal Cypriot producer of cow’s milk used in the production of halloumi. It also produces halloumi cheese under its own trade marks and for distributors’ brands, through a wholly-owned subsidiary, Papouis Dairies Ltd.

11      On 5 April 2012, various Cypriot companies and organisations active in the cheese production sector, in particular of halloumi, filed an application with the Cypriot authorities for registration of halloumi as a PDO. That application was based on the Cypriot production standard of 1985 (‘the 1985 standard’) and sought to have that standard interpreted as requiring halloumi producers to use more than 50% ewe’s or goat’s milk. In other words, when cow’s milk is used in addition to ewe’s or goat’s milk or a mixture thereof, the proportion of cow’s milk in the halloumi must not be greater than the proportion of ewe’s or goat’s milk or the mixture thereof.

12      In the present case, the application for registration was published on 30 November 2012 in the Episimi Efimerida tis Kypriakis Dimokratias; the applicant, in accordance with Article 49 of Regulation No 1151/2012, raised objections under the national opposition procedure, criticising the prohibition on the use in the production of halloumi of a greater proportion of cow’s milk than the proportion of goat’s or ewe’s milk. In that regard, the applicant submitted that, under the 1985 standard, halloumi can be produced using a preponderant proportion of cow’s milk, as long as appreciable quantities of ewe’s or goat’s milk are used.

13      On 14 November 2013, a meeting was held between the Cypriot authorities and the entities that raised an objection, without an agreement being reached.

14      On 9 July 2014, the Cypriot Ministry for Agriculture rejected the objections raised and published, on the same day, the application for registration of halloumi as a PDO in the Episimi Efimerida tis Kypriakis Dimokratias.

15      On 17 July 2014, the Cypriot authorities lodged application for registration No CY/PDO/0005/01243 at the Commission, seeking to obtain the registration of halloumi as a PDO (‘the application’), it being stipulated that the composition of milk required by the specification referred to a predominance of ewe’s milk or goat’s milk or a mixture of the two.

16      On 22 July 2014, following the rejection of its objections by the Cypriot Ministry for Agriculture, the applicant brought proceedings before the Anatato Dikastirio tis Kypriakis Dimokratias (Supreme Court of the Republic of Cyprus, Cyprus).

17      By letters of 25 March and 25 June 2015, the applicant raised its concerns with the Directorate General (DG) ‘Agriculture and Rural Development’ of the Commission. In its letter of 25 March 2015, the applicant submitted that the interpretation of the 1985 standard in the application was incorrect in that it was based on erroneous and unsubstantiated scientific evidence.

18      By letter of 20 July 2015, the Commission informed the applicant that it could intervene in the registration procedure only through the national opposition procedure and for that reason the rebuttal of the applicant’s opposition at national level could not be reviewed by the Commission.

19      By measure of 28 July 2015 (OJ 2015 C 246, p. 9, ‘the contested measure’), the Commission, having examined the application, decided to publish the application in accordance with Article 50(2)(a) of Regulation No 1151/2012, presenting a summary of the specification submitted by the Cypriot authorities for the purposes of registering halloumi as a PDO. The second stage of the administrative procedure before the Commission, namely the cross-border opposition procedure provided for in Article 51 of Regulation No 1151/2012, was initiated by that publication. 
 Procedure and forms of order sought

20      By application lodged at the Court Registry on 7 October 2015, the applicant brought the present action. It claims that the Court should:
–        annul the contested measure; 
–        order the Commission to pay the costs.

21      By separate document, lodged at the Court Registry on 8 October 2015, the applicant submitted an application for interim measures, in which it claimed, in essence, that the President of the Court should suspend the effects of the contested measure, including the opening of the opposition procedure provided for in Article 51 of Regulation No 1151/2012 or any subsequent decision on the registration of halloumi as a PDO as provided for in Article 52 of that regulation, and reserve the costs. 

22      By order of 7 December 2015, the President of the Court dismissed the application for interim measures for lack of urgency. The costs were reserved.

23      By separate document lodged at the Court Registry on 15 January 2016, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.

24      By document of 9 March 2016, the applicant submitted its observations on the Commission’s plea of inadmissibility. The applicant claims that the Court should: 
–        declare the action admissible;
–        examine the substance of the action;
–        annul the contested measure;
–        order the Commission to pay the costs.
 Law

25      Under Article 130 of the Rules of Procedure, if a party applies, by a separate document, to the Court for a decision on inadmissibility or lack of competence, without going to the substance of the case, the Court may give a decision, by reasoned order, without taking further steps in the proceedings.

26      In the present case, the Court considers that it has sufficient information from the documents in the case file and has decided, consequently, to give a decision without taking further steps in the proceedings. 

27      The Commission contends that the action for annulment brought by the applicant is inadmissible on the grounds that, first, the contested measure is not an actionable measure because it is a preparatory measure and does not lay down the Commission’s position definitively and, secondly, it does not affect, to the requisite legal standard, the legal position or procedural rights of the applicant. 

28      The applicant disputes the preparatory nature of the contested measure. It claims that the contested measure is an act amenable to judicial review since it is a measure which contains a ‘decision’ of the Commission according to which the application for registration of the name Halloumi meets all the conditions for registration as a PDO laid down in Regulation No 1151/2012 and which has binding legal effects.

29      For the purpose of ruling on the plea of inadmissibility submitted by the Commission, it must first of all be determined whether, as the Commission contends, the contested measure is preparatory in relation to the final decision, in such a way that it would not be actionable. 

30      It should be recalled at the outset that, under the fourth paragraph of Article 263 TFEU, ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.

31      In order to ascertain whether contested measures are acts within the meaning of the fourth paragraph of Article 263 TFEU, it is necessary to look to their substance (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9).

32      In that respect, only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 263 TFEU (judgment of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 32 and the case-law cited).

33      In the case of acts adopted by a procedure involving several stages of an internal procedure, in principle an act is open to review only if it is a measure which definitively lays down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision, and whose legal defects could reasonably be raised in an action against it (see order of 3 September 2015, Spain v Commission, T‑676/14, EU:T:2015:602, paragraph 13 and the case-law cited). 

34      In the present case, in accordance with Article 50(2) of Regulation No 1151/2012, the purpose of the decision on ‘publication for opposition’ is, as the title indicates, to open the opposition procedure provided for in Article 51 of that regulation and, thus, to pave the way for the ‘decision on registration’ referred to in Article 52 of that regulation, which remains the final decision.

35      It follows that the decision on ‘publication for opposition’ referred to in Article 50(2) of Regulation No 1151/2012 is preparatory in relation to the ‘decision on registration’, so that only the latter decision is capable of producing legal effects such as to affect the interests of the applicant and, consequently, of being the subject of an action for annulment pursuant to Article 263 TFEU (see, to that effect, order of 10 September 2014, Zentralverband des Deutschen Bäckerhandwerks v Commission, T‑354/13, not published, EU:T:2014:775, paragraph 30).

36      Furthermore, any legal defects contained in such a preparatory measure may be relied upon in an action directed against the definitive act for which the measure represents a preparatory step (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12), provided the applicant demonstrates, in accordance with the fourth paragraph of Article 263 TFEU, that the requirements for admissibility of the action have been met.

37      In the light of the foregoing, the decision on ‘publication for opposition’ provided for in Article 50(2) of Regulation No 1151/2012 does not constitute an actionable measure. 

38      That conclusion is not invalidated by the applicant’s arguments. 

39      First, the applicant submits that the contested measure produces binding legal effects and highly negative economic effects in its regard. It stresses that, from a legal point of view, the contested measure immediately renders its products incompatible with the 1985 standard inasmuch as, as of publication of the application for registration at issue, they will merely be ‘tolerated’ on the market and will no longer be perceived by consumers as ‘traditional’ products. The applicant submits, in that regard, that, even if the Commission does not register the name Halloumi as a PDO, the contested measure would have adverse effects on it as that measure finds that the application for registration at issue meets the criteria laid down by Regulation No 1151/2012. Furthermore, the applicant claims to have suffered significant financial harm linked, in particular, to the loss of market share, clients and contracts relating to the sale of cow’s milk used in the production of halloumi cheese. It submits that, if the contested measure is not annulled, almost 30 million litres of milk produced by its members will immediately become surplus, which will inevitably lead to the collapse of those members. 

40      In that regard, it must be noted that the applicant’s arguments do not establish the existence of legal effects capable of affecting its interests. In fact, on the one hand, the contested measure, given that it is preparatory in nature, has no binding legal effect capable of affecting the conformity, in law, of the applicant’s products in relation to the 1985 standard. In particular, the measure has neither the purpose nor the effect of giving, as such, binding force to the interpretation it adopts of that standard. On the other hand, the financial harm alleged by the applicant, even if it were established, simply does not have any bearing on the analysis of the legal nature of the contested decision (see, to that effect and by analogy, order of 3 September 2015, Spain v Commission, T‑676/14, EU:T:2015:602, paragraph 18). 

41      Secondly, the analogy suggested by the applicant between, on the one hand, the decision to reject the application for registration on the basis of Article 52(1) of Regulation No 1151/2012, which is taken following the scrutiny provided for in Article 50(1) of that regulation and is definitive, and, on the other hand, the decision on ‘publication for opposition’ referred to in Article 50(2) of that regulation, which is also taken following that scrutiny, must be disregarded as unfounded.

42      In fact, as is apparent from Article 52(1) of Regulation No 1151/2012 and Article 50(2) of that regulation, the decision to reject the application for registration, with which Article 52 is concerned, closes the registration procedure, whereas, on the contrary, the decision on ‘publication for opposition’, with which Article 50 is concerned, opens a new stage of that procedure. 

43      Thirdly, the applicant maintains that the scrutiny carried out by the Commission on the basis of Article 50(1) of Regulation No 1151/2012 is definitive, inasmuch as the Commission can — in accordance with the principles of sound administration, legal certainty and legitimate expectations — refuse the registration, following the opposition procedure, only on the basis of additional information received during that procedure, with the result that the decision taken following that scrutiny, under Article 50(2) of that regulation, is itself definitive. The applicant argues, in that respect, that the decision taken on the basis of Article 50(2) of Regulation No 1151/2012 cannot be amended by the Commission itself. 

44      However, those elements have no effect on the finding in paragraph 35 above that the decision referred to in Article 50(2) of Regulation No 1151/2012 is merely preparatory in nature. Moreover, nothing at this stage of the registration procedure prevents the Commission, on the basis of Article 52(3)(b) of Regulation No 1151/2012, from going on to reject the application for registration, on completion of the opposition procedure, in the context of the opinion procedure of the Agricultural Product Quality Policy Committee as provided in Article 57(2) of that regulation. 

45      In that regard, contrary to the applicant’s claim, the need to wait for the final decision in order to challenge any legal defects contained in a preparatory measure does not constitute a ‘loss of time and resources’. To allow an action against such a preparatory measure would be incompatible with the system of the division of powers between the Commission and the EU judicature and of remedies, laid down by the Treaty, as well as with the requirements of the sound administration of justice and the proper course of the administrative procedure (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 51 and the case-law cited). 

46      Finally, the fact that the Commission allegedly has no discretion on the basis of Article 52(2) of Regulation No 1151/2012 or Article 52(3)(a) thereof to reject the application for registration and is bound to register the name requested does not deprive the act of registration of its actionable character or the applicant of its right to effective legal protection, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union. In fact, any legal defects contained in a preparatory measure such as the contested measure may be relied upon in an action directed against the definitive measure, thereby assuring sufficient legal protection (see, to that effect, order of 27 November 2013, MAF v EIOPA, T‑23/12, not published, EU:T:2013:632, paragraph 33 and the case-law cited). 

47      Fourthly, insofar as the applicant asserts, relying on the judgment of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264, paragraph 11), that the contested measure is ‘distinct’ from measures which may be taken under Article 52 of Regulation No 1151/2012, in that it pre-dates those measures taken following the opposition procedure and is independent of that procedure, it must be noted that, contrary to the requirements set out in paragraph 11 of the aforementioned judgment, the contested measure does not constitute the ‘culmination of a special procedure [that is] distinct’ but is, on the contrary, the end of a stage of the procedure, namely the stage of ‘scrutiny by the Commission and publication for opposition’ provided for in Article 50 of Regulation No 1151/2012 (see paragraph 34 above). 

48      Consequently, the action must be dismissed as inadmissible, there being no need to consider the second plea of inadmissibility raised by the Commission. 
 Costs

49      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, and the Commission has applied for costs, the applicant must be ordered to pay the costs, including those relating to the proceedings for interim measures.
On those grounds,
THE GENERAL COURT (Second Chamber),
hereby orders:
1.      The action is dismissed.

2.      Pagkyprios organismos ageladotrofon Dimosia Ltd (POA) shall bear its own costs and pay those incurred by the European Commission, including the costs relating to the proceedings for interim measures.

Luxembourg, 14 September 2016.

E Coulon
 
      M.E. Martins Ribeiro

Registrar 
 
       President

* Language of the case: English.