CELEX: 62021CO0309
Language: en
Date: 2021-09-28 00:00:00
Title: Order of the Court (Ninth Chamber) of 28 September 2021.#Graanhandel P. van Schelven BV v European Commission.#Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Agricultural policy – Organic products imported into the European Union – Withdrawal of the recognition of the control body – Action for annulment – Admissibility – Directly concerned person – Appeal manifestly unfounded.#Case C-309/21 P.

ORDER OF THE COURT (Ninth Chamber)
28 September 2021 (*)
(Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Agricultural policy – Organic products imported into the European Union – Withdrawal of the recognition of the control body – Action for annulment – Admissibility – Directly concerned person – Appeal manifestly unfounded)
In Case C‑309/21 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 May 2021,

Graanhandel P. van Schelven BV, established in Nieuwe-Tonge (Netherlands), represented by C. Almeida, advocaat,
appellant,
the other party to the proceedings being:

European Commission,

defendant at first instance,
THE COURT (Ninth Chamber),
composed of N. Piçarra, President of the Chamber, M. Vilaras (Rapporteur), President of the Fourth Chamber, and S. Rodin, Judge,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following

Order

1        By its appeal, Graanhandel P. van Schelven BV seeks to have set aside the order of the General Court of the European Union of 24 March 2021, Graanhandel P. van Schelven v Commission (T‑306/19, not published, EU:T:2021:166; ‘the order under appeal’), by which the General Court dismissed its action seeking annulment of Article 1(3) of Commission Implementing Regulation (EU) 2019/446 of 19 March 2019 amending and correcting Regulation (EC) No 1235/2008 laying down detailed rules for implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries (OJ 2019 L 77, p. 67; ‘the regulation at issue’), in so far as that provision, read in conjunction with point 3 of Annex II to the regulation at issue, withdraws the recognition of competence granted to Control Union Certifications (‘CUC’) as a body that may carry out controls and issue certificates of inspection authorising the placing on the European Union market, as organic products, of products imported from Kazakhstan, Moldova, Russia, Turkey and the United Arab Emirates (‘the third countries concerned’).
 Background to the dispute

2        Graanhandel P. van Schelven is an undertaking established in the Netherlands, the activities of which include the importation into the European Union of grains and seeds from third countries. 

3        CUC is an undertaking also established in the Netherlands which has been recognised under four European Commission implementing regulations adopted between April 2014 and December 2015 as a body competent to carry out controls and issue certificates of inspection authorising the placing on the EU market, as organic products, of products imported from third countries. In that respect, CUC has been included in Annex IV to Commission Regulation (EC) No 1235/2008 of 8 December 2008 laying down detailed rules for implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries (OJ 2008 L 334, p. 25). 

4        Since 2014, the appellant has been supplied by suppliers located in the third countries concerned, the production of which has been certified by CUC as being from organic farming.

5        By the regulation at issue, the Commission withdrew the recognition of CUC’s competence as a body that may carry out controls and issue certificates of inspection, in respect of those third countries, for all product categories for which CUC had been recognised as competent, on account of several irregularities committed by that body.
 The action before the General Court and the order under appeal

6        By application lodged at the Registry of the General Court on 17 May 2019, the appellant brought an action seeking annulment of Article 1(3) of the regulation at issue, in so far as that provision, taken in conjunction with point 3 of Annex II to that regulation, withdrew the recognition of CUC’s competence as a body that may carry out controls and issue certificates of inspection authorising the placing on the EU market, as organic products, of products imported from the third countries concerned. 

7        By the order under appeal, the General Court, on the basis of Article 126 of its Rules of Procedure, dismissed the action as manifestly inadmissible, on the ground that, first, the appellant had not established its interest in bringing proceedings and, second, it did not have standing to bring proceedings, since it was not directly concerned by the regulation at issue.

8        In the first place, as regards the appellant’s interest in bringing proceedings, it is apparent from paragraphs 32 to 39 of the order under appeal that the General Court considered, first, that the appellant had failed to substantiate its claim that the considerable reductions in its turnover and profits between March and May 2019 were a consequence of the withdrawal of the recognition of CUC’s competence; nor had the appellant set out the reasons why the annulment of the regulation at issue would be likely to remedy its financial losses. Second, the General Court held that the appellant had not set out the reasons why the services provided by other control bodies would not be appropriate or why such bodies would not be able to replace CUC for the third countries concerned. Third, in so far as the appellant had maintained that the purpose of its action was to ensure the proper application of the rules in the field of organic production, the General Court recalled that a natural or legal person is not empowered to act in the interests of the law or the institutions and that compliance with the law does not confer on such a party an interest in bringing proceedings. 

9        In the second place, as regards the appellant’s standing to bring proceedings, the General Court held, in paragraph 56 of the order under appeal, that the appellant had not demonstrated that the regulation at issue directly affected its legal situation. 

10      The General Court noted in that regard, first, in paragraph 43 of that order, that the appellant’s right to continue its activities, as an importing company, was not directly affected by the regulation at issue.

11      Second, in paragraph 44 of the order under appeal, the General Court found that the regulation at issue had directly affected CUC, in that it had lost the status of control body previously granted to it by the Commission. It stated that, by contrast, the appellant did not enjoy a right to be issued with inspection certificates specifically by CUC. The General Court added, in paragraphs 45 and 46 of the order under appeal, that, while it was conceivable that withdrawal of the recognition of CUC’s competence could have disrupted the activities of importers such as the appellant, such consequences, assuming they were established, were of an economic nature and did not constitute legal effects of the regulation at issue, even more so since a new control body may, under certain conditions, complete the tasks begun by the previously competent body. 

12      Third and lastly, it is apparent from paragraph 48 of the order under appeal that, for the reasons set out in paragraphs 49 to 55 thereof, the General Court held that the appellant had not provided evidence that it had been prevented from importing products for which it had allegedly been issued a certificate of inspection prior to the entry into force of the regulation at issue. 
 Form of order sought by the appellant before the Court of Justice

13      By its appeal, the appellant claims that the Court should:
–        set aside the order under appeal; 
–        annul Article 1(3) of the regulation at issue, read in conjunction with point 3 of Annex II thereto, or, in the alternative, refer the case back to the General Court for an examination on the merits; and 
–        order the Commission to pay the costs of the proceedings before the General Court and the Court of Justice.
 The appeal

14      Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss it without, where appropriate, serving it on the other parties to the proceedings before the General Court. 

15      It is appropriate to apply that provision in the present case.

16      In support of its appeal, the appellant raises, in essence, two grounds of appeal, alleging that the General Court erred in law when it held, first, that it did not have an interest in bringing proceedings and, second, that it was not directly concerned by the regulation at issue. 

17      It is appropriate to examine the second ground of appeal first. 
 The second ground of appeal

 Arguments of the appellant

18      The appellant submits that, in order for it to be determined whether the regulation at issue is of direct concern to it, it is necessary to examine not whether it is possible for it to avoid the negative consequences of an arbitrary interference by the public authorities, but whether the legal status of its products and of its economic interests is changed by that regulation. It considers that the reason given by the General Court in paragraph 45 of the order under appeal, to the effect that any disruption of the activities of importers such as the appellant as a result of the withdrawal of the recognition of CUC’s competence is only of an economic nature is incorrect in the light of the facts of the present case, since the fact that it is impossible for the appellant to obtain certificates from CUC is a legal consequence of that regulation. 

19      In its view, it is, moreover, difficult to understand the reasons set out in paragraph 46 of that order, according to which ‘a new control body may, under certain conditions, complete tasks begun by a control body the recognition of which has been withdrawn’. The appellant submits that the possibility that a new control body completes the tasks performed by CUC relates to the merits of the case and does not make it possible to determine whether the regulation at issue directly concerns the appellant. 

20      The appellant also challenges paragraph 53 of that order, according to which, assuming that the appellant had experienced difficulties in importing certain products into the European Union following the withdrawal of the recognition of CUC’s competence, it was not established that those difficulties, first, were the direct consequence of the provisions of the regulation at issue, and second, that they affected its legal situation. The appellant considers that it has demonstrated that the withdrawal of the recognition of CUC’s competence affected the legal status of the 2018 harvest, since it could not be imported into the European Union bearing certificates of inspection issued by CUC. 

21      As regards the reason set out in paragraph 55 of the order under appeal, according to which Annex IV to Regulation No 1235/2008, in the versions applicable before and after the entry into force of the withdrawal of the recognition of CUC’s competence, lists, for each of the third countries concerned, at least 10 bodies other than CUC recognised as competent bodies to carry out controls and issue certificates for various categories of products, the appellant submits that those other bodies did not dare to take over the tasks previously carried out by CUC and the Commission did nothing to encourage them to do so. It states that, in any event, that matter also concerns the merits of the case. 

22      Lastly, as regards the reason set out in paragraph 60 of the order under appeal, according to which the decision to withdraw the recognition of  competence granted to a control body is taken not on the basis of that body’s interests or the economic interests of third parties which used that body’s services, but in order to ensure that the objectives of the EU rules  on production and labelling are achieved, the appellant submits that it conflicts with the guarantee of effective judicial protection in a State governed by the rule of law. 
 Findings of the Court

23      It should be recalled that, according to the Court’s settled case-law, the condition that the measure forming the subject matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires the fulfilment of two cumulative criteria, namely the contested measure must, first, directly affect the legal situation of the individual and, second, leave no discretion to the addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 103 and the case-law cited). 

24      As regards the first criterion referred to above, it should be noted, in the first place, that the General Court found, in paragraphs 43 and 44 of the order under appeal, that the appellant did not have a right to be issued with inspection certificates specifically by CUC, with a view to importing organic products into the European Union, and that the provisions of the regulation at issue did not affect its right to continue its import activities. 

25      In the second place, the General Court held, in paragraphs 45 to 47 of that order, that, while it was conceivable that the withdrawal, provided for by the regulation at issue, of the recognition of CUC’s competence could have disrupted the activities of importers such as the appellant, in particular because of a certain reluctance on the part of another control body to ‘take over’ from CUC, such consequences were of an economic nature and did not, therefore, constitute legal effects of that regulation. Although the practical consequences alleged by the appellant may have economic repercussions, the latter do not alter the appellant’s legal situation.

26      In the third place, as regards the appellant’s claim that it was prevented from importing products for which it had allegedly been issued a certificate of inspection before 9 April 2019, the General Court did not err in law in finding, in paragraph 53 of that order, that, assuming that the appellant had experienced difficulties in importing certain products into the European Union following the withdrawal of the recognition of CUC’s competence, it was not established that those difficulties were the direct consequence of the provisions of the regulation at issue or that they affected the appellant’s legal situation. The question whether that regulation affected the legal situation of products which may be certified by CUC is irrelevant for the purpose of determining whether the appellant is directly concerned by Article 1(3) of that regulation and point 3 of Annex II thereto.

27      Accordingly, the General Court was correct to infer from all those reasons that the appellant had not demonstrated that the regulation at issue directly affected its legal situation. 

28      Lastly, the appellant’s argument directed against paragraph 60 of the order under appeal, relying, in essence, on the right to effective judicial protection guaranteed in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, must be rejected. It is sufficient in that regard to note that that right is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation relating to the abovementioned Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter  (judgment of 25 October 2017, Slovakia v Commission, C‑593/15 P and C‑594/15 P, EU:C:2017:800, paragraph 66 and the case-law cited). 

29      It follows from all the foregoing considerations that the second ground of appeal must be rejected as manifestly unfounded.

30      Since the General Court was correct to declare the appellant’s action inadmissible for lack of standing, the appeal must be dismissed in its entirety as manifestly unfounded, without it being necessary to examine the first ground of appeal, alleging that the General Court erred in law when it held that the appellant had not established an interest in bringing proceedings against the regulation at issue.
 Costs

31      Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order was adopted before the appeal was served on the other party to the proceedings and, therefore, before it could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.
On those grounds, the Court (Ninth Chamber) hereby orders:
1.      The appeal is dismissed as manifestly unfounded.

2.      Graanhandel P. van Schelven shall bear its own costs.

Luxembourg, 28 September 2021.

A. Calot Escobar
 
N. Piçarra

Registrar 
 
      President of the Ninth Chamber

*      Language of the case: English.