Nederlandse Antillen v Council of the European Union.
Date: 2001-11-22
50 But neither the second paragraph of Article 173 (see, to that effect, the orders in Case C-95/97 Région wallonne v Commission [1997] ECR I-1787, paragraph 6, and Case C-180/97 Regione Toscana v Commission [1997] ECR I-5245, paragraph 6), nor the third paragraph of that article lend themselves to an application by analogy. It follows that the Netherlands Antilles' right to bring proceedings can only be examined under the fourth paragraph of Article 173 of the Treaty.
51 To the extent that they have legal personality under Netherlands law, the Netherlands Antilles may, in principle, bring an action for annulment under that provision, which provides that any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
52 Since Regulation No 1036/97 is not a decision addressed to the Netherlands Antilles within the meaning of the fourth paragraph of Article 173 of the Treaty, it is necessary to consider whether it constitutes an act of general application, or if it should be considered as a decision in the form of a regulation. In order to determine whether an act is of general application or not, it is necessary to consider its nature and the legal effects which it is intended to, or does in fact produce (see the judgment in Case 307/81 Alusuisse Italia v Council and Commission [1982] ECR 3463, paragraph 8).
55 It is, however, important to consider whether, notwithstanding the general application of that Regulation, the Netherlands Antilles may nevertheless be regarded as directly and individually concerned by it. The fact that an act is of general application does not prevent it from being of direct and individual concern to certain natural or legal persons (see the judgment in Case C-309/89 Codorniu v Council [1994] ECR I-1853, paragraph 19).
60 It is apparent from settled-case law that, for natural and legal persons to be regarded as individually concerned by a measure, it must affect their legal position by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (see, in particular, the judgments in Case 25/62 Plaumann v Commission [1963] ECR 95, 107, and Case C-321/95 P Greenpeace Council and Others v Commission [1998] ECR I-1651, paragraph 7).
67 On that last point, it should be noted that the fact that the Council or the Commission are required, by specific provisions, to take account of the consequences for the situation of certain individuals of the act they are intending to adopt may be such as to distinguish them individually (see, to that effect, Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 28 and 31, and Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paragraph 25).
68 In this regard, where the Commission intends to adopt safeguard measures on the basis of Article 109(1) of the OCT Decision it must, in so far as the circumstances of the case permit, inquire into the negative effects which its decision might have on the economy of the OCT concerned as well as on the undertakings concerned (see Antillean Rice Mills and Others v Commission, paragraph 25).
71 At paragraph 28 of that judgment the Court, after finding that the Commission was required to inquire into the negative effects which its Decision might have on the economy of the Member State concerned and on the undertakings concerned, did not conclude from that finding alone that all of the undertakings concerned were individually concerned within the meaning of the fourth paragraph of Article 173 of the Treaty. On the contrary, it considered that only those undertakings which had already entered into contracts which were due to be performed during the period of application of the contested Decision but which had been prevented from being performed, in part or at all, were individually concerned within the meaning of the fourth paragraph of Article 173 of the Treaty (see Piraiki-Patraiki and Others v Commission, paragraphs 28, 31 and 32).