Industrias Químicas del Vallés, SA v European Commission.
Date: 2018-03-13
39


It must be recalled at the outset that the admissibility of an action brought by a natural or legal person against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (see, inter alia, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 59 and 91).
42


In that regard, it must be recalled that the expression ‘which … does not entail implementing measures’, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, must be interpreted in the light of the objective of that provision, which is, as is apparent from its drafting history, to ensure that individuals do not have to break the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he did not have a legal remedy before the European Union judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 29 and the case-law cited).
43


By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the European Union legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the European Union judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 30 and the case-law cited).
44


Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 31 and the case-law cited).
45


As the Court has already held, whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 32 and the case-law cited).
46


Furthermore, in the context of that assessment, it is necessary to refer exclusively to the subject matter of the action and, where an applicant seeks only the partial annulment of an act, it is solely any implementing measures which that part of the act may entail that must, where appropriate, be taken into consideration (judgment of 10 December 2015, Kyocera Mita Europe v Commission, C‑553/14 P, not published, EU:C:2015:805 paragraph 45, and the case-law cited).
47


Moreover, it is entirely irrelevant, in that regard, whether those measures are of a mechanical nature (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraphs 41 and 42, and of 10 December 2015, Kyocera Mita Europe v Commission, C‑553/14 P, not published, EU:C:2015:805, paragraph 46).
65


Moreover, as the General Court correctly held in paragraph 43 of the order under appeal, without it being contested by the appellant, the performance of the comparative assessment referred to in Article 50 of Regulation No 1107/2009 has ‘no influence on the fact that, pursuant to Article 36(2), Article 43(1), Article 44(3) and Article 45(1) of Regulation No 1107/2009, marketing authorisations for plant protection products containing active substances may, as appropriate, be granted or refused, renewed, withdrawn or amended by the Member States’.
68


However, even if the adoption of the regulation at issue had the effect of reducing the likelihood that a Member State would grant an application for marketing authorisation of a plant protection product containing metalaxyl under the mutual recognition procedure, it remains the case that the Member State before which such an application is brought is required to make a decision on it. In that regard, it must be recalled that, as follows from paragraph 47 above, it is irrelevant whether such a decision is mechanical or not.
69


Consequently, the General Court was correct to hold, in paragraph 48 of the order under appeal, that the effects of the regulation at issue in respect of the procedure for the mutual recognition of marketing authorisations for plant protection products containing a substance that is a candidate for substitution ‘concern only the margin of discretion available to Member States in ruling on an application to that effect’ and that ‘those effects will not arise, if they do arise, as regards the applicant except by the intermediary of measures by national authorities ruling on the applications for mutual recognition lodged by the applicant’.
70


Having regard to paragraphs 52 to 69 above, it is necessary to conclude that while it is certainly true that by including metalaxyl in the list of candidates for substitution the regulation at issue subjected that substance to specific rules set out in paragraph 49 above and therefore produced legal effects in that it alters the EU legal regime applicable to metalaxyl, it remains the case that the appellant has not demonstrated that that alteration had, on its legal situation, effects that did not depend upon the adoption of implementing measures, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU. Therefore, the General Court was correct in law to hold that the appellant did not have standing to bring an action on that basis.
72


Contrary to what the appellant appears to imply in its submissions, the wording of the final limb of the fourth paragraph of Article 263 TFEU does not require, for a measure to be classified as an implementing measure of a regulatory act, that that act is the legal base of that measure. The same measure may be an implementing measure both of the act the provisions of which constitute its legal base and of a different act, such as, in the present case, the regulation at issue, where all or part of the legal effects of the latter act will be produced, vis-à-vis the applicant, only through the intermediary of that measure (see, by analogy, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 40).
87


According to settled case-law, recalled by the General Court in paragraph 25 of the order under appeal, persons other than those to whom a decision is addressed may claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision (see, inter alia, judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 223, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 93).
88


In that regard, it is also clear from settled case-law, recalled by the General Court in paragraph 26 of the order under appeal, that the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it (judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 47 and the case-law cited).
89


The fact that the Council of the European Union or the Commission was obliged, pursuant to specific provisions, to take into account the consequences of the act that they proposed to adopt on the situation of certain individuals could be capable of distinguishing those persons, where it is proven that they are prejudiced by that act owing to a factual situation that differentiates them from all other persons (see, to that effect, judgment of 10 April 2003, Commission v Nederlandse Antillen, C‑142/00 P, EU:C:2003:217, paragraphs 71 to 76 and the case-law cited).
91


In particular, the appellant has not demonstrated that that participation was capable of calling into question the finding, in paragraph 28 of the order under appeal, that it is only concerned by the regulation at issue because of its objective quality as importer of metalaxyl and seller of products containing that substance, on the same basis as any other economic operator that is, actually or potentially, in an identical situation. It is also common ground that, when the regulation at issue was adopted, the inclusion of metalaxyl on the list of substances that are candidates for substitution was decided not by taking into account the appellant’s particular qualities, but, as is clear from paragraph 9 of that order, on the ground that that substance contained a significant proportion of non-active isomers, within the meaning of point 4 of Annex II to Regulation No 1107/2009 (see, by analogy, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 66).
93


Finally, given that, first, the General Court did not err in law in finding that the appellant was not individually concerned by the regulation at issue and, second, the conditions of both direct concern and individual concern by the European Union regulatory act of which annulment is sought are cumulative (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 76), the arguments set out in paragraphs 82 and 83 above on the question of whether the appellant is directly concerned by the regulation at issue are ineffective and must therefore be rejected.
101


In particular, it must be recalled that the conditions for admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection without, however, setting aside those conditions, which are expressly laid down in that Treaty (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 44 and the case-law cited).
102


However, judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, not only by the Court of Justice but also by the courts and tribunals of the Member States. The FEU Treaty has established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the European Union judicature (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 45 and the case-law cited).
103


In that context, it must be emphasised that, in proceedings before the national courts, individual parties have the right to challenge before the courts the legality of any decision or other national measure relative to the application to them of a European Union act of general application, by pleading the invalidity of such an act (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 46 and the case-law cited).
104


It follows that references on validity constitute, like actions for annulment, means for reviewing the legality of European Union acts (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 47 and the case-law cited).
105


In that regard, it must be borne in mind that where a national court or tribunal considers that one or more arguments for invalidity of a European Union act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare a European Union act invalid (judgment of 28 April 2015, T & L Sugars and SidulAçúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 48 and the case-law cited).
106


As regards persons who do not fulfil the requirements of the fourth paragraph of Article 263 TFEU for bringing an action before the Courts of the European Union, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 49 and the case-law cited).
107


That obligation of the Member States was reaffirmed by the second subparagraph of Article 19(1) TEU, which states that Member States ‘shall provide remedies sufficient to ensure effective judicial protection in the fields covered by Union law’. Such an obligation also follows from Article 47 of the Charter of Fundamental Rights of the European Union as regards measures taken by the Member States to implement Union law within the meaning of Article 51(1) of that Charter (judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 50 and the case-law cited).
109


Consequently, and having regard to the case-law recalled in paragraphs 101 to 107 above and set out by the General Court in paragraphs 51 to 57 of the order under appeal, the General Court also did not err in law in deciding, in paragraph 58 of that order, that the appellant’s argument that the rejection, as inadmissible, of its action for annulment of the regulation at issue would infringe its right to effective judicial protection. Even if, owing to the conditions for admissibility laid down in the fourth paragraph of Article 263 TFEU, the appellant cannot directly attack the regulation at issue before the European Union judicature, it can, by contrast, in the context of an action brought before a national court against an act by a Member State which is an implementing measure of the regulation, plead the invalidity of the latter and cause that court to refer questions to the Court of Justice pursuant to Article 267 TFEU (see, by analogy, judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 59).