Judgments nº T-375/04 of Court of First Instance of the European Communities, November 18, 2009

• Resolution Date: November 18, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-375/04

In Case T‑375/04,

Scheucher-Fleisch GmbH, established in Ungerdorf (Austria),

Tauernfleisch Vertriebs GmbH, established in Flattach (Austria),

Wech-Kärntner Truthahnverarbeitung GmbH, established in Glanegg (Austria),

Wech-Geflügel GmbH, established in Sankt Andrä (Austria),

Johann Zsifkovics, established in Vienna (Austria),

represented by J. Hofer and T. Humer, lawyers,

applicants,

v

Commission of the European Communities, represented by V. Kreuschitz and A. Stobiecka-Kuik, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C(2004) 2037 final of 30 June 2004 on State aid NN 34A/2000 concerning the quality programmes and labels AMA‑Biozeichen and AMA‑Gütesiegel in Austria,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Sixth Chamber),

composed of A.W.H. Meij, President, V. Vadapalas (Rapporteur) and L. Truchot, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 12 February 2009,

gives the following

Judgment

Facts

1 Scheucher-Fleisch GmbH, Tauernfleisch Vertriebs GmbH, Wech-Kärntner Truthahnverarbeitung GmbH, Wech-Geflügel GmbH and Johann Zsifkovics, the applicants, and Grandits GmbH, are five limited liability companies incorporated under Austrian law and a sole trader all specialising in the slaughter and butchering of animals.

2 In 1992, the Republic of Austria adopted the Bundesgesetz über die Errichtung der Marktordnungsstelle ‘Agrarmarkt Austria’ (Federal Law on the establishment of the market-regulating agency ‘Agrarmarkt Austria’) (BGBl. 376/1992; ‘the AMA‑Gesetz 1992’), Paragraph 2(1) of which created a public-law corporation, Agrarmarkt Austria (‘AMA’). Its operational activities are the responsibility of Agrarmarkt Austria Marketing GmbH (‘AMA Marketing’), a wholly-owned subsidiary of AMA. The AMA‑Gesetz 1992 has been amended on several occasions.

3 Under Paragraph 3(1)(3) of the AMA‑Gesetz 1992, AMA’s function is the promotion of agricultural marketing. To that end, it is responsible for the collection of contributions which must, in particular, under Paragraph 21c(1)(3) of the AMA‑Gesetz 1992 in the version thereof produced by the applicants and Grandits, be paid for the slaughter of cattle, calves, pigs, lambs, sheep and poultry.

4 The aid in question consists in encouraging the production, treatment, processing and sale of agricultural products in Austria by means of the AMA bio-label and AMA quality label (the AMA labels).

5 In their capacity as undertakings specialising in the slaughter and butchering of animals, the applicants and Grandits are subject to the payment of contributions to AMA under Paragraph 21c(1)(3) of the AMA‑Gesetz 1992, without their products being entitled to the AMA labels.

6 With about 20 other slaughtering undertakings, the applicants and Grandits appealed to the Austrian authorities against the imposition in their regard of contributions to AMA. The Federal Minister for Agriculture and Forests, the Environment and Water did not uphold their appeals. In proceedings brought by the applicants and Grandits, the Verwaltungsgerichtshof (Administrative Court), by judgments of 20 March and 21 May 2003, annulled the Federal Minister’s decisions for procedural irregularities.

7 Also, the applicants and Grandits complained to the Commission of the European Communities on 21 September 1999, claiming that they had been damaged by certain provisions of the AMA-Gesetz 1992.

8 By letter of 15 February 2000, the Commission sent the applicants’ and Grandits’ complaint to the Austrian authorities and requested them to submit their comments. Following the Austrian authorities’ response on 20 March 2000, the Commission informed them, on 19 June 2000, that the measures in question had been provisionally registered as non‑notified aid under reference NN 34/2000.

9 Following a request from the Austrian authorities dated 8 March 2003, the Commission decided to examine the measures in question separately depending on whether they were earlier or later than 26 September 2002, on the ground that significant changes had been made on that date to the detailed rules for applying the AMA-Gesetz 1992. The registration number NN 34A/2000 was given to the examination concerning the provisions applicable after 26 September 2002.

10 By Decision of 30 June 2004 on State aid NN 34A/2000 concerning the quality programmes and labels AMA‑Biozeichen and AMA‑Gütesiegel in Austria, the Commission decided not to raise any objections to the measures ‘notified’ (‘the contested decision’). In that regard, it decided that those measures were compatible with the common market within the meaning of Article 87(3)(c) EC, in that they complied with the conditions imposed by Points 13 and 14 of the Community Guidelines for State aid in the agricultural sector (OJ 2000 C 28, p. 2) and by the Community Guidelines for State aid for advertising of products listed in Annex I to the EC Treaty and of certain non-Annex I products (OJ 2001 C 252, p. 5; ‘the Guidelines for State aid for advertising’).

11 According to recital 67 in the preamble to the contested decision, all the measures implemented by AMA and AMA Marketing before 26 September 2002 were expressly excluded from the examination.

12 On 16 July 2004, AMA informed the applicants and Grandits of the contested decision.

Procedure and forms of order sought by the parties

13 The applicants and Grandits brought the present action by application lodged at the Registry of the Court of First Instance on 17 September 2004.

14 On 10 November 2004, the case was assigned to the Fourth Chamber of the Court of First Instance.

15 By document lodged at the Court Registry on 9 December 2004, the Commission raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance. The applicants and Grandits lodged their observations on that objection on 25 January 2005. By order of the Court (Fourth Chamber) of 15 September 2006, the objection was joined to the substance and the costs were reserved.

16 After a change in the composition of the Chambers of the Court, the Judge-Rapporteur was attached to the Sixth Chamber, to which the present case was consequently assigned.

17 As a member of the Chamber was unable to sit, the President of the Court of First Instance designated another Judge to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.

18 Upon hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure, requested the parties, Grandits and the Federal Government of the Republic of Austria, to reply to certain written questions. Those requests were complied with within the period allowed.

19 By letter lodged at the Court Registry on 23 January 2009, Grandits informed the Court, in accordance with Article 99 of the Rules of Procedure, that it was discontinuing its action. By order of 4 February 2009 of the President of the Sixth Chamber of the Court, Grandits’ name was removed from the Court’s register and each of the parties was ordered to pay its own costs.

20 The parties presented oral argument and replied to the questions put by the Court at the hearing on 12 February 2009.

21 The applicants claim that the Court of First Instance should:

– annul the contested decision;

– order the Commission to pay the costs.

22 The Commission contends that the Court of First Instance should:

– dismiss the action as inadmissible, or in the alternative, as unfounded;

– order the applicants to pay the costs.

Law

Admissibility

Arguments of the parties

23 First, the Commission contends that the applicants are not individually concerned by the contested decision. For them it is a ‘general rule’, which concerns them solely because of their objective status as being subject to payment of contributions, in the same way as any other undertaking actually or potentially in an identical situation.

24 The Commission denies, next, the averment that four retail chains are the sole beneficiaries of the measures in question. It submits that, in fact, the AMA labels are intended to encourage the sale of high quality agricultural products and therefore benefit all agricultural undertakings and foodstuff producers.

25 In addition, the applicants, specialists in the slaughter and butchering of animals, are not in competition with the retailers whom they portray, in their application, as the direct beneficiaries of the aid in question. Moreover, the applicants do not explain why they are distinguished individually by the fact that the four retail chains awarded the quality label are known by name. Nor do the applicants state the reasons why they are not entitled to the AMA labels or why they cannot supply those four retail chains.

26 In its rejoinder, the Commission adds that the applicants have not shown that certain slaughterhouses and cutting...