Unión de Pequeños Agricultores v Council of the European Union.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Gulmann
• ECLI: ECLI:EU:C:2002:197
• Date: 21 March 2002
• Docket Number: C-50/00
• Procedure Type: Recurso de anulación

Important legal notice

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62000C0050

Opinion of Mr Advocate General Jacobs delivered on 21 March 2002. - Unión de Pequeños Agricultores v Council of the European Union. - Appeal - Regulation (EC) No 1638/98 - Common organisation of the market in oils and fats - Action for annulment - Person individually concerned - Effective judicial protection - Admissibility. - Case C-50/00 P.

European Court reports 2002 Page I-06677

Opinion of the Advocate-General

Introduction

1. In this case an association of farmers appeals against an order of the Court of First Instance dismissing as manifestly inadmissible its application for the annulment of Regulation No 1638/98, which amended substantially the common organisation of the olive oil market, on the ground that the members of the association were not individually concerned by the provisions of the Regulation within the meaning of the fourth paragraph of Article 230 EC.

2. The fourth paragraph of Article 230 EC provides that [a]ny 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. While the focus of that provision is on review of decisions, the Court of Justice has acknowledged, rightly in my view, that regulations can also be challenged in proceedings instigated by individual applicants where they are of individual concern to the applicant, and that the test for establishing individual concern is in substance the same in the case of decisions and regulations. The notion of individual concern has, however, been interpreted strictly in the case-law. Applicants will be regarded as individually concerned by a measure only if it affects 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. It may be noted that this aspect of the case-law has been much criticised both by members of the Court of Justice in their individual capacities and by commentators and is often regarded as creating a serious gap in the system of judicial remedies established by the EC Treaty.

3. The present appeal, which the Court has decided to hear in plenary session with a view to reconsidering its case-law on individual concern, raises an important question of principle: namely whether a natural or legal person (individual) who is directly but not individually concerned by the provisions of a regulation within the meaning of the fourth paragraph of Article 230 EC as interpreted in the case-law should none the less be granted locus standi where that individual would otherwise be denied effective judicial protection owing to the difficulty of challenging the regulation indirectly through proceedings in national courts or whether locus standi under the fourth paragraph of Article 230 EC falls to be determined independently of the availability of such an indirect challenge.

4. I will argue that locus standi must indeed be determined independently and that moreover the only solution which provides adequate judicial protection is to change the case-law on individual concern.

The contested regulation

5. The legal background is set out in the order under appeal, and a short summary will therefore suffice for present purposes.

6. The common organisation of the market in oils and fats, which was established by Regulation No 136/66, laid down, for the market in olive oil, schemes in respect of intervention prices, production aid, consumption aid and storage, as well as imports and exports.

7. Regulation No 1638/98 (the contested regulation) reforms, in particular, the common organisation of the olive oil market. For that purpose, the previous intervention scheme was abolished and replaced by a system of aid for private storage contracts; consumption aid and the specific allocation of aid to small producers were both discontinued; the stabiliser mechanism for production aid based on a maximum guaranteed quantity for the Community as a whole was amended by being apportioned among the producer Member States in the form of national guaranteed quantities; finally, olive groves planted after 1 May 1998 were excluded, subject to certain exceptions, from any future aid scheme. The contested regulation also provided that the Commission was to present, in the course of the year 2000, a proposal for a regulation to implement a complete reform of the common organisation of the market in oils and fats.

The facts and the order under appeal

8. Unión de Pequeños Agricultores (UPA), the appellant in the present case, is a trade association which represents and acts in the interests of small Spanish agricultural businesses. It has legal personality under Spanish law.

9. On 20 October 1998, UPA lodged an application with the Court of First Instance, pursuant to the fourth paragraph of Article 173 of the EC Treaty (now the fourth paragraph of Article 230 EC), seeking the annulment of the contested regulation, with the exception of the aid scheme for table olives provided for in Article 5(4) of Regulation No 136/66 as amended by the contested regulation. It submitted, in substance, that the contested regulation did not fulfil the requirement to give reasons laid down in Article 190 of the Treaty (now Article 253 EC), that it did not contribute to the goals of the common agricultural policy set out in Article 39 of the Treaty (now Article 33 EC), and that it violated the principle of equal treatment of producers and consumers set out in the third paragraph of Article 40 of the Treaty (now the third paragraph of Article 34 EC) as well as the principle of proportionality, the right to exercise a profession and the right to property.

10. By reasoned order of 23 November 1999 (the contested order), the Court of First Instance dismissed that application as manifestly inadmissible.

11. The Court of First Instance recalled, first, that [a]ccording to settled case-law ... [the fourth paragraph of Article 230 EC] allows individuals to challenge any decision which, although in the form of a regulation, is of direct and individual concern to them. The objective of that provision is in particular to prevent the Community institutions from being able, merely by choosing the form of a regulation, to preclude an individual from bringing an action against a decision which concerns him directly and individually.

12. The Court of First Instance then considered the nature of the contested regulation. It concluded, after an examination of its provisions and the detailed arguments put forward by UPA, that it was legislative in nature in so far as it applied in a general and abstract manner to objectively determined factual and legal situations. However, acknowledging that in certain circumstances, a legislative measure which applies to the operators concerned in general may also be of individual concern to some of them where they are able to show that they are affected by the measure in question by reason of certain attributes which are peculiar to them or by reason of factual circumstances in which they are differentiated from all other persons, the Court of First Instance proceeded to examine whether UPA should be granted locus standi to challenge the contested regulation.

13. In that regard, it noted that actions brought by associations may be admissible in at least three kinds of circumstances:

- when a legal provision expressly grants a series of procedural powers to trade associations;

- when the association represents the interests of undertakings which would, themselves, be entitled to bring proceedings;

- when the association is distinguished individually because its own interests as an association are affected, in particular because its negotiating position has been affected by the measure whose annulment is being sought.

14. However, UPA could not rely on any of these three situations in order to establish the admissibility of its action. UPA had no rights of a procedural nature under the common organisation of the market in oils and fats; it had not established that its members were affected by the contested regulation by reason of certain attributes which were peculiar to them or by reason of factual circumstances in which they were differentiated from all other persons; and the contested regulation did not affect any specific interests or special protections enjoyed by UPA as an association distinct from the interests of its members.

15. Finally, the Court of First Instance noted that UPA had put forward two further arguments to prove that it is, none the less, individually concerned by the provisions of the contested regulation, namely that the review of the legality of the contested regulation which it seeks in its action is a matter of Community public interest, and that there is a risk that it will not receive effective judicial protection.

16. The Court was not convinced by those arguments. It held, in response to the first argument, that [t]he plea alleging possible misuse of powers relates in reality to the substance of the case. To consider that plea at the same time as the admissibility of the action would render the admissibility of an action for annulment brought against a measure of general application dependent solely on the nature of the grounds invoked in relation to the substance of the case in order to challenge the legality of the measure; this would amount to derogating from the conditions for admissibility laid down in [the fourth paragraph of Article 230 EC], as interpreted by the case-law.

17. In reply to the second argument, the Court of First Instance held as follows:

61 The argument that no effective legal protection is afforded consists of the complaint that there are no legal...