Appeal brought on 24 July 2015 by ABZ Aardbeien Uit Zaad Holding BV, Agriom BV, Agrisemen BV, Anthura BV, Barenbrug Holding BV, De Bolster BV, Evanthia BV, Gebr. Vletter & Den Haan VOF, Hilverda Kooij BV, Holland-Select BV, Könst Breeding BV, Koninklijke Van Zanten BV, Kweek- en Researchbedrijf Agirco BV, Kwekerij de Wester-Bouwing BV, Limgroup BV, Ontwikkelingsmaatschappij Het Idee BV against the order of the General Court (Fifth Chamber) delivered on 18May 2015 in Case T-560/14: ABZ Aardbeien Uit Zaad Holding BV and others v European Parliament, Council oft he European Union

(Case C-409/15 P)

Language of the case: English

Parties

Appellants: ABZ Aardbeien Uit Zaad Holding BV, Agriom BV, Agrisemen BV, Anthura BV, Barenbrug Holding BV, De Bolster BV, Evanthia BV, Gebr. Vletter & Den Haan VOF, Hilverda Kooij BV, Holland-Select BV, Könst Breeding BV, Koninklijke Van Zanten BV, Kweek- en Researchbedrijf Agirco BV, Kwekerij de Wester-Bouwing BV, Limgroup BV, Ontwikkelingsmaatschappij Het Idee BV (represented by: P. de Jong, avocat, P. Vlaemminck, B. Van Vooren, advocaten)

Other parties to the proceedings: European Parliament, Council of the European Union

Form of order sought

The applicants claim that the Court should:

Find that the General Court, in its Order in Case T-560/14, erred in law when it found that the appellants are not individually concerned by Regulation (EU) No 511/2014¹ of the European Parliament and of the Council of 16 April 2014 on compliance measures for users from the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation in the Union;

Set aside in whole the Order of the General Court in Case T-560/14, and to declare that the appellants are directly and individually concerned by the contested Regulation, and therefore declare the application for annulment admissible;

Refer the case back to the General Court for Judgment on the merits.

Pleas in law and main arguments

First ground of appeal - The appellants submit that the General Court erred in law when it found that they are not individually concerned by the contested Regulation. They submit that they are individually concerned within the meaning of Article 263(4) TFEU because a legal conflict exists between two international treaties to which the EU is a party (the International Convention for the Protection of New Varieties of Plants, and the Nagoya Protocol to the Convention on Biological Diversity), the first of which implements Article 13 EU Charter on freedom of scientific research. Subsequently, both international treaties were implemented by the EU in two directly effective Regulations: the earlier Regulation 2100/94 recognizing that fundamental right of freedom of research to the benefit of the appellants, the later contested Regulation 511/2014 severely curtailing it. In each Regulation, no legislative intervention at Member State level is required or even permitted under EU law, and no implementing or delegated acts are to be adopted at EU level.

In that legal context, the appellants submit that they are individually (and directly) concerned within the meaning of Article 263(4) TFEU because the following conditions are fulfilled: they are members of a legal class of persons defined by a 'peculiar legal attribute' (as beneficiaries of a positive right of free access to commercial plant material, i.e. the breeders' exemption) which is not found in the contested Regulation itself but in another directly effective Regulation which requires no further implementation at national level; whereby the contested Regulation conflicts with higher rules of law, namely Article 13 of the EU Charter and an international agreement to which the EU is a party; whereby the legal class is closed and absolute, making the appellants not individually affected in socio-economic terms, but legally, since is only a single, fundamental breeders' exemption without 'similar' rights being affected.

Second ground of appeal - The appellants submit that the General Court erred in law where it did not rule on whether the EU legislature was obliged to take particular account of the situation of the appellants on the basis of express provisions of higher-ranking rules of law, where the contested Regulation forces the appellants into a contractual relationship that impinges upon the higher-ranking rule of law, specifically Article 13 of the EU Charter.

Third ground of appeal - The appellants submit that a finding of inadmissibility would lead to a gap in the system of EU judicial protection, impinging upon Article 47 of the EU Charter. On the one hand, plant breeders derive their right directly from the CPVR Regulation, which is the implementation by the EU of Article 13 EU Charter and international obligations of the EU under the UPOV Convention. On the other hand, the contested Regulation 511/2014 imposes a directly effective due diligence obligation, whereby the contested Regulation is itself the implementation of the Nagoya Protocol to which the EU is a contracting party. In both cases, absolutely no further implementation by either the EU institutions (in the form of regulatory EU acts), or by the Member States into their national laws, is necessary, or even legally permitted under EU law. As a consequence, Article 267 TFEU is not an actual possibility for judicial review, nor will there be regulatory acts within the meaning of Article 263(4) TFEU. The appellants submit that, when applying the criterion of paragraph 92 of the Inuit judgment (C-583/11 P) where the appropriate level of judicial review is linked to the responsibility for the implementation of the contested measure, the sole conclusion must be that, in this instance, the direct action under Article 263 TFEU is the only available and appropriate procedural avenue for judicial review.

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¹ OJ L 150, p. 59