ORDER OF THE GENERAL COURT (Third Chamber)
27 April 2016(*)
(Action for annulment — Plant-protection products — Implementing Regulation (EU) 2015/408 — Establishment of a list of candidates for substitution — Inclusion of copper compounds on that list — Lack of individual concern — Regulatory measure comprising implementing measures — Inadmissible)
In Case T‑310/15,
European Union Copper Task Force, established in Essex (United Kingdom), represented by C. Fernández Vicién and I. Moreno-Tapia Rivas, lawyers,
applicant,
v
European Commission, represented by G. von Rintelen and P. Ondrůšek, acting as Agents,
defendant,
ACTION for partial annulment of Commission Implementing Regulation (EU) 2015/408 of 11 March 2015 on implementing Article 80(7) of Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market and establishing a list of candidates for substitution (OJ 2015 L 67, p. 18),
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas (Rapporteur), President, E. Bieliūnas and I.S. Forrester, Judges,
Registrar: E. Coulon,
makes the following
Order
1 The applicant, European Union Copper Task Force, is an association of producers of copper compounds, some of which are holders of marketing authorisations for plant protection products containing copper compounds, including copper hydroxide, copper oxychloride, copper oxide, Bordeaux mixture and tribasic copper sulphate. It was established for the purposes of securing inclusion of copper compounds in Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).
2 By Commission Directive 2009/37/EC of 23 April 2009 amending Council Directive 91/414/EEC to include chlormequat, copper compounds, propaquizafop, quizalofop-P, teflubenzuron and zeta-cypermethrin as active substances (OJ 2009 L 104, p. 23), the Commission of the European Communities amended the list in Annex I to Directive 91/414 to include copper compounds. In that regard it provided that Member States having received applications for marketing authorisation for plant protection products containing copper compounds had to request the applicant to submit further information on the risk from inhalation and on the risk assessment for non-target organisms, soil and water.
3 Directive 91/414 was repealed by Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117 and 91/414 (OJ 2009 L 309, p. 1).
4 On 25 May 2011, the Commission adopted Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation No 1107/2009 of the European Parliament and of the Council as regards the list of approved active substances (OJ 2011 L 153, p. 1). According to recital 1 in the preamble to and Article 1 of Implementing Regulation No 540/2011, active substances listed in Annex I to Directive 91/414 are henceforth deemed to have been approved under Regulation No 1107/2009 and are listed in the Annex to that regulation.
5 After the applicant submitted further information on the risk from inhalation of copper compounds and on the risk assessment for non-target organisms, soil and water, the Commission adopted Commission Implementing Regulation (EU) 2015/232 of 13 February 2015 amending and correcting Implementing Regulation No 540/2011 as regards the conditions of approval of the active substance copper compounds (OJ 2015 L 39, p. 7). By that regulation, the Commission confirmed that copper compounds had to be approved under Regulation No 1107/2009 and also amended the Annex to Implementing Regulation No 540/2011 by providing, inter alia, that the applicant was to submit to the Commission, the European Food Safety Authority (EFSA) and the Member States a monitoring programme for vulnerable areas where the contamination of the soil and water (including sediments) by copper is a concern or may become one.
6 On 11 March 2015, the Commission adopted Commission Implementing Regulation (EU) 2015/408 of 11 March 2015 on implementing Article 80(7) of Regulation No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market and establishing a list of candidates for substitution (OJ 2015 L 67, p. 18) (‘the contested regulation’). By that regulation, the Commission listed copper compounds on the list of candidates for substitution, annexed to that regulation, on the ground that that substance fulfilled the criteria to be considered a persistent and toxic substance within the meaning of point 4 of Annex II to Regulation No 1107/2009.
Procedure and forms of order sought
7 By application lodged at the Registry of the General Court on 5 June 2015, the applicant brought the present action.
8 By separate document lodged at the Court Registry on 15 October 2015, the Commission raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
9 By documents lodged at the Court Registry on 12 and 22 October 2015, the Parliament and the Council applied for leave to intervene in the present case in support of the forms of order sought by the Commission, pursuant to Article 143 of the Rules of Procedure.
10 The applicant lodged its observations on the objections of inadmissibility on 9 December 2015.
11 In its application, the applicant claims that the Court should:
– annul the contested regulation in so far as it applies to copper compounds;
– order the Commission to pay costs.
12 In its objection of inadmissibility, the Commission contends that the Court should:
– declare the action inadmissible;
– order the applicant to pay the costs.
13 In its observations on the objection of inadmissibility, the applicant contends that the Court should:
– declare the action admissible;
– order the Commission to pay the costs.
Law
14 Under Article 130(1) of its Rules of Procedure, the Court may rule on inadmissibility or lack of competence without going to the substance of the case, if the defendant so requests. In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.
15 In support of its objection of inadmissibility, the Commission puts forward two bars to admissibility: (i) the applicant’s lack of interest in bringing proceedings, and (ii) the applicant’s lack of locus standi.
16 The Court considers that it is appropriate to rule first on the second plea of admissibility relied on by the Commission.
17 The Commission states that not only is the applicant not directly or individually affected by the contested regulation, but also the regulation produces effects on the applicant only through implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
18 The applicant disputes the Commission’s argument, maintaining that, as the contested measure is a regulatory act, it is not required to demonstrate that it is individually affected, adding that it is directly affected by the contested regulation, which contains no implementing measures.
19 It should be borne in mind, as a preliminary point, that the applicant is an association representing producers of copper compounds, some of whom hold marketing authorisations for plant protection products containing copper compounds. Therefore, according to the case-law, it is, as a rule, entitled to bring an action for annulment only if the undertakings which it represents or some of those undertakings themselves have locus standi individually or if it can prove an interest of its own (see, to that effect, judgment of 22 June 2006 in Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, ECR, EU:C:2006:416, paragraph 56 and the case-law cited, and order of 4 June 2012 in Eurofer v Commission, T‑381/11, ECR, EU:T:2012:273, paragraph 18).
20 Regarding the admissibility of the action on grounds of having an interest of its own, the applicant submits that it was created in order to ensure the listing of copper compounds in Annex I to Directive 91/414 and to promote the interests of its members, holders of national authorisations for plant protection products containing copper compounds, that it represents all manufacturers of copper compounds used as plant protection products operating in the European Union and, lastly, that it has previously filed a number of approval renewal applications for copper compounds.
21 On that point, it should be observed that while the presence of special circumstances, such as the role played by an association in a procedure which has led to the adoption of an act within the meaning of Article 263 TFEU, may establish the admissibility of an action brought by an association whose members are not directly and individually concerned by that act, in particular where its position as negotiator has been affected by that act, that is not the case where the applicant association has not assumed the role of negotiator and where the legislation in question does not accord it any procedural rights (see order of 22 July 2005 in Polyelectrolyte Producers Group v Council and Commission, T‑376/04, ECR, EU:T:2005:297, paragraph 40 and the case-law cited).
22 It is clear, first, that no provision of the legislation at issue in the present case confers procedural rights on the applicant and, second, the applicant did not play any role in the drafting of the contested regulation. Consequently, the applicant cannot rely on an interest of its own. It follows that, as it does not have an interest of its own, the applicant has locus standi to bring the present action only if its members — or some of them — have locus standi.
23 It should be recalled at the outset that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
24 In the present case, it is common ground that the applicant’s members, like the applicant itself, are not the addressees of the contested regulation. In those circumstances, under the fourth paragraph of Article 263 TFEU, the applicant can bring an action for annulment of that regulation in only two scenarios: if it is of direct and individual concern to its members, or if that regulation is a regulatory act which is of direct concern to them and does not entail implementing measures.
25 Regarding the first scenario, it must first be determined whether the contested regulation is of individual concern to the applicant’s members.
26 It must be observed in that regard that, as evidenced by recital 2 in the preamble to and Article 1 thereof, the purpose of the contested regulation, in accordance with Article 80(7) of Regulation No 1107/2009, is to establish a list of active substances which meet the criteria set out in point 4 of Annex II to that regulation, headed ‘Candidates for substitution’. That list is annexed to the contested regulation and contains a list of the substances concerned in alphabetical order. The grounds for inclusion in that list are set out in the recitals in the preamble to the contested regulation. Thus, copper compounds are on the list of candidates for substitution on the ground that they meet the criteria for being considered a persistent and toxic substance within the meaning of point 4 of Annex II to Regulation No 1107/2009 (see paragraph 6 above).
27 Accordingly, the conclusion is, first, that the contested regulation applies to situations determined objectively, which in the present case means by virtue of their active substance characteristics and, second, that it produces legal effects with respect to categories of persons envisaged in general and in the abstract, that is to say, any operator whose activity is linked to one of the substances on the list annexed to that regulation. Consequently, the contested regulation is an act of general application.
28 However, it is not excluded that, in certain circumstances, the provisions of an act of general application can be of individual concern to certain natural or legal persons and the measure can be therefore in the nature of a decision in their regard. In accordance with settled case-law, natural or legal persons other than the person to whom a measure is addressed can claim to be individually concerned, for the purposes of the fourth paragraph of Article 263 TFEU, only if they are affected by the measure in question 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 (judgment of 15 July 1963 in Plaumann v Commission, 25/62, ECR, EU:C:1963:17, p. 223; see also judgment of 28 April 2015 in T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, ECR, EU:C:2015:284, paragraph 63 and the case-law cited; and order in Eurofer v Commission, paragraph 18 above, EU:T:2012:273, paragraph 30 and the case-law cited).
29 In that regard, 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 (see, to that effect, judgments of 22 November 2001 in Antillean Rice Mills v Council, C‑451/98, ECR, EU:C:2001:622, paragraph 52, and of 19 December 2013 in Telefónica v Commission, C‑274/12 P, ECR, EU:C:2013:852, paragraph 47).
30 In the present case it is apparent from recital 4 in the preamble to the contested regulation that the list annexed to that regulation was established on the basis of information contained in the review report, EFSA’s conclusions, the draft assessment report and accompanying addenda and peer review reports, or the classification established under Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008 L 353 p. 1). Moreover, the adoption of the contested regulation was provided for by Article 80(7) of Regulation No 1107/2009, under which the Commission was to establish, by 14 December 2013 at the latest, the list of candidates for substitution. As is apparent from the very wording of its title, the contested regulation relates to the application of that provision.
31 It follows that the applicant’s members are concerned by the contested regulation only in their objective capacity as producers of copper compounds, some of whom hold marketing authorisations for plant protection products containing copper compounds, and thus in the same capacity as any other economic operator currently and potentially in an identical situation. Accordingly, the applicant’s members are not in a situation which individualises them.
32 As the condition of being individually affected is not fulfilled, the admissibility of the action cannot be established as envisaged in the first scenario referred to in paragraph 23 above.
33 Turning to the second scenario referred to in paragraph 23 above, it must be remembered, first of all, that the concept of regulatory act within the meaning of that provision must be construed as referring to any act of general application, save for legislative acts.
34 In the present case, the contested regulation is of general application in that it applies to objectively determined situations and it produces legal effects with respect to categories of persons envisaged in general and in the abstract (see paragraph 26 above).
35 Moreover, the contested regulation does not constitute a legislative act since it was not adopted in accordance with either the ordinary legislative procedure or the special legislative procedure within the meaning of paragraphs 1 to 3 of Article 289 TFEU. As evidenced by a combined reading of Article 78(3) and Article 79(2) of Regulation No 1107/2009, which refer to Articles 3 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), the contested regulation was adopted by the Commission in the exercise of implementing powers.
36 Consequently, the contested regulation constitutes a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU.
37 Second, the question 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 fourth paragraph in fine of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons (judgments in Telefónica v Commission, paragraph 28 above, EU:C:2013:852, paragraph 30, and T & L Sugars and Sidul Açúcares v Commission, paragraph 27 above, EU:C:2015:284, paragraph 32). Furthermore, in order to determine whether the contested regulation entails implementing measures, reference should be made exclusively to the subject-matter of the action. Thus, 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, as the case may be, be taken into consideration (judgment in Telefónica v Commission, paragraph 28 above, EU:C:2013:852, paragraph 31).
38 In the present case, it must be determined whether or not the contested regulation, inasmuch as it includes copper compounds on the list annexed thereto, entails implementing measures in respect of the applicant’s members.
39 It must be borne in mind that the purpose of the contested regulation is to establish the list of candidates for substitution, those candidate substances being defined as those meeting the criteria set out in point 4 of Annex II to Regulation No 1107/2009.
40 Article 1(1) of Regulation No 1107/2009 states that that regulation lays down rules for the authorisation of plant protection products in commercial form and for their placing on the market, use and control within the Union.
41 Regulation No 1107/2009 provides for the application of specific rules to certain types of active substances, including a list of candidates for substitution, which depart from those applicable to other active substances. The rules applicable to the list of candidates for substitution concern, first of all, approval of those substances and renewal of that approval; secondly, marketing authorisations for plant protection products containing those substances and renewal of those authorisations; and, thirdly, mutual recognition of those authorisations between Member States.
42 Firstly, it should be observed that since copper compounds have already been approved, only the approval renewal procedure for the list of candidates for substitution is relevant to the applicant’s members. In that regard, it is apparent from Article 24(1) of Regulation No 1107/2009 that that procedure is different from the one in place for other active substances only in terms of the period of validity of the renewed approval. Thus, the approval of a candidate for substitution may be renewed for a maximum of 7 years, instead of 15 years, for the renewal of the approval of another active substance, in accordance with Article 14(2) of Regulation No 1107/2009.
43 By contrast, the inclusion of an active substance on the list of candidates for substitution has no bearing on the conduct of the approval renewal procedure which, as provided in Article 20(1) of Regulation No 1107/2009, leads to the adoption of a regulation by the Commission.
44 It follows that the effects of the contested regulation on the period of validity of the approval renewal for previously-approved substances which are candidates for substitution, such as copper compounds, will affect the applicant’s members only through a regulation adopted by the Commission in the course of renewing that approval. Such a regulation thus does constitute an implementing measure within the meaning of the fourth paragraph in fine of Article 263 TFEU.
45 Secondly, as regards the procedure for obtaining a marketing authorisation for a plant protection product containing a substance which is a candidate for substitution, as well as renewals of and amendments to such an authorisation, Article 50(1) and (4), and Annex IV to Regulation No 1107/2009 provide for Member States to perform a comparative assessment of the health and environmental risks of the plant protection product concerned in relation to an alternative or a non-chemical method of pest control or prevention.
46 However, the performance of that comparative assessment has no bearing on the fact that, under 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 are, as the case may be, granted or refused, renewed, withdrawn or amended by Member States. Article 50(1) of Regulation No 1107/2009 sets out the conditions in which the comparative assessment must lead the Member States not to authorise or to restrict the authorisation for a plant protection product containing a candidate for substitution for a given pest. Article 50(4) of that regulation further provides that, based on the results of the comparative assessment, the Member States are to maintain, withdraw or amend the marketing authorisation for the plant protection product containing a candidate for substitution.
47 It follows that the effects of the contested regulation relating to the Member States’ performance of a comparative assessment of the health or environmental risks of plant protection products containing copper compounds, as compared to an alternative or a non-chemical method of pest control or prevention, will affect the applicant’s members only through measures adopted by the competent authorities of the Member States. Such measures will accordingly be implementing measures within the meaning of the fourth paragraph in fine of Article 263 TFEU.
48 This conclusion is not affected by the applicant’s argument to the effect that certain Member States are contemplating passing on the costs of the comparative assessment to applicants for authorisation for plant protection products containing a candidate for substitution. Even if that were true, it has no bearing on the existence of the implementing measures referred to in paragraph 46 above.
49 Thirdly, as regards the rules governing mutual recognition between Member States of marketing authorisations for plant protection products containing a candidate for substitution, Article 41(2)(b) of Regulation No 1107/2009 provides that a Member State to which an application is submitted may authorise a plant protection product under the same conditions as the Member State having examined the application, whereas in situations other than those referred to therein, the Member State must grant the authorisation, in accordance with Article 41(1) of that regulation.
50 It follows that the effects of the contested regulation relating to the mutual recognition of marketing authorisations for plant protection products containing a candidate for substitution concern solely the discretion left to the Member States to decide on an application. Those effects will, as the case may be, affect the applicant’s members only through measures adopted by the national authorities deciding on applications for mutual recognition submitted by those members. Those measures are accordingly implementing measures within the meaning of the fourth paragraph in fine of Article 263 TFEU.
51 It follows from the foregoing that the contested regulation entails implementing measures within the meaning of the fourth paragraph in fine of Article 263 TFEU for the applicant’s members.
52 The argument to the effect that the applicant and its members will be deprived of effective judicial protection should the present action be held inadmissible must be rejected. First of all, it has no interest in bringing proceedings against measures adopted on the basis of the contested regulation, by which the approval for copper compounds is renewed; second, its members have no interest in bringing an action against the renewals of marketing authorisations for plant protection products containing copper compounds, as those measures are in their favour.
53 The conditions of 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, but such an interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in the FEU Treaty (see judgment in T & L Sugars and Sidul Açúcares v Commission, paragraph 27 above, EU:C:2015:284, paragraph 44 and the case-law cited).
54 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, by Articles 263 TFEU and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the European Union judicature (see judgment in T & L Sugars and Sidul Açúcares v Commission, paragraph 27 above, EU:C:2015:284, paragraph 45 and the case-law cited).
55 In that connection, 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 (see judgment in T & L Sugars and Sidul Açúcares v Commission, paragraph 27 above, EU:C:2015:284, paragraph 46 and the case-law cited).
56 It follows that references on validity constitute, like actions for annulment, means for reviewing the legality of European Union acts (judgments of 21 February 1991 in Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest, C‑143/88 and C‑92/89, ECR, EU:C:1991:65, paragraph 18; of 6 December 2005 in ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04, ECR, EU:C:2005:741, paragraph 103; and in T & L Sugars and Sidul Açúcares v Commission, paragraph 27 above, EU:C:2015:284, paragraph 47).
57 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 (see judgment in T & L Sugars and Sidul Açúcares v Commission, paragraph 27 above, EU:C:2015:284, paragraph 48 and the case-law cited).
58 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 (see judgment in T & L Sugars and Sidul Açúcares v Commission, paragraph 27 above, EU:C:2015:284, paragraph 49 and the case-law cited).
59 That obligation on 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 EU law’ (see judgment in T & L Sugars and Sidul Açúcares v Commission, paragraph 27 above, EU:C:2015:284, paragraph 50 and the case-law cited). That 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 the Charter of Fundamental Rights.
60 In the light of all the foregoing considerations, the applicant’s argument alleging a lack of effective judicial protection should its action be dismissed cannot be upheld.
61 In any event, the applicant or, as the case may be, its members, are free to bring proceedings before the competent court to challenge acts of a EU institution or national authority applying the provisions of Regulation No 1107/2009 concerning a list of candidates for substitution in respect of them pursuant to the contested regulation, and to argue that those provisions of the contested regulation are invalid.
62 Given that the contested regulation is a regulatory act entailing implementing measures within the meaning of the fourth paragraph in fine of Article 263 TFEU, it is not necessary to consider whether it has direct effect for the applicant’s members.
63 It follows from all the foregoing considerations that the applicant does not have locus standi under the fourth paragraph of Article 263 TFEU. Consequently, the action must be dismissed in its entirety as inadmissible, without its being necessary to rule on the first plea of inadmissibility, alleging the applicant’s lack of locus standi.
Costs
64 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no need to rule on the applications for leave to intervene submitted by the Parliament and the Council.
3. European Union Copper Task Force is ordered to pay the costs.
Luxembourg, 27 April 2016.