ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
5 October 2011 (*)
(Intervention)
In Case T‑454/10,
Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali, represented by J. L. da Cruz Vilaça, S. Estima Martins and S. Carvalho de Sousa, lawyers,
applicant,
European Commission, represented by B. Schima and M. Vollkommer, acting as agents,
defendant
APPLICATION for annulment of article 52 and Annex VIII of Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ 2007 L 350 p. 1) as amended by Commission Regulation (EU) No 687/2010 of 30 July 2010 (JO 2010 L 199 p. 12),
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT,
makes the following
Order
1 By application lodged at the Registry of the General Court on 30 September 2010, Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (hereinafter ‘ANICAV’) brought an action for annulment of article 52 and Annex VIII of Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ 2007 L 350, p. 1) as amended by Commission Regulation (EU) No 687/2010 of 30 July 2010 (OJ 2010 L 199, p. 12).
2 By two applications lodged at the Registry of the General Court on 13 January 2011, Associazione Italiana Industrie Prodotti Alimentari and Agrupación Española de Fabricantes de Conservas Vegetales requested leave to intervene in the case in support of the form of order sought by ANICAV.
3 By three applications lodged at the Registry of the General Court on 17 January 2011, Associação dos Industriais de Tomate, Panellinios Enosi Konservopoion, Kopaïs AVEE Trofimon kai Poton, Evropaïka Trofima AE, Konservopoiia Oporokipeftikon Filippos AE, Anonimos Viomichaniki Etaireia Konservon D. Nomikos, Serraïki Konservopoiia Oporokipeftikon Serko AE, Elliniki Etaireia Konservon AE KYKNOS and Zymai Artopoiias Nikoglou AE requested leave to intervene in the case in support of the form of order sought by ANICAV.
4 By two applications lodged at the Registry of the General Court on 24 January 2011, Confederazione Cooperative Italiane, Cooperativas Agro-alimentarias, Fédération française de la coopération fruitière - légumière - horticole, VOG Products Soc. Agricola Coop., Consorzio Padano Ortofrutticolo Soc. Agr. Coop., Consorzio Casalasco del Pomodoro Soc. Agr. Coop., Agricoltori Riuniti Piacentini Soc. Agr. Coop., Orogel Fresco Soc. Coop. Agr. and Conserve Italia Soc. Agr. a r.l. requested leave to intervene in the case in support of the form of order sought by the Commission.
5 These applications for leave to intervene were served on the parties, who were invited to submit their written observations.
6 By several separate letters received at the Registry of the General Court, the Commission submitted written observations in which it indicated that the applications to intervene in support of the form of order sought by ANICAV should be rejected on the ground that the applicants have not established an interest in the result of the case within the meaning of Article 40 of the Statute of the Court of Justice.
7 ANICAV and the Commission expressed no objections concerning the applications to intervene in support of the form of order sought by the Commission.
Formal requirements and the time allowed for intervening
8 Pursuant to Article 115 of the Rules of Procedure of the General Court, an application for leave to intervene must be made within six weeks of the publication of the notice of the case in the Official Journal of the European Union, referred to in Article 24(6) of those rules, or, subject to Article 116(6) of those rules, before the decision to open the oral procedure.
9 Given that the notice of the present case was published in the Official Journal of the European Union on 4 December 2010 (OJ 2010 C 328, p. 39), each of the applicants to intervene lodged its application within the abovementionned six-week period as extended on account of distance pursuant to Article 102(2) of the Rules of Procedure.
The applicants’ to intervene interest in the result of the case
10 Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice, which applies to proceedings before the General Court by virtue of Article 53, first paragraph, thereof, the right to intervene in a case before the Court is open to any natural or legal person establishing an interest in the result of any case other than cases between Member States, between institutions of the Community or between Member States and institutions of the Community.
11 The right to intervene is open to any natural or legal person establishing an interest in the result of the case. This interest is to be defined in relation to the subject-matter of the case, which is framed by the form of order sought by the parties (order of the President of the Seventh Chamber of the Court of First Instance of 20 November 2008 in Case T‑167/08 Microsoft v Commission, not published in the ECR, paragraph 65, and the case-law cited).
12 To be granted leave to intervene, a person must, therefore, establish a direct and existing interest in the grant of the form of order sought by the party whom it intends to support and, thus, in the ruling on the specific act whose annulment is sought. Indeed, if it were not so, any person alleging that a case is such as to affect its interests in any given way would be granted leave to intervene, with the result that the effectiveness and proper course of the procedure would be compromised (Microsoft v Commission, paragraph 66, and the case-law cited).
13 In support of their application, Kopaïs AVEE Trofimon kai Poton, Evropaïka Trofima, Konservopoiia Oporokipeftikon Filippos, Anonimos Viomichaniki Etaireia Konservon D. Nomikos, Serraïki Konservopoiia Oporokipeftikon Serko, Elliniki Etaireia Konservon KYKNOS and Zymai Artopoiias Nikoglou submit that they are processors active in the fruit and vegetables sector.
14 They also submit that Article 52 and Annex VIII of Regulation No 1580/2007, as amended by Regulation No 687/2010, affect their situation since they result in aid being granted to producer organisations to the exclusion of fruit and vegetable processing industries, which are thus put to a competitive disadvantage.
15 The Commission argues that this circumstance does not justify a legal interest in the result of the case, since ANICAV’s application could never result in the abolition of the fundamental distinction between producer organisations, eligible to receive aid, and private processing industries, ineligible to that end. According to the Commission, this choice of policy was reflected in Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (OJ 2007 L 299, p. 1). The Commission points out that the application does not contain any plea of illegality against Regulation No 1234/2007, thus making impossible the raising of such a plea by any prospective intervener.
16 It must be pointed out that, according to the notice of the present case as published in the Official Journal of the European Union, which informs the public on the essential content of the application, ANICAV puts forward three pleas in law having as their foundation the fact that producer organisations receive aid also covering processing activities carried out by private processing industries as well. The notice states that, according to ANICAV, such aid is in breach of Regulation No 1234/2007 in that it is granted for products not covered by that Regulation, but also in violation the principle of non-discrimination as well as the principle of proportionality.
17 It follows that, as is confirmed at paragraphs 91, 92, 97, 103, 104 and 111 of the application, ANICAV does not seek the annulment of the contested provisions on the ground that aid should be granted to private processing industries as well but on the ground that aid granted to producer organisations should not cover processing activities also carried out by such industries.
18 The companies referred to at paragraph 13 above thus have a direct and existing interest in the grant of the form of order sought in a case concerning the annulment of provisions granting aid to producer organisations in as much as such aid covers activities carried out not only by such organisations but also by private processing industries, such as the companies in question.
19 As far as the associations’ right to intervene is concerned, it should be recalled that such right is open to representative associations, the object of which is to protect their members in cases raising questions of principle that are liable to affect those members. This broad interpretation of the right of intervention open to associations, in such circumstances, is intended to facilitate the assessment of the case, whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (Microsoft v Commission, paragraph 41, and the case-law cited).
20 In support of their application, Associazione Italiana Industrie Prodotti Alimentari, Agrupación Española de Fabricantes de Conservas Vegetales, Associação dos Industriais de Tomate and Panellinios Enosi Konservopoion submit that they are associations representing companies active in the field of food products, including the fruit and vegetables sector, and that, according to their articles of association, their scope consists, in essence, in defending the interests of their members and representing them before institutions, administrations and other public or private bodies.
21 Those associations submit that Article 52 and Annex VIII of Regulation No 1580/2007, as amended by Regulation No 687/2010, affect the situation of their members since they result in aid being granted to producer organisations to the exclusion of fruit and vegetable processing industries.
22 In that regard as well, the Commission advances the arguments set out at paragraph 15 above.
23 For the reasons set out at paragraphs 16 to 19 above, it must be held that the associations applying for leave to intervene do have a direct and existing interest in the grant of the form of order sought in a case concerning the annulment of provisions granting aid to producer organisations in as much as such aid covers activities carried out not only by such organisations but also by private processing industries, members of such associations.
24 Finally as far as concerns the applications brought by Confederazione Cooperative Italiane, Cooperativas Agro-alimentarias, Fédération française de la coopération fruitière - légumière - horticole, VOG Products Soc. Agricola, Consorzio Padano Ortofrutticolo, Consorzio Casalasco del Pomodoro, Agricoltori Riuniti Piacentini, Orogel Fresco and Conserve Italia, it must be held that these entities also establish a direct and existing interest in the grant of the form of order sought by the Commission in the present case, since the first three are representative organisations of cooperatives recognized as producer organisations and the rest are producer organisations concerned benefiting by the provisions the annulment of which is sought.
25 In view of the foregoing:
– Associazione Italiana Industrie Prodotti Alimentari, Agrupación Española de Fabricantes de Conservas Vegetales, Associação dos Industriais de Tomate, Panellinios Enosi Konservopoion, Kopaïs AVEE Trofimon kai Poton, Evropaïka Trofima, Konservopoiia Oporokipeftikon Filippos, Anonimos Viomichaniki Etaireia Konservon D. Nomikos, Serraïki Konservopoiia Oporokipeftikon Serko, Elliniki Etaireia Konservon KYKNOS and Zymai Artopoiias Nikoglou should be granted leave to intervene in the present case in support of the form of order sought by ANICAV;
– Confederazione Cooperative Italiane, Cooperativas Agro-alimentarias, Fédération française de la coopération fruitière - légumière - horticole, VOG Products Soc. Agricola, Consorzio Padano Ortofrutticolo, Consorzio Casalasco del Pomodoro, Agricoltori Riuniti Piacentini, Orogel Fresco and Conserve Italia should be granted leave to intervene in the present case in support of the form of order sought by the Commission.
Costs
26 Article 87(1) of the Rules of Procedure provides that a decision as to costs shall be given in the final judgment or in the order which closes the proceedings. It is therefore appropriate, at this stage, to reserve the costs.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE GENERAL COURT
hereby orders :
1) Associazione Italiana Industrie Prodotti Alimentari, Agrupación Española de Fabricantes de Conservas Vegetales, Associação dos Industriais de Tomate, Panellinios Enosi Konservopoion, Kopaïs AVEE Trofimon kai Poton, Evropaïka Trofima AE, Konservopoiia Oporokipeftikon Filippos AE, Anonimos Viomichaniki Etaireia Konservon D. Nomikos, Serraïki Konservopoiia Oporokipeftikon Serko AE, Elliniki Etaireia Konservon AE KYKNOS and Zymai Artopoiias Nikoglou AE are granted leave to intervene in case T‑454/10 in support of the form of order sought by Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali.
2) Confederazione Cooperative Italiane, Cooperativas Agro-alimentarias, Fédération française de la coopération fruitière - légumière - horticole, VOG Products Soc. Agricola Coop., Consorzio Padano Ortofrutticolo Soc. Agr. Coop., Consorzio Casalasco del Pomodoro Soc. Agr. Coop., Agricoltori Riuniti Piacentini Soc. Agr. Coop., Orogel Fresco Soc. Coop. Agr. and Conserve Italia Soc. Agr. a r.l. are granted leave to intervene in case T‑454/10 in support of the form of order sought by the Commission.
3) The Registrar shall serve the procedural documents on the interveners, mentioned at paragraphs 1 and 2 above.
4) The interveners mentioned at paragraphs 1 and 2 above shall be allowed a period of time in which to lodge a statement in intervention containing the pleas-in-law and arguments upon which they rely.
5) Costs are reserved.
Luxembourg, 5 October 2011.