Joined Cases T‑454/10 and T‑482/11
Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav) and Others
v
European Commission
(Agriculture — Common organisation of the markets — Aid in the fruit and vegetable sector — Actions for annulment — Whether directly concerned — Admissibility — Processed fruit and vegetables — Operational funds and operational programmes — Funding of ‘[non-]genuine processing activities’)
Summary — Judgment of the General Court (Second Chamber), 30 May 2013
1. Actions for annulment — Time-limits — Claim barred by lapse of time — Concept — Act confirmatory of an earlier definitive act — Included –Modification of a provision of a regulation — Reopening of the action against that provision and all provisions forming a whole with it
(Art. 263, sixth para., TFEU)
2. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Provisions that producer organisations are eligible to receive aid covering activities also carried out by processors not forming part of a producer organisation — Provisions that investments and actions related to the processing of fruit and vegetables are eligible — No margin of discretion for Member States concerning the application of flat rates for calculating the value of the production marketed — Direct effect on the competitive position of producer organisations and their members
(Art. 263, fourth para., TFEU; Commission Regulations No 1580/2007, Art. 52(2)(a), and No 543/2011, Arts 50(3), and 60(7))
3. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Provision for the grant of EU aid — Competitor of the aid beneficiary — Right to bring an action
(Art. 263, fourth para., TFEU)
4. Actions for annulment — Natural or legal persons — Meaning of ‘regulatory act’ in Article 263, fourth paragraph, TFEU — Any act of general scope for legislative measures — Commission regulations for the grant of aid in the fruit and vegetables sector — Included — Acts not including implementing measures within the meaning of that treaty provision
(Art. 263, fourth para., TFEU; Commission Regulations No 1580/2007, Art. 52(2)(a), and No 543/2011, Arts 50(3), and 60(7))
5. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Action brought by a trade association set up to protect and represent its members — Admissibility — Conditions
(Art. 263, fourth para., TFEU)
6. Actions for annulment — Interest in bringing proceedings — Action directed against a measure which has been repealed — Respective effects of repeal and annulment
(Arts 264 TFEU and 266 TFEU)
7. Agriculture — Common organisation of the markets — Products processed from fruit and vegetables — Production aid — Inclusion of the value of ‘non-genuine processing activities’ in the value of marketed production — Eligibility for EU financing of investments and actions related to the processing of fruit and vegetables — Inadmissibility
(Council Regulation No 1234/2007, Arts 103c and 122, first para.,(c); Commission Regulations No 1580/2007, Arts 29 and 52(2)(a), second para., and No 543/2011, Arts 27, 50(3), and 60(7))
1. See the text of the decision.
(see para. 29)
2. In actions for annulment, the condition that the contested decision must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires the contested European Union measure to affect directly the legal situation of the individual and leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from European Union rules without the application of other intermediate rules.
Producer organisations and their members are directly concerned by Article 52(2)a of Regulation No 1580/2007, laying down implementing rules of Regulations (EC) No 2200/96, No 2201/96 and No 1182/2007 in the fruit and vegetable sector and by Articles 50(3) and 60(7) of Implementing Regulation No 543/2011 laying down detailed rules for the application of Regulation No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors inasmuch as the effect on their competitive position results directly from the specific flat rates laid down in Article 52(2)a of Regulation No 1580/2007 and Article 50(3) of Implementing Regulation No 543/2011, and from the eligibility of investments and actions related to the transformation of fruit and vegetables for European Union funding under Article 60(7) of Regulation No 543/2011.
Those provisions have established a system whereby producer organisations are eligible to receive aid covering processing activities that are also carried out by processors which are not members of a producer organisation, even though those activities have been called ‘[non-]genuine’ processing activities. Moreover, neither Article 52(2)a of Regulation No 1580/2007 nor Article 50(3) of Implementing Regulation No 543/2011 leaves Member States a margin of discretion as regards the application of the flat rates for the purposes of calculating the value of the marketed production. The same applies to Article 60(7) of Implementing Regulation No 543/2011.
(see paras 36, 38-40)
3. See the text of the decision.
(see para. 41)
4. In the matter of the common organisation of the markets, Regulation No 1580/2007, laying down implementing rules of Regulations No 2200/96, No 2201/96 and No 1182/2007 in the fruit and vegetable sector, and Implementing Regulation No 543/2011, laying down detailed rules for the application of Regulation No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors, constitute regulatory acts within the meaning of the fourth paragraph of Article 263 TFEU, since they are neither legislative acts, as defined in Article 289(3) TFEU, nor individual acts. Moreover, Article 52(2)a of Regulation No 1580/2007 and Article 50(3) of Implementing Regulation No 543/2011 must be regarded as not entailing implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
Whilst it is true that the payment of European Union aid pursuant to those provisions is effected through the national authorities, the fact remains that the instruments pursuant to which those authorities make the payments in question do not refer to the applicants and are not addressed or notified to them. Moreover, each paying body performs its duties according to the rules applicable in the Member State concerned, which do not necessarily provide for the adoption of acts which are challengeable before the national courts.
(see paras 42, 43)
5. See the text of the decision.
(see para. 46)
6. See the text of the decision.
(see para. 49)
7. Article 52(2)a of Regulation No 1580/2007, laying down implementing rules of Regulations (EC) No 2200/96, No 2201/96 and No 1182/2007 in the fruit and vegetable sector, Articles 50(3) and 60(7) of Implementing Regulation No 543/2011 laying down detailed rules for the application of Regulation No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors are annulled in so far as they provide that the value of ‘[non-]genuine processing activities’ is included in the value of the marketed production and in so far as they provide that investments and actions related to the transformation of fruit and vegetables may be eligible for European Union funding.
Article 52(2)a of Regulation No 1580/2007 and Article 50(3) of Implementing Regulation No 543/2011 have the effect specifically of granting aid in the processed fruit and vegetables sector to producer organisations which themselves process their production or have it processed on their behalf. Those provisions infringe Regulation No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products, since that regulation does not provide for the payment of such aid and consequently result in discrimination between European Union processors in competition with one another. Those effects are produced to the extent that the flat rates referred to in those provisions also cover the cost of certain activities carried out by processors when processing fruit and vegetables delivered to them by associations of producers, since aid covering certain costs of those activities is granted solely when the processing is carried out by producer organisations or under their responsibility by means of outsourcing, as defined in Article 29 of Regulation No 1580/2007 and Article 27 of Implementing Regulation No 543/2011.
The same applies in respect of Article 60(7) of Implementing Regulation No 543/2011. First, that provision declares eligible for European Union funding any action or investment undertaken by a producer organisation related to processing, without even limiting the scope of that eligibility to ‘[non-]genuine processing activities’. Second, the fact that the eligibility in question depends on the pursuit of the objectives of Article 103c or point (c) of the first paragraph of Article 122 of the Regulation No 1234/2007 does not render the provision in question compatible with that regulation. Thus, the fact that a producer organisation pursues one of the said objectives is not capable of permitting the funding of activities related to the processing of fruit and vegetables
(see paras 76-78, 81)