ORDER OF THE GENERAL COURT (Fifth Chamber)
18 May 2015 (*)
(Actions for annulment — Regulation (EU) No 511/2014 — Measures concerning compliance by users in the Union with the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation — Lack of individual concern — Inadmissibility)
In Case T‑559/14,
Ackermann Saatzucht GmbH & Co. KG, established in Irlbach (Germany), and the other applicants whose names are listed in the annex, represented by P. de Jong, P. Vlaemminck and B. Van Vooren, lawyers,
applicants,
v
European Parliament, represented by L. Visaggio, J. Rodrigues and R. Van de Westelaken, acting as Agents,
and
Council of the European Union, represented by M. Moore and M. Simm, acting as Agents,
defendants,
ACTION for annulment of Regulation (EU) No 511/2014 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 (OJ 2014 L 150, p. 59),
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich, President, J. Schwarcz and V. Tomljenović (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicants, Ackermann Saatzucht GmbH & Co. KG and the 16 other persons whose names are listed in the annex, are German undertakings and one natural person active in the plant breeding sector. Plant breeding is the process in which the genetic composition of different varieties is combined, inter alia through crossing, and from which the progeny displaying the best combination of traits is chosen in order to create new commercial varieties.
2 On 16 April 2014, the European Parliament and the Council of the European Union adopted Regulation (EU) No 511/2014 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 (OJ 2014 L 150, p. 59) (‘the contested regulation’).
3 Article 1 of the contested regulation, entitled ‘Subject-matter’, provides as follows:
‘This Regulation establishes rules governing compliance with access and benefit-sharing for genetic resources and traditional knowledge associated with genetic resources in accordance with the provisions of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity (“the Nagoya Protocol”). The effective implementation of this Regulation will also contribute to the conservation of biological diversity and the sustainable use of its components, in accordance with the provisions of the Convention on Biological Diversity (“the Convention”).’
4 Article 2 of the contested regulation, entitled ‘Scope’, is worded as follows in paragraph 1:
‘This Regulation applies to genetic resources over which States exercise sovereign rights and to traditional knowledge associated with genetic resources that are accessed after the entry into force of the Nagoya Protocol for the Union. It also applies to the benefits arising from the utilisation of such genetic resources and traditional knowledge associated with genetic resources.’
5 Point 4 of Article 3 of the contested regulation, entitled ‘Definitions’, defines a ‘user’ as ‘a natural or legal person that utilises genetic resources or traditional knowledge associated with genetic resources’.
6 Article 4 of the contested regulation, entitled ‘Obligations of users’ provides as follows:
‘1. Users shall exercise due diligence to ascertain that genetic resources and traditional knowledge associated with genetic resources which they utilise have been accessed in accordance with applicable access and benefit-sharing legislation or regulatory requirements, and that benefits are fairly and equitably shared upon mutually agreed terms, in accordance with any applicable legislation or regulatory requirements.
2. Genetic resources and traditional knowledge associated with genetic resources shall only be transferred and utilised in accordance with mutually agreed terms if they are required by applicable legislation or regulatory requirements.
3. For the purposes of paragraph 1, users shall seek, keep and transfer to subsequent users:
(a) the internationally-recognised certificate of compliance, as well as information on the content of the mutually agreed terms relevant for subsequent users; or
(b) where no internationally-recognised certificate of compliance is available, information and relevant documents on:
(i) the date and place of access of genetic resources or of traditional knowledge associated with genetic resources;
(ii) the description of the genetic resources or of traditional knowledge associated with genetic resources utilised;
(iii) the source from which the genetic resources or traditional knowledge associated with genetic resources were directly obtained, as well as subsequent users of genetic resources or traditional knowledge associated with genetic resources;
(iv) the presence or absence of rights and obligations relating to access and benefit-sharing including rights and obligations regarding subsequent applications and commercialisation;
(v) access permits, where applicable;
(vi) mutually agreed terms, including benefit-sharing arrangements, where applicable.
…’
Procedure and forms of order sought
7 By application lodged at the Court Registry on 28 July 2014, the applicants brought the present action.
8 The applicants claim that the Court should:
– declare the present action admissible;
– annul the contested regulation;
– order the Parliament and the Council to pay the costs.
9 By separate documents lodged at the Court Registry on 30 and 31 October 2014, the Council and the Parliament raised an objection of inadmissibility under Article 114 of the Rules of Procedure of the General Court of First Instance.
10 The Parliament contends that the Court should:
– dismiss the action as inadmissible;
– in the alternative, should the action not be dismissed as inadmissible, grant it a new period in which to lodge in writing its forms or order sought and factual and legal arguments, in accordance with Article 114(2) of the Rules of Procedure;
– in any event, order the applicants to pay the costs.
11 The Council contends that the Court should:
– dismiss the action as inadmissible;
– order the applicants to pay the costs.
12 By letter lodged at the Court Registry on 15 December 2014, the European Seed Association (ESA) applied for leave to intervene in support of the forms of order sought by the applicants.
13 By letter lodged at the Court Registry on 17 December 2014, the applicants lodged their observations on the objection of inadmissibility raised by the Council and the Parliament.
Law
14 In support of their action the applicants put forward five pleas in law. As regards the admissibility of their action, their sole submission is that, on the grounds set out in the application in relation to the first plea in law, they are directly and individually concerned by the contested regulation because it infringes the ‘breeders’ exemption’ laid down in Article 15(1)(iii) of the International Convention for the Protection of New Varieties of Plants of 2 December 1961, as revised, to which the European Union acceded on 30 May 2005, and in Article 15 of Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1). In their submission, the breeders’ exemption provides that, for purpose of discovering and developing new varieties, breeders of plant varieties should have full and free access to protected varieties, without their having to discharge any obligation of information. Yet Article 4(3) of the contested regulation undermines that exemption, which benefits them, since any breeder of a protected variety is obliged to disclose confidential commercial information about that variety to a second party breeder wishing to develop a new variety, whilst conversely the breeder of the new variety is obliged to disclose its intention to use the material from the protected variety.
15 Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Under Article 3(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral. In the present case, the Court considers that the information in the documents before it is sufficient for there to be no need to proceed to the oral stage of the proceedings.
16 As stated in paragraph 9 above, the Council and the Parliament contend that the action is inadmissible, in essence on the ground that the applicants do not have locus standi under the fourth paragraph of Article 263 TFEU. In their submission, the applicants are not individually affected by the contested regulation. The Council further submits that nor have the applicants demonstrated that they were directly affected by that regulation.
17 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 which does not entail implementing measures.
18 In the present case it is common ground that the contested regulation does not identify the applicants as the addressees thereof. In those circumstances, they do not fulfil the requirements under the first possibility for a natural or legal person to have locus standi under the fourth paragraph of Article 263 TFEU.
19 It is therefore appropriate to consider whether they fulfil the requirements under the second or third possibilities for natural or legal persons to have locus standi under the fourth paragraph of Article 263 TFEU to bring an action against an act not addressed to them. Under the second possibility an action may be brought provided that that act is of direct and individual concern to the natural or legal persons bringing the action. Under the third possibility, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgments of 19 December 2013 in Telefónica v Commission, C‑274/12 P, ECR, EU:C:2013:852, paragraph 19; of 27 February 2014 in Stichting Woonpunt and Others v Commission, C‑132/12 P, ECR, EU:C:2014:100, paragraph 44; and Stichting Woonlinie and Others v Commission, C‑133/12 P, ECR, EU:C:2014:105, paragraph 31).
20 It is appropriate to begin with the third possibility referred to in paragraph 19 above, under which natural or legal persons such as the applicants may, under the fourth paragraph of Article 263 TFEU, institute proceedings against a regulatory act which does not entail implementing measures where it is of direct concern to them, and ascertain whether the contested regulation constitutes a regulatory act.
21 In that regard, it must be recalled that, according to the case-law, the meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts (judgment of 3 October 2013 in Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, ECR, EU:C:2013:625, paragraphs 60 and 61; order of 6 September 2011 in Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, ECR, EU:T:2011:419, paragraph 56; and judgment of 25 October 2011 in Microban International and Microban (Europe) v Commission, T‑262/10, ECR, EU:T:2011:623, paragraph 21).
22 Moreover, the distinction between a legislative act or a regulatory act according to the FEU Treaty is based on the criterion of the procedure, legislative or not, which led to its adoption (order in Inuit Tapiriit Kanatami and Others v Parliament and Council, paragraph 21 above, EU:T:2011:419, paragraph 65).
23 In the present case, it should be noted that, as evidenced by the legal bases cited in the contested regulation, it was adopted on the basis of Article 192(1) TFEU. That article provides that the Parliament and Council, acting in accordance with the ordinary legislative procedure and after consulting the European Economic and Social Committee (EESC) and the Committee of the Regions, are to decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191 TFEU. Article 191 TFEU concerns Union policy on the environment.
24 It follows that the contested regulation was adopted in accordance with the ordinary legislative procedure. Accordingly, even if, as argued by the applicants, that regulation ought to have been adopted on the basis of Article 114 TFEU and not on the basis of Article 192 TFEU, this aspect has no bearing on the finding that the adoption of such an act in any event came within the ambit of the ordinary legislative procedure. Under Article 114 TFEU, the Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the EESC, are to adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.
25 Accordingly, the conclusion must be that the contested regulation constitutes a legislative act and not a regulatory act within the meaning of the case-law referred to in paragraph 22 above, a point which the applicants, moreover, have not contested.
26 Therefore, and without its being necessary to consider whether the other conditions for the third possibility referred to in paragraph 19 above, that the act not entail implementing measures and that it be of direct concern to the applicants, have been met, the action cannot be held to be admissible thereunder.
27 As a second possibility, the admissibility of the present action must be considered under the second possibility referred to in paragraph 19 above, under which natural or legal persons such as the applicants may, under the fourth paragraph of Article 263 TFEU, bring an action for annulment of an act not addressed to them, provided that that act is of direct and individual concern to them.
28 As regards the objection of inadmissibility of the action put forward by the Parliament and the Council on the ground that the applicants are not directly and individually concerned by the contested regulation, it is appropriate to begin by considering whether the second condition, requiring individual concern for the applicants, is met. Since the conditions that the act of which annulment is sought should be of direct concern and individual concern are cumulative (judgment in Inuit Tapiriit Kanatami and Others v Parliament and Council, paragraph 21 above, EU:C:2013:625, paragraph 76; see also, to that effect, judgment of 30 March 2004, Rothley and Others v Parliament, C‑167/02 P, ECR, EU:C:2004:193, paragraph 25), should the applicants be found not to be individually concerned by the contested regulation, it will become superfluous to consider whether that decision is of direct concern to them (see, to that effect, judgment of 15 July 1963 in Plaumann v Commission, 25/62, ECR, EU:C:1963:17, p. 223).
29 It has consistently been held that persons other than the addressees of decisions can claim to be individually concerned only if that decision affects them 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 (judgments in Plaumann v Commission, paragraph 28 above, EU:C:1963:17, p. 223; Inuit Tapiriit Kanatami and Others v Parliament and Council, paragraph 21 above, EU:C:2013:625, paragraph 72; Stichting Woonpunt and Others v Commission, paragraph 19 above, EU:C:2014:100, paragraph 57; and Stichting Woonlinie and Others v Commission, paragraph 19 above, EU:C:2014:105, paragraph 44).
30 Moreover, according to the case-law, where an act affects a group of persons who were identified or identifiable when that act was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of economic operators (see judgment of 13 March 2008 in Commission v Infront WM, C‑125/06 P, ECR, EU:C:2008:159, paragraph 71 and the case-law cited; judgments of 23 April 2009 in Sahlstedt and Others v Commission, C‑362/06 P, ECR, EU:C:2009:243, paragraph 30; Stichting Woonpunt and Others v Commission, paragraph 19 above, EU:C:2014:100, paragraph 59; and Stichting Woonlinie and Others v Commission, paragraph 19 above, EU:C:2014:105, paragraph 46).
31 That can be the case particularly when the decision alters rights acquired by the individual prior to its adoption (see judgment in Commission v Infront WM, paragraph 30 above, EU:C:2008:159, paragraph 72 and the case-law cited; judgments in Stichting Woonpunt and Others v Commission, paragraph 19 above, EU:C:2014:100, paragraph 59; and Stichting Woonlinie and Others v Commission, paragraph 19 above, EU:C:2014:105, paragraph 46).
32 However, 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 those persons where it is common ground that that measure is applied in accordance with an objective legal or factual situation defined by the act in question (see judgment in Sahlstedt and Others v Commission, paragraph 30 above, EU:C:2009:243, paragraph 31 and the case-law cited; judgments in Stichting Woonpunt and Others v Commission, paragraph 19 above, EU:C:2014:100, paragraph 58; and Stichting Woonlinie and Others v Commission, paragraph 19 above, EU:C:2014:105, paragraph 45).
33 In the present case, it must be borne in mind at the outset that, by its very wording, Article 15 of Regulation No 2100/94 is, generally speaking, a limitation on the effects of that regulation with regards to certain activities coming within its scope. Even if, as the applicants argue in essence in the application, the contested regulation imposes obligations on them from which they were exempt under Regulation No 2100/94, the fact remains that, in any event and as rightly pointed out by the Parliament and the Council, the contested regulation, in particular Article 4(3)(b) thereof, referred to by the applicants in support of their argument that the regulation is of individual concern to them, produces legal effects for an open-ended category of persons, defined in a general and abstract manner, namely the category of users defined in Article 3 of Regulation No 2100/94.
34 Thus, it is clear that the applicants are affected by the contested regulation only in their objective capacity as users of genetic resources or traditional knowledge associated with genetic resources, as defined in Article 3 of the contested regulation, in the same manner as any other user coming within the scope of the contested regulation. No particular quality or fact characterises them in relation to other persons coming within the regulation’s scope.
35 Therefore, the conclusion is that the applicants are not individually concerned by the contested regulation as defined in the case-law referred to in paragraphs 29 to 32 above.
36 That conclusion is not called into question by the arguments put forward by the applicants to the effect that they are individually affected by the contested regulation because they are part of a closed and distinct legal class made up of undertakings which are able to rely on specific acquired rights as a result of the breeders’ exemption as that right is defined in legal acts which are distinct from the contested regulation, namely Article 15(1)(iii) of the International Convention for the Protection of New Varieties of Plants and by Article 15 of Regulation No 2100/94.
37 Without its being necessary to consider whether, as the applicants allege, the breeders’ exemption, as defined by the provisions referred to in paragraph 36 above, imply that no obligation of information may be imposed on a breeder acting for the purpose of discovering and developing new varieties, it is clear, first of all, that the mere fact that the applicants enjoyed such an exemption does not establish that they are part of a limited category of operators. As rightly pointed out by the Parliament and the Council, there is nothing in the file submitted to the Court showing that any natural or legal person wishing to engage in the activities of discovering or developing new varieties would not enjoy the exemption in the same manner as the applicants.
38 Moreover, even if it should be held that the applicants did come within a limited category made up of undertakings enjoying free access to protected varieties for the purpose of discovering and developing new varieties, without having to comply with any obligation of information, the fact remains that such a right does not individualise them in relation to any other users who enjoyed the same right.
39 It should be observed in that regard that, contrary to the applicants’ assertions, they were not in a situation analogous to the one which led the Court of Justice to hold an action to be admissible in the case which gave rise to the judgment of 18 May 1994 in Codorniu v Council (C‑309/89, ECR, EU:C:1994:197). In that case, as evidenced in particular by paragraphs 21 and 22 of that judgment, the Court held that the applicant was individually concerned by the provision the lawfulness of which was challenged before it because that provision had the effect of preventing use of its graphic trade mark, which placed it in a situation which, from the point of view of the contested provision, differentiated it from any other economic operator. Unlike that case, in the present case, even if the contested regulation were held to undermine some contested right of the applicants as defined in paragraph 38 above, they have still failed to establish that they are in a situation which distinguishes them from all other entities enjoying that same right.
40 In those circumstances, without its being necessary to assess the condition of direct effect on the applicants, the conclusion is that they are not individually affected by the contested regulation. Consequently, they do not have locus standi under the fourth paragraph of Article 263 TFEU to challenge that regulation.
41 In the light of the foregoing, the objection of inadmissibility put forward by the Parliament and the Council must be upheld and the action dismissed as inadmissible.
42 It also follows that there is no longer any need to adjudicate on the application for leave to intervene lodged by the ESA.
Costs
43 Under Article 87(2) 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.
44 Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Parliament and the Council.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. There is no need to rule on the application for leave to intervene lodged by the European Seed Association (ESA).
3. Ackermann Saatzucht GmbH & Co. KG and the other applicants whose names are listed in the annex shall bear their own costs and pay those incurred by the European Parliament and the Council of the European Union.
Luxembourg, 18 May 2015.
ANNEX
Böhm-Nordkartoffel Agrarproduktion GmbH & Co. OHG, established in Hohenmocker (Germany),
Deutsche Saatveredelung AG, established in Lippstadt (Germany),
Ernst Benary, Samenzucht GmbH, established in Hann. Münden (Germany),
Freiherr Von Moreau Saatzucht GmbH, established in Osterhofen (Germany),
Hybro Saatzucht GmbH & Co. KG, established in Kleptow (Germany),
Klemm + Sohn GmbH & Co. KG, established in Stuttgart (Germany),
KWS Saat AG, established in Einbeck (Germany),
Norddeutsche Pflanzenzucht Hans-Georg Lembke KG, established in Hohenlieth (Germany),
Nordsaat Saatzuchts GmbH, established in Halberstadt (Germany),
Peter Franck-Oberaspach, residing in Schwäbisch Hall (Germany),
P. H. Petersen Saatzucht Lundsgaard GmbH, established in Grundhof (Germany),
Saatzucht Streng — Engelen GmbH & Co. KG, established in Uffenheim (Germany),
Saka Pflanzenzucht GmbH & Co. KG, established in Hamburg (Germany),
Strube Research GmbH & Co. KG, established in Söllingen (Germany),
Gartenbau und Spezialkulturen Westhoff GbR, established in Südlohn-Oeding (Germany),
W. von Borries-Eckendorf GmbH & Co. KG, established in Leopoldshöhe (Germany).