24 March 2021 (*)

(Action for annulment – Agricultural policy – Organic production – Regulation (EC) No 834/2007 – Production and labelling of organic products – Organic products imported into the European Union – Certification of products by a control body – No interest in bringing proceedings – Lack of direct concern – Manifest inadmissibility)

In Case T‑306/19,

established in Nieuwe-Tonge (Netherlands), represented by C. Almeida, lawyer,

applicant,

European Commission,

represented by D. Bianchi, A. Dawes and B. Hofstötter, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for the annulment of Article 1(3) of Commission Implementing Regulation (EU) 2019/446 of 19 March 2019 amending and correcting Regulation (EC) No 1235/2008 laying down detailed rules for implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries (OJ 2019 L 77, p. 67), in so far as that provision, in conjunction with point 3 of Annex II to that implementing regulation, withdraws the recognition of Control Union Certifications as a competent body for carrying out controls and issuing certificates of inspection authorising the placing on the EU market, as organic products, of products imported from Kazakhstan, Moldova, Russia, Turkey and the United Arab Emirates,

THE GENERAL COURT (Eighth Chamber),

composed of J. Svenningsen, President, C. Mac Eochaidh (Rapporteur) and J. Laitenberger, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

The applicant, Graanhandel P. van Schelven BV, is an undertaking established in the Netherlands, the activities of which include the importation into the European Union of grains and seeds from third countries.

Control Union Certifications (‘CUC’) is an undertaking established in the Netherlands which has been recognised under four Commission implementing regulations adopted between April 2014 and December 2015 as a competent body to carry out controls and issue certificates of inspection authorising the placing on the EU market, as organic products, of products imported from, in particular, Kazakhstan, Moldova, Russia, Turkey and the United Arab Emirates (‘the third countries in question’). In that respect, CUC has been included in Annex IV to Commission Regulation (EC) No 1235/2008 of 8 December 2008 laying down detailed rules for implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries (OJ 2008 L 334, p. 25).

Skal Biocontrole is the control authority responsible for inspection and certification in the field of organic production in the Netherlands, the control system of which the applicant is subject to under Article 28(1) of Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (OJ 2007 L 189, p. 1), now replaced by Regulation (EU) 2018/848 of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Regulation No 834/2007 (OJ 2018 L 150, p. 1).

Since 2014, the applicant has been supplied by suppliers located in the third countries in question, the production of which has been certified by CUC as being from organic farming.

By letter of 31 January 2019, the Commission informed CUC of its intention to withdraw its recognition as a control body for the third countries in question, on the basis of certain failures to comply with the first subparagraph of Article 12(2) of Regulation No 1235/2008. It envisaged that the withdrawal would take place in the second quarter of 2019.

Commission Implementing Regulation (EU) 2019/446 of 19 March 2019 amending and correcting Regulation No 1235/2008 (OJ 2019 L 77, p. 67) (‘the contested regulation’) amends and corrects the list of control bodies included in Annex IV to Regulation No 1235/2008.

By Article 1(3), read in conjunction with point 3 of Annex II to the contested regulation, the Commission withdrew the recognition of CUC as a competent body to carry out controls and issue certificates of inspection for all product categories for which CUC had been recognised in respect of the third countries in question.

The grounds for the withdrawal of CUC’s recognition are set out in recital 8 of the contested regulation. That recital reads as follows:

‘The Commission carried out investigations on suspected irregularities in relation to several lots of products from [the third countries in question] that had been certified as being organic by [CUC]. [CUC] did not provide timely and conclusive answers to the various requests for information made by the Commission. In addition, [CUC] failed to demonstrate the traceability and organic status of those products. Moreover, [CUC] issued a certificate of inspection for products that had previously been downgraded to conventional by the competent authorities of a Member State due to pesticide residues. Therefore, the Commission has decided to withdraw the recognition of [CUC] pursuant to points (c), (d) and (f) of the first subparagraph of Article 12(2) of Regulation … No 1235/2008 for all product categories in respect of [the third countries in question] …’

The contested regulation was published in the Official Journal of the European Union on 20 March 2019. Under Article 2 of the contested regulation, Article 1(3) and point 3 of Annex II entered into force on 9 April 2019.

Procedure and forms of order sought

By application lodged at the Court Registry on 17 May 2019, the applicant brought the present action.

On 17 September 2019, the Commission lodged the defence.

On 7 January 2020, the applicant lodged the reply.

On 9 March 2020, the Commission lodged the rejoinder.

By way of measure of organisation of procedure of 9 October 2020, the Court addressed questions to the parties to be answered in writing. Those questions concerned the legal and factual consequences of the withdrawal of the recognition of a control body since objections of inadmissibility had been raised. The Commission complied with that request within the prescribed period. In view of the effects of the health crisis related to COVID-19, the applicant’s replies were placed on the file despite the failure to comply with the prescribed period.

By decision of the President of the Eighth Chamber of 10 November 2020, the Court invited the parties to submit their observations on the replies to the Court’s written questions of 9 October 2020. The parties submitted their respective observations within the prescribed period.

The applicant claims, in essence, that the Court should:

–annul Article 1(3) of the contested regulation in so far as that provision, in conjunction with point 3 of Annex II to that regulation, withdraws CUC’s recognition as a competent body for carrying out controls and issuing certificates of inspection authorising the placing on the EU market, as organic products, of products imported from the third countries in question;

–grant it access to the documents on which the Commission based recital 8 of the contested regulation, amongst others the alleged decision by the Italian authorities to downgrade from ‘organic’ to ‘conventional’ the sunflower seeds cargo for which CUC subsequently issued, for its use, as importer into the European Union, a certificate of inspection;

–adopt measures of organisation of procedure or inquiry and examine nine witnesses.

The Commission contends that the Court should:

–dismiss the action as inadmissible;

–alternatively, dismiss the action as ineffective and unfounded;

–dismiss the applications for measures of organisation of procedure or inquiry and for the examination of witnesses;

–order the applicant to pay the costs.

Law

Without raising an objection of inadmissibility by separate document under Article 130 of the Rules of Procedure of the General Court, the Commission contends that the action is inadmissible, since the applicant has neither an interest in bringing, nor standing to bring, proceedings for the annulment of Article 1(3) of, and point 3 of Annex II to, the contested regulation.

The applicant contests, in essence, the objections of inadmissibility raised by the Commission.

Under Article 126 of its Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.

In the present case, the Court, considering that it has sufficient information from the documents in the file, has decided to give a decision without taking further steps in the proceedings.

Preliminary observations

It must be borne in mind that an interest in bringing proceedings and locus standi are distinct conditions for admissibility which must be satisfied by a natural or legal person cumulatively in order to be admissible to bring an action for annulment under the fourth paragraph of Article 263 TFEU (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 62).

Thus, first, according to the settled case-law of the Court of Justice, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of the contested act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see, to that effect, judgment of 20 December 2017, Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:1001, paragraph 44 and the case-law cited).

It is for the applicant to prove its interest in bringing proceedings. In particular, in order for an action seeking annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner its interest in the annulment of that act (see judgment of 20 December 2017, Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:1001, paragraph 45 and the case-law cited).

Secondly, the admissibility of an action brought by a natural or legal person against an act not addressed to it, under the fourth paragraph of Article 263 TFEU, is subject to the condition that the person is recognised as having standing to bring proceedings, which is the case in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to that person. Secondly, the person may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to it (judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 19).

The concept of ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU extends to all non-legislative acts of general application (judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 28).

The condition that a natural or legal person must be directly concerned by the act against which the action is brought, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal situation of the individual and, secondly, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42 and the case-law cited).

It is necessary to ascertain whether the applicant has an interest in bringing, and standing to bring, proceedings in the light of the foregoing considerations.

Whether the applicant has an interest in bringing proceedings

The Commission contends that the applicant has not demonstrated that it had an interest in bringing proceedings for the annulment of Article 1(3) of, and point 3 of Annex II to, the contested regulation.

The applicant submits that it has an interest in bringing proceedings and complains that the Commission caused considerable negative effects on its commercial activity, which constitutes a disproportionate interference with its property and its freedom to engage in commerce. In addition, the action is justified in that the applicant is entitled to protection against the arbitrary revocation of designations of control bodies and to expect that the rules on organic production are properly applied.

In that regard, it should be noted that the contested regulation had the effect of removing CUC from the list of control bodies recognised by the Commission under Article 33(3) of Regulation No 834/2007. Accordingly, the activities of the operators concerned in the third countries in question may no longer be submitted to the control of that body within the meaning of Article 33(1)(c) of Regulation No 834/2007 and that body is no longer able to issue certificates of inspection within the meaning of Article 33(1)(d).

In that context, in the first place, it must be stated that the applicant has failed to substantiate its claim that the considerable reductions in its turnover and profits between March and May 2019 are a consequence of the withdrawal of CUC’s recognition as a control body. The applicant has not set out the specific cause of its financial losses, such as, for instance, a difficulty in selling on the EU market the products which it had planned to label as organic. Above all, it has not explained how the annulment of the contested regulation would be likely to remedy its financial losses, which were, ostensibly, sustained once and for all.

It is true that, at the reply stage, the applicant produced, in Annex A.5, consolidated annual figures, partly uncertified, in respect of three financial years from July 2016 to June 2019, together with an explanatory letter. However, that annex is inadmissible since, first, the applicant confined itself, in the body of the reply, to making a general reference to that annex without providing an argument in law relating to that document, in breach of the requirements laid down in Article 21 of the Statute of the Court of Justice of the European Union and Article 76(f) of the Rules of Procedure of the General Court (see, by analogy, judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraphs 94 and 95 and the case-law cited).

Secondly, the time-bar rule laid down in Article 85(1) of the Rules of Procedure prevents Annex A.5 from being declared admissible. As set out in paragraph 32 above, the applicant did not substantiate, in the application, the negative economic effects to which it has referred. Nor did it offer evidence in support in that regard. Therefore, even if, at the reply stage, it relies on Annex A.5 to dispute the Commission’s argument concerning the lack of evidence of an interest in bringing proceedings and the negative economic effects which the applicant has allegedly sustained, that annex does not constitute evidence in rebuttal or the amplification of evidence offered in the application.

In any event, Annex A.5 does not demonstrate that the withdrawal of CUC’s recognition in respect of the third countries in question, which took place on 9 April 2019, caused the losses in turnover and profits between March and May 2019 referred to in the application, or between July 2018 and June 2019 as referred to in the abovementioned annex. That annex set outs consolidated, partly uncertified figures. There is no indication that the figures relate only to proceeds of sales of organic products. The applicant has not substantiated causation between the withdrawal of CUC’s recognition and the results stated. Therefore, since the applicant has not demonstrated that the withdrawal of CUC’s recognition has resulted in concrete losses, it has not demonstrated either that any annulment of that withdrawal would give rise to an advantage in that respect.

36In the second place, the applicant submits that it would be very difficult, if not impossible, for the operators concerned in the third countries in question to secure, after having initially chosen CUC to serve as their control body, another control body, not initially involved, which would take over the controls carried out in respect of their activities and issue a certificate of inspection. However, as the applicant itself accepts, the relevant legislation, in particular the provisions of Commission Regulation (EC) No 889/2008 of 5 September 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 834/2007 on organic production and labelling of organic products with regard to organic production, labelling and control (OJ 2008 L 250, p. 1), allows, for the purposes of controls and the issuance of the certificate referred to in Article 33 of Regulation No 834/2007, a control body to replace another body initially chosen by a given operator in a third country. Furthermore, while the Commission stressed that Annex IV to Regulation No 1235/2008 identified, in respect of the third countries in question, various control bodies other than CUC, the applicant has not explained how the services provided by those bodies would not be appropriate or how those bodies would not be able to replace CUC.

37In that regard, having been asked by the Court, in the context of measures of organisation of procedure, to do so, the applicant was unable to identify any lot of products which it allegedly intended to import and which either could not be checked or could not be certified. Instead, the applicant referred to the existence of a certificate of inspection which, after having initially been granted by CUC, had allegedly been revoked by that body, which led the Netherlands authorities also to call that certificate of inspection into question. As set out in paragraphs 49 and 50 below, it is sufficient to point out that that revocation, which predates the withdrawal of CUC’s recognition as a control body, is unrelated to the contested regulation.

38In the third place, in so far as the applicant maintains that the purpose of the action is to ensure the proper application of the rules in the field of organic production, it should be noted that a natural or legal person is not empowered to act in the interests of the law or the institutions and that compliance with the law does not confer on such an applicant an interest in bringing proceedings.

39In the light of the foregoing considerations, the applicant has not justified its interest in bringing proceedings by relying in a relevant manner before the Court on the advantage which it was likely to derive from the annulment sought.

Whether the applicant has an interest in bringing proceedings

40The Commission contends that the applicant is not directly concerned by Article 1(3) of, and point 3 of Annex II to, the contested regulation.

41The applicant contests that position. It argues that CUC was the control body for the farms from which its main supplier sourced organic products, and issued inspection certificates naming the applicant as importer, which allowed it to access the EU organic market. Accordingly, the withdrawal of CUC’s recognition immediately had direct legal effects on the applicant and it was unable to import into the European Union the products of organic farmers who, for many years, had been inspected by CUC without any irregularity.

42In that regard, the Court recalls that Article 1(3), read in conjunction with point 3 of Annex II to the contested regulation, removes CUC from the list of control bodies set out in Annex IV to Regulation No 1235/2008 in respect of the third countries in question and for all product categories.

43However, in the first place, the applicant’s right to continue its activities, as an importing company subject to the control system of Skal Biocontrole, has not been affected by the provisions of the contested regulation which it seeks to have annulled.

44In the second place, the contested regulation directly affected CUC, in that that body lost the status of control body, within the meaning of Article 33(3) of Regulation No 834/2007, which had previously been granted to it by the Commission. Furthermore, that regulation could, depending on the circumstances, have directly affected the situation of operators or exporters, in the third countries in question, the activities of which were checked by CUC. The applicant for its part does not enjoy, with a view to importing organic products into the European Union, a right to be issued with inspection certificates specifically by that control body and which would have been directly affected by the adoption of the contested regulation.

45Admittedly, it is conceivable that the withdrawal of CUC’s recognition could have disrupted the activities of importers such as the applicant, in view, for instance, of the existence of long-term contractual relations with operators in the third countries in question. However, those consequences, assuming they are established, are of an economic nature and do not, therefore, constitute legal effects of the contested regulation which would make it possible to consider that that regulation directly concerns the applicant (see, to that effect, judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 109 and the case-law cited).

46Furthermore, it is apparent from the parties’ replies to the Court’s questions that a new control body may, under certain conditions, complete tasks begun by a control body the recognition of which has been withdrawn and may issue a certificate of inspection for products which have been subject to controls carried out by such a control body.

47Consequently, even if, as the applicant argues, in essence, in its reply and submissions, the new control body may be reluctant to ‘take over’ from a control body the recognition of which has been withdrawn, or that process may take some time having regard to the transfer of files and the additional controls and the checks of previous controls required, those difficulties relate, in particular, to the risk management approaches of the control bodies concerned and the effect of those approaches on the importation and marketing opportunities of products in respect of which the applicant may have certain property rights or purchase options under its commercial relations with its suppliers, rather than to the applicant’s legal position.

48In the third place, the applicant has not provided any evidence that it was prevented from importing products for which it was allegedly issued a certificate of inspection before 9 April 2019.

49In that regard, it is apparent from the file and, in particular from Annexes B.4 and B.5, adduced by the Commission in annex to the defence, that the only lots of the applicant’s products, in respect of which it is established that the relevant certificate of inspection issued on 18 October 2018 by CUC has been revoked, relate to lots of sunflower seeds. Those lots of sunflower seeds correspond to the products referred to in recital 8 of the contested regulation in the third ground for the withdrawal of CUC’s recognition, that is products which had previously been subject to ‘downgrading’ (see paragraph 8 above).

50As already noted in paragraph 37 above, that revocation is unrelated to the contested regulation. First, the certificate of inspection issued by CUC for the lots of sunflower seeds in question was revoked by that body itself on 11 December 2018. Secondly, by decision of 21 December 2018, Skal Biocontrole expressly required the applicant not to place the lots concerned on the market with information referring to the organic production method, pursuant to Article 30 of Regulation No 834/2007 and Article 91(2) of Regulation No 889/2008. In addition, Skal Biocontrole also informed the applicant that it could object to that decision by lodging an objection within a period of six weeks.

51It follows that the revocation of the certificate of inspection by CUC and Skal Biocontrole’s decision prohibiting any reference to the organic production method, referred to in paragraph 50 above, occurred before the adoption of the contested regulation on 19 March 2019 and before the entry into force of the withdrawal of CUC’s recognition for the third countries in question on 9 April 2019.

52Furthermore, in response to a question put by the Court by way of a measure of organisation of procedure, the applicant did not cite any example of specific instances in which its products could not be controlled or certified.

53Thus, even assuming that the applicant experienced difficulties in importing certain products into the European Union following the withdrawal of CUC’s recognition, it is not established (i) that those difficulties are the direct consequence of the provisions of the contested regulation, the annulment of which it seeks, and (ii) that they affect its legal situation.

54Next , the applicant states that the Commission did not designate alternative control bodies to carry out the organic certification of products from previous harvests, with the result that it was impossible to certify the organic production of the year preceding the withdrawal of CUC’s recognition.

55In that regard, it should be noted that the applicant is wrong to assert that the Commission did not recognise any alternative control bodies. Annex IV to Regulation No 1235/2008, in the versions applicable before and after the entry into force of the withdrawal of CUC’s recognition, lists, for each of the third countries in question, at least 10 bodies other than CUC recognised as competent bodies to carry out controls and issue certificates for various categories of products. Thus, Annex IV to the consolidated version of Regulation No 1235/2008 of 9 April 2019 lists 10 control bodies for the United Arab Emirates, 16 for Kazakhstan, 11 for Moldova, 17 for Russia and 16 for Turkey. In addition, as set out in paragraphs 36 and 46 above, the regulatory framework allows for the certification, by a new control body, of products which have been subject to controls carried out by a control body the recognition of which has been withdrawn.

56Having regard to the foregoing, it must be concluded that the applicant has not demonstrated that the contested regulation directly affected its legal situation.

57That conclusion is not called into question by the applicant’s argument that the withdrawal of CUC’s recognition would be contrary to its rights to be protected against the arbitrary revocation of designations of organic certification bodies in third countries, to be subject only to the lawful implementation of the rules in the field of organic production and to be subject only to proportionate interference with its activities, property and freedom to engage in commercial activity.

58In that regard, it is apparent from recitals 3 and 33 and Article 1(1) and Article 33(1) of Regulation No 834/2007 that the objective of the EU legal framework governing the organic production sector is to ensure fair competition, a proper functioning of the internal market and the maintenance and justification of consumer confidence in products labelled as organic, whether the products from organic farming are from the European Union or imported.

59Article 12(2) of Regulation No 1235/2008 empowers the Commission, after a favourable opinion of the committee, to remove a control body from the list set out in Annex IV to that regulation in any situation where there is a risk that the consumer may be misled as to the true nature of the products certified by that body. It does not require, during that process, comments to be received from third parties, such as importers of products certified by that body.

60The withdrawal of the recognition of a control body is, therefore, decided not on the basis of that body’s interests or the economic interests of third parties which used that body’s services, but in order to ensure that the objectives referred to in paragraph 58 above are achieved.

61It follows from all the foregoing considerations that the applicant has not established either its interest in bringing proceedings, or its standing to bring proceedings, in the present action for annulment.

62The action must, therefore, be dismissed as manifestly inadmissible and there is no need to rule on the applications for measures of organisation of procedure and for the examination of witnesses submitted by the applicant.

Costs

63Under 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 Commission has applied for them, the applicant must be ordered to pay the costs.

On those grounds,

hereby orders:

1.The action is dismissed as manifestly inadmissible.

2.There is no need to rule on the applications for measures of organisation of procedure and for the examination of witnesses submitted by Graanhandel P. van Schelven BV.

Luxembourg, 24 March 2021.

J. Svenningsen

Registrar

President

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Language of the case: English.