14 September 2016 (*1)

‘Action for annulment — Application for registration of a protected designation of origin (‘Halloumi’ or ‘Hellim’) — Decision to publish in the Official Journal, C series, an application for registration of a protected designation of origin pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 — Preparatory measure — Measure not open to challenge — Inadmissibility’

In Case T‑584/15,

Pagkyprios organismos ageladotrofon Dimosia Ltd (POA), established in Latsia (Cyprus), represented by N. Korogiannakis, lawyer,

applicant,

European Commission, represented by A. Lewis and J. Guillem Carrau, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of the Commission’s decision to publish in the Official Journal of the European Union (OJ 2015 C 246, p. 9) application for registration No CY/PDO/0005/01243, introduced by the Republic of Cyprus, inasmuch as it found that that application met the conditions laid down by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1), as referred to in Article 50(1) of that regulation,

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro, President, S. Gervasoni and L. Madise (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Legal framework

‘1. Applications for registration of names under the quality schemes referred to in Article 48 may only be submitted by groups who work with the products with the name to be registered. ...

The Member State shall scrutinise the application by appropriate means in order to check that it is justified and meets the conditions of the respective scheme.

3. As part of the scrutiny referred to in the second subparagraph of paragraph 2 of this Article, the Member State shall initiate a national opposition procedure that ensures adequate publication of the application and that provides for a reasonable period within which any natural or legal person having a legitimate interest and established or resident on its territory may lodge an opposition to the application.

The Member State shall ensure that its favourable decision is made public and that any natural or legal person having a legitimate interest has an opportunity to appeal.

The Member State shall ensure that the version of the product specification on which its favourable decision is based, is published, and shall provide electronic access to the product specification.

With reference to protected designations of origin and protected geographical indications, the Member State shall also ensure adequate publication of the version of the product specification on which the Commission takes its decision pursuant to Article 50(2).’

‘1. The Commission shall scrutinise by appropriate means any application that it receives pursuant to Article 49, in order to check that it is justified and that it meets the conditions of the respective scheme ...

(a) for applications under the scheme set out in Title II [Protected Designations of Origin and Protected Geographical Indications], the single document and the reference to the publication of the product specification;

‘1. Within three months from the date of publication in the Official Journal of the European Union, the authorities of a Member State or of a third country, or a natural or legal person having a legitimate interest and established in a third country may lodge a notice of opposition with the Commission.

Any natural or legal person having a legitimate interest, established or resident in a Member State other than that from which the application was submitted, may lodge a notice of opposition with the Member State in which it is established within a time limit permitting an opposition to be lodged pursuant to the first subparagraph.

A notice of opposition shall contain a declaration that the application might infringe the conditions laid down in this Regulation ...

The Commission shall forward the notice of opposition to the authority or body that lodged the application without delay.

3. Within two months after the receipt of an admissible reasoned statement of opposition, the Commission shall invite the authority or person that lodged the opposition and the authority or body that lodged the application to engage in appropriate consultations for a reasonable period that shall not exceed three months.

The authority or person that lodged the opposition and the authority or body that lodged the application shall start such appropriate consultations without undue delay. They shall provide each other with the relevant information to assess whether the application for registration complies with the conditions of this Regulation. If no agreement is reached, this information shall also be provided to the Commission.

‘1. Where, on the basis of the information available to the Commission from the scrutiny carried out pursuant to the first subparagraph of Article 50(1), the Commission considers that the conditions for registration are not fulfilled, it shall adopt implementing acts rejecting the application. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2).

3. If the Commission receives an admissible reasoned statement of opposition, it shall, following the appropriate consultations referred to in Article 51(3), and taking into account the results thereof, either:

(a) if an agreement has been reached, register the name by means of implementing acts adopted without applying the procedure referred to in Article 57(2), and, if necessary, amend the information published pursuant to Article 50(2) provided such amendments are not substantial; or

(b) if an agreement has not been reached, adopt implementing acts deciding on the registration. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2).

‘1. The Commission shall be assisted by the Agricultural Product Quality Policy Committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

‘1. Where the examination procedure applies, the committee shall deliver its opinion by the majority laid down in Article 16(4) and (5) of the Treaty on European Union and, where applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles.

3. Without prejudice to Article 7, if the committee delivers a negative opinion, the Commission shall not adopt the draft implementing act. Where an implementing act is deemed to be necessary, the chair may either submit an amended version of the draft implementing act to the same committee within two months of delivery of the negative opinion, or submit the draft implementing act within one month of such delivery to the appeal committee for further deliberation.

Background to the dispute

Procedure and forms of order sought

—annul the contested measure;

—order the Commission to pay the costs.

—dismiss the action as inadmissible;

—order the applicant to pay the costs.

—declare the action admissible;

—examine the substance of the action;

—annul the contested measure;

—order the Commission to pay the costs.

Law

25Under Article 130 of the Rules of Procedure, if a party applies, by a separate document, to the Court for a decision on inadmissibility or lack of competence, without going to the substance of the case, the Court may give a decision, by reasoned order, without taking further steps in the proceedings.

26In the present case, the Court considers that it has sufficient information from the documents in the case file and has decided, consequently, to give a decision without taking further steps in the proceedings.

27The Commission contends that the action for annulment brought by the applicant is inadmissible on the grounds that, first, the contested measure is not an actionable measure because it is a preparatory measure and does not lay down the Commission’s position definitively and, secondly, it does not affect, to the requisite legal standard, the legal position or procedural rights of the applicant.

28The applicant disputes the preparatory nature of the contested measure. It claims that the contested measure is an act amenable to judicial review since it is a measure which contains a ‘decision’ of the Commission according to which the application for registration of the name Halloumi meets all the conditions for registration as a PDO laid down in Regulation No 1151/2012 and which has binding legal effects.

29For the purpose of ruling on the plea of inadmissibility submitted by the Commission, it must first of all be determined whether, as the Commission contends, the contested measure is preparatory in relation to the final decision, in such a way that it would not be actionable.

30It 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’.

31In order to ascertain whether contested measures are acts within the meaning of the fourth paragraph of Article 263 TFEU, it is necessary to look to their substance (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9).

32In that respect, only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 263 TFEU (judgment of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 32 and the case-law cited).

33In the case of acts adopted by a procedure involving several stages of an internal procedure, in principle an act is open to review only if it is a measure which definitively lays down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision, and whose legal defects could reasonably be raised in an action against it (see order of 3 September 2015, Spain v Commission, T‑676/14, EU:T:2015:602, paragraph 13 and the case-law cited).

34In the present case, in accordance with Article 50(2) of Regulation No 1151/2012, the purpose of the decision on ‘publication for opposition’ is, as the title indicates, to open the opposition procedure provided for in Article 51 of that regulation and, thus, to pave the way for the ‘decision on registration’ referred to in Article 52 of that regulation, which remains the final decision.

35It follows that the decision on ‘publication for opposition’ referred to in Article 50(2) of Regulation No 1151/2012 is preparatory in relation to the ‘decision on registration’, so that only the latter decision is capable of producing legal effects such as to affect the interests of the applicant and, consequently, of being the subject of an action for annulment pursuant to Article 263 TFEU (see, to that effect, order of 10 September 2014, Zentralverband des Deutschen Bäckerhandwerks v Commission, T‑354/13, not published, EU:T:2014:775, paragraph 30).

36Furthermore, any legal defects contained in such a preparatory measure may be relied upon in an action directed against the definitive act for which the measure represents a preparatory step (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12), provided the applicant demonstrates, in accordance with the fourth paragraph of Article 263 TFEU, that the requirements for admissibility of the action have been met.

37In the light of the foregoing, the decision on ‘publication for opposition’ provided for in Article 50(2) of Regulation No 1151/2012 does not constitute an actionable measure.

38That conclusion is not invalidated by the applicant’s arguments.

39First, the applicant submits that the contested measure produces binding legal effects and highly negative economic effects in its regard. It stresses that, from a legal point of view, the contested measure immediately renders its products incompatible with the 1985 standard inasmuch as, as of publication of the application for registration at issue, they will merely be ‘tolerated’ on the market and will no longer be perceived by consumers as ‘traditional’ products. The applicant submits, in that regard, that, even if the Commission does not register the name Halloumi as a PDO, the contested measure would have adverse effects on it as that measure finds that the application for registration at issue meets the criteria laid down by Regulation No 1151/2012. Furthermore, the applicant claims to have suffered significant financial harm linked, in particular, to the loss of market share, clients and contracts relating to the sale of cow’s milk used in the production of halloumi cheese. It submits that, if the contested measure is not annulled, almost 30 million litres of milk produced by its members will immediately become surplus, which will inevitably lead to the collapse of those members.

40In that regard, it must be noted that the applicant’s arguments do not establish the existence of legal effects capable of affecting its interests. In fact, on the one hand, the contested measure, given that it is preparatory in nature, has no binding legal effect capable of affecting the conformity, in law, of the applicant’s products in relation to the 1985 standard. In particular, the measure has neither the purpose nor the effect of giving, as such, binding force to the interpretation it adopts of that standard. On the other hand, the financial harm alleged by the applicant, even if it were established, simply does not have any bearing on the analysis of the legal nature of the contested decision (see, to that effect and by analogy, order of 3 September 2015, Spain v Commission, T‑676/14, EU:T:2015:602, paragraph 18).

41Secondly, the analogy suggested by the applicant between, on the one hand, the decision to reject the application for registration on the basis of Article 52(1) of Regulation No 1151/2012, which is taken following the scrutiny provided for in Article 50(1) of that regulation and is definitive, and, on the other hand, the decision on ‘publication for opposition’ referred to in Article 50(2) of that regulation, which is also taken following that scrutiny, must be disregarded as unfounded.

42In fact, as is apparent from Article 52(1) of Regulation No 1151/2012 and Article 50(2) of that regulation, the decision to reject the application for registration, with which Article 52 is concerned, closes the registration procedure, whereas, on the contrary, the decision on ‘publication for opposition’, with which Article 50 is concerned, opens a new stage of that procedure.

43Thirdly, the applicant maintains that the scrutiny carried out by the Commission on the basis of Article 50(1) of Regulation No 1151/2012 is definitive, inasmuch as the Commission can — in accordance with the principles of sound administration, legal certainty and legitimate expectations — refuse the registration, following the opposition procedure, only on the basis of additional information received during that procedure, with the result that the decision taken following that scrutiny, under Article 50(2) of that regulation, is itself definitive. The applicant argues, in that respect, that the decision taken on the basis of Article 50(2) of Regulation No 1151/2012 cannot be amended by the Commission itself.

44However, those elements have no effect on the finding in paragraph 35 above that the decision referred to in Article 50(2) of Regulation No 1151/2012 is merely preparatory in nature. Moreover, nothing at this stage of the registration procedure prevents the Commission, on the basis of Article 52(3)(b) of Regulation No 1151/2012, from going on to reject the application for registration, on completion of the opposition procedure, in the context of the opinion procedure of the Agricultural Product Quality Policy Committee as provided in Article 57(2) of that regulation.

45In that regard, contrary to the applicant’s claim, the need to wait for the final decision in order to challenge any legal defects contained in a preparatory measure does not constitute a ‘loss of time and resources’. To allow an action against such a preparatory measure would be incompatible with the system of the division of powers between the Commission and the EU judicature and of remedies, laid down by the Treaty, as well as with the requirements of the sound administration of justice and the proper course of the administrative procedure (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 51 and the case-law cited).

46Finally, the fact that the Commission allegedly has no discretion on the basis of Article 52(2) of Regulation No 1151/2012 or Article 52(3)(a) thereof to reject the application for registration and is bound to register the name requested does not deprive the act of registration of its actionable character or the applicant of its right to effective legal protection, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union. In fact, any legal defects contained in a preparatory measure such as the contested measure may be relied upon in an action directed against the definitive measure, thereby assuring sufficient legal protection (see, to that effect, order of 27 November 2013, MAF v EIOPA, T‑23/12, not published, EU:T:2013:632, paragraph 33 and the case-law cited).

47Fourthly, insofar as the applicant asserts, relying on the judgment of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264, paragraph 11), that the contested measure is ‘distinct’ from measures which may be taken under Article 52 of Regulation No 1151/2012, in that it pre-dates those measures taken following the opposition procedure and is independent of that procedure, it must be noted that, contrary to the requirements set out in paragraph 11 of the aforementioned judgment, the contested measure does not constitute the ‘culmination of a special procedure [that is] distinct’ but is, on the contrary, the end of a stage of the procedure, namely the stage of ‘scrutiny by the Commission and publication for opposition’ provided for in Article 50 of Regulation No 1151/2012 (see paragraph 34 above).

48Consequently, the action must be dismissed as inadmissible, there being no need to consider the second plea of inadmissibility raised by the Commission.

Costs

49Under 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, and the Commission has applied for costs, the applicant must be ordered to pay the costs, including those relating to the proceedings for interim measures.

On those grounds,

THE GENERAL COURT (Second Chamber),

hereby orders:

1.The action is dismissed.

Pagkyprios organismos ageladotrofon Dimosia Ltd (POA) shall bear its own costs and pay those incurred by the European Commission, including the costs relating to the proceedings for interim measures.

Luxembourg, 14 September 2016.

E Coulon

Registrar

President

*1 Language of the case: English.