20 October 2022 (*)

(Action for annulment – Common agricultural policy – Common catalogue of varieties of agricultural plant species – Plant varieties – Producer of the hemp variety Finola – Areas cultivated in Poland – Hemp varieties eligible for financial support under the common agricultural policy – Tetrahydrocannabinol (THC) content – Authorisation given to Poland to prohibit the marketing of the Finola variety in its territory – Not directly concerned – Inadmissibility)

In Case T‑653/21,

residing in Kuopio (Finland), represented by P. Hoffman, lawyer,

applicant,

European Commission,

represented by A. Becker and F. Castilla Contreras, acting as Agents,

defendant,

THE GENERAL COURT (Sixth Chamber),

composed, at the time of the deliberations, of A. Marcoulli, President, J. Schwarcz (Rapporteur) and R. Norkus, Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure, in particular:

–the application lodged at the Registry of the General Court on 6 October 2021,

–the plea of inadmissibility raised by the Commission under Article 130 of the Rules of procedure of the General Court, by separate document lodged at the Court Registry on 22 December 2021,

–the applications to intervene lodged, respectively, on 11 January, 7 February and 10 March 2022, by the Council of the European Union, the European Parliament and the Republic of Poland,

–the applicant’s observations on the plea of inadmissibility, lodged at the Court Registry on 21 February 2022,

–the applicant’s offer of evidence lodged at the Court Registry on 7 April 2022,

–the Commission’s observations on the offer of evidence, lodged on 10 May 2022,

makes the following

By his action under Article 263 TFEU, the applicant, James C. Callaway, seeks the annulment of Commission Implementing Decision (EU) 2021/1214 of 22 July 2021 authorising Poland to prohibit the marketing on its territory of the hemp variety Finola pursuant to Council Directive 2002/53/EC (OJ 2021 L 265, p. 1) (‘the contested decision’). He also raises, under Article 277 TFEU, pleas of illegality in respect of Article 32(6) of Regulation No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes falling within the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608), as well as Article 9(5) of Commission Delegated Regulation (EU) No 639/2014 of 11 March 2014 supplementing Regulation No 1307/2013 and amending Annex X to that Regulation (OJ 2014 L 181, p. 1).

Background to the dispute

The applicant is the exclusive holder of a Community plant variety right under Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (OJ 1994 L 227, p. 1) for the hemp variety Finola. He produces seed of that variety and places it on the market in the European Union.

In January 2021, by informing the European Commission that, following analyses carried out by its own authorities, it had concluded that, in 2019 and 2020, the hemp variety Finola exceeded the tetrahydrocannabinol (‘THC’) content laid down in Article 32(6) of Regulation No 1307/2013, the Republic of Poland requested authorisation from the Commission to prohibit the marketing of that variety throughout its territory.

According to Article 32(6) of Regulation No 1307/2013, agricultural areas used for the production of hemp are eligible for direct payments under the common agricultural policy (‘the CAP’) only if the varieties of hemp cultivated have a THC content not exceeding 0.2%.

Pursuant to that provision, Article 9(5) of Delegated Regulation No 639/2014 provides that if, for the second year the average of all the samples of a given hemp variety exceeds the THC content as laid down in Article 32(6) of Regulation No 1307/2013, the Member State concerned, by 15 January of the following application year at the latest, is to notify the Commission of the request for authorisation to prohibit the marketing of such variety in accordance with Article 18 of Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species (OJ 2002 L 193, p. 1). In addition, Article 9(5) of Delegated Regulation No 639/2014 provides that, as from that claim year, the variety for which authorisation to prohibit is requested shall not be eligible for direct payments in the Member State concerned.

Under Article 18 of Directive 2002/53, a Member State may, upon request, be authorised to prohibit the marketing of a variety listed in the Common Catalogue of Varieties if the cultivation of that variety poses a risk to the environment or human health.

On 22 July 2021, the Commission adopted the contested decision on the basis of Directive 2002/53, in particular Article 18 thereof. Article 1 of the contested decision provides that the Republic of Poland may prohibit the marketing of the hemp variety Finola throughout its territory in accordance with Article 18 of Directive 2002/53. Under Article 2 of that decision, the Republic of Poland is to notify the Commission of the date from which it will put into practice the authorisation granted in Article 1.

Forms of order sought

In the application, the applicant claims that the Court should:

–annul the contested decision;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action as inadmissible;

–order the applicant to pay the costs.

In his observations on the plea of inadmissibility, the applicant contends that the Court should:

–dismiss the plea of inadmissibility;

–in the alternative, join the examination of that plea to the substance of the case;

–in the further alternative, open the oral part of the procedure in relation to the plea of inadmissibility.

In its plea of inadmissibility, the Commission submits that, within the meaning of the fourth paragraph of Article 263 TFEU, the contested decision is not of direct concern to the applicant, either in respect of direct payments under the CAP or in respect of plant variety rights, contrary to the applicant’s claims.

In response to the plea of inadmissibility, the applicant submits that the contested decision, which authorises the Republic of Poland to prohibit the marketing of the Finola variety, is of direct concern to him as the exclusive holder of the right to that variety and as a manufacturer and supplier of its seeds. He considers that it is also in those capacities that he is directly concerned on the ground that, for an indefinite period, the contested decision makes the Finola variety ineligible for direct payments under the CAP.

First, the applicant acknowledges that it is the Polish prohibition measures, taken pursuant to the authorisation given by the contested decision, which would directly affect his legal position, and not the contested decision itself. However, he argues (i) that the Republic of Poland is obliged to impose the prohibition which the contested decision authorises it to impose and (ii) that, in view of the erosion of the rule of law in that country, the national measure taken in implementation of the contested decision will not be subject to an effective remedy. As further evidence of the absence of such a remedy, the applicant produced a copy of an order of the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw, Poland) of 8 February 2022 declaring an appeal brought by the applicant before that national court inadmissible.

Second, the applicant claims that, without the need for any implementing measures at EU or national level, the contested decision extends the ineligibility of the Finola variety for direct payments and thus has the practical effect of withdrawing it from the market, even though it may still be lawfully placed on the market.

In that regard, it should be noted that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may bring an action against an act addressed to that person or which is of direct and individual concern to that person, as well as against a regulatory act which is of direct concern to that person and which does not entail implementing measures.

It is not disputed by the parties that the applicant is not the addressee of the contested measure within the meaning of the first scenario referred to in the fourth paragraph of Article 263 TFEU.

It must therefore be determined whether the applicant is directly concerned by the contested decision, as the Commission maintains that it is not.

It follows from settled case-law that the condition that a natural or legal person must be directly concerned by the decision which is the subject matter of the action, as laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely that the contested measure, first, has a direct effect on the legal position of the individual and, second, does not leave any discretion to the addressees responsible for implementing it, that implementation being purely automatic and deriving solely from EU legislation, without the application of other intermediate rules (see 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 103 and the case-law cited). The same is true where the possibility of the addressees not acting on the measure at issue is purely theoretical and their intention to act in conformity with it is not in doubt (see order of 19 June 2008, US Steel Košice v Commission, C‑6/08 P, not published, EU:C:2008:356, paragraph 61 and the case-law cited).

Moreover, as regards the first of the two cumulative conditions which must be satisfied in order for direct concern on the part of the applicant to be established, it is necessary to determine what the legal effects of the contested decision are and, in that regard, it is necessary to consider, in particular, its subject matter, its content, its scope, its substance and the legal and factual context in which it was adopted (judgment of 22 June 2021, Venezuela v Council (Whether a third State is affected), C‑872/19 P, EU:C:2021:507, paragraph 66).

In the first place, as regards the prohibition on marketing the Finola variety, it should be noted that the second of the two cumulative conditions of direct concern referred to in paragraph 18 above is not met.

According to its operative part, the contested decision authorises the Republic of Poland, at its request, to prohibit the marketing of the Finola variety of hemp on its territory, ‘in accordance with Article 18 of Directive 2002/53/EC’. Furthermore, it provides that the Republic of Poland must communicate to the Commission ‘the date from which it will apply the authorisation provided for’.

It follows, as the Commission rightly observes, that the implementation of the contested decision is not purely automatic and does not derive solely from the EU legislation, without the application of other intermediate rules. By contrast, the contested decision consists of an authorisation to the Republic of Poland to prohibit the marketing of the Finola variety. In other words, the Republic of Poland, which retains a discretionary power in that regard, must still take national measures in order for that prohibition to be in force, since it does not follow automatically from the contested decision. That is why Article 2 of the contested decision provides that the Republic of Poland must inform the Commission of ‘the date from which it will apply the authorisation provided for’. Moreover, the applicant has not indicated that the Republic of Poland prohibited the marketing of the Finola variety after the adoption of the contested decision.

Furthermore, it is apparent from the file, in particular from the documents produced in the annexes to the application, that the Republic of Poland had no definite intention of prohibiting the marketing of the Finola variety on its territory. There were doubts as to the consequences it would draw from the contested decision and it was therefore not certain that it would take a national prohibition measure. In other words, the possibility of the Republic of Poland not taking action was not purely theoretical.

In the second place, the contested decision has no legal effect in relation to any direct payments which the applicant may receive under the CAP, since it does not claim to be the recipient of such payments.

Admittedly, the consequence of exceeding the THC content laid down in Article 32(6) of Regulation No 1307/2013, pursuant to that provision and Article 9(5) of Delegated Regulation No 639/2014, was that the agricultural areas used in Poland for the production of hemp from seeds of the Finola variety were ineligible for direct payments. However, even if that ineligibility could lead farmers in that country to use less or no longer use seeds of that variety and if that circumstance indirectly affects the applicant’s material situation, it should be noted that the mere fact that an act is likely to have an influence on that situation is not sufficient for it to be considered to be of direct concern to the applicant (see, to that effect, orders of 21 September 2011, Borax Europe v ECHA, T‑346/10, EU:T:2011:510, paragraph 46, and of 24 June 2014, PPG and SNF v ECHA, T‑1/10 RENV, not published, EU:T:2014:616, paragraph 58). Moreover, the applicant has not shown that farmers in Poland reduced their use of seeds of the Finola variety after the adoption of the contested decision.

Consequently, the Commission is right to maintain that the contested decision has no direct effect on the applicant’s legal position with regard to any direct payments under the CAP and that, therefore, the first condition of direct concern referred to in paragraph 18 above is not satisfied in that regard.

It follows from all the foregoing considerations that neither of the two cumulative conditions of direct concern is fulfilled, since the contested decision has no effect, let alone a direct effect, on the applicant’s legal position, and that, in the absence of such an effect on the applicant, the latter’s action against the contested decision is inadmissible.

That conclusion applies without it being necessary to determine whether the contested decision is a regulatory act (see, to that effect, judgment of 7 July 2015, Federcoopesca and Others v Commission, T‑312/14, EU:T:2015:472, paragraph 56), since, whether or not it is of that nature, direct concern is one of the conditions for the admissibility of the applicant’s action against that decision.

Moreover, the applicant’s other arguments do not invalidate that conclusion.

As regards the applicant’s arguments concerning his right to an effective remedy and the deterioration of the rule of law in Poland, it must be held that it has no bearing on the question whether the applicant is directly concerned by the contested decision, since the cumulative conditions for direct concern are not met in the present case.

Furthermore, in support of his argument that his right to an effective remedy has been infringed, the applicant relies on the judgment of 9 February 2022, Sped-Pro v Commission (T‑791/19, EU:T:2022:67). However, that judgment is irrelevant to the present case, given that it was given ‘in a very different context’, as the applicant concedes in his application, and that the latter still fails to show how the analysis set out in that judgment could apply to the present case.

Finally, with regard to the order of the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court, Warsaw) of 8 February 2022, which was produced as evidence and of which only the operative part was translated from Polish into English, it is apparent from the applicant’s written submissions that that national court declared inadmissible an appeal brought by the applicant against the Republic of Poland’s request that the Commission authorise it to prohibit the marketing of the Finola variety. However, it must be noted that he does not provide sufficient evidence to explain why that national decision supports the argument that his right to an effective remedy has been infringed or how it invalidates the conclusion reached by the Court that the action was not directly affected and was therefore inadmissible (see paragraph 27 above).

In the light of the foregoing, the plea of inadmissibility raised by the Commission should be upheld and the action should therefore be dismissed as inadmissible.

Furthermore, according to settled case-law, the possibility offered by Article 277 TFEU of invoking the unlawfulness of an act of general application does not constitute an autonomous right of action and may be exercised only incidentally, since the inadmissibility of the main action entails the inadmissibility of the plea of illegality (see, to that effect, judgment of 12 June 2015, Plantavis and NEM v Commission and EFSA, T‑334/12, EU:T:2015:376, paragraph 50 and the case-law cited).

Since the action has been declared inadmissible, the pleas of illegality raised by the applicant and directed against Article 32(6) of Regulation No 1307/2013 and Article 9(5) of Delegated Regulation No 639/2014 must also be regarded as inadmissible.

Finally, the inadmissibility of the action means that there is no need to rule on the applications to intervene made by the Council of the European Union, the European Parliament and the Republic of Poland.

Costs

Under Article 134(1) of the Rules of Procedure of the General Court, 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, he must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

Moreover, pursuant to Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before the application to intervene has been decided upon, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Given that the applications to intervene were not notified either to the applicant or to the Commission and they were therefore not put in a position where they might incur costs in that regard, the Council, the Parliament and the Republic of Poland must be ordered to each bear their own costs relating to the applications to intervene.

On those grounds,

hereby orders:

1.The action is dismissed as inadmissible.

2.There is no need to adjudicate on the applications for leave to intervene of the Council of the European Union, the European Parliament and the Republic of Poland.

4.The Council, the Parliament and the Republic of Poland shall bear their own costs in relation to the applications for leave to intervene.

Luxembourg, 20 October 2022.

Registrar

President

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Language of the case: English.