12 October 2016 (* )

(Actions for annulment — Application for registration of a protected designation of origin ‘Halloumi’ or ‘Hellim’ — Commission letters concerning the applicants’ involvement in the opposition proceedings relating to the registration procedure — Measure not open to challenge — Inadmissibility)

In Case T‑41/16,

Cyprus Turkish Chamber of Industry, established in Nicosia (Cyprus),

Animal Breeders and Producers Association, established in Nicosia,

Milk and Oil Products Production and Marketing Cooperative Ltd, established in Nicosia,

Süt Urünleri İmalatçulari Birliği Milk Processors Association, established in Nicosia,

Fatma Garanti, residing in Güzelyurt (Cyprus),

represented by B. O’Connor, Solicitor, S. Gubel and E. Bertolotto, lawyers,

applicants,

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

defendant,

ACTION pursuant to Article 263 TFEU for annulment of two letters from the European Commission of 18 November 2015 (Ref.Ares (2015) 5171539) and of 15 January 2016 (Ref.Ares (2016) 220922) concerning the applicants’ involvement in the opposition procedure relating to the procedure for registering the cheese called ‘Halloumi/Hellim’ as a protected designation of origin,

composed, at the time of the deliberation, of S. Gervasoni, acting as President, L. Madise (Rapporteur) and Z. Csehi, Judges,

Registrar: E. Coulon,

makes the following

Legal framework

1Article 4 of 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) creates a scheme for protected designations of origin and protected geographical indications for certain agricultural products and foodstuffs.

2Article 5(1) of Regulation No 1151/2012 defines a ‘designation of origin’ as a name which identifies a product originating in a specific place, region or, in exceptional cases, a country, whose quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors and the production steps of which all take place in the defined geographical area.

3Registration of an agricultural product or foodstuff as a protected designation of origin (PDO), which must satisfy the conditions laid down in Regulation No 1151/2012 and, in particular, must comply with the specification defined in Article 7 of that regulation, confers protection on that name at EU level. That protection is defined in Article 13(1) of that regulation.

4The registration procedure takes place in two phases. In the first phase, the application for registration of the designations is examined at national level. That phase is governed by Article 49 of Regulation No 1151/2012 which states the following:

‘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 examine the admissibility of oppositions …

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).’

5In the second phase, the application is scrutinised by the European Commission, and if the conditions laid down in Regulation No 1151/2012 are met it is published for opposition purposes. That procedure before the Commission is governed by Article 50 of that regulation, entitled ‘Scrutiny by the Commission and publication for opposition’.

6Publication in the Official Journal of the European Union triggers an ‘opposition procedure’ in accordance with Article 51 of Regulation No 1151/2012 which states the following:

‘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.

…

7Article 52 of Regulation No 1151/2012, entitled ‘Decision on registration’, provides as follows:

‘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:

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;

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).

8Article 57 of Regulation No 1151/2012 and Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13) makes provision for a procedure for the Agricultural Product Quality Policy Committee to deliver an opinion as part of the Commission’s exercise of its implementing powers.

Background to the dispute

9The cheese called ‘Halloumi’ (in Greek) or ‘Hellim’ (in Turkish) is made with specific ingredients according to traditional methods of production. It has a particular taste and texture, and particular cooking properties which are essentially attributable to topographical features and the flora and fauna of the island of Cyprus.

10The applicants, Cyprus Turkish Chamber of Industry, Animal Breeders and Producers Association, Milk and Oil Products Production and Marketing Cooperative Ltd, Süt Ürünleri İmalatçulari Birliği Milk Processors Association and Mrs Fatma Garanti, all established or residing in the northern part of the island of Cyprus, are involved in the production and marketing of Halloumi/Hellim within the Turkish Cypriot Community. Cyprus Turkish Chamber of Industry works to promote the various economic sectors in the northern part of the island. Animal Breeders and Producers Association aims to improve living conditions of sheep, goat and cattle farmers who produce milk in the Turkish Cypriot Community. Milk and Oil Products Production and Marketing Cooperative is the largest company producing dairy products and fruit juices in the northern part of the island of Cyprus, and Halloumi/Hellim exports represent 50% of its total sales. Süt Ürünleri İmalatçulari Birliği Milk Processors Association represents the interests of the dairy sector, its members being active, in particular, in the production and export of Halloumi/Hellim. Mrs Fatma Garanti produces Halloumi/Hellim and other dairy products. Since her production of sheep and goat’s milk was not sufficient for that purpose, she uses cow’s milk in an industrial process.

11Following an application for registration of Halloumi/Hellim as a PDO with the Cypriot authorities, that application was published on 30 November 2012 in the Episimi Efimerida tis Kypriakis Dimokratias (Official Journal of the Republic of Cyprus).

12On 26 December 2012, the applicants submitted to the Cypriot Ministry of Agriculture notices of opposition to the application for registration referred to in paragraph 11 above.

13By letters of 9 July 2014, the Cypriot Minister of Agriculture dismissed those oppositions. He stated that it had not been proven that the applicants were resident and conducted their activities in the territory of the Republic of Cyprus. The Minister added that, on account of the prevailing conditions since 1974 and the fact that the Cypriot Government did not exercise any effective control in the occupied part of the island, it was impossible to check whether the applicants had a legitimate interest. The Minister went on to state that he had, nevertheless, examined the merits of the grounds for opposition put forward, having regard to the contents of the administrative file and the report of the Consultative Committee established on the basis of the applicable national law. Following that examination, the Minister rejected the individual grounds for opposition submitted by the applicants, adopting the reasoning given in the Consultative Committee’s report. The Minister’s rejection decision, his decision in favour of the submission of an application for registration to the Commission and the Consultative Committee’s report were annexed to those letters.

14On 17 July 2014, the Cypriot authorities filed application CY/PDO/0005/01243 with the Commission, seeking registration of Halloumi/Hellim as a PDO.

15On 2 January 2015, the applicants sent a pre-objection submission concerning the application for registration of Halloumi/Hellim as a PDO to the Commission.

16On 26 February 2015, the Commission replied that it had examined the application for the registration of ‘Halloumi/Hellim’ as a PDO, and that the PDO registration procedure set out in Regulation No 1151/2012 did not contemplate any pre-objection procedure.

On 26 October 2015, the applicants submitted notices of opposition on the basis of Article 51 of Regulation No 1151/2012. They argued that the national procedure followed in the Republic of Cyprus was legally flawed, the rights of Turkish Cypriot producers having been seriously undermined, that Article 7(1)(b) and (e) of Regulation No 1151/2012 was infringed, in that the product specification failed to respect the traditions of the whole of the geographical area indicated, and that Article 7(l)(g) of Regulation No 1151/2012 was infringed, in that the specification designated the Ministry of Agriculture of the Republic of Cyprus as the competent authority for the entire geographical area indicated, without providing for an effective system of control for the whole of that area. Lastly, they alleged a breach of the fundamental rights of the producers from the Turkish Cypriot community and their de facto exclusion from the benefits of the registration of the PDO.

19By letter of 18 November 2015 (Ares (2015) 5171539) (‘the first letter’), the Director of Directorate B ‘Multilateral relations and quality policy’ of the Commission’s ‘Agriculture and rural development’ Directorate General (DG) (‘the Director’) informed the applicants that, under Article 51(1) and (2) of Regulation No 1151/2012, natural or legal persons established or resident in the Member State from which the application originated were not permitted to lodge a notice of opposition in the framework of the opposition procedure carried out at EU level, going on to conclude that that procedure could not be initiated by the applicants because they were established in Cyprus. The Commission, however, made clear that that letter was intended solely to inform the applicants and that it did not constitute a ‘formal decision’ concerning the admissibility of the statements of opposition, as that decision has to be taken by the Commission in the context of its final decision on the application.

20In response to a request for clarification from one of the applicants concerning the consequences of the first letter in relation to the oppositions brought, the Director stated in a letter of 15 January 2016 (Ares (2016) 220922) (‘the second letter’) that no ‘formal decision’ had been adopted concerning the notices of opposition submitted by natural or legal persons established in Cyprus, that a ‘formal decision’ would be taken by the Commission in the context of its final decision on the application for registration and that the applicants would not be invited to start consultations with the Cypriot authorities with a view to reaching an agreement.

Procedure and forms of order sought by the parties

By application lodged at the Court Registry on 28 January 2016, the applicants brought the present action. They claim that the Court should:

–annul the first and second letters (taken together, ‘the contested measures’);

–declare that Articles 49, 50, 51 and 52 of Regulation No 1151/2012 are unlawful and inapplicable in the present case, in that they do not provide for a system which ensures respect for the fundamental rights of the applicants;

–order the Commission to pay the costs.

22By separate document, lodged at the Court Registry on 11 February 2016, the applicants submitted an application for interim measures, in which they claimed, in essence, that the President of the Court should suspend the operation of the contested measures and the registration of Halloumi/Hellim as a PDO, and order the Commission to pay the costs.

23By order of 13 April 2016, Cyprus Turkish Chamber of Industry and Others v Commission, T‑41/16 R, not published, EU:T:2016:217, the President of the Court dismissed the application. The costs were reserved.

The Commission lodged its defence on 23 May 2016. It contends that the Court should:

–dismiss the application;

–order the applicants to pay the costs;

By documents lodged at the Court Registry on 10 March, and 24 and 25 May 2016, respectively, the Republic of Cyprus, the European Parliament and the Council of the European Union applied for leave to intervene in the proceedings in support of the form of order sought by the Commission.

Law

26Under Article 126 of the Rules of Procedure of the General Court, where the action is manifestly inadmissible, the General 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.

27In the present case, the Court considers that it has sufficient information from the documents before it and decides to give its decision without taking further steps in the proceedings.

28The Commission, without raising a plea of inadmissibility by separate document on the basis of Article 130 of the Rules of Procedure, submits in its statement of defence that the contested measures are preparatory. It recalls, in particular, that the second letter states that ‘no formal decision has been taken as regards notices of opposition submitted by natural or legal persons resident or established in Cyprus [and that] such formal decision shall be taken by the European Commission in the framework of its final decision with respect to [the registration] application’.

29For their part, the applicants, relying on the judgment of 28 November 1991, BEUC v Commission (C‑170/89, EU:C:1991:450), claim that the contested measures are definitive in that they definitively exclude them from the opposition procedure which must be closed before the decision on registration is adopted. In that regard, the applicants observe that the contested measures, in so far as they inform the applicants that they will not be invited to the consultations provided for under Article 51(3) of Regulation No 1151/2012, determine the rights which they have or do not have in relation to the opposition procedure and cause them harm. In that regard, it is irrelevant that the Commission makes clear in its second letter that the first letter is for information only.

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’.

31According to settled case-law any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of Article 263 TFEU (judgments of 31 March 1971, Commission v Council, 22/70, EU:C:1971:32, paragraph 42; of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36; and of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraph 54).

32In that regard, in 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 (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 10, and of 27 June 1995, Guérin automobiles v Commission, T‑186/94, EU:T:1995:114, paragraph 39; and order of 3 September 2015, Spain v Commission, T‑676/14, EU:T:2015:602, paragraph 13).

33In the light of case-law, in order to determine whether an act is capable of having legal effects and, therefore, whether an action for annulment under Article 263 TFEU can be brought against it, it is necessary to examine its wording and context (see, to that effect, judgments of 20 March 1997, France v Commission, C‑57/95, EU:C:1997:164, paragraph 18, and of 1 December 2005, Italy v Commission, C‑301/03, EU:C:2005:727, paragraphs 21 to 24), its substance (see judgment of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27 and the case-law cited; see also, to that effect, judgment of 9 October 1990, France v Commission, C‑366/88, EU:C:1990:348, paragraph 23) and the intention of its author (see, to that effect, judgment of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).

34In that regard, according to settled case-law, the mere fact that a letter is sent by an EU institution to a person in response to a request made by the latter is insufficient for such a letter to be treated as a decision within the meaning of Article 263 TFEU, entitling its recipient to bring action for annulment. 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 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; see also, order of 10 September 2014, Zentralverband des Deutschen Bäckerhandwerks v Commission, T‑354/13, not published, EU:T:2014:775, paragraph 25 and the case-law cited).

35In those circumstances, in order to rule on the plea of inadmissibility raised by the Commission, it is necessary to determine whether the contested measures produce binding legal effects of such a kind as to affect the applicants’ interests by bringing about a distinct change in their legal position.

36In that regard, the Court must examine the wording and substance of the first and second letters.

37In the first letter, the Director informs the applicants that, by virtue of the first and the second subparagraphs of Article 51(1) of Regulation No 1151/2012, natural or legal persons established or resident in the Member State from which the application for registration is submitted may not lodge a notice of opposition in the framework of the opposition procedure carried out at EU level. The Director infers from this that the opposition procedure may not be initiated with reference to the applicants, since they are established or resident in Cyprus, and that, accordingly, the notices of opposition lodged by the applicants may not therefore be forwarded to the Cypriot authorities. It concludes by indicating that the letter is ‘for … information only and does not constitute a formal decision of the … Commission with respect to the admissibility of the notices of opposition [and that] such formal decision shall be taken by the … Commission in the framework of its final decision with respect to the application [for the registration in question]’.

38In the second letter, the Director, in response to a request for clarification from one of the applicants confirms ‘that no formal decision has been taken as regards the notices of oppositions submitted by natural or legal persons resident or established in Cyprus, [and that] such formal decision shall be taken by the … Commission in the framework of its final decision with respect to the application [for the registration in question]’. The Director concludes by declaring that at present the Commission is in the process of assessing and managing all the oppositions submitted and that the first letter was for information purposes only, in that it aimed to make the applicant aware that it would not be invited to start the appropriate consultations with the authorities of the Member State which submitted the application for registration with a view to reaching an agreement.

39Thus it is clear from the wording of the contested measures that the Commission has not yet taken a final decision on the applicants’ oppositions. Furthermore, the contested measures contain no explicit statement that the oppositions are rejected (see, to that effect and by analogy, judgment of 10 July 1990, Automec v Commission, T‑64/89, EU:T:1990:42, paragraph 55 and the case-law cited). On the contrary, they explicitly state that no ‘formal decision’ has been taken by the Commission as regards those oppositions.

40Thus, only the Commission’s final decision adopting, on the basis of Article 52 of Regulation No 1151/2012, implementing acts registering the PDO at issue is capable of bringing about a distinct alteration in the applicant’s legal position (see, to that effect and by analogy, order of 10 September 2014, Zentralverband des Deutschen Bäckerhandwerks v Commission, T‑354/13, not published, EU:T:2014:775, paragraphs 29 and 30).

41Illegalities vitiating measures preliminary to the final decision, like the contested measures, which relate to the opposition procedure referred to in Article 51 of Regulation No 1151/2012, are such as to be reasonably raised in support of an action directed against the final measure for which they represent a preparatory step (see, to that effect, judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12). In that regard, the applicants’ argument that, by the contested measures, they were informed that they would not be invited to the consultations provided for in Article 51(3) of Regulation No 1151/2012 is irrelevant as regards the actionable nature of those measures, since the right of specified third parties to be properly heard, on application by them, during an administrative procedure before the Commission can in principle be given effect to by the Court only at the stage of review of the lawfulness of the Commission’s final decision (see, to that effect, judgment of 12 October 2011, Association belge des consommateurs Test-Achats v Commission, T‑224/10, EU:T:2011:588, paragraph 29, and order of 9 July 2003, Commerzbank v Commission, T‑219/01, EU:T:2003:201, paragraph 58; see also judgment of 18 December 1992, Cimenteries CBR and Others v Commission, T‑10/92 to T‑12/92 and T‑15/92, EU:T:1992:123, paragraph 42), and not at the stage of a step in the administrative procedure before the final decision.

42