29 September 2021 (*1)

(Agriculture – Regulation (EU) 2016/2031 – Protective measures against pests of plants – List of Union regulated non-quarantine pests – Threshold above which the presence of a Union regulated non-quarantine pest on plants for planting has an unacceptable economic impact – Implementing Regulation (EU) 2019/2072 – Professional associations – Action for annulment – Locus standi – Admissibility – Proportionality – Obligation to state reasons)

In Case T‑116/20,

Società agricola Vivai Maiorana Ss, established in Curinga (Italy),

Confederazione Italiana Agricoltori – CIA, established in Rome (Italy),

MIVA – Moltiplicatori Italiani Viticoli Associati, established in Faenza (Italy),

represented by E. Scoccini and G. Scoccini, lawyers,

applicants,

European Commission, represented by B. Eggers and F. Moro, acting as Agents,

defendant,

supported by

Council of the European Union, represented by S. Emmerechts A. Vitro and S. Barbagallo, acting as Agents,

and by

European Parliament, represented by L. Knudsen and G. Mendola, acting as Agents,

interveners,

ACTION for annulment of Parts A, B, C, F, I and J of Annex IV to Commission Implementing Regulation (EU) 2019/2072 of 28 November 2019 establishing uniform conditions for the implementation of Regulation (EU) 2016/2031 of the European Parliament and the Council, as regards protective measures against pests of plants, and repealing Commission Regulation (EC) No 690/2008 and amending Commission Implementing Regulation (EU) 2018/2019 (OJ 2019 L 319, p. 1),

THE GENERAL COURT (Ninth Chamber),

composed of M.J. Costeira, President, D. Gratsias (Rapporteur) and M. Kancheva, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 9 June 2021,

gives the following

Background to the dispute

The purpose of Regulation (EU) 2016/2031 of the European Parliament and of the Council of 26 October 2016 on protective measures against pests of plants, amending Regulations (EU) No 228/2013, (EU) No 652/2014 and (EU) No 1143/2014 of the European Parliament and the Council and repealing Council Directives 69/464/EEC, 74/647/EEC, 93/85/EEC, 98/57/EC, 2000/29/EC, 2006/91/EC and 2007/33/EC (OJ 2016 L 317, p. 4) is to establish measures to determine the phytosanitary risks posed by pests that threaten plant health and to reduce those risks to an acceptable level.

Under Article 36 of Regulation 2016/2031:

‘A pest is a “Union regulated non-quarantine pest” if it fulfils all of the following conditions and it is included in the list referred to in Article 37:

(a)its identity is established in accordance with point (1) of Section 4 of Annex I;

(b)it is present in the Union territory;

(c)it is not a Union quarantine pest or a pest subject to measures adopted pursuant to Article 30(1);

(d)it is transmitted mainly through specific plants for planting, in accordance with point (2) of Section 4 of Annex I;

(e)its presence on those plants for planting has an unacceptable economic impact, as regards the intended use of those plants for planting, in accordance with point (3) of Section 4 of Annex I;

(f)feasible and effective measures are available to prevent its presence on the plants for planting concerned.’

Article 37(2) of Regulation 2016/2031 provides, essentially, that the European Commission is to establish, by means of an implementing act, a list setting out the Union regulated non-quarantine pests (‘RNQPs’) and the specific plants for planting. Under the first subparagraph of Article 37(1) of Regulation 2016/2031, ‘professional operators shall not introduce [an RNQP] into, or move that pest within, the Union territory on the plants for planting through which it is transmitted, as specified in the list referred to in paragraph 2’.

4.4

Article 37(8) of Regulation 2016/2031 provides that, where point (e) of Article 36 of that regulation is only fulfilled if the pest concerned is present at an incidence above a certain threshold higher than zero, the list referred to in Article 37(2) must set out that threshold stating that the prohibition of introduction and movement only applies above that threshold. However, in order for the Commission to establish such a threshold, in accordance with that provision, it must be possible for professional operators to ensure that the incidence of the RNQPs on those plants for planting does not exceed that threshold, and it must be possible to verify whether that threshold is not exceeded in lots of the plants in question.

5.5

The concept of a ‘professional operator’ is defined in Article 2(9) of Regulation 2016/2031 as including any person, governed by public or private law, involved professionally in, and legally responsible for, one or more of the following activities concerning plants, plant products and other objects:

–planting;

–breeding;

–production, including growing, multiplying and maintaining;

–introduction into, and movement within and out of, the Union territory;

–making available on the market;

–storage, collection, dispatching and processing.

On the basis, inter alia, of Article 37(2) of Regulation 2016/2031 (see paragraph 3 above), the Commission adopted Implementing Regulation (EU) 2019/2072 of 28 November 2019 establishing uniform conditions for the implementation of Regulation 2016/2031 of the European Parliament and the Council, as regards protective measures against pests of plants, and repealing Commission Regulation (EC) No 690/2008 and amending Commission Implementing Regulation (EU) 2018/2019 (OJ 2019 L 319, p. 1) (‘the contested implementing regulation’).

Article 5 of the contested implementing regulation provides:

‘The list of [RNQPs] and specific plants for planting with categories and thresholds, as referred to in Article 37(2) of Regulation (EU) 2016/2031, are set out in Annex IV to this Regulation. Those plants for planting shall not be introduced into, or moved within, the Union if the presence of the RNQPs, or symptoms caused by RNQPs, on those plants for planting is above those thresholds.

The prohibition of introduction and movement provide for in the first paragraph shall apply only to the categories of plants for planting as provided for in Annex IV.’

8.8

Annex IV to the contested implementing regulation establishes the list of RNQPs concerning 12 specific plants. Thus, the annex in question is divided into 12 parts, from A to L, including:

–Part A, which mentions two combinations of RNQPs and fodder plant seed;

–Part B, which mentions two combinations of RNQPs and cereal seed;

–Part C, which mentions nine combinations of RNQPs and vine propagating material;

–Part F, which mentions 13 combinations of RNQPs and vegetable seed;

–Part I, which mentions 15 combinations of RNQPs and vegetable propagating and planting material, other than seeds;

–Part J, which mentions 155 combinations of RNQPs and fruit propagating material and fruit plants intended for fruit production.

Pursuant to those parts of Annex IV to the contested implementing regulation, the Commission established, with just four exceptions, a 0% threshold for the presence of RNQPs.

Procedure and forms of order sought

10.10

By application lodged at the Court Registry on 20 February 2020, the applicants, Società agricola Vivai Maiorana Ss, Confederazione Italiana Agricoltori – CIA (‘CIA’) and MIVA – Moltiplicatori Italiani Viticoli Associati (‘MIVA’), brought the present action.

By documents lodged at the Court Registry, on 11 and 27 May 2020 respectively, the European Parliament and the Council of the European Union sought leave to intervene in these proceedings in support of the form of order sought by the Commission. By respective decisions of 8 and 22 July 2020, the President of the Ninth Chamber of the General Court allowed those interventions. The interveners lodged their statements and the main parties lodged their observations on those statements within the periods prescribed.

12.12

The applicants claim that the Court should:

–annul Parts A, B, C, F, I and J of Annex IV to the contested implementing regulation in so far as, under those parts, thresholds are established for the presence of RNQPs on the plants concerned;

–declare Article 36 and Article 37(2) of Regulation 2016/2031, and point 3 of Section 4 of Annex I thereto, invalid;

–order the Commission to pay the costs.

13.13

The Commission, the Parliament and the Council contend that the Court should:

–dismiss the action as inadmissible in part and unfounded in part;

–order the applicants to pay the costs.

14.14

In the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, the Court put written questions to the applicants on 8 February and 30 April 2021. The applicants complied with those measures by letters of 24 February and 14 May 2021 respectively. By letter of 17 May 2021, the Commission lodged its observations on the evidence submitted by the applicants on 24 February 2021.

15.15

Acting on a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber) decided to open the oral part of the procedure.

As the Judge-Rapporteur initially designated was prevented from sitting, the present case was assigned to a new Judge-Rapporteur sitting in the Ninth Chamber by decision of the President of the General Court of 8 June 2021. In addition, by decision of 8 June 2021, the President of the Ninth Chamber designated another Judge to complete the Chamber.

As the Judge-Rapporteur initially designated was prevented from sitting, the present case was assigned to a new Judge-Rapporteur sitting in the Ninth Chamber by decision of the President of the General Court of 8 June 2021. In addition, by decision of 8 June 2021, the President of the Ninth Chamber designated another Judge to complete the Chamber.

Law

Law

17

In support of their action, the applicants raise four pleas in law, alleging respectively:

In support of their action, the applicants raise four pleas in law, alleging respectively:

–infringement of Article 36(e) and (f) of Regulation 2016/2031, failure to comply with the principle of proportionality and a failure to state adequate reasons;

–infringement of Article 36(e) and (f) of Regulation 2016/2031, failure to comply with the principle of proportionality and a failure to state adequate reasons;

–infringement of the International Treaty on Plant Genetic Resources for Food and Agriculture (‘the ITPGRFA’), the conclusion of which was approved, on behalf of the European Community, by Council Decision 2004/869/EC of 24 February 2004 (OJ 2004 L 378, p. 1);

–infringement of 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 Council Regulation (EC) No 834/2007 (OJ 2018 L 150, p. 1);

–infringement of the International Treaty on Plant Genetic Resources for Food and Agriculture (‘the ITPGRFA’), the conclusion of which was approved, on behalf of the European Community, by Council Decision 2004/869/EC of 24 February 2004 (OJ 2004 L 378, p. 1);

–incompatibility of the contested parts of Annex IV to the contested implementing regulation with the common agricultural policy.

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–infringement of 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 Council Regulation (EC) No 834/2007 (OJ 2018 L 150, p. 1);

Before challenging the merits of the action, the Commission expresses doubts as to admissibility of the action in the light of the applicants’ interest in bringing proceedings and their standing to do so as well as the clarity of the pleas in law raised. For their part, the Parliament and the Council are of the view that the plea of illegality raised against Regulation 2016/2031 does not set out with the necessary clarity the grounds upon which it is based, and that it should therefore be dismissed as inadmissible.

–incompatibility of the contested parts of Annex IV to the contested implementing regulation with the common agricultural policy.

Standing to bring proceedings

Before challenging the merits of the action, the Commission expresses doubts as to admissibility of the action in the light of the applicants’ interest in bringing proceedings and their standing to do so as well as the clarity of the pleas in law raised. For their part, the Parliament and the Council are of the view that the plea of illegality raised against Regulation 2016/2031 does not set out with the necessary clarity the grounds upon which it is based, and that it should therefore be dismissed as inadmissible.

In the first place, the Commission states that the contested implementing regulation is a regulatory act that does not entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU. In its view, it follows that, for the action at issue to be admissible, that regulation must be of direct concern to the applicants within the meaning of the latter provision.

The Commission argues that that is not, however, the case with Società agricola Vivai Maiorana, a vineyard nursery and the first applicant, since that applicant does not claim to be a professional operator concerned by Parts A, B, F, I and J of Annex IV to the contested implementing regulation. As a vineyard nursery, only Part C of that annex is therefore of direct concern to the first applicant.

Standing to bring proceedings

As for the two applicant associations, that is to say, CIA and MIVA, the Commission claims that they have standing to bring an action for annulment of the contested implementing regulation in three situations only: first, where the law expressly affords them such a right; second, where some of the members that they represent have standing to bring proceedings individually; or, third, where they can claim their own interest.

In the first place, the Commission states that the contested implementing regulation is a regulatory act that does not entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU. In its view, it follows that, for the action at issue to be admissible, that regulation must be of direct concern to the applicants within the meaning of the latter provision.

22

First, those applicants do not claim that the first of those situations is applicable in the present case.

The Commission argues that that is not, however, the case with Società agricola Vivai Maiorana, a vineyard nursery and the first applicant, since that applicant does not claim to be a professional operator concerned by Parts A, B, F, I and J of Annex IV to the contested implementing regulation. As a vineyard nursery, only Part C of that annex is therefore of direct concern to the first applicant.

23

Second, the applicant associations do not specify which of their members are professional operators active in the production and marketing of the plants concerned by those parts of Annex IV to the contested implementing regulation, the annulment of which is sought by them. That information is not clear from the articles of association of CIA or MIVA or provided in the documents produced in the annex to the reply. Furthermore, since the first applicant brought the action in its own name, MIVA cannot base its standing to bring proceedings on the fact that the applicant in question is one of its members. As regards the operators named in the applicants’ reply of 24 February 2021, the applicants have not established that those operators were entered in the official register of professional operators which the Member States were required to keep and update pursuant to Article 65 of Regulation 2016/2031. In addition, the Commission challenges the relevance of the invoices produced by the applicants. In that connection, the Commission argues, depending on the professional operator in question, either that those invoices do not relate to the plants covered by the contested parts of Annex IV to the contested implementing regulation, or that they concern only some of those plants, or that they are dated after the date on which the action was brought. The Commission adds that the doubts that persist as regards the applicants’ standing to bring proceedings make the scope of the action uncertain and may infringe its rights of defence.

As for the two applicant associations, that is to say, CIA and MIVA, the Commission claims that they have standing to bring an action for annulment of the contested implementing regulation in three situations only: first, where the law expressly affords them such a right; second, where some of the members that they represent have standing to bring proceedings individually; or, third, where they can claim their own interest.

24

Third, in so far as CIA claims its own interest with a view to establishing its standing to bring proceedings, the Commission observes that the parts of Annex IV to the contested implementing regulation, the annulment of which is sought, do not alter CIA’s rights or obligations as an association, such that the parts at issue are not of direct concern to it.

First, those applicants do not claim that the first of those situations is applicable in the present case.

25

For their part, the applicants also take the view that the contested implementing regulation is a regulatory act which does not entail implementing measures, but consider that the provisions of that regulation are of direct concern to them. In that connection, the applicants state, first, that CIA’s members are farmers covering the entire spectrum of agricultural activities, whereas MIVA’s members are exclusively producers of vine propagating material. It follows that all members of the applicant associations have standing to bring an action for annulment of the contested parts of Annex IV to the contested implementing regulation as producers or purchasers of seed covered by those parts. In that regard, in response to a measure of organisation of procedure, the applicant associations produced evidence showing, in their view, that they represented at least one professional operator whose activity fell within the scope of Parts A, B, C, F, I or J of Annex IV to the contested implementing regulation.

Second, the applicant associations do not specify which of their members are professional operators active in the production and marketing of the plants concerned by those parts of Annex IV to the contested implementing regulation, the annulment of which is sought by them. That information is not clear from the articles of association of CIA or MIVA or provided in the documents produced in the annex to the reply. Furthermore, since the first applicant brought the action in its own name, MIVA cannot base its standing to bring proceedings on the fact that the applicant in question is one of its members. As regards the operators named in the applicants’ reply of 24 February 2021, the applicants have not established that those operators were entered in the official register of professional operators which the Member States were required to keep and update pursuant to Article 65 of Regulation 2016/2031. In addition, the Commission challenges the relevance of the invoices produced by the applicants. In that connection, the Commission argues, depending on the professional operator in question, either that those invoices do not relate to the plants covered by the contested parts of Annex IV to the contested implementing regulation, or that they concern only some of those plants, or that they are dated after the date on which the action was brought. The Commission adds that the doubts that persist as regards the applicants’ standing to bring proceedings make the scope of the action uncertain and may infringe its rights of defence.

26

Given its number of members, CIA is, moreover, a particularly representative association. In the present case, CIA seeks to protect a collective interest in accordance with its statutory object of developing and enhancing the rural environment, developing agriculture and promoting biodiversity.

Third, in so far as CIA claims its own interest with a view to establishing its standing to bring proceedings, the Commission observes that the parts of Annex IV to the contested implementing regulation, the annulment of which is sought, do not alter CIA’s rights or obligations as an association, such that the parts at issue are not of direct concern to it.

27

For their part, the applicants also take the view that the contested implementing regulation is a regulatory act which does not entail implementing measures, but consider that the provisions of that regulation are of direct concern to them. In that connection, the applicants state, first, that CIA’s members are farmers covering the entire spectrum of agricultural activities, whereas MIVA’s members are exclusively producers of vine propagating material. It follows that all members of the applicant associations have standing to bring an action for annulment of the contested parts of Annex IV to the contested implementing regulation as producers or purchasers of seed covered by those parts. In that regard, in response to a measure of organisation of procedure, the applicant associations produced evidence showing, in their view, that they represented at least one professional operator whose activity fell within the scope of Parts A, B, C, F, I or J of Annex IV to the contested implementing regulation.

It must be recalled from the outset that the contested implementing regulation was adopted on the basis, inter alia, of Article 37(2) of Regulation 2016/2031. Since it is intended to give effect to the latter provision, it is the purpose of the contested implementing regulation, in accordance with recitals 2, 14 and 15 thereof, to list the RNQPs and the specific categories of plants for planting, whilst establishing thresholds for the maximum presence of RNQPs, if the conditions for so doing are met (see paragraphs 3, 4 and 6 above).

28

Given its number of members, CIA is, moreover, a particularly representative association. In the present case, CIA seeks to protect a collective interest in accordance with its statutory object of developing and enhancing the rural environment, developing agriculture and promoting biodiversity.

In that connection, Annex IV to the contested implementing regulation contains the list of RNQPs and specific plants for planting together with categories and thresholds. Under Article 5 of the contested implementing regulation, those plants for planting are not to be introduced into, or moved within, the Union if the presence of RNQPs, or of symptoms caused by RNQPs, is above those thresholds (see paragraphs 7 to 9 above).

It must be recalled from the outset that the contested implementing regulation was adopted on the basis, inter alia, of Article 37(2) of Regulation 2016/2031. Since it is intended to give effect to the latter provision, it is the purpose of the contested implementing regulation, in accordance with recitals 2, 14 and 15 thereof, to list the RNQPs and the specific categories of plants for planting, whilst establishing thresholds for the maximum presence of RNQPs, if the conditions for so doing are met (see paragraphs 3, 4 and 6 above).

In that regard, as the applicants and the Commission argue (see paragraphs 19 and 25 above), as a non-legislative act of general application, the contested implementing regulation is a regulatory act within the meaning of Article 263 TFEU (see, to that effect, order of 6 September 2011, Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, EU:T:2011:419, paragraph 56).

30

In that connection, Annex IV to the contested implementing regulation contains the list of RNQPs and specific plants for planting together with categories and thresholds. Under Article 5 of the contested implementing regulation, those plants for planting are not to be introduced into, or moved within, the Union if the presence of RNQPs, or of symptoms caused by RNQPs, is above those thresholds (see paragraphs 7 to 9 above).

In addition, it must be observed, again as the applicants and the Commission submit, that, in so far as they establish thresholds for the presence of RNQPs on the plants for planting concerned, the contested parts of Annex IV to the contested implementing regulation do not entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU. Moreover, Article 5 of the latter regulation lays down a prohibition of introduction into, and movement within, the Union if the presence of RNQPs, or of symptoms caused by RNQPs, on those plants for planting is above those thresholds; that prohibition likewise does not entail implementing measures.

In that regard, as the applicants and the Commission argue (see paragraphs 19 and 25 above), as a non-legislative act of general application, the contested implementing regulation is a regulatory act within the meaning of Article 263 TFEU (see, to that effect, order of 6 September 2011, Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, EU:T:2011:419, paragraph 56).

Accordingly, for the applicants to have standing to bring proceedings, it is enough to establish that the provisions the annulment of which they are seeking are of direct concern to them, within the meaning of the fourth paragraph of Article 263 TFEU.

32

In addition, it must be observed, again as the applicants and the Commission submit, that, in so far as they establish thresholds for the presence of RNQPs on the plants for planting concerned, the contested parts of Annex IV to the contested implementing regulation do not entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU. Moreover, Article 5 of the latter regulation lays down a prohibition of introduction into, and movement within, the Union if the presence of RNQPs, or of symptoms caused by RNQPs, on those plants for planting is above those thresholds; that prohibition likewise does not entail implementing measures.

The condition that a natural or legal person must be directly concerned by the decision against which an action is brought, as laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met. First, the contested measure must directly affect the legal situation of the individual. Second, it must leave no discretion to its addresses 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).

Accordingly, for the applicants to have standing to bring proceedings, it is enough to establish that the provisions the annulment of which they are seeking are of direct concern to them, within the meaning of the fourth paragraph of Article 263 TFEU.

33

Without raising a plea of inadmissibility by separate document, the Commission disputes that the first condition, which relates to the effect on the applicants’ legal situation, is satisfied in the present case with respect to all the applicants and in relation to all the contested parts of Annex IV to the contested implementing regulation (see paragraphs 19 to 24 above).

The condition that a natural or legal person must be directly concerned by the decision against which an action is brought, as laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met. First, the contested measure must directly affect the legal situation of the individual. Second, it must leave no discretion to its addresses 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).

34

It must be observed that the prohibition under Article 5 of the contested implementing regulation of introducing and moving plants for planting, if the presence of RNQPs, or of symptoms caused by RNQPs, is above the thresholds established by the contested parts of Annex IV to that regulation, is of direct concern to ‘professional operators’ within the meaning of Article 2(9) of Regulation 2016/2031 (see paragraph 5 above). In accordance with Article 37(1) of Regulation 2016/2031, they are the operators covered by the prohibition at issue (see paragraph 3 above). That prohibition does not leave any discretion to the Member States, which are entrusted with the task of implementing it. Therefore, a professional operator within the meaning of Article 2(9) of Regulation 2016/2031, who carries out its activities in relation to the category of plants concerned by one or more of the contested parts of Annex IV to the contested implementing regulation, has its legal situation directly affected by the prohibition laid down in the latter regulation.

Without raising a plea of inadmissibility by separate document, the Commission disputes that the first condition, which relates to the effect on the applicants’ legal situation, is satisfied in the present case with respect to all the applicants and in relation to all the contested parts of Annex IV to the contested implementing regulation (see paragraphs 19 to 24 above).

35

In the latter regard, it must be stated, first, that Regulation 2016/2031 distinguishes between ‘professional operators’, as defined in Article 2(9) thereof, on the one hand, and ‘registered operators’, who, under Article 2(10) of the same regulation, on the other hand, are professional operators registered in accordance with Article 65 of that regulation. The latter provision states, in essence, that the competent national authority is to keep and update a register containing the professional operators who fulfil certain criteria. However, it is clear from Article 65(3) of Regulation 2016/2031 that the professional operators who fulfil certain criteria linked to the pest risk presented by the plants grown by them do not have to be entered in the register in question.

It must be observed that the prohibition under Article 5 of the contested implementing regulation of introducing and moving plants for planting, if the presence of RNQPs, or of symptoms caused by RNQPs, is above the thresholds established by the contested parts of Annex IV to that regulation, is of direct concern to ‘professional operators’ within the meaning of Article 2(9) of Regulation 2016/2031 (see paragraph 5 above). In accordance with Article 37(1) of Regulation 2016/2031, they are the operators covered by the prohibition at issue (see paragraph 3 above). That prohibition does not leave any discretion to the Member States, which are entrusted with the task of implementing it. Therefore, a professional operator within the meaning of Article 2(9) of Regulation 2016/2031, who carries out its activities in relation to the category of plants concerned by one or more of the contested parts of Annex IV to the contested implementing regulation, has its legal situation directly affected by the prohibition laid down in the latter regulation.

36

Accordingly, the prohibition of introducing and moving plants for planting, if the presence of RNQPs, or of symptoms caused by RNQPs, is above the thresholds established by the contested parts of Annex IV to the contested implementing regulation, covers professional operators within the meaning of Article 2(9) of Regulation 2016/2031 and not just registered operators within the meaning of Article 2(10) of the same regulation. The Commission’s argument based on the fact that it is not established that the operators who are members of the second and third applicants are registered operators must therefore be dismissed.

In the latter regard, it must be stated, first, that Regulation 2016/2031 distinguishes between ‘professional operators’, as defined in Article 2(9) thereof, on the one hand, and ‘registered operators’, who, under Article 2(10) of the same regulation, on the other hand, are professional operators registered in accordance with Article 65 of that regulation. The latter provision states, in essence, that the competent national authority is to keep and update a register containing the professional operators who fulfil certain criteria. However, it is clear from Article 65(3) of Regulation 2016/2031 that the professional operators who fulfil certain criteria linked to the pest risk presented by the plants grown by them do not have to be entered in the register in question.

37

Second, according to Article 2(9) of Regulation 2016/2031, the concept of ‘professional operator’ includes any person, governed by public or private law, involved professionally in one or more of the activities mentioned in paragraph 5 above, which concern inter alia plants.

Accordingly, the prohibition of introducing and moving plants for planting, if the presence of RNQPs, or of symptoms caused by RNQPs, is above the thresholds established by the contested parts of Annex IV to the contested implementing regulation, covers professional operators within the meaning of Article 2(9) of Regulation 2016/2031 and not just registered operators within the meaning of Article 2(10) of the same regulation. The Commission’s argument based on the fact that it is not established that the operators who are members of the second and third applicants are registered operators must therefore be dismissed.

38

In addition, the term ‘plants’ is defined in Article 2(1) of Regulation 2016/2031 as including living plants and living parts of plants, such as, inter alia, seeds, fruits, vegetables, tubers, budwood, cuttings and grafts.

Second, according to Article 2(9) of Regulation 2016/2031, the concept of ‘professional operator’ includes any person, governed by public or private law, involved professionally in one or more of the activities mentioned in paragraph 5 above, which concern inter alia plants.

39

In addition, the term ‘plants’ is defined in Article 2(1) of Regulation 2016/2031 as including living plants and living parts of plants, such as, inter alia, seeds, fruits, vegetables, tubers, budwood, cuttings and grafts.

Moreover, it is clear from Article 37(1) and (2) of Regulation 2016/2031 that the list of RNQPs and specific plants for planting which the Commission is to establish by means of an implementing regulation, such as the contested implementing regulation, does not necessarily include all plants for planting, but only those plants for planting ‘through which [the RNQP] is transmitted’. In particular, as set out in paragraph 8 above, Annex IV to the contested implementing regulation is divided into 12 parts, from A to L, each of which mentions a number of combinations of plants and RNQPs.

40

Moreover, it is clear from Article 37(1) and (2) of Regulation 2016/2031 that the list of RNQPs and specific plants for planting which the Commission is to establish by means of an implementing regulation, such as the contested implementing regulation, does not necessarily include all plants for planting, but only those plants for planting ‘through which [the RNQP] is transmitted’. In particular, as set out in paragraph 8 above, Annex IV to the contested implementing regulation is divided into 12 parts, from A to L, each of which mentions a number of combinations of plants and RNQPs.

For instance, Council Directive 66/401/EEC of 14 June 1966 on the marketing of fodder plant seed (OJ, English Special Edition, 1965-1966, p. 132) lists, in Article 2(1)(A) thereof, 87 genera or species of fodder plants. However, Part A of Annex IV to the contested implementing regulation, which is entitled ‘RNQPs concerning fodder plant seed’, lists only the species of lucerne (Medicago sativa L.), via which the two RNQPs mentioned therein (Clavibacter michiganensis and Ditylenchus dipsaci) are transmitted.

41

For instance, Council Directive 66/401/EEC of 14 June 1966 on the marketing of fodder plant seed (OJ, English Special Edition, 1965-1966, p. 132) lists, in Article 2(1)(A) thereof, 87 genera or species of fodder plants. However, Part A of Annex IV to the contested implementing regulation, which is entitled ‘RNQPs concerning fodder plant seed’, lists only the species of lucerne (Medicago sativa L.), via which the two RNQPs mentioned therein (Clavibacter michiganensis and Ditylenchus dipsaci) are transmitted.

It follows that the concept of ‘professional operator’ includes all operators involved in one or more of the activities listed in Article 2(9) of Regulation 2016/2031 and concerning ‘plants’, as the latter are defined in Article 2(1) of Regulation 2016/2031 and listed in each of the directives concerning their marketing.