Confederazione Cooperative Italiane and Others v Anicav and Others (Judgment) [2015] EUECJ C-455/13 (17 September 2015)

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(Appeals — Agriculture — Common organisation of the markets — Fruit and vegetable sector — Regulation (EC) No 1580/2007 — Article 52(2a) — Implementing Regulation (EU) No 543/2011 — Articles 50(3) and 60(7) — Aid to producer organisations — Products processed from fruit and vegetables — Flat rate covering certain processing operations — Eligibility of investments and actions connected with the processing — Actions for annulment — Admissibility — Whether directly concerned)

THREE APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 August and 12 August 2013,

Fédération française de la coopération fruitière, légumière and horticole (Felcoop), established in Paris (France),

European Commission, represented by K. Skelly, A. Marcoulli and B. Schima, acting as Agents, with an address for service in Luxembourg,

Sociedad Cooperativa de Exportación de Frutos Cítricos Anecoop (Anecoop) S. Coop., established in Valencia (Spain),

Cooperativa Agrícola Nuestra Señora del Oreto (CANSO) Coop. V., established in Valencia,

Cooperativa Agrícola «Sant Bernat» (Carlet) Coop. V., established in Valencia,

Las Marismas de Lebrija Sociedad Cooperativa Andaluza (Las Marismas), established in Seville (Spain),

Associació de Cooperatives Agràries de les Terres de Lleida (ACTEL), established in Lleida (Spain),

Union Coopérative Agricole France Prune (France Prune), established in Casseneuil (France),

Consorzio Padano Ortofrutticolo (CO.PAD.OR.) Soc. agr. coop., established in Collecchio (Italy),

Consorzio Casalasco del Pomodoro Soc. agr. coop., established in Rivarolo del Re (Italy),

Agricoltori Riuniti Piacentini (ARP) Soc. agr. coop., established in Gariga di Podenzano (Italy),

Orogel Fresco Soc. agr. coop., established in Pievesestina di Cesena (Italy),

Conserve Italia Soc. agr. coop., established in San Lazzaro di Savena (Italy),

Unione Nazionale tra le Organizzazioni di Produttori Ortofrutticoli, Agrumari e di Frutta in Guscio (Unaproa), established in Rome, represented initially by S. Crisci and subsequently by G. Coppo, avvocati,

Italian Republic, represented by G. Palmieri, acting as Agent, and S. Varone, avvocato dello Stato, with an address for service in Luxembourg,

Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav), established in Naples (Italy), represented by S. Estima Martins and R. Oliveira, advogados,

Agrupación Española de Fabricantes de Conservas Vegetales (Agrucon), established in Madrid,

Associazione Italiana Industrie Prodotti Alimentari (AIIPA), established in Milan (Italy),

Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav), established in Naples,

Campil-Agro-Industrial do Campo do Tejo Lda, established in Pontével (Portugal),

FIT — Fomento da Indústria do Tomate SA, established in Marateca (Portugal),

Italagro — Indústria de Transformação de Produtos Alimentares SA, established in Castanheira do Ribatejo (Portugal),

Serraïki Konservopoiia Oporokipeftikon Serko AE, established in Serres (Greece),

Sociedade de Industrialização de Produtos Agrícolas — Sopragol SA, established in Mora (Portugal),

Sugalidal — Indústrias de Alimentação SA, established in Benavente (Portugal),

Sutol — Indústrias Alimentares Lda, established in Alcácer do Sal (Portugal),

ZANAE Zymai Artopoiias Nikoglou AE Viomichania Emporio Trofimon, established in Sindos (Greece),

Associazione Italiana Industrie Prodotti Alimentari (AIIPA), established in Milan,

Agrupación Española de Fabricantes de Conservas Vegetales (Agrucon), established in Madrid,

AIT — Associação dos Industriais de Tomate, established in Lisbon (Portugal),

ZANAE Zymai Artopoiias Nikoglou AE Viomichania Emporio Trofimon, established in Sindos,

Fédération française de la coopération fruitière, légumière and horticole (Felcoop), established in Paris,

Consorzio Padano Ortofrutticolo (CO.PAD.OR.) Soc. agr. coop., established in Collecchio,

Consorzio Casalasco del Pomodoro Soc. agr. coop., established in Rivarolo del Re,

ARP Agricoltori Riuniti Piacentini Soc. agr. coop., established in Podenzano,

composed of A. Ó Caoimh, President of the Chamber, E. Jarašiūnas (Rapporteur) and C.G. Fernlund, Judges,

having regard to the written procedure and further to the hearing on 4 June 2015,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By their appeals, Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Fédération française de la coopération fruitière, légumière et horticole (Felcoop), the European Commission and the Italian Republic seek the annulment of the judgment of the General Court of the European Union in Anicav and Others v Commission (T‑454/10 and T‑482/11, EU:T:2013:282; ‘the judgment under appeal’), by which that Court annulled the second subparagraph of Article 52(2a) of Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (OJ 2007 L 350, p. 1), as amended by Commission Regulation (EU) No 687/2010 of 30 July 2010 (OJ 2010 L 199, p. 12; ‘Regulation No 1580/2007’), and Article 50(3) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (OJ 2011 L 157, p. 1), in so far as those articles provide that the value of ‘non-genuine processing activities’ is to be included in the value of marketed production (VMP) of fruit and vegetables intended for processing, and also annulled Article 60(7) of Regulation No 543/2011.

2 Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (‘Single CMO’ Regulation) (OJ 2007 L 299, p. 1), as amended by Council Regulation No 361/2008 of 14 April 2008 (OJ 2008 L 121, p. 1; ‘the “Single CMO” Regulation’) applies, pursuant to its Article 1(1)(i) and (j) respectively, to the fruit and vegetables sector and the processed fruit and vegetables sector.

3 Regulation No 361/2008 incorporated into Regulation No 1234/2007 certain provisions of Council Regulation (EC) No 1182/2007 of 26 September 2007 laying down specific rules as regards the fruit and vegetable sector, amending Directives 2001/112/EC and 2001/113/EC and Regulations (EEC) No 827/68, (EC) No 2200/96, (EC) No 2201/96, (EC) No 2826/2000, (EC) No 1782/2003 and (EC) No 318/2006 and repealing Regulation (EC) No 2202/96 (OJ 2007 L 273, p. 1). It thus inserted into Regulation No 1234/2007 Section IVa, entitled ‘Aid in the fruit and vegetables sector’, of Chapter IV of Title I of Part II of that regulation, which includes Articles 103a to 103h.

‘1. Producer organisations in the fruit and vegetables sector may set up an operational fund. The fund shall be financed by:

(b) Community financial assistance which may be granted to producer organisations.

2. Operational funds shall be used only to finance operational programmes approved by Member States in accordance with Article 103g.’

‘1. Operational programmes in the fruit and vegetables sector shall have two or more of the objectives referred to in Article 122(c) or of the following objectives:

6 According to Article 103d(2) of the ‘Single CMO’ Regulation, the Community financial assistance is to be capped at 4.1% of the VMP of each producer organisation, but may attain 4.6% of that value, provided that the amount in excess of 4.1% is used solely for crisis prevention and management measures.

7 Article 103f(2) of the ‘Single CMO’ Regulation provides that Member States are to establish a national strategy for sustainable operational programmes in the fruit and vegetable market and states the elements which that strategy must include.

8 Article 122 of the ‘Single CMO’ Regulation, which concerns the producer organisations, provides:

(iii) fruit and vegetables in respect of farmers growing one or more products of that sector and/or of such products solely intended for processing

(c) pursue a specific aim which may in particular, or as regards the fruit and vegetables sector shall, include one or more of the following objectives:

(i) ensuring that production is planned and adjusted to demand, particularly in terms of quality and quantity

(ii) concentration of supply and the placing on the market of the products produced by its members;

9 Regulation (EEC) No 1580/2007, in its initial version, laid down detailed rules for the application of Regulation No 1182/2007. Article 52(1) and (6) thereof provided in particular that the VMP of a producer organisation is to be calculated ‘on the basis of the production of members of producer organisations, for which the producer organisation is recognised’ and that the marketed production shall be invoiced at the ‘ex-producer organisation’ stage, where applicable, as product which is packaged, prepared, or has undergone first-stage processing. That regulation was amended by Regulation No 687/2010, recital 4 in the preamble to which states:

‘The calculation of the value of fruit and vegetables intended for processing has proven difficult. For control purposes and for the sake of simplification, it is appropriate to introduce a flat rate for the purposes of calculating the value of fruit and vegetables intended for processing, representing the value of the basic product, namely fruit and vegetables intended for processing, and activities which do not amount to genuine processing activities. Since the volumes of fruit and vegetables needed for the production of processed fruit and vegetables differ largely between groups of products, those differences should be reflected in the applicable flat rates.’

‘The [VMP] shall not include the value of processed fruit and vegetables or any other product that is not a product of the fruit and vegetables sector.

However, the [VMP] of fruit and vegetables intended for processing, which have been transformed into one of the processed fruit and vegetables listed in Part X of Annex I to [the ‘Single CMO’ Regulation] or any other agricultural product referred to in this Article and described further in Annex VIa to this Regulation, by either a producer organisation, an association of producer organisations or their members, who are producers or their cooperatives, or subsidiaries as referred to in paragraph 7 of this Article, either by themselves or through outsourcing, shall be calculated as a flat rate in percentage applied to the invoiced value of those processed products.

11 Annex VIII to Regulation No 1580/2007 contains the list of operations and expenditure not eligible under the operational programmes.

12 Regulation No 1580/2007 has been repealed and replaced by Implementing Regulation No 543/2011, Article 50(3) of which repeats the text of Article 52(2a) of Regulation No 1580/2007.

‘Investments and actions related to the transformation of fruit and vegetables into processed fruit and vegetables may be eligible for support where such investments and actions pursue the objectives referred to in Article 103c(1) of [the ‘Single CMO’ Regulation], including those referred to in point (c) of the first paragraph of Article 122 of that Regulation, and provided that they are identified in the national strategy referred to in Article 103f(2) of [the “Single CMO” Regulation].’

14 By application lodged at the Registry of the General Court on 30 September 2010, the Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav) brought the action in Case T‑454/10. By application lodged at the Registry of the General Court on 5 September 2011, Agrupación Española de Fabricantes de Conservas Vegetales (Agrucon), Associazione Italiana Industrie Prodotti Alimentari (AIIPA), Anicav, Campil-Agro-Industrial do Campo do Tejo Lda, Evropaïka Trofima AE, FIT — Fomento da Indústria do Tomate SA, Konservopoiia Oporokipeftikon Filippos AE, Panellinia Enosi Konservopoion, Elliniki Etairia Konservon AE, Anonymos Viomichaniki Etaireia Konservon D. Nomikos, Italagro — Indústria de Transformação de Produtos Alimentares SA, Kopaïs AVEE Trofimon & Poton, Serraïki Konservopoiia Oporokipeftikon Serko AE, Sociedade de Industrialização de Produtos Agrícolas — Sopragol SA, Sugalidal — Indústrias de Alimentação SA, Sutol — Indústrias Alimentares Lda and ZANAE Zymai Artopoiias Nikoglou AE Viomichania Emporio Trofimonont (‘Agrucon and Others’) brought the action in Case T‑482/11.

15 By five documents lodged at the Registry of the General Court on 13 and 17 January 2011, AIIPA, Agrucon, AIT – Associação dos Industriais de Tomate, Panellinia Enosi Konservopoion, Kopaïs AVEE Trofimon & Poton, Evropaïka Trofima AE, Konservopoiia Oporokipeftikon Filippos AE, Anonymos Viomichaniki Etaireia Konservon D. Nomikos, Serraïki Konservopoiia Oporokipeftikon Serko AE, Elliniki Etaireia Konservon AE and ZANAE Zymai Artopoiias Nikoglou AE Viomichania Emporio Trofimon (‘AIIPA and Others’) sought leave to intervene in Case T‑454/10 in support of the form of order sought by Anicav while, by four documents lodged at the Registry of the General Court on 24 January 2011, Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, VOG Products Soc. agr. coop., Consorzio Padano Ortofrutticolo (CO.PAD.OR.) Soc. agr. coop., Consorzio Casalasco del Pomodoro Soc. agr. coop., ARP Agricoltori Riuniti Piacentini Soc. agr. coop., Orogel Fresco Soc. agr. coop. and Conserve Italia Soc. agr. coop. (‘Confederazione Cooperative Italiane and Others’) sought leave to intervene in the same case in support of the form of order sought by the Commission.

16 By two documents lodged at the Registry of the General Court on 19 December 2011, the interveners in support of the form of order sought by the Commission in Case T-450/10 also sought leave to intervene in Case T‑482/11.

17 By order of the President of the Second Chamber of the General Court of 22 October 2012, Cases C‑454/10 and C‑482/11 were joined for the purposes of the written and oral procedure and of the judgment.

18 In Case T‑454/10, Anicav and AIIPA and Others sought the annulment of Article 52 of and Annex VIII to Regulation No 1580/2007, as amended by Regulation No 687/2010.

19 In Case T‑482/11, Agrucon and Others sought the annulment of Articles 50(3) and 60(7) of Implementing Regulation No 543/2011.

20 In both cases, the Commission and the interveners supporting it contended that the actions should be dismissed as inadmissible and, in any event, as unfounded.

21 In the judgment under appeal, the General Court, firstly, rejected the Commission’s pleas of an absolute bar on proceedings and seeking to have the actions brought in Cases T‑454/10 and T‑482/11 declared inadmissible on the basis of the applicants’ lack of standing to bring proceedings and, in Case T‑454/10, Anicav’s lack of legal interest in bringing proceedings.

22 With regard to the standing to bring proceedings of the applicants at first instance, the Commission argued that those parties were not directly concerned, within the meaning of the fourth paragraph of Article 263 TFEU, by Article 52(2a) of Regulation No 1580/2007 nor by Articles 50(3) and 60(7) of Implementing Regulation No 543/2011 (‘the contested provisions’), and the General Court, in paragraphs 36 to 46 of the judgment under appeal, considered that those provisions introduced a system under which producer organisations were eligible to receive aid covering processing activities also carried out by processors which were not members of a producer organisation, that those provisions did not leave any margin of discretion to the Member States and that the competitive position of the applicants and their members was the direct result of those provisions, so that they were directly concerned thereby.

23 Finding, moreover, that Regulation No 1580/2007 and Implementing Regulation No 543/2011 were regulatory acts within the meaning of the fourth paragraph of Article 263 TFEU, the General Court took the view that the contested provisions do not entail implementing measures, noting that although the payment of EU aid under those provisions was made through the national authorities, the fact remained that the instruments pursuant to which those authorities made the payments in question did not refer to the applicants at first instance and were neither addressed to nor served upon them, and that the applicable national rules did not necessarily provide for the adoption of acts capable of being challenged before the national courts.

24 Secondly, on the substance, the General Court upheld the first two pleas in law raised by the applicants at first instance, which it examined together, alleging, respectively, infringement of the ‘Single CMO’ Regulation and of the principle of non-discrimination, and by which the applicants at first instance argued that, on the one hand, the possibility of granting aid under the operational programmes for processing activities was not provided for under that regulation and, on the other, the contested provisions were discriminatory since they restricted aid for processing activities to producer organisations and thus excluded processors which were not members of such organisations.

25 Accordingly, the General Court held that the effects produced by the second subparagraph of Article 52(2)a of Regulation No 1580/2007 and Article 50(3) of Implementing Regulation No 543/2011 on the relations between the Commission, the Member States and the producer organisations were to be maintained to the extent only that payments to producer organisations executed pursuant to those provisions since the entry into force of Regulation No 687/2010 and until delivery of this judgment were to be considered definitive. However, it did not maintain the effects of Article 60(7) of Implementing Regulation No 543/2011 on the ground that the funding relating to that provision was by its nature vitiated in its entirety by the illegality found.

26 By orders of the President of the Court of Justice of 5 March and 2 July 2014, the French Republic, Sociedad Cooperativa de Exportación de Frutos Cítricos Anecoop (Anecoop) S. coop., Cooperativa Agrícola Nuestra Señora del Oreto (CANSO) Coop. V., Cooperativa Agrícola «Sant Bernat» (Carlet) Coop. V., Cooperativa Agrícola SCJ (COPAL) Coop. V., le Grupo AN S. Coop., Acopaex S. Coop., Las Marismas de Lebrija Sociedad Cooperativa Andaluza (Las Marismas), Associació de Cooperatives Agràries de les Terres de Lleida (ACTEL), Unió Corporació Alimentária (UNIO) SCCL, Union Coopérative Agricole France Prune (France Prune), Agrial SCA, Triskalia, Union Fermière Morbihannaise (UFM), VOG Products Soc. agr. coop., Consorzio Padano Ortofrutticolo (CO.PAD.OR.) Soc. agr. coop., Consorzio Casalasco del Pomodoro Soc. agr. coop., Agricoltori Riuniti Piacentini (ARP) Soc. agr. coop., Orogel Fresco Soc. agr. coop., Conserve Italia Soc. agr. coop., Fruttagel Soc. agr. coop. (‘Anecoop and Others’) and Unione Nazionale tra le Organizzazioni di Produttori Ortofrutticoli, Agrumari e di Frutta in Guscio (Unaproa) were granted leave to intervene in Case C‑457/13 P in support of the form of order sought by the Commission.

27 After hearing the parties and the Advocate General, the Court decided to join Cases C‑455/13 P, C‑457/13 P and C‑460/13 P for the purposes of the oral procedure and the judgment, in accordance with Article 54 of the Rules of Procedure of the Court of Justice.

28 Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, the Commission, supported by the French Republic, Anecoop and Others and Unaproa, and the Italian Republic (‘the appellants’) request the Court to set aside the judgment under appeal and, with the exception of the French Republic, seek an order that the applicants at first instance be ordered to pay the costs.

29 Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, the Commission and the parties intervening in support of it in Case C‑457/13 P also request the Court to give final ruling in the dispute by declaring that the actions in Cases T‑454/10 and T‑482/11 were inadmissible. In the alternative, were those actions to be held to be admissible, they request that the judgment under appeal be set aside and the action referred back to the General Court for judgment and, in the further alternative, the setting aside of all or part of the judgment under appeal as regards the effects of the annulment pronounced.

30 Anicav, Agrucon and Others and AIIPA and Others (‘the other parties to the appeal’) contend that the appeal should be dismissed and seek an order that the appellants pay the costs.

31 The appellants argue that the General Court erred in law by holding that the actions for annulment brought by the applicants at first instance were admissible under the fourth paragraph of Article 263 TFEU.

32 Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop and Anecoop and Others submit, first of all, that the General Court incorrectly interpreted the contested provisions, leading to an incorrect application of the fourth and sixth paragraphs of Article 263 TFEU. The aid scheme in question and the alleged discrimination between the industrial processors of fruit and vegetables and the producer organisations active in processing activities does not follow from the contested provisions, but from the ‘Single CMO’ Regulation providing for the funding of the operations programmes of those organisations. Thus, by their actions, the applicants at first instance seek in reality to challenge a legislative act without having the standing to do so, by circumventing the time-limit set in the sixth paragraph of Article 263 TFEU.

33 Next, concerning whether the applicants at first instance are directly concerned by the contested provisions, Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias and Felcoop are of the opinion that the General Court wrongly confirmed that those provisions had directly caused a competitive disadvantage for the industrial processors of fruit and vegetables as against the producer organisations, while the provisions on the flat rates do not establish an aid scheme, but merely regulate a technical aspect of the pre-existing aid scheme, namely the method for calculation of the VMP of the producer organisations, and do not alter the legal situation of the processors. Similarly, the eligibility of investments and actions connected with the processing of fruit and vegetables is not a consequence of Article 60(7) of Implementing Regulation No 543/2011, but follows from the basic choice to grant effective support to the producer organisations which the EU legislature made in the ‘Single CMO’ Regulation. Thus, processors of fruit and vegetables fall entirely outside the scope of the contested provisions.

34 Furthermore, the appellants are of the opinion that the General Court erred in law in assimilating the position of the applicants at first instance to that of a competitor of a State aid recipient when competition law cannot be applied to the aid schemes which form the very essence of the Common Agricultural Policy. The Commission and Unaproa also note, in that regard, that the aid management rules in the fruit and vegetables sector by virtue of the ‘Single CMO’ Regulation are not specific in nature but are of general application.

35 In the submission of Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, the French Republic, Anecoop and Others and Unaproa, the General Court was also incorrect in considering that the contested provisions left no margin of discretion to the Member States. In fact, the Member States and the competent local authorities are not deprived of their discretion to calculate the VMP and the eligibility of investments and actions connected with the processing of fruit and vegetables for aid paid under an operational programme is not purely automatic, since such investments and actions must be identified in the national strategy.

36 Finally, according to the appellants, the General Court similarly erred in law in holding that the contested provisions do not contain any implementing measures, although those provisions, forming part of the general system implementing the rules on the operational funds and operations programmes of the producer organisations in the fruit and vegetables sector provided for in the ‘Single CMO’ Regulation, presuppose, for their implementation, that the national authorities approve the draft operational programmes notified by those producer organisations after having, inter alia, checked the provisional calculation of the VMP, that those organisations make an application for aid and provide supporting documents and that an act approving the amount of the aid is adopted. With regard, more particularly, to the eligibility of the investments and actions, they add that the selection thereof is entirely entrusted to the national authorities.

37 Since the participants in the hearing had been requested by the Court to focus their oral arguments on the main points to be drawn from the judgment in T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284), delivered on 28 April 2015, the appellants submitted in particular that that judgment confirmed that the applicants at first instance, as industrial processors of fruit and vegetables, could not be regarded as being directly concerned by the contested provisions, since those provisions did not affect their legal position. According to them, it follows from that judgment that the competitive disadvantage alleged is, at most, only a factual consequence of those provisions and that the case-law in State aid matters cannot be applied by analogy to aids under the Common Agricultural Policy.

38 The other parties to the appeal, first of all contesting the allegation that they are indirectly disputing the ‘Single CMO’ Regulation, state that they are not challenging the choice made by the legislature in that regulation to distinguish between the fresh fruit and vegetables sector and the processed fruit and vegetables sector and to allow the grant of aid only to the first of those sectors. However, they do contest the fact that the producer organisations receive EU aid for activities falling within the processed fruit and vegetables sector, in breach of the ‘Single CMO’ Regulation.

39 They argue, next, that the contested provisions do concern them directly since, by allowing the inclusion of activities known as ‘non-genuine processing activities’ in the VMP and the eligibility of the investments and action connected with the processing activities carried out by the producer organisations for aid, the legal position of the industrial processors defined by the ‘Single CMO’ Regulation has been significantly altered, since they are placed at a competitive disadvantage.

40 They add that the rules on the flat rates and the eligibility of the investments and action connected with processing activities leave no margin of discretion to the Member States, since the rules on those rates must be directly and fully followed by the Member States and the possibility that the national authorities may decide not to include processing activities in the list of eligible expenditure is purely theoretical.

41 Finally, the other parties to the appeal state, with regard to the lack of implementing measures, that the national procedures are not implementing measures of Article 52(2a) of Regulation No 1580/2007 or of Article 50(3) of Implementing Regulation No 543/2011, but mere administrative procedures followed by the national authorities which act as intermediary for the payment of the aid. The rules for calculation of the aid are, for their part, clearly set out in those regulations and, as such, are directly applicable, without the need for implementing measures. Similarly, the national strategies are not implementing measures of Article 60(7) of Implementing Regulation No 543/2011, but rather implementing measures of Article 103f(2) of the ‘Single CMO’ Regulation. Their aim is not to declare the investments and actions connected with processing activities eligible for EU aid.

42 In any event, the contested provisions, in their view, adversely affect their rights without needing or even permitting any implementing measures from the EU or the Member States to have that effect. The specific measures adopted in that context concern only the producer organisations and not the processors who cannot challenge them or even have knowledge of them.

43 At the hearing, the other parties to the appeal submitted in particular that the present case can be distinguished from that which gave rise to the judgment in T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284) in that the present case concerns the same activity, using the same raw materials and producing the same products. Moreover, since, in their view, the contested provisions run counter to the ‘Single CMO’ Regulation, there is no reason not to assess the fact of being directly concerned as in State aid matters.

44 By their actions, the applicants at first instance sought the annulment of Article 52(2a) of Regulation No 1580/2007 and of Article 50(3) of Implementing Regulation No 543/2011 which fix the flat rates applicable to various categories of fruit and vegetables enabling the calculation of the VMP of fruit and vegetables intended for processing which were processed by the producer organisations, which VMP is used to ascertain the amount of Community financial aid which may be granted to the producer organisations to fund the operational programmes approved by the Member States. In addition, they sought the annulment of Article 60(7) of Implementing Regulation No 543/2011 by virtue of which the investments and actions connected with the processing of fruit and vegetables into processed fruit and vegetables eligible for aid if they pursue the objectives of the operational programmes and have been identified in the national strategy.

45 In order to hold that the applicants at first instance were directly concerned, for the purpose of final limb of the fourth paragraph of Article 263 TFEU, by the contested provisions,, the General Court, after having taken the view that those provisions did not leave any discretion to the Member States, stated as follows:

‘40 As regards the Commission’s argument that the competitive disadvantage stemming from the contested provisions for the applicants [at first instance] and their members is an indirect factual consequence, it must be pointed out that the effect on the competitive position of [those] applicants and of their members results directly from the specific flat rates laid down in Article 52(2)a of Regulation No 1580/2007 and in Article 50(3) of Implementing Regulation No 543/2011 and from the eligibility of investments and actions related to the transformation of fruit and vegetables for European Union funding under Article 60(7) of Regulation No 543/2011, so that the contested provisions are of direct concern to the applicants and their members (see, to that effect, the judgment of the General Court of 11 July 1996 in Métropole télévision and Others v Commission, T‑528/93, T‑542/93, T‑543/93 and T‑546/93 [EU:T:1996:99], paragraph 64).

41 Moreover, the Commission’s interpretation of the meaning of direct concern would prevent any individual from seeking the annulment of an act whose object is the payment of aid to his competitors, since the associated disadvantage would be merely an indirect factual consequence. If, by virtue of settled case-law, it is established that the competitor of an aid recipient is directly concerned by a Commission decision authorising a Member State to pay that aid where the intention of that State to make such payment is not in doubt (see, to that effect, judgments of the General Court of 27 April 1995 in AAC and Others v Commission, T‑442/93 [EU:T:1995:80], paragraphs 45 and 46; ASPEC and Others v Commission, T‑435/93 [EU:T:1995:79], paragraphs 60 and 61; and Skibsværftsforeningen and Others v Commission, T‑266/94 [EU:T:1996:153], paragraph 49), a provision of EU law which provides for the grant of aid by the European Union itself is a fortiori likely to be of direct concern within the meaning of the fourth paragraph of Article 263 TFEU to the competitor of the recipient of that aid.’

46 In that regard, it must be borne in mind that, in accordance with the settled case-law of the Court of Justice, the condition that the contested decision must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, requires that the contested EU measure must directly affect the legal situation of the individual and leave no discretion to its addressees responsible for implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see judgments in Glencore Grain v Commission, C‑404/96 P, EU:C:1998:196, paragraph 41; Front national v Parliament, C‑486/01 P, EU:C:2004:394, paragraph 34; Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 45, and Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 68).

47 In the judgment in T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284), the Court held that undertakings engaged in the refining of imported cane sugar were not directly concerned by two Commission regulations, of which they sought the annulment, which allowed EU producers to market a limited quantity of out-of-quota sugar and isoglucose. In paragraph 37 of that judgment, the Court noted that ‘since the appellants [in that case did] not have the status of producers of sugar and their legal situation [was] not directly affected by those regulations, those regulations [were] not of direct concern to them within the meaning of the final limb of the fourth paragraph of Article 263 TFEU’.

48 The position of the applicants at first instance in the present case in relation to the contested provisions is analogous to that of the applicants in the case which gave rise to that judgment in relation to those two regulations. Since they are not producers of fruit and vegetables, but industrial processors of fruit and vegetables, to justify their standing to bring proceedings, they rely only on the fact that those provisions place them at a competitive disadvantage.

49 Such a fact cannot of itself allow the view to be taken that their legal position is affected by the contested provisions, adopted in the context of the Common Agricultural Policy and that, accordingly, those provisions are of direct concern to them (see, to that effect, judgment in T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 37 and the case-law cited).

50 Consequently, by holding, in paragraphs 40 and 41 of the judgment under appeal, that the contested provisions were of direct concern to the applicants at first instance on the single ground that the provisions affected their competitive position, the General Court erred in law.

51 Thus, without it being necessary to examine the grounds of the judgment under appeal according to which the contested provisions do not leave any margin of discretion to the Member States and do not include implementing measures, that judgment must be set aside in so far as it declared that the actions seeking annulment of those provisions were admissible.

52 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside the Court of Justice may give final judgment in the matter where the state of the proceedings so permits.

53 In the present case, it follows from the grounds set out in paragraphs 46 to 51 of this judgment that the General Court was incorrect to declare that the actions at first instance seeking the annulment of the contested provisions were admissible.

54 Since the General Court did not rule on the action in Case T‑454/10 in so far as it sought the annulment of Annex VIII to Regulation No 1580/2007 on the ground, set out in paragraph 35 of the judgment under appeal, that there was no need for that Court to annul that annex if it annulled Article 52(2a) of that regulation and therefore did not rule on the plea that there was an absolute bar to proceeding also raised by the Commission against that application, it must be held that that plea is inadmissible, in any event, on the same grounds as those set out in paragraphs 46 and 50 of the present judgment.

55 It follows therefrom that the actions for annulment brought in Cases T‑454/10 and T‑482/11 must be dismissed as inadmissible.

56 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Under Article 138(1) of those Rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

57 In accordance with the second sentence of Article 184(4) of those Rules, where an intervener at first instance, who did not himself bring the appeal and who took part in the written or oral part of the procedure, the Court may decide that he is to bear his own costs.

58 Pursuant to the first subparagraph of Article 140(1) of the Rules of Procedure, also applicable to appeal proceedings by virtue of Article 184(1) of those Rules, the Member States and institutions which intervene in the proceedings are to bear their own costs.

59 In the present case, since the applicants at first instance have been unsuccessful and Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, the Italian Republic, Anecoop and Others and Unaproa applied for costs, like the Commission in Case C‑457/13 P, they must be ordered jointly to pay the costs incurred at first instance and/or in the present appeals by the latter parties.

60 AIT — Associação dos Industriais de Tomate and the French Republic must be ordered to bear their own costs.

1. Sets aside the judgment of the General Court of the European Union in Anicav and Others v Commission (T‑454/10 and T‑482/11, EU:T:2013:282) in that it declared admissible the actions brought in Cases T‑454/10 and T‑482/11 which seek the annulment of the second subparagraph of Article 52(2a) of Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector, as amended by Commission Regulation (EU) No 687/2010 of 30 July 2010, and Articles 50(3) and 60(7) of Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors;

2. Dismisses the actions for annulment brought in Cases T‑454/10 and T‑482/11 as inadmissible;

3. Orders Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav), Agrupación Española de Fabricantes de Conservas Vegetales (Agrucon), Associazione Italiana Industrie Prodotti Alimentari (AIIPA), Campil-Agro-Industrial do Campo do Tejo Lda, Evropaïka Trofima AE, FIT — Fomento da Indústria do Tomate SA, Konservopoiia Oporokipeftikon Filippos AE, Panellinia Enosi Konservopoion, Elliniki Etairia Konservon AE, Anonymos Viomichaniki Etaireia Konservon D. Nomikos, Italagro — Indústria de Transformação de Produtos Alimentares SA, Kopaïs AVEE Trofimon & Poton, Serraïki Konservopoiia Oporokipeftikon Serko AE, Sociedade de Industrialização de Produtos Agrícolas — Sopragol SA, Sugalidal — Indústrias de Alimentação SA, Sutol — Indústrias Alimentares Lda, and ZANAE Zymai Artopoiias Nikoglou AE Viomichania Emporio Trofimon to pay the costs incurred at first instance and/or in the appeals by Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Fédération française de la coopération fruitière, légumière et horticole (Felcoop), the European Commission in Case C‑457/13 P, the Italian Republic, Sociedad Cooperativa de Exportación de Frutos Cítricos Anecoop (Anecoop) S. Coop, Cooperativa Agrícola Nuestra Señora del Oreto (CANSO) Coop. V., Cooperativa Agrícola «Sant Bernat» (Carlet) Coop. V., Cooperativa Agrícola SCJ (COPAL) Coop. V., Grupo AN S. Coop., Acopaex S. Coop., Las Marismas de Lebrija Sociedad Cooperativa Andaluza (Las Marismas), Associació de Cooperatives Agràries de les Terres de Lleida (ACTEL), Unió Corporació Alimentária (UNIO) SCCL, Union Coopérative Agricole France Prune (France Prune), Agrial SCA, Triskalia, Union Fermière Morbihannaise (UFM), VOG Products Soc. agr. coop., Consorzio Padano Ortofrutticolo (CO.PAD.OR.) Soc. agr. coop., Consorzio Casalasco del Pomodoro Soc. agr. coop., Agricoltori Riuniti Piacentini (ARP) Soc. agr. coop., Orogel Fresco Soc. agr. coop., Conserve Italia Soc. agr. coop., Fruttagel Soc. agr. coop. and Unione Nazionale tra le Organizzazioni di Produttori Ortofrutticoli, Agrumari e di Frutta in Guscio (Unaproa);

4. Orders AIT — Associação dos Industriais de Tomate and the French Republic to bear their own costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Confederazione Cooperative Italiane and Others v Anicav and Others (Judgment) [2015] EUECJ C-455/13 (17 September 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/C45513.html Cite as: EU:C:2015:616, ECLI:EU:C:2015:616, [2015] EUECJ C-455/13

Court of Justice of the European Communities (including Court of First Instance Decisions)