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JUDGMENT OF THE COURT (Eighth Chamber)

17 September 2015 (*)

(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 processedfrom 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)

In Joined Cases C-455/13 P, C-457/13 P and C-460/13 P,

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,

Confederazione Cooperative Italiane,established in Rome (Italy),

Cooperativas Agro-Alimentarias,established in Madrid (Spain),

Fdration franaise de la coopration fruitire, lgumire and horticole (Felcoop),establishedin Paris (France),

represented by M. Merola and C. Santacroce, avvocati,

appellants in Case C-

455/13 P,European Commission,represented by K. Skelly, A. Marcoulli and B. Schima, acting as Agents,with an address for service in Luxembourg,

appellant in Case C-457/13 P

supported by:

French Republic,represented by D. Colas and C. Candat, acting as Agents,

Sociedad Cooperativa de Exportacin de Frutos Ctricos Anecoop (Anecoop) S. Coop.,established in Valencia (Spain),

Cooperativa Agrcola Nuestra Seora del Oreto (CANSO) Coop. V.,established in Valencia,

Cooperativa Agrcola Sant Bernat (Carlet) Coop. V.,established in Valencia,

Cooperativa Agrcola SCJ (COPAL) Coop. V.,established in Valencia,

Grupo AN S. Coop.,established in Navarra (Spain),

Acopaex S. Coop.,established in Badajoz (Spain),Las Marismas de Lebrija Sociedad Cooperativa Andaluza (Las Marismas), established in
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Seville (Spain),

Associaci de Cooperatives Agrries de les Terres de Lleida (ACTEL), established in Lleida(Spain),

Uni Corporaci Alimentria (UNIO) SCCL,established in Reus (Spain),

Union Cooprative Agricole France Prune (France Prune),established in Casseneuil (France),Agrial SCA, established in Caen (France),

Triskalia, established in Landerneau (France),

Union Fermire Morbihannaise (UFM),established in Locmin (France),

VOG Products Soc. agr. coop.,established in Laives (Italy),

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),

Fruttagel Soc. agr. coop.,established in Alfonsine (Italy),

represented by M. Merola and C. Santacroce, avvocati,

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

interveners,

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

appellant in Case C-460/13 P,

the other parties to the proceedings being:

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

applicant at first instance in Case T-454/10,

Agrupacin Espaola de Fabricantes de Conservas Vegetales (Agrucon),established in Madrid,

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

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

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

Evropaka Trofima AE, established in Larissa (Greece),

FIT Fomento da Indstria do Tomate SA,established in Marateca (Portugal),Konservopoiia Oporokipeftikon Filippos AE,established in Imathia (Greece),

Panellinia Enosi Konservopoion,established in Athens (Greece),

Elliniki Etairia Konservon AE,established in Nafplio (Greece),

Anonimos Viomichaniki Etairia Konservon D. Nomikos,established in Athens,

Italagro Indstria de Transformao de Produtos Alimentares SA,established in Castanheira

do Ribatejo (Portugal),

Kopas AVEE Trofimon & Poton,established in Athens,

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

Sociedade de Industrializao de Produtos Agrcolas Sopragol SA, established in Mora(Portugal),

Sugalidal Indstrias de Alimentao SA,established in Benavente (Portugal),

Sutol Indstrias Alimentares Lda,established in Alccer do Sal (Portugal),

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

represented by S. Estima Martins and R. Oliveira, advogados,

applicants at first instance in Case T-482/11,

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

Agrupacin Espaola de Fabricantes de Conservas Vegetales (Agrucon),established in Madrid,

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

Panellinia Enosi Konservopoion,established in Athens,

Kopas AVEE Trofimon & Poton,established in Athens,

Evropaka Trofima AE,established in Larissa,

Konservopoiia Oporokipeftikon Filippos AE,established in Imathia,

Anonimos Viomichaniki Etairia Konservon D. Nomikos,established in Athens,

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Serraki Konservopoiia Oporokipeftikon Serko AE,established in Serres,

Elliniki Etaireia Konservon AE,established in Nafplio,

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

represented by S. Estima Martins and R. Oliveira, advogados,

interveners at first instance in Case T-454/10,

Confederazione Cooperative Italiane, established in Rome,

Cooperativas Agro-Alimentarias,established in Madrid,

Fdration franaise de la coopration fruitire, lgumire and horticole (Felcoop),establishedin Paris,

VOG Products Soc. agr. coop.,established in Laives,

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,

Orogel Fresco Soc. agr. coop.,established in Cesena,

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

interveners at first instance in Cases T-454/10 and T-482/11,

THE COURT (Eighth Chamber),

composed of A. Caoimh, President of the Chamber, E. Jara!i"nas (Rapporteur) andC.G. Fernlund, Judges,

Advocate General: N. Wahl,

Registrar: I. Illssy, Administrator,

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,

gives the following

Judgment

1 By their appeals, Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Fdration

franaise de la coopration fruitire, lgumire et horticole (Felcoop), the European Commissionand the Italian Republic seek the annulment of the judgment of the General Court of the European

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Union in Anicav and Others v Commission (T-454/10 and T-482/11, EU:T:2013:282; thejudgment under appeal), by which that Court annulled the second subparagraph of Article 52(2a) ofCommission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rulesof Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit andvegetable sector (OJ 2007 L 350, p. 1), as amended by Commission Regulation (EU) No 687/2010of 30 July 2010 (OJ 2010 L 199, p. 12; Regulation No 1580/2007), and Article 50(3) ofCommission 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 vegetablesand processed fruit and vegetables sectors (OJ 2011 L 157, p. 1), in so far as those articles providethat the value of non-genuine processing activities is to be included in the value of marketedproduction (VMP) of fruit and vegetables intended for processing, and also annulled Article 60(7) ofRegulation No 543/2011.

Legal context

2 Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation ofagricultural markets and on specific provisions for certain agricultural products (Single CMORegulation) (OJ 2007 L 299, p. 1), as amended by Council Regulation No 361/2008 of 14 April2008 (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 CouncilRegulation (EC) No 1182/2007 of 26 September 2007 laying down specific rules as regards the fruitand 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 intoRegulation 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.

4 Under Article 103b of the Single CMO Regulation:

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

(a) financial contributions of members or of the producer organisation itself;

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

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

5 Article 103c of the Single CMO Regulation provides:

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

(b) improvement of product quality;

(c) boosting products commercial value;

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(d) promotion of the products, whether in a fresh or processed form;

6 According to Article 103d(2) of the Single CMO Regulation, the Community financial assistanceis to be capped at 4.1% of the VMP of each producer organisation, but may attain 4.6% of thatvalue, 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 anational strategy for sustainable operational programmes in the fruit and vegetable market and statesthe elements which that strategy must include.

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

Member States shall recognise producer organisations, which:

(a) are constituted by producers of one of the following sectors:

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

(b) are formed on the initiative of the producers;

(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 ofquality and quantity

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

(iii) optimising production costs and stabilising producer prices.

9 Regulation (EEC) No 1580/2007, in its initial version, laid down detailed rules for the applicationof Regulation No 1182/2007. Article 52(1) and (6) thereof provided in particular that the VMP of aproducer organisation is to be calculated on the basis of the production of members of producerorganisations, for which the producer organisation is recognised and that the marketed productionshall be invoiced at the ex-producer organisation stage, where applicable, as product which ispackaged, prepared, or has undergone first-stage processing. That regulation was amended byRegulation 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 thepurposes of calculating the value of fruit and vegetables intended for processing, representing the

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value of the basic product, namely fruit and vegetables intended for processing, and activities whichdo not amount to genuine processing activities. Since the volumes of fruit and vegetables needed forthe production of processed fruit and vegetables differ largely between groups of products, thosedifferences should be reflected in the applicable flat rates.

10 Thus, Article 52(2a) of Regulation No 1580/2007 provides:

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

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

That flat rate shall be:

(a) 53% for fruit juices;

(b) 73% for concentrated juices;

(c) 77% for tomato concentrate;

(d) 62% for frozen fruit and vegetables;

(e) 48% for canned fruit and vegetables;

(f) 70% for canned mushrooms of the genusAgaricus;

(g) 81% for fruits provisionally preserved in brine;

(h) 81% for dried fruits;

(i) 27% for other processed fruit and vegetables;

(j) 12% for processed aromatic herbs;

(k) 41% for paprika powder.

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

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

13 Article 60(7) of Implementing Regulation No 543/2011 provides:

Investments and actions related to the transformation of fruit and vegetables into processed fruitand vegetables may be eligible for support where such investments and actions pursue the objectivesreferred to in Article 103c(1) of [the Single CMO Regulation], including those referred to in point

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(c) of the first paragraph of Article 122 of that Regulation, and provided that they are identified inthe national strategy referred to in Article 103f(2) of [the Single CMO Regulation].

The proceedings before the General Court and the judgment under appeal

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 CaseT-454/10. By application lodged at the Registry of the General Court on 5 September 2011,Agrupacin Espaola de Fabricantes de Conservas Vegetales (Agrucon), Associazione ItalianaIndustrie Prodotti Alimentari (AIIPA), Anicav, Campil-Agro-Industrial do Campo do Tejo Lda,Evropaka Trofima AE, FIT Fomento da Indstria do Tomate SA, KonservopoiiaOporokipeftikon Filippos AE, Panellinia Enosi Konservopoion, Elliniki Etairia Konservon AE,Anonymos Viomichaniki Etaireia Konservon D. Nomikos, Italagro Indstria de Transformaode Produtos Alimentares SA, Kopas AVEE Trofimon & Poton, Serraki KonservopoiiaOporokipeftikon Serko AE, Sociedade de Industrializao de Produtos Agrcolas Sopragol SA,Sugalidal Indstrias de Alimentao SA, Sutol Indstrias Alimentares Lda and ZANAEZymai Artopoiias Nikoglou AE Viomichania Emporio Trofimonont (Agrucon and Others) broughtthe 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 Associao dos Industriais de Tomate, Panellinia Enosi Konservopoion, KopasAVEE Trofimon & Poton, Evropaka Trofima AE, Konservopoiia Oporokipeftikon Filippos AE,Anonymos Viomichaniki Etaireia Konservon D. Nomikos,Serraki Konservopoiia OporokipeftikonSerko AE, Elliniki Etaireia Konservon AE and ZANAE Zymai Artopoiias Nikoglou AEViomichania Emporio Trofimon (AIIPA and Others) sought leave to intervene in Case T-454/10 insupport of the form of order sought by Anicav while, by four documents lodged at the Registry ofthe 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 AgricoltoriRiuniti 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 insupport 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, theinterveners in support of the form of order sought by the Commission in Case T-450/10 also soughtleave 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, CasesC-454/10 and C-482/11 were joined for the purposes of the written and oral procedure and of thejudgment.

18 In Case T-454/10, Anicav and AIIPA and Others sought the annulment of Article 52 of and AnnexVIII 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) ofImplementing 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.

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21 In the judgment under appeal, the General Court, firstly, rejected the Commissions pleas of anabsolute bar on proceedings and seeking to have the actions brought in Cases T-454/10 andT-482/11 declared inadmissible on the basis of the applicants lack of standing to bring proceedingsand, in Case T-454/10, Anicavs lack of legal interest in bringing proceedings.

22 With regard to the standing to bring proceedings of the applicants at first instance, the Commissionargued 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) ofImplementing Regulation No 543/2011 (the contested provisions), and the General Court, inparagraphs 36 to 46 of the judgment under appeal, considered that those provisions introduced asystem under which producer organisations were eligible to receive aid covering processingactivities also carried out by processors which were not members of a producer organisation, thatthose provisions did not leave any margin of discretion to the Member States and that thecompetitive position of the applicants and their members was the direct result of those provisions, sothat 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 Courttook the view that the contested provisions do not entail implementing measures, noting thatalthough 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 inquestion did not refer to the applicants at first instance and were neither addressed to nor servedupon them, and that the applicable national rules did not necessarily provide for the adoption of actscapable of being challenged before the national courts.

24 Secondly, on the substance, the General Court upheld the first two pleas in law raised by theapplicants at first instance, which it examined together, alleging, respectively, infringement of theSingle CMO Regulation and of the principle of non-discrimination, and by which the applicants atfirst instance argued that, on the one hand, the possibility of granting aid under the operationalprogrammes 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 toproducer organisations and thus excluded processors which were not members of suchorganisations.

25 Accordingly, the General Court held that the effects produced by the second subparagraph ofArticle 52(2)a of Regulation No 1580/2007 and Article 50(3) of Implementing RegulationNo 543/2011 on the relations between the Commission, the Member States and the producerorganisations 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 untildelivery of this judgment were to be considered definitive. However, it did not maintain the effectsof Article 60(7) of Implementing Regulation No 543/2011 on the ground that the funding relating tothat provision was by its nature vitiated in its entirety by the illegality found.

Procedure before the Court and the forms of order sought by the parties

26 By orders of the President of the Court of Justice of 5 March and 2 July 2014, the French Republic,Sociedad Cooperativa de Exportacin de Frutos Ctricos Anecoop (Anecoop) S. coop., CooperativaAgrcola Nuestra Seora del Oreto (CANSO) Coop. V., Cooperativa Agrcola Sant Bernat

(Carlet) Coop. V., Cooperativa Agrcola SCJ (COPAL) Coop. V.,le Grupo AN S. Coop., AcopaexS. Coop., Las Marismas de Lebrija Sociedad Cooperativa Andaluza (Las Marismas), Associaci de

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Cooperatives Agrries de les Terres de Lleida (ACTEL), Uni Corporaci Alimentria (UNIO)SCCL, Union Cooprative Agricole France Prune (France Prune), Agrial SCA, Triskalia, UnionFermire Morbihannaise (UFM),VOG Products Soc. agr. coop., Consorzio Padano Ortofrutticolo(CO.PAD.OR.) Soc. agr. coop., Consorzio Casalasco del Pomodoro Soc. agr. coop., AgricoltoriRiuniti 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 Organizzazionidi 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 accordancewith 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 (theappellants) request the Court to set aside the judgment under appeal and, with the exception of theFrench 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 Commissionand the parties intervening in support of it in Case C-457/13 P also request the Court to give finalruling in the dispute by declaring that the actions in Cases T-454/10 and T-482/11 wereinadmissible. In the alternative, were those actions to be held to be admissible, they request that thejudgment under appeal be set aside and the action referred back to the General Court for judgmentand, in the further alternative, the setting aside of all or part of the judgment under appeal as regardsthe effects of the annulment pronounced.

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

The appeal

The standing of the applicants at first instance to bring proceedings

Arguments of the parties

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

32 Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop and Anecoop andOthers 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 aidscheme in question and the alleged discrimination between the industrial processors of fruit andvegetables and the producer organisations active in processing activities does not follow from thecontested provisions, but from the Single CMO Regulation providing for the funding of theoperations programmes of those organisations. Thus, by their actions, the applicants at first instanceseek in reality to challenge a legislative act without having the standing to do so, by circumventingthe 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

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provisions, Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias and Felcoop areof the opinion that the General Court wrongly confirmed that those provisions had directly caused acompetitive disadvantage for the industrial processors of fruit and vegetables as against the producerorganisations, while the provisions on the flat rates do not establish an aid scheme, but merelyregulate a technical aspect of the pre-existing aid scheme, namely the method for calculation of theVMP 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 thebasic choice to grant effective support to the producer organisations which the EU legislature madein the Single CMO Regulation. Thus, processors of fruit and vegetables fall entirely outside thescope of the contested provisions.

34 Furthermore, the appellants are of the opinion that the General Court erred in law in assimilatingthe position of the applicants at first instance to that of a competitor of a State aid recipient whencompetition law cannot be applied to the aid schemes which form the very essence of the CommonAgricultural Policy. The Commission and Unaproa also note, in that regard, that the aidmanagement 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 alsoincorrect in considering that the contested provisions left no margin of discretion to the MemberStates. In fact, the Member States and the competent local authorities are not deprived of theirdiscretion to calculate the VMP and the eligibility of investments and actions connected with theprocessing of fruit and vegetables for aid paid under an operational programme is not purelyautomatic, 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, formingpart of the general system implementing the rules on the operational funds and operationsprogrammes of the producer organisations in the fruit and vegetables sector provided for in theSingle CMO Regulation, presuppose, for their implementation, that the national authoritiesapprove the draft operational programmes notified by those producer organisations after having,inter alia, checked the provisional calculation of the VMP, that those organisations make anapplication for aid and provide supporting documents and that an act approving the amount of theaid is adopted. With regard, more particularly, to the eligibility of the investments and actions, theyadd 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 argumentson the main points to be drawn from the judgment in T & L Sugars and Sidul Acares vCommission (C-456/13 P, EU:C:2015:284), delivered on 28 April 2015, the appellants submitted inparticular that that judgment confirmed that the applicants at first instance, as industrial processorsof fruit and vegetables, could not be regarded as being directly concerned by the contestedprovisions, since those provisions did not affect their legal position. According to them, it followsfrom that judgment that the competitive disadvantage alleged is, at most, only a factual consequenceof those provisions and that the case-law in State aid matters cannot be applied by analogy to aidsunder the Common Agricultural Policy.

38 The other parties to the appeal, first of all contesting the allegation that they are indirectly disputingthe Single CMO Regulation, state that they are not challenging the choice made by the legislaturein that regulation to distinguish between the fresh fruit and vegetables sector and the processed fruit

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and vegetables sector and to allow the grant of aid only to the first of those sectors. However, theydo contest the fact that the producer organisations receive EU aid for activities falling within theprocessed 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 theinclusion of activities known as non-genuine processing activities in the VMP and the eligibility ofthe 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 CMORegulation 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 connectedwith processing activities leave no margin of discretion to the Member States, since the rules onthose rates must be directly and fully followed by the Member States and the possibility that thenational authorities may decide not to include processing activities in the list of eligible expenditureis purely theoretical.

41 Finally, the other parties to the appeal state, with regard to the lack of implementing measures, thatthe national procedures are not implementing measures of Article 52(2a) of RegulationNo 1580/2007 or of Article 50(3) of Implementing Regulation No 543/2011, but mereadministrative procedures followed by the national authorities which act as intermediary for thepayment of the aid. The rules for calculation of the aid are, for their part, clearly set out in thoseregulations 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 ImplementingRegulation No 543/2011, but rather implementing measures of Article 103f(2) of the Single CMORegulation. Their aim is not to declare the investments and actions connected with processingactivities 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 theprocessors 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 bedistinguished from that which gave rise to the judgment in T & L Sugars and Sidul Acares vCommission (C-456/13 P, EU:C:2015:284) in that the present case concerns the same activity, usingthe same raw materials and producing the same products. Moreover, since, in their view, thecontested provisions run counter to the Single CMO Regulation, there is no reason not to assessthe fact of being directly concerned as in State aid matters.

Findings of the Court

44 By their actions, the applicants at first instance sought the annulment of Article 52(2a) ofRegulation No 1580/2007 and of Article 50(3) of Implementing Regulation No 543/2011 which fixthe flat rates applicable to various categories of fruit and vegetables enabling the calculation of theVMP of fruit and vegetables intended for processing which were processed by the producerorganisations, which VMP is used to ascertain the amount of Community financial aid which maybe granted to the producer organisations to fund the operational programmes approved by theMember States. In addition, they sought the annulment of Article 60(7) of Implementing RegulationNo 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 theoperational programmes and have been identified in the national strategy.

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45 In order to hold that the applicants at first instance were directly concerned, for the purpose of finallimb 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 Commissions argument that the competitive disadvantage stemming from thecontested 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 inArticle 52(2)a of Regulation No 1580/2007 and in Article 50(3) of Implementing RegulationNo 543/2011 and from the eligibility of investments and actions related to the transformationof fruit and vegetables for European Union funding under Article 60(7) of RegulationNo 543/2011, so that the contested provisions are of direct concern to the applicants and theirmembers (see, to that effect, the judgment of the General Court of 11 July 1996 in Mtropoletlvision 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 Commissions interpretation of the meaning of direct concern would preventany individual from seeking the annulment of an act whose object is the payment of aid to hiscompetitors, since the associated disadvantage would be merely an indirect factualconsequence. If, by virtue of settled case-law, it is established that the competitor of an aidrecipient is directly concerned by a Commission decision authorising a Member State to paythat aid where the intention of that State to make such payment is not in doubt (see, to thateffect, judgments of the General Court of 27 April 1995 in AAC and Othersv 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 Skibsvrftsforeningen and Others vCommission, T-266/94 [EU:T:1996:153], paragraph 49), a provision of EU law whichprovides for the grant of aid by the European Union itself is a fortiori likely to be of directconcern within the meaning of the fourth paragraph of Article 263 TFEU to the competitor ofthe 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 ofJustice, the condition that the contested decision must be of direct concern to a natural or legalperson, as laid down in the fourth paragraph of Article 263 TFEU, requires that the contested EUmeasure must directly affect the legal situation of the individual and leave no discretion to itsaddressees responsible for implementing it, such implementation being purely automatic andresulting from EU rules without the application of other intermediate rules (see judgments inGlencore Grain v Commission, C-404/96 P, EU:C:1998:196, paragraph 41; Front national vParliament, C-486/01 P, EU:C:2004:394, paragraph 34; CommissionvEnte per le Ville Vesuvianeand 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 Acaresv Commission (C-456/13 P, EU:C:2015:284),the Court held that undertakings engaged in the refining of imported cane sugar were not directlyconcerned by two Commission regulations, of which they sought the annulment, which allowed EUproducers to market a limited quantity of out-of-quota sugar and isoglucose. In paragraph 37 of thatjudgment, 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, thoseregulations [were] not of direct concern to them within the meaning of the final limb of the fourth

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paragraph of Article 263 TFEU.

48 The position of the applicants at first instance in the present case in relation to the contestedprovisions is analogous to that of the applicants in the case which gave rise to that judgment inrelation to those two regulations. Since they are not producers of fruit and vegetables, but industrialprocessors of fruit and vegetables, to justify their standing to bring proceedings, they rely only onthe 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 thecontested 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 & LSugars and Sidul Acaresv 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 contestedprovisions were of direct concern to the applicants at first instance on the single ground that theprovisions 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 towhich the contested provisions do not leave any margin of discretion to the Member States and donot include implementing measures, that judgment must be set aside in so far as it declared that theactions seeking annulment of those provisions were admissible.

Admissibility of the actions at first instance

52 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of theCourt of Justice of the European Union, if the decision of the General Court is set aside the Court ofJustice 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 thatthe General Court was incorrect to declare that the actions at first instance seeking the annulment ofthe 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 theannulment of Annex VIII to Regulation No 1580/2007 on the ground, set out in paragraph 35 of thejudgment under appeal, that there was no need for that Court to annul that annex if it annulledArticle 52(2a) of that regulation and therefore did not rule on the plea that there was an absolute barto proceeding also raised by the Commission against that application, it must be held that that plea isinadmissible, in any event, on the same grounds as those set out in paragraphs 46 and 50 of thepresent judgment.

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

Costs

56 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is wellfounded 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 ofArticle 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have beenapplied for in the successful partys pleadings.

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57 In accordance with the second sentence of Article 184(4) of those Rules, where an intervener at firstinstance, who did not himself bring the appeal and who took part in the written or oral part of theprocedure, 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 toappeal proceedings by virtue of Article 184(1) of those Rules, the Member States and institutionswhich 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 ConfederazioneCooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, the Italian Republic, Anecoop andOthers and Unaproa applied for costs, like the Commission in Case C-457/13 P, they must beordered jointly to pay the costs incurred at first instance and/or in the present appeals by the latterparties.

60 AIT Associao dos Industriais de Tomate and the French Republic must be ordered to beartheir own costs.

On those grounds, the Court (Eighth Chamber) hereby:

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 theannulment of the second subparagraph of Article 52(2a) of Commission Regulation (EC)No 1580/2007 of 21 December 2007 laying down implementing rules of CouncilRegulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit andvegetable sector, as amended by Commission Regulation (EU) No 687/2010 of 30 July2010, 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 CouncilRegulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruitand vegetables sectors;

2. Dismisses the actions for annulment brought in Cases T-454/10 and T-482/11 asinadmissible;

3. Orders Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali(Anicav), Agrupacin Espaola de Fabricantes de Conservas Vegetales (Agrucon),Associazione Italiana Industrie Prodotti Alimentari (AIIPA), Campil-Agro-Industrial doCampo do Tejo Lda, Evropaka Trofima AE, FIT Fomento da Indstria do TomateSA, Konservopoiia Oporokipeftikon Filippos AE, Panellinia Enosi Konservopoion,Elliniki Etairia Konservon AE, Anonymos Viomichaniki Etaireia KonservonD. Nomikos, Italagro Indstria de Transformao de Produtos Alimentares SA,Kopas AVEE Trofimon & Poton, Serraki Konservopoiia Oporokipeftikon Serko AE,Sociedade de Industrializao de Produtos Agrcolas Sopragol SA, Sugalidal Indstrias de Alimentao SA, Sutol Indstrias Alimentares Lda, and ZANAE ZymaiArtopoiias Nikoglou AE Viomichania Emporio Trofimon to pay the costs incurred atfirst instance and/or in the appeals by Confederazione Cooperative Italiane,Cooperativas Agro-Alimentarias, Fdration franaise de la coopration fruitire,

lgumire et horticole (Felcoop), the European Commission in Case C-457/13 P, the

Italian Republic, Sociedad Cooperativa de Exportacin de Frutos Ctricos Anecoop(Anecoop) S. Coop, Cooperativa Agrcola Nuestra Seora del Oreto (CANSO) Coop. V.,

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Cooperativa Agrcola Sant Bernat (Carlet) Coop. V., Cooperativa Agrcola SCJ(COPAL) Coop. V., Grupo AN S. Coop., Acopaex S. Coop., Las Marismas de LebrijaSociedad Cooperativa Andaluza (Las Marismas), Associaci de Cooperatives Agrriesde les Terres de Lleida (ACTEL), Uni Corporaci Alimentria (UNIO) SCCL, UnionCooprative Agricole France Prune (France Prune), Agrial SCA, Triskalia, UnionFermire Morbihannaise (UFM), VOG Products Soc. agr. coop., Consorzio PadanoOrtofrutticolo (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 trale Organizzazioni di Produttori Ortofrutticoli, Agrumari e di Frutta in Guscio(Unaproa);

4. Orders AIT Associao dos Industriais de Tomate and the French Republic to beartheir own costs.

[Signatures]

*Language of the case: English.
http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text=%2522direct%2Bconcern%2522%2B%2522implementing%2522%2B%2522regulatory%2522&pageIndex=0&part=1&mode=req&docid=167951&occ=first&dir=&cid=82219#Footref*