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Corte di giustizia UEsentenza

Corte di giustizia UE n. 1151/2016

ECLI:EU:T:2016:613
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

12 October 2016 ( * ) (Actions for annulment — Application for registration of a protected designation of origin ‘Halloumi’ or ‘Hellim’ — [OSCURATO:PERSONA] letters concerning the applicants’ involvement in the opposition proceedings relating to the registration procedure — Measure not open to challenge — Inadmissibility)

[OSCURATO:PERSONA] T‑41/16,

[OSCURATO:PERSONA] of [OSCURATO:PERSONA], established in [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] and [OSCURATO:PERSONA], established in [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA], established in [OSCURATO:PERSONA], [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA], established in [OSCURATO:PERSONA],

[OSCURATO:PERSONA],

residing in Güzelyurt ([OSCURATO:PERSONA]), represented by B. O’Connor, Solicitor, S. Gubel and E. Bertolotto, lawyers, applicants, v

[OSCURATO:PERSONA],

represented by A. Lewis, P. Aalto and J. [OSCURATO:PERSONA], acting as Agents, defendant, ACTION pursuant to [OSCURATO:PERSONA] 263 TFEU for annulment of two letters from the [OSCURATO:PERSONA] of 18 November 2015 (Ref.Ares (2015) 5171539) and of 15 January 2016 (Ref.Ares (2016) 220922) concerning the applicants’ involvement in the opposition procedure relating to the procedure for registering the cheese called ‘Halloumi/Hellim’ as a protected designation of origin,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

composed, at the time of the deliberation, of S. [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA], L. Madise (Rapporteur) and Z. Csehi, Judges, [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] framework 1 [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] (EU) No 1151/2012 of the [OSCURATO:PERSONA] and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1) creates a scheme for protected designations of origin and protected geographical indications for certain agricultural products and foodstuffs. 2 [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 1151/2012 defines a ‘designation of origin’ as a name which identifies a product originating in a specific place, region or, in exceptional cases, a country, whose quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors and the production steps of which all take place in the defined geographical area. 3 Registration of an agricultural product or foodstuff as a protected designation of origin (PDO), which must satisfy the conditions laid down in [OSCURATO:PERSONA] 1151/2012 and, in particular, must comply with the specification defined in [OSCURATO:PERSONA] 7 of that regulation, confers protection on that name at EU level.

That protection is defined in [OSCURATO:PERSONA] 13(1) of that regulation. 4 The registration procedure takes place in two phases.

In the first phase, the application for registration of the designations is examined at national level.

That phase is governed by [OSCURATO:PERSONA] 49 of [OSCURATO:PERSONA] 1151/2012 which states the following: ‘1.

Applications for registration of names under the quality schemes referred to in [OSCURATO:PERSONA] 48 may only be submitted by groups who work with the products with the name to be registered …

2. The application shall be addressed to the authorities of that [OSCURATO:PERSONA]. [OSCURATO:PERSONA] shall scrutinise the application by appropriate means in order to check that it is justified and meets the conditions of the respective scheme.

3. As part of the scrutiny referred to in the second subparagraph of paragraph 2 of this [OSCURATO:PERSONA], the [OSCURATO:PERSONA] shall initiate a national opposition procedure that ensures adequate publication of the application and that provides for a reasonable period within which any natural or legal person having a legitimate interest and established or resident on its territory may lodge an opposition to the application. [OSCURATO:PERSONA] shall examine the admissibility of oppositions …

4. If, after assessment of any opposition received, the [OSCURATO:PERSONA] considers that the requirements of this [OSCURATO:PERSONA] are met, it may take a favourable decision and lodge an application dossier with the [OSCURATO:PERSONA].

It shall in such case inform the [OSCURATO:PERSONA] of admissible oppositions received from a natural or legal person that have legally marketed the products in question, using the names concerned continuously for at least five years preceding the date of the publication referred to in paragraph

3. [OSCURATO:PERSONA] shall ensure that its favourable decision is made public and that any natural or legal person having a legitimate interest has an opportunity to appeal. [OSCURATO:PERSONA] shall ensure that the version of the product specification on which its favourable decision is based, is published, and shall provide electronic access to the product specification.

With reference to protected designations of origin and protected geographical indications, the [OSCURATO:PERSONA] shall also ensure adequate publication of the version of the product specification on which the [OSCURATO:PERSONA] takes its decision pursuant to [OSCURATO:PERSONA] 50(2).’ 5 In the second phase, the application is scrutinised by the [OSCURATO:PERSONA], and if the conditions laid down in [OSCURATO:PERSONA] 1151/2012 are met it is published for opposition purposes.

That procedure before the [OSCURATO:PERSONA] is governed by [OSCURATO:PERSONA] 50 of that regulation, entitled ‘Scrutiny by the [OSCURATO:PERSONA] and publication for opposition’. 6 Publication in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] triggers an ‘opposition procedure’ in accordance with [OSCURATO:PERSONA] 51 of [OSCURATO:PERSONA] 1151/2012 which states the following: ‘1.

Within three months from the date of publication in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the authorities of a [OSCURATO:PERSONA] or of a third country, or a natural or legal person having a legitimate interest and established in a third country may lodge a notice of opposition with the [OSCURATO:PERSONA].

Any natural or legal person having a legitimate interest, established or resident in a [OSCURATO:PERSONA] other than that from which the application was submitted, may lodge a notice of opposition with the [OSCURATO:PERSONA] in which it is established within a time limit permitting an opposition to be lodged pursuant to the first subparagraph.

A notice of opposition shall contain a declaration that the application might infringe the conditions laid down in this [OSCURATO:PERSONA]. … [OSCURATO:PERSONA] shall forward the notice of opposition to the authority or body that lodged the application without delay.

2. If a notice of opposition is lodged with the [OSCURATO:PERSONA] and is followed within two months by a reasoned statement of opposition, the [OSCURATO:PERSONA] shall check the admissibility of this reasoned statement of opposition.

3. Within two months after the receipt of an admissible reasoned statement of opposition, the [OSCURATO:PERSONA] shall invite the authority or person that lodged the opposition and the authority or body that lodged the application to engage in appropriate consultations for a reasonable period that shall not exceed three months.

The authority or person that lodged the opposition and the authority or body that lodged the application shall start such appropriate consultations without undue delay.

They shall provide each other with the relevant information to assess whether the application for registration complies with the conditions of this [OSCURATO:PERSONA].

If no agreement is reached, this information shall also be provided to the [OSCURATO:PERSONA]. …

4. Where, following the appropriate consultations referred to in paragraph 3 of this [OSCURATO:PERSONA], the details published in accordance with [OSCURATO:PERSONA] 50(2) have been substantially amended, the [OSCURATO:PERSONA] shall repeat the scrutiny referred to in [OSCURATO:PERSONA]

50. …’ 7 [OSCURATO:PERSONA] 52 of [OSCURATO:PERSONA] 1151/2012, entitled ‘Decision on registration’, provides as follows: ‘1.

Where, on the basis of the information available to the [OSCURATO:PERSONA] from the scrutiny carried out pursuant to the first subparagraph of [OSCURATO:PERSONA] 50(1), the [OSCURATO:PERSONA] considers that the conditions for registration are not fulfilled, it shall adopt implementing acts rejecting the application.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in [OSCURATO:PERSONA] 57(2).

2. If the [OSCURATO:PERSONA] receives no notice of opposition or no admissible reasoned statement of opposition under [OSCURATO:PERSONA] 51, it shall adopt implementing acts, without applying the procedure referred to in [OSCURATO:PERSONA] 57(2), registering the name.

3. If the [OSCURATO:PERSONA] receives an admissible reasoned statement of opposition, it shall, following the appropriate consultations referred to in [OSCURATO:PERSONA] 51(3), and taking into account the results thereof, either: (a) if an agreement has been reached, register the name by means of implementing acts adopted without applying the procedure referred to in [OSCURATO:PERSONA] 57(2), and, if necessary, amend the information published pursuant to [OSCURATO:PERSONA] 50(2) provided such amendments are not substantial; (b) if an agreement has not been reached, adopt implementing acts deciding on the registration.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in [OSCURATO:PERSONA] 57(2).

4. Acts of registration and decisions on rejection shall be published in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] .’ 8 [OSCURATO:PERSONA] 57 of [OSCURATO:PERSONA] 1151/2012 and [OSCURATO:PERSONA] 5 of [OSCURATO:PERSONA] (EU) No 182/2011 of the [OSCURATO:PERSONA] and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]’s exercise of implementing powers (OJ 2011 L 55, p. 13) makes provision for a procedure for the [OSCURATO:PERSONA] to deliver an opinion as part of the [OSCURATO:PERSONA]’s exercise of its implementing powers.

Background to the dispute 9 The cheese called ‘Halloumi’ (in Greek) or ‘Hellim’ (in [OSCURATO:PERSONA]) is made with specific ingredients according to traditional methods of production.

It has a particular taste and texture, and particular cooking properties which are essentially attributable to topographical features and the flora and fauna of the island of [OSCURATO:PERSONA]. 10 The applicants, [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA] and [OSCURATO:PERSONA], all established or residing in the northern part of the island of [OSCURATO:PERSONA], are involved in the production and marketing of Halloumi/Hellim within the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] works to promote the various economic sectors in the northern part of the island. [OSCURATO:PERSONA] and [OSCURATO:PERSONA] aims to improve living conditions of sheep, goat and cattle farmers who produce milk in the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA] is the largest company producing dairy products and fruit juices in the northern part of the island of [OSCURATO:PERSONA], and Halloumi/Hellim exports represent 50% of its total sales. [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA] represents the interests of the dairy sector, its members being active, in particular, in the production and export of Halloumi/Hellim. [OSCURATO:PERSONA] produces Halloumi/Hellim and other dairy products.

Since her production of sheep and goat’s milk was not sufficient for that purpose, she uses cow’s milk in an industrial process. 11 Following an application for registration of Halloumi/Hellim as a PDO with the [OSCURATO:PERSONA] authorities, that application was published on 30 November 2012 in the [OSCURATO:PERSONA] tis [OSCURATO:PERSONA] ([OSCURATO:PERSONA] of the Republic of [OSCURATO:PERSONA]). 12 On 26 December 2012, the applicants submitted to the [OSCURATO:PERSONA] of Agriculture notices of opposition to the application for registration referred to in paragraph 11 above. 13 By letters of 9 July 2014, the [OSCURATO:PERSONA] of Agriculture dismissed those oppositions.

He stated that it had not been proven that the applicants were resident and conducted their activities in the territory of the Republic of [OSCURATO:PERSONA]. [OSCURATO:PERSONA] added that, on account of the prevailing conditions since 1974 and the fact that the [OSCURATO:PERSONA] did not exercise any effective control in the occupied part of the island, it was impossible to check whether the applicants had a legitimate interest. [OSCURATO:PERSONA] went on to state that he had, nevertheless, examined the merits of the grounds for opposition put forward, having regard to the contents of the administrative file and the report of the [OSCURATO:PERSONA] established on the basis of the applicable national law.

Following that examination, the [OSCURATO:PERSONA] rejected the individual grounds for opposition submitted by the applicants, adopting the reasoning given in the [OSCURATO:PERSONA] report. [OSCURATO:PERSONA] rejection decision, his decision in favour of the submission of an application for registration to the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] report were annexed to those letters. 14 On 17 July 2014, the [OSCURATO:PERSONA] authorities filed application CY/PDO/0005/01243 with the [OSCURATO:PERSONA], seeking registration of Halloumi/Hellim as a PDO. 15 On 2 January 2015, the applicants sent a pre-objection submission concerning the application for registration of Halloumi/Hellim as a PDO to the [OSCURATO:PERSONA]. 16 On 26 February 2015, the [OSCURATO:PERSONA] replied that it had examined the application for the registration of ‘Halloumi/Hellim’ as a PDO, and that the PDO registration procedure set out in [OSCURATO:PERSONA] 1151/2012 did not contemplate any pre-objection procedure. 17 After examining the application for registration, the [OSCURATO:PERSONA] found that it was justified in that it satisfied the conditions of [OSCURATO:PERSONA] 1151/2012, in accordance with [OSCURATO:PERSONA] 50 of that regulation.

Consequently, on 28 July 2015, the [OSCURATO:PERSONA] adopted the measure entitled ‘Publication of an application pursuant to [OSCURATO:PERSONA] 50(2)(a) of [OSCURATO:PERSONA] (EU) No 1151/2012 of the [OSCURATO:PERSONA] and of the Council on quality schemes for agricultural products and foodstuffs’ (OJ 2012 C 246, p. 9), which summarises the specification submitted by the [OSCURATO:PERSONA] authorities for the registration of Halloumi/Hellim as a PDO.

The second stage of the administrative procedure, that is to say, the cross-border opposition procedure provided for in [OSCURATO:PERSONA] 51 of [OSCURATO:PERSONA] 1151/2012, was initiated by that publication. 18 On 26 October 2015, the applicants submitted notices of opposition on the basis of [OSCURATO:PERSONA] 51 of [OSCURATO:PERSONA] 1151/2012.

They argued that the national procedure followed in the Republic of [OSCURATO:PERSONA] was legally flawed, the rights of [OSCURATO:PERSONA] producers having been seriously undermined, that [OSCURATO:PERSONA] 7(1)(b) and (e) of [OSCURATO:PERSONA] 1151/2012 was infringed, in that the product specification failed to respect the traditions of the whole of the geographical area indicated, and that [OSCURATO:PERSONA] 7(l)(g) of [OSCURATO:PERSONA] 1151/2012 was infringed, in that the specification designated the [OSCURATO:PERSONA] of Agriculture of the Republic of [OSCURATO:PERSONA] as the competent authority for the entire geographical area indicated, without providing for an effective system of control for the whole of that area.

Lastly, they alleged a breach of the fundamental rights of the producers from the [OSCURATO:PERSONA] community and their de facto exclusion from the benefits of the registration of the PDO. 19 By letter of 18 November 2015 (Ares (2015) 5171539) (‘the first letter’), the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] B ‘Multilateral relations and quality policy’ of the [OSCURATO:PERSONA]’s ‘Agriculture and rural development’ [OSCURATO:PERSONA] (DG) (‘the [OSCURATO:PERSONA]’) informed the applicants that, under [OSCURATO:PERSONA] 51(1) and (2) of [OSCURATO:PERSONA] 1151/2012, natural or legal persons established or resident in the [OSCURATO:PERSONA] from which the application originated were not permitted to lodge a notice of opposition in the framework of the opposition procedure carried out at EU level, going on to conclude that that procedure could not be initiated by the applicants because they were established in [OSCURATO:PERSONA]. [OSCURATO:PERSONA], however, made clear that that letter was intended solely to inform the applicants and that it did not constitute a ‘formal decision’ concerning the admissibility of the statements of opposition, as that decision has to be taken by the [OSCURATO:PERSONA] in the context of its final decision on the application. 20 In response to a request for clarification from one of the applicants concerning the consequences of the first letter in relation to the oppositions brought, the [OSCURATO:PERSONA] stated in a letter of 15 January 2016 (Ares (2016) 220922) (‘the second letter’) that no ‘formal decision’ had been adopted concerning the notices of opposition submitted by natural or legal persons established in [OSCURATO:PERSONA], that a ‘formal decision’ would be taken by the [OSCURATO:PERSONA] in the context of its final decision on the application for registration and that the applicants would not be invited to start consultations with the [OSCURATO:PERSONA] authorities with a view to reaching an agreement.

Procedure and forms of order sought by the parties 21 By application lodged at the [OSCURATO:PERSONA] on 28 January 2016, the applicants brought the present action.

They claim that the [OSCURATO:PERSONA] should: – annul the first and second letters (taken together, ‘the contested measures’); – declare that Articles 49, 50, 51 and 52 of [OSCURATO:PERSONA] 1151/2012 are unlawful and inapplicable in the present case, in that they do not provide for a system which ensures respect for the fundamental rights of the applicants; – order the [OSCURATO:PERSONA] to pay the costs. 22 By separate document, lodged at the [OSCURATO:PERSONA] on 11 February 2016, the applicants submitted an application for interim measures, in which they claimed, in essence, that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] should suspend the operation of the contested measures and the registration of Halloumi/Hellim as a PDO, and order the [OSCURATO:PERSONA] to pay the costs. 23 By order of 13 April 2016, [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and Others v

[OSCURATO:PERSONA]

, T‑41/16 R, not published, EU:T:2016:217, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] dismissed the application.

The costs were reserved. 24 [OSCURATO:PERSONA] lodged its defence on 23 May 2016.

It contends that the [OSCURATO:PERSONA] should: – dismiss the application; – order the applicants to pay the costs; 25 By documents lodged at the [OSCURATO:PERSONA] on 10 March, and 24 and 25 May 2016, respectively, the Republic of [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and the Council of the [OSCURATO:PERSONA] applied for leave to intervene in the proceedings in support of the form of order sought by the [OSCURATO:PERSONA].

Law 26 [OSCURATO:PERSONA] 126 of the Rules of Procedure of the [OSCURATO:PERSONA], where the action is manifestly inadmissible, the [OSCURATO:PERSONA] may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. 27 In the present case, the [OSCURATO:PERSONA] considers that it has sufficient information from the documents before it and decides to give its decision without taking further steps in the proceedings. 28 [OSCURATO:PERSONA], without raising a plea of inadmissibility by separate document on the basis of [OSCURATO:PERSONA] 130 of the Rules of Procedure, submits in its statement of defence that the contested measures are preparatory.

It recalls, in particular, that the second letter states that ‘no formal decision has been taken as regards notices of opposition submitted by natural or legal persons resident or established in [OSCURATO:PERSONA] [and that] such formal decision shall be taken by the [OSCURATO:PERSONA] in the framework of its final decision with respect to [the registration] application’. 29 For their part, the applicants, relying on the judgment of 28 November 1991,

BEUC

v

[OSCURATO:PERSONA]

(C‑170/89, EU:C:1991:450), claim that the contested measures are definitive in that they definitively exclude them from the opposition procedure which must be closed before the decision on registration is adopted.

In that regard, the applicants observe that the contested measures, in so far as they inform the applicants that they will not be invited to the consultations provided for under [OSCURATO:PERSONA] 51(3) of [OSCURATO:PERSONA] 1151/2012, determine the rights which they have or do not have in relation to the opposition procedure and cause them harm.

In that regard, it is irrelevant that the [OSCURATO:PERSONA] makes clear in its second letter that the first letter is for information only. 30 It should be recalled at the outset that, under the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’. 31 According to settled case-law any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of [OSCURATO:PERSONA] 263 TFEU (judgments of 31 March 1971,

[OSCURATO:PERSONA]

v Council , 22/70, EU:C:1971:32, paragraph 42; of 13 October 2011, [OSCURATO:PERSONA] and Germany v

[OSCURATO:PERSONA]

, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36; and of 13 February 2014, Hungary v

[OSCURATO:PERSONA]

, C‑31/13 P, EU:C:2014:70, paragraph 54). 32 In that regard, in the case of acts adopted by a procedure involving several stages of an internal procedure, in principle an act is open to review only if it is a measure which definitively lays down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (judgments of 11 November 1981, IBM v

[OSCURATO:PERSONA]

, 60/81, EU:C:1981:264, paragraph 10, and of 27 June 1995, Guérin automobiles v

[OSCURATO:PERSONA]

, T‑186/94, EU:T:1995:114, paragraph 39; and order of 3 September 2015, Spain v

[OSCURATO:PERSONA]

, T‑676/14, EU:T:2015:602, paragraph 13). 33 In the light of case-law, in order to determine whether an act is capable of having legal effects and, therefore, whether an action for annulment under [OSCURATO:PERSONA] 263 TFEU can be brought against it, it is necessary to examine its wording and context (see, to that effect, judgments of 20 March 1997, France v

[OSCURATO:PERSONA]

, C‑57/95, EU:C:1997:164, paragraph 18, and of 1 December 2005, Italy v

[OSCURATO:PERSONA]

, C‑301/03, EU:C:2005:727, paragraphs 21 to 24), its substance (see judgment of 22 June 2000, Netherlands v

[OSCURATO:PERSONA]

, C‑147/96, EU:C:2000:335, paragraph 27 and the case-law cited; see also, to that effect, judgment of 9 October 1990, France v

[OSCURATO:PERSONA]

, C‑366/88, EU:C:1990:348, paragraph 23) and the intention of its author (see, to that effect, judgment of 26 January 2010,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑362/08 P, EU:C:2010:40, paragraph 52). 34 In that regard, according to settled case-law, the mere fact that a letter is sent by an EU institution to a person in response to a request made by the latter is insufficient for such a letter to be treated as a decision within the meaning of [OSCURATO:PERSONA] 263 TFEU, entitling its recipient to bring action for annulment.

Only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under [OSCURATO:PERSONA] 263 TFEU (judgment of 11 November 1981, IBM v

[OSCURATO:PERSONA]

, 60/81, EU:C:1981:264, paragraph 9; see also, order of 10 September 2014, Zentralverband des [OSCURATO:PERSONA] v

[OSCURATO:PERSONA]

, T‑354/13, not published, EU:T:2014:775, paragraph 25 and the case-law cited). 35 In those circumstances, in order to rule on the plea of inadmissibility raised by the [OSCURATO:PERSONA], it is necessary to determine whether the contested measures produce binding legal effects of such a kind as to affect the applicants’ interests by bringing about a distinct change in their legal position. 36 In that regard, the [OSCURATO:PERSONA] must examine the wording and substance of the first and second letters. 37 In the first letter, the [OSCURATO:PERSONA] informs the applicants that, by virtue of the first and the second subparagraphs of [OSCURATO:PERSONA] 51(1) of [OSCURATO:PERSONA] 1151/2012, natural or legal persons established or resident in the [OSCURATO:PERSONA] from which the application for registration is submitted may not lodge a notice of opposition in the framework of the opposition procedure carried out at EU level. [OSCURATO:PERSONA] infers from this that the opposition procedure may not be initiated with reference to the applicants, since they are established or resident in [OSCURATO:PERSONA], and that, accordingly, the notices of opposition lodged by the applicants may not therefore be forwarded to the [OSCURATO:PERSONA] authorities.

It concludes by indicating that the letter is ‘for … information only and does not constitute a formal decision of the … [OSCURATO:PERSONA] with respect to the admissibility of the notices of opposition [and that] such formal decision shall be taken by the … [OSCURATO:PERSONA] in the framework of its final decision with respect to the application [for the registration in question]’. 38 In the second letter, the [OSCURATO:PERSONA], in response to a request for clarification from one of the applicants confirms ‘that no formal decision has been taken as regards the notices of oppositions submitted by natural or legal persons resident or established in [OSCURATO:PERSONA], [and that] such formal decision shall be taken by the … [OSCURATO:PERSONA] in the framework of its final decision with respect to the application [for the registration in question]’. [OSCURATO:PERSONA] concludes by declaring that at present the [OSCURATO:PERSONA] is in the process of assessing and managing all the oppositions submitted and that the first letter was for information purposes only, in that it aimed to make the applicant aware that it would not be invited to start the appropriate consultations with the authorities of the [OSCURATO:PERSONA] which submitted the application for registration with a view to reaching an agreement. 39 Thus it is clear from the wording of the contested measures that the [OSCURATO:PERSONA] has not yet taken a final decision on the applicants’ oppositions.

Furthermore, the contested measures contain no explicit statement that the oppositions are rejected (see, to that effect and by analogy, judgment of 10 July 1990, Automec v

[OSCURATO:PERSONA]

, T‑64/89, EU:T:1990:42, paragraph 55 and the case-law cited).

On the contrary, they explicitly state that no ‘formal decision’ has been taken by the [OSCURATO:PERSONA] as regards those oppositions. 40 Thus, only the [OSCURATO:PERSONA]’s final decision adopting, on the basis of [OSCURATO:PERSONA] 52 of [OSCURATO:PERSONA] 1151/2012, implementing acts registering the PDO at issue is capable of bringing about a distinct alteration in the applicant’s legal position (see, to that effect and by analogy, order of 10 September 2014, Zentralverband des [OSCURATO:PERSONA] v

[OSCURATO:PERSONA]

, T‑354/13, not published, EU:T:2014:775, paragraphs 29 and 30). 41 Illegalities vitiating measures preliminary to the final decision, like the contested measures, which relate to the opposition procedure referred to in [OSCURATO:PERSONA] 51 of [OSCURATO:PERSONA] 1151/2012, are such as to be reasonably raised in support of an action directed against the final measure for which they represent a preparatory step (see, to that effect, judgment of 11 November 1981, IBM v

[OSCURATO:PERSONA]

, 60/81, EU:C:1981:264, paragraph 12).

In that regard, the applicants’ argument that, by the contested measures, they were informed that they would not be invited to the consultations provided for in [OSCURATO:PERSONA] 51(3) of [OSCURATO:PERSONA] 1151/2012 is irrelevant as regards the actionable nature of those measures, since the right of specified third parties to be properly heard, on application by them, during an administrative procedure before the [OSCURATO:PERSONA] can in principle be given effect to by the [OSCURATO:PERSONA] only at the stage of review of the lawfulness of the [OSCURATO:PERSONA]’s final decision (see, to that effect, judgment of 12 October 2011, [OSCURATO:PERSONA] belge des consommateurs Test-Achats v

[OSCURATO:PERSONA]

, T‑224/10, EU:T:2011:588, paragraph 29, and order of 9 July 2003, Commerzbank v

[OSCURATO:PERSONA]

, T‑219/01, EU:T:2003:201, paragraph 58; see also judgment of 18 December 1992, Cimenteries CBR and Others v

[OSCURATO:PERSONA]

, T‑10/92 to T‑12/92 and T‑15/92, EU:T:1992:123, paragraph 42), and not at the stage of a step in the administrative procedure before the final decision. 42 Admitting an application for a declaration that such communications are void might make it necessary for the [OSCURATO:PERSONA] to arrive at a decision on questions on which the [OSCURATO:PERSONA] has not yet had an opportunity to state its position definitively.

As the [OSCURATO:PERSONA] of Justice pointed out in its judgment in IBM v

[OSCURATO:PERSONA]

, (60/81, EU:C:1981:264), the result would be to anticipate the arguments on the substance of the case and confuse different administrative and judicial procedural stages; that would be incompatible with the system of the division of powers between the [OSCURATO:PERSONA] and the Courts of the [OSCURATO:PERSONA], with the system of remedies laid down by the Treaty and also with the requirements of the sound administration of justice and the proper course of the administrative procedure to be followed by the [OSCURATO:PERSONA] (judgment of 10 July 1990, Automec v

[OSCURATO:PERSONA]

, T‑64/89, EU:T:1990:42, paragraph 46). 43 In those circumstances, it must be concluded that the contested measures do not constitute actionable measures. 44 That conclusion is not called into question by the judgment of 28 November 1991,

BEUC

v

[OSCURATO:PERSONA]

(C‑170/89, EU:C:1991:450), relied on by the applicants, given that, in the present case, the preliminary nature of the assessments by [OSCURATO:PERSONA] staff is emphasised in each of the contested measures (see, to that effect, judgment of 7 March 2002, Satellimages TV5 v

[OSCURATO:PERSONA]

, T‑95/99, EU:T:2002:62, paragraph 35). 45 In the light of all the foregoing, the [OSCURATO:PERSONA] dismisses the action as manifestly inadmissible without there being any need to examine the other arguments advanced by the [OSCURATO:PERSONA]. 46 In accordance with [OSCURATO:PERSONA] 142(2) of the Rules of Procedure, an intervention is ancillary to the main proceedings and becomes devoid of purpose, in particular, where the application is declared inadmissible.

In the present case, since the action is dismissed in its entirety as being inadmissible, there is no need to rule on the applications for leave to intervene by the Council, the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA].

Costs 47 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the applicants have been unsuccessful, they must be ordered to pay the costs, including those relating to the interlocutory proceedings, in accordance with the form of order sought by the [OSCURATO:PERSONA]. 48 Pursuant to [OSCURATO:PERSONA] 144(10) of the Rules of Procedure, in a situation such as the present where the proceedings in the main case are concluded before the applications for leave to intervene have been decided, the applicants for leave to intervene, in this instance, the Council, the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA], and the main parties, in this instance, the applicants and the [OSCURATO:PERSONA], must each bear their own costs relating to the applications for leave to intervene.

On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby orders:

1. The action is dismissed.

2. There is no need to rule on the applications for leave to intervene submitted by the Council of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA].

3. [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA] and [OSCURATO:PERSONA] shall bear their own costs and pay those incurred by the [OSCURATO:PERSONA], including the costs relating to the interlocutory proceedings.

4. [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA], [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the Council, the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA] shall each bear their own costs relating to the applications for leave to intervene.

Luxembourg, 12 October 2016.

E. Coulon

S. [OSCURATO:PERSONA]

* Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 12 October 2016 ( * ) (Actions for annulment — Application for registration of a protected designation of origin ‘Halloumi’ or ‘Hellim’ — [OSCURATO:PERSONA] letters concerning the applicants’ involvement in the opposition proceedings relating to the registration procedure — Measure not open to challenge — Inadmissibility) [OSCURATO:PERSONA] T‑41/16, [OSCURATO:PERSONA] of [OSCURATO:PERSONA], established in [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] and [OSCURATO:PERSONA], established in [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA], established in [OSCURATO:PERSONA], [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA], established in [OSCURATO:PERSONA], [OSCURATO:PERSONA], residing in Güzelyurt ([OSCURATO:PERSONA]), represented by B. O’Connor, Solicitor, S. Gubel and E. Bertolotto, lawyers, applicants, v [OSCURATO:PERSONA], represented by A. Lewis, P. Aalto and J. [OSCURATO:PERSONA], acting as Agents, defendant, ACTION pursuant to [OSCURATO:PERSONA] 263 TFEU for annulment of two letters from the [OSCURATO:PERSONA] of 18 November 2015 (Ref.Ares (2015) 5171539) and of 15 January 2016 (Ref.Ares (2016) 220922) concerning the applicants’ involvement in the opposition procedure relating to the procedure for registering the cheese called ‘Halloumi/Hellim’ as a protected designation of origin, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) composed, at the time of the deliberation, of S. [OSCURATO:PERSONA], acting as [OSCURATO:PERSONA], L. Madise (Rapporteur) and Z. Csehi, Judges, [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] framework 1 [OSCURATO:PERSONA] 4 of [OSCURATO:PERSONA] (EU) No 1151/2012 of the [OSCURATO:PERSONA] and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1) creates a scheme for protected designations of origin and protected geographical indications for certain agricultural products and foodstuffs. 2 [OSCURATO:PERSONA] 5(1) of [OSCURATO:PERSONA] 1151/2012 defines a ‘designation of origin’ as a name which identifies a product originating in a specific place, region or, in exceptional cases, a country, whose quality or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors and the production steps of which all take place in the defined geographical area. 3 Registration of an agricultural product or foodstuff as a protected designation of origin (PDO), which must satisfy the conditions laid down in [OSCURATO:PERSONA] 1151/2012 and, in particular, must comply with the specification defined in [OSCURATO:PERSONA] 7 of that regulation, confers protection on that name at EU level. That protection is defined in [OSCURATO:PERSONA] 13(1) of that regulation. 4 The registration procedure takes place in two phases. In the first phase, the application for registration of the designations is examined at national level. That phase is governed by [OSCURATO:PERSONA] 49 of [OSCURATO:PERSONA] 1151/2012 which states the following: ‘1. Applications for registration of names under the quality schemes referred to in [OSCURATO:PERSONA] 48 may only be submitted by groups who work with the products with the name to be registered … 2. The application shall be addressed to the authorities of that [OSCURATO:PERSONA]. [OSCURATO:PERSONA] shall scrutinise the application by appropriate means in order to check that it is justified and meets the conditions of the respective scheme. 3. As part of the scrutiny referred to in the second subparagraph of paragraph 2 of this [OSCURATO:PERSONA], the [OSCURATO:PERSONA] shall initiate a national opposition procedure that ensures adequate publication of the application and that provides for a reasonable period within which any natural or legal person having a legitimate interest and established or resident on its territory may lodge an opposition to the application. [OSCURATO:PERSONA] shall examine the admissibility of oppositions … 4. If, after assessment of any opposition received, the [OSCURATO:PERSONA] considers that the requirements of this [OSCURATO:PERSONA] are met, it may take a favourable decision and lodge an application dossier with the [OSCURATO:PERSONA]. It shall in such case inform the [OSCURATO:PERSONA] of admissible oppositions received from a natural or legal person that have legally marketed the products in question, using the names concerned continuously for at least five years preceding the date of the publication referred to in paragraph 3. [OSCURATO:PERSONA] shall ensure that its favourable decision is made public and that any natural or legal person having a legitimate interest has an opportunity to appeal. [OSCURATO:PERSONA] shall ensure that the version of the product specification on which its favourable decision is based, is published, and shall provide electronic access to the product specification. With reference to protected designations of origin and protected geographical indications, the [OSCURATO:PERSONA] shall also ensure adequate publication of the version of the product specification on which the [OSCURATO:PERSONA] takes its decision pursuant to [OSCURATO:PERSONA] 50(2).’ 5 In the second phase, the application is scrutinised by the [OSCURATO:PERSONA], and if the conditions laid down in [OSCURATO:PERSONA] 1151/2012 are met it is published for opposition purposes. That procedure before the [OSCURATO:PERSONA] is governed by [OSCURATO:PERSONA] 50 of that regulation, entitled ‘Scrutiny by the [OSCURATO:PERSONA] and publication for opposition’. 6 Publication in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] triggers an ‘opposition procedure’ in accordance with [OSCURATO:PERSONA] 51 of [OSCURATO:PERSONA] 1151/2012 which states the following: ‘1. Within three months from the date of publication in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the authorities of a [OSCURATO:PERSONA] or of a third country, or a natural or legal person having a legitimate interest and established in a third country may lodge a notice of opposition with the [OSCURATO:PERSONA]. Any natural or legal person having a legitimate interest, established or resident in a [OSCURATO:PERSONA] other than that from which the application was submitted, may lodge a notice of opposition with the [OSCURATO:PERSONA] in which it is established within a time limit permitting an opposition to be lodged pursuant to the first subparagraph. A notice of opposition shall contain a declaration that the application might infringe the conditions laid down in this [OSCURATO:PERSONA]. … [OSCURATO:PERSONA] shall forward the notice of opposition to the authority or body that lodged the application without delay. 2. If a notice of opposition is lodged with the [OSCURATO:PERSONA] and is followed within two months by a reasoned statement of opposition, the [OSCURATO:PERSONA] shall check the admissibility of this reasoned statement of opposition. 3. Within two months after the receipt of an admissible reasoned statement of opposition, the [OSCURATO:PERSONA] shall invite the authority or person that lodged the opposition and the authority or body that lodged the application to engage in appropriate consultations for a reasonable period that shall not exceed three months. The authority or person that lodged the opposition and the authority or body that lodged the application shall start such appropriate consultations without undue delay. They shall provide each other with the relevant information to assess whether the application for registration complies with the conditions of this [OSCURATO:PERSONA]. If no agreement is reached, this information shall also be provided to the [OSCURATO:PERSONA]. … 4. Where, following the appropriate consultations referred to in paragraph 3 of this [OSCURATO:PERSONA], the details published in accordance with [OSCURATO:PERSONA] 50(2) have been substantially amended, the [OSCURATO:PERSONA] shall repeat the scrutiny referred to in [OSCURATO:PERSONA] 50. …’ 7 [OSCURATO:PERSONA] 52 of [OSCURATO:PERSONA] 1151/2012, entitled ‘Decision on registration’, provides as follows: ‘1. Where, on the basis of the information available to the [OSCURATO:PERSONA] from the scrutiny carried out pursuant to the first subparagraph of [OSCURATO:PERSONA] 50(1), the [OSCURATO:PERSONA] considers that the conditions for registration are not fulfilled, it shall adopt implementing acts rejecting the application. Those implementing acts shall be adopted in accordance with the examination procedure referred to in [OSCURATO:PERSONA] 57(2). 2. If the [OSCURATO:PERSONA] receives no notice of opposition or no admissible reasoned statement of opposition under [OSCURATO:PERSONA] 51, it shall adopt implementing acts, without applying the procedure referred to in [OSCURATO:PERSONA] 57(2), registering the name. 3. If the [OSCURATO:PERSONA] receives an admissible reasoned statement of opposition, it shall, following the appropriate consultations referred to in [OSCURATO:PERSONA] 51(3), and taking into account the results thereof, either: (a)      if an agreement has been reached, register the name by means of implementing acts adopted without applying the procedure referred to in [OSCURATO:PERSONA] 57(2), and, if necessary, amend the information published pursuant to [OSCURATO:PERSONA] 50(2) provided such amendments are not substantial; (b)      if an agreement has not been reached, adopt implementing acts deciding on the registration. Those implementing acts shall be adopted in accordance with the examination procedure referred to in [OSCURATO:PERSONA] 57(2). 4. Acts of registration and decisions on rejection shall be published in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] .’ 8 [OSCURATO:PERSONA] 57 of [OSCURATO:PERSONA] 1151/2012 and [OSCURATO:PERSONA] 5 of [OSCURATO:PERSONA] (EU) No 182/2011 of the [OSCURATO:PERSONA] and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]’s exercise of implementing powers (OJ 2011 L 55, p. 13) makes provision for a procedure for the [OSCURATO:PERSONA] to deliver an opinion as part of the [OSCURATO:PERSONA]’s exercise of its implementing powers. Background to the dispute 9 The cheese called ‘Halloumi’ (in Greek) or ‘Hellim’ (in [OSCURATO:PERSONA]) is made with specific ingredients according to traditional methods of production. It has a particular taste and texture, and particular cooking properties which are essentially attributable to topographical features and the flora and fauna of the island of [OSCURATO:PERSONA]. 10 The applicants, [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA] and [OSCURATO:PERSONA], all established or residing in the northern part of the island of [OSCURATO:PERSONA], are involved in the production and marketing of Halloumi/Hellim within the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] of [OSCURATO:PERSONA] works to promote the various economic sectors in the northern part of the island. [OSCURATO:PERSONA] and [OSCURATO:PERSONA] aims to improve living conditions of sheep, goat and cattle farmers who produce milk in the [OSCURATO:PERSONA]. [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA] is the largest company producing dairy products and fruit juices in the northern part of the island of [OSCURATO:PERSONA], and Halloumi/Hellim exports represent 50% of its total sales. [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA] represents the interests of the dairy sector, its members being active, in particular, in the production and export of Halloumi/Hellim. [OSCURATO:PERSONA] produces Halloumi/Hellim and other dairy products. Since her production of sheep and goat’s milk was not sufficient for that purpose, she uses cow’s milk in an industrial process. 11 Following an application for registration of Halloumi/Hellim as a PDO with the [OSCURATO:PERSONA] authorities, that application was published on 30 November 2012 in the [OSCURATO:PERSONA] tis [OSCURATO:PERSONA] ([OSCURATO:PERSONA] of the Republic of [OSCURATO:PERSONA]). 12 On 26 December 2012, the applicants submitted to the [OSCURATO:PERSONA] of Agriculture notices of opposition to the application for registration referred to in paragraph 11 above. 13 By letters of 9 July 2014, the [OSCURATO:PERSONA] of Agriculture dismissed those oppositions. He stated that it had not been proven that the applicants were resident and conducted their activities in the territory of the Republic of [OSCURATO:PERSONA]. [OSCURATO:PERSONA] added that, on account of the prevailing conditions since 1974 and the fact that the [OSCURATO:PERSONA] did not exercise any effective control in the occupied part of the island, it was impossible to check whether the applicants had a legitimate interest. [OSCURATO:PERSONA] went on to state that he had, nevertheless, examined the merits of the grounds for opposition put forward, having regard to the contents of the administrative file and the report of the [OSCURATO:PERSONA] established on the basis of the applicable national law. Following that examination, the [OSCURATO:PERSONA] rejected the individual grounds for opposition submitted by the applicants, adopting the reasoning given in the [OSCURATO:PERSONA] report. [OSCURATO:PERSONA] rejection decision, his decision in favour of the submission of an application for registration to the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] report were annexed to those letters. 14 On 17 July 2014, the [OSCURATO:PERSONA] authorities filed application CY/PDO/0005/01243 with the [OSCURATO:PERSONA], seeking registration of Halloumi/Hellim as a PDO. 15 On 2 January 2015, the applicants sent a pre-objection submission concerning the application for registration of Halloumi/Hellim as a PDO to the [OSCURATO:PERSONA]. 16 On 26 February 2015, the [OSCURATO:PERSONA] replied that it had examined the application for the registration of ‘Halloumi/Hellim’ as a PDO, and that the PDO registration procedure set out in [OSCURATO:PERSONA] 1151/2012 did not contemplate any pre-objection procedure. 17 After examining the application for registration, the [OSCURATO:PERSONA] found that it was justified in that it satisfied the conditions of [OSCURATO:PERSONA] 1151/2012, in accordance with [OSCURATO:PERSONA] 50 of that regulation. Consequently, on 28 July 2015, the [OSCURATO:PERSONA] adopted the measure entitled ‘Publication of an application pursuant to [OSCURATO:PERSONA] 50(2)(a) of [OSCURATO:PERSONA] (EU) No 1151/2012 of the [OSCURATO:PERSONA] and of the Council on quality schemes for agricultural products and foodstuffs’ (OJ 2012 C 246, p. 9), which summarises the specification submitted by the [OSCURATO:PERSONA] authorities for the registration of Halloumi/Hellim as a PDO. The second stage of the administrative procedure, that is to say, the cross-border opposition procedure provided for in [OSCURATO:PERSONA] 51 of [OSCURATO:PERSONA] 1151/2012, was initiated by that publication. 18 On 26 October 2015, the applicants submitted notices of opposition on the basis of [OSCURATO:PERSONA] 51 of [OSCURATO:PERSONA] 1151/2012. They argued that the national procedure followed in the Republic of [OSCURATO:PERSONA] was legally flawed, the rights of [OSCURATO:PERSONA] producers having been seriously undermined, that [OSCURATO:PERSONA] 7(1)(b) and (e) of [OSCURATO:PERSONA] 1151/2012 was infringed, in that the product specification failed to respect the traditions of the whole of the geographical area indicated, and that [OSCURATO:PERSONA] 7(l)(g) of [OSCURATO:PERSONA] 1151/2012 was infringed, in that the specification designated the [OSCURATO:PERSONA] of Agriculture of the Republic of [OSCURATO:PERSONA] as the competent authority for the entire geographical area indicated, without providing for an effective system of control for the whole of that area. Lastly, they alleged a breach of the fundamental rights of the producers from the [OSCURATO:PERSONA] community and their de facto exclusion from the benefits of the registration of the PDO. 19 By letter of 18 November 2015 (Ares (2015) 5171539) (‘the first letter’), the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] B ‘Multilateral relations and quality policy’ of the [OSCURATO:PERSONA]’s ‘Agriculture and rural development’ [OSCURATO:PERSONA] (DG) (‘the [OSCURATO:PERSONA]’) informed the applicants that, under [OSCURATO:PERSONA] 51(1) and (2) of [OSCURATO:PERSONA] 1151/2012, natural or legal persons established or resident in the [OSCURATO:PERSONA] from which the application originated were not permitted to lodge a notice of opposition in the framework of the opposition procedure carried out at EU level, going on to conclude that that procedure could not be initiated by the applicants because they were established in [OSCURATO:PERSONA]. [OSCURATO:PERSONA], however, made clear that that letter was intended solely to inform the applicants and that it did not constitute a ‘formal decision’ concerning the admissibility of the statements of opposition, as that decision has to be taken by the [OSCURATO:PERSONA] in the context of its final decision on the application. 20 In response to a request for clarification from one of the applicants concerning the consequences of the first letter in relation to the oppositions brought, the [OSCURATO:PERSONA] stated in a letter of 15 January 2016 (Ares (2016) 220922) (‘the second letter’) that no ‘formal decision’ had been adopted concerning the notices of opposition submitted by natural or legal persons established in [OSCURATO:PERSONA], that a ‘formal decision’ would be taken by the [OSCURATO:PERSONA] in the context of its final decision on the application for registration and that the applicants would not be invited to start consultations with the [OSCURATO:PERSONA] authorities with a view to reaching an agreement. Procedure and forms of order sought by the parties 21 By application lodged at the [OSCURATO:PERSONA] on 28 January 2016, the applicants brought the present action. They claim that the [OSCURATO:PERSONA] should: –        annul the first and second letters (taken together, ‘the contested measures’); –        declare that Articles 49, 50, 51 and 52 of [OSCURATO:PERSONA] 1151/2012 are unlawful and inapplicable in the present case, in that they do not provide for a system which ensures respect for the fundamental rights of the applicants; –        order the [OSCURATO:PERSONA] to pay the costs. 22 By separate document, lodged at the [OSCURATO:PERSONA] on 11 February 2016, the applicants submitted an application for interim measures, in which they claimed, in essence, that the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] should suspend the operation of the contested measures and the registration of Halloumi/Hellim as a PDO, and order the [OSCURATO:PERSONA] to pay the costs. 23 By order of 13 April 2016, [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , T‑41/16 R, not published, EU:T:2016:217, the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] dismissed the application. The costs were reserved. 24 [OSCURATO:PERSONA] lodged its defence on 23 May 2016. It contends that the [OSCURATO:PERSONA] should: –        dismiss the application; –        order the applicants to pay the costs; 25 By documents lodged at the [OSCURATO:PERSONA] on 10 March, and 24 and 25 May 2016, respectively, the Republic of [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and the Council of the [OSCURATO:PERSONA] applied for leave to intervene in the proceedings in support of the form of order sought by the [OSCURATO:PERSONA]. Law 26 [OSCURATO:PERSONA] 126 of the Rules of Procedure of the [OSCURATO:PERSONA], where the action is manifestly inadmissible, the [OSCURATO:PERSONA] may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. 27 In the present case, the [OSCURATO:PERSONA] considers that it has sufficient information from the documents before it and decides to give its decision without taking further steps in the proceedings. 28 [OSCURATO:PERSONA], without raising a plea of inadmissibility by separate document on the basis of [OSCURATO:PERSONA] 130 of the Rules of Procedure, submits in its statement of defence that the contested measures are preparatory. It recalls, in particular, that the second letter states that ‘no formal decision has been taken as regards notices of opposition submitted by natural or legal persons resident or established in [OSCURATO:PERSONA] [and that] such formal decision shall be taken by the [OSCURATO:PERSONA] in the framework of its final decision with respect to [the registration] application’. 29 For their part, the applicants, relying on the judgment of 28 November 1991, BEUC v [OSCURATO:PERSONA] (C‑170/89, EU:C:1991:450), claim that the contested measures are definitive in that they definitively exclude them from the opposition procedure which must be closed before the decision on registration is adopted. In that regard, the applicants observe that the contested measures, in so far as they inform the applicants that they will not be invited to the consultations provided for under [OSCURATO:PERSONA] 51(3) of [OSCURATO:PERSONA] 1151/2012, determine the rights which they have or do not have in relation to the opposition procedure and cause them harm. In that regard, it is irrelevant that the [OSCURATO:PERSONA] makes clear in its second letter that the first letter is for information only. 30 It should be recalled at the outset that, under the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, ‘any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’. 31 According to settled case-law any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects, are regarded as actionable measures, within the meaning of [OSCURATO:PERSONA] 263 TFEU (judgments of 31 March 1971, [OSCURATO:PERSONA] v Council , 22/70, EU:C:1971:32, paragraph 42; of 13 October 2011, [OSCURATO:PERSONA] and Germany v [OSCURATO:PERSONA] , C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 36; and of 13 February 2014, Hungary v [OSCURATO:PERSONA] , C‑31/13 P, EU:C:2014:70, paragraph 54). 32 In that regard, in the case of acts adopted by a procedure involving several stages of an internal procedure, in principle an act is open to review only if it is a measure which definitively lays down the position of the institution on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision (judgments of 11 November 1981, IBM v [OSCURATO:PERSONA] , 60/81, EU:C:1981:264, paragraph 10, and of 27 June 1995, Guérin automobiles v [OSCURATO:PERSONA] , T‑186/94, EU:T:1995:114, paragraph 39; and order of 3 September 2015, Spain v [OSCURATO:PERSONA] , T‑676/14, EU:T:2015:602, paragraph 13). 33 In the light of case-law, in order to determine whether an act is capable of having legal effects and, therefore, whether an action for annulment under [OSCURATO:PERSONA] 263 TFEU can be brought against it, it is necessary to examine its wording and context (see, to that effect, judgments of 20 March 1997, France v [OSCURATO:PERSONA] , C‑57/95, EU:C:1997:164, paragraph 18, and of 1 December 2005, Italy v [OSCURATO:PERSONA] , C‑301/03, EU:C:2005:727, paragraphs 21 to 24), its substance (see judgment of 22 June 2000, Netherlands v [OSCURATO:PERSONA] , C‑147/96, EU:C:2000:335, paragraph 27 and the case-law cited; see also, to that effect, judgment of 9 October 1990, France v [OSCURATO:PERSONA] , C‑366/88, EU:C:1990:348, paragraph 23) and the intention of its author (see, to that effect, judgment of 26 January 2010, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑362/08 P, EU:C:2010:40, paragraph 52). 34 In that regard, according to settled case-law, the mere fact that a letter is sent by an EU institution to a person in response to a request made by the latter is insufficient for such a letter to be treated as a decision within the meaning of [OSCURATO:PERSONA] 263 TFEU, entitling its recipient to bring action for annulment. Only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under [OSCURATO:PERSONA] 263 TFEU (judgment of 11 November 1981, IBM v [OSCURATO:PERSONA] , 60/81, EU:C:1981:264, paragraph 9; see also, order of 10 September 2014, Zentralverband des [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑354/13, not published, EU:T:2014:775, paragraph 25 and the case-law cited). 35 In those circumstances, in order to rule on the plea of inadmissibility raised by the [OSCURATO:PERSONA], it is necessary to determine whether the contested measures produce binding legal effects of such a kind as to affect the applicants’ interests by bringing about a distinct change in their legal position. 36 In that regard, the [OSCURATO:PERSONA] must examine the wording and substance of the first and second letters. 37 In the first letter, the [OSCURATO:PERSONA] informs the applicants that, by virtue of the first and the second subparagraphs of [OSCURATO:PERSONA] 51(1) of [OSCURATO:PERSONA] 1151/2012, natural or legal persons established or resident in the [OSCURATO:PERSONA] from which the application for registration is submitted may not lodge a notice of opposition in the framework of the opposition procedure carried out at EU level. [OSCURATO:PERSONA] infers from this that the opposition procedure may not be initiated with reference to the applicants, since they are established or resident in [OSCURATO:PERSONA], and that, accordingly, the notices of opposition lodged by the applicants may not therefore be forwarded to the [OSCURATO:PERSONA] authorities. It concludes by indicating that the letter is ‘for … information only and does not constitute a formal decision of the … [OSCURATO:PERSONA] with respect to the admissibility of the notices of opposition [and that] such formal decision shall be taken by the … [OSCURATO:PERSONA] in the framework of its final decision with respect to the application [for the registration in question]’. 38 In the second letter, the [OSCURATO:PERSONA], in response to a request for clarification from one of the applicants confirms ‘that no formal decision has been taken as regards the notices of oppositions submitted by natural or legal persons resident or established in [OSCURATO:PERSONA], [and that] such formal decision shall be taken by the … [OSCURATO:PERSONA] in the framework of its final decision with respect to the application [for the registration in question]’. [OSCURATO:PERSONA] concludes by declaring that at present the [OSCURATO:PERSONA] is in the process of assessing and managing all the oppositions submitted and that the first letter was for information purposes only, in that it aimed to make the applicant aware that it would not be invited to start the appropriate consultations with the authorities of the [OSCURATO:PERSONA] which submitted the application for registration with a view to reaching an agreement. 39 Thus it is clear from the wording of the contested measures that the [OSCURATO:PERSONA] has not yet taken a final decision on the applicants’ oppositions. Furthermore, the contested measures contain no explicit statement that the oppositions are rejected (see, to that effect and by analogy, judgment of 10 July 1990, Automec v [OSCURATO:PERSONA] , T‑64/89, EU:T:1990:42, paragraph 55 and the case-law cited). On the contrary, they explicitly state that no ‘formal decision’ has been taken by the [OSCURATO:PERSONA] as regards those oppositions. 40 Thus, only the [OSCURATO:PERSONA]’s final decision adopting, on the basis of [OSCURATO:PERSONA] 52 of [OSCURATO:PERSONA] 1151/2012, implementing acts registering the PDO at issue is capable of bringing about a distinct alteration in the applicant’s legal position (see, to that effect and by analogy, order of 10 September 2014, Zentralverband des [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , T‑354/13, not published, EU:T:2014:775, paragraphs 29 and 30). 41 Illegalities vitiating measures preliminary to the final decision, like the contested measures, which relate to the opposition procedure referred to in [OSCURATO:PERSONA] 51 of [OSCURATO:PERSONA] 1151/2012, are such as to be reasonably raised in support of an action directed against the final measure for which they represent a preparatory step (see, to that effect, judgment of 11 November 1981, IBM v [OSCURATO:PERSONA] , 60/81, EU:C:1981:264, paragraph 12). In that regard, the applicants’ argument that, by the contested measures, they were informed that they would not be invited to the consultations provided for in [OSCURATO:PERSONA] 51(3) of [OSCURATO:PERSONA] 1151/2012 is irrelevant as regards the actionable nature of those measures, since the right of specified third parties to be properly heard, on application by them, during an administrative procedure before the [OSCURATO:PERSONA] can in principle be given effect to by the [OSCURATO:PERSONA] only at the stage of review of the lawfulness of the [OSCURATO:PERSONA]’s final decision (see, to that effect, judgment of 12 October 2011, [OSCURATO:PERSONA] belge des consommateurs Test-Achats v [OSCURATO:PERSONA] , T‑224/10, EU:T:2011:588, paragraph 29, and order of 9 July 2003, Commerzbank v [OSCURATO:PERSONA] , T‑219/01, EU:T:2003:201, paragraph 58; see also judgment of 18 December 1992, Cimenteries CBR and Others v [OSCURATO:PERSONA] , T‑10/92 to T‑12/92 and T‑15/92, EU:T:1992:123, paragraph 42), and not at the stage of a step in the administrative procedure before the final decision. 42 Admitting an application for a declaration that such communications are void might make it necessary for the [OSCURATO:PERSONA] to arrive at a decision on questions on which the [OSCURATO:PERSONA] has not yet had an opportunity to state its position definitively. As the [OSCURATO:PERSONA] of Justice pointed out in its judgment in IBM v [OSCURATO:PERSONA] , (60/81, EU:C:1981:264), the result would be to anticipate the arguments on the substance of the case and confuse different administrative and judicial procedural stages; that would be incompatible with the system of the division of powers between the [OSCURATO:PERSONA] and the Courts of the [OSCURATO:PERSONA], with the system of remedies laid down by the Treaty and also with the requirements of the sound administration of justice and the proper course of the administrative procedure to be followed by the [OSCURATO:PERSONA] (judgment of 10 July 1990, Automec v [OSCURATO:PERSONA] , T‑64/89, EU:T:1990:42, paragraph 46). 43 In those circumstances, it must be concluded that the contested measures do not constitute actionable measures. 44 That conclusion is not called into question by the judgment of 28 November 1991, BEUC v [OSCURATO:PERSONA] (C‑170/89, EU:C:1991:450), relied on by the applicants, given that, in the present case, the preliminary nature of the assessments by [OSCURATO:PERSONA] staff is emphasised in each of the contested measures (see, to that effect, judgment of 7 March 2002, Satellimages TV5 v [OSCURATO:PERSONA] , T‑95/99, EU:T:2002:62, paragraph 35). 45 In the light of all the foregoing, the [OSCURATO:PERSONA] dismisses the action as manifestly inadmissible without there being any need to examine the other arguments advanced by the [OSCURATO:PERSONA]. 46 In accordance with [OSCURATO:PERSONA] 142(2) of the Rules of Procedure, an intervention is ancillary to the main proceedings and becomes devoid of purpose, in particular, where the application is declared inadmissible. In the present case, since the action is dismissed in its entirety as being inadmissible, there is no need to rule on the applications for leave to intervene by the Council, the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA]. Costs 47 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, including those relating to the interlocutory proceedings, in accordance with the form of order sought by the [OSCURATO:PERSONA]. 48 Pursuant to [OSCURATO:PERSONA] 144(10) of the Rules of Procedure, in a situation such as the present where the proceedings in the main case are concluded before the applications for leave to intervene have been decided, the applicants for leave to intervene, in this instance, the Council, the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA], and the main parties, in this instance, the applicants and the [OSCURATO:PERSONA], must each bear their own costs relating to the applications for leave to intervene. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed. 2. There is no need to rule on the applications for leave to intervene submitted by the Council of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA]. 3. [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA] and [OSCURATO:PERSONA] shall bear their own costs and pay those incurred by the [OSCURATO:PERSONA], including the costs relating to the interlocutory proceedings. 4. [OSCURATO:PERSONA] of [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] and [OSCURATO:PERSONA], [OSCURATO:PERSONA] İmalatçulari Birliği [OSCURATO:PERSONA], [OSCURATO:PERSONA], the [OSCURATO:PERSONA], the Council, the [OSCURATO:PERSONA] and the Republic of [OSCURATO:PERSONA] shall each bear their own costs relating to the applications for leave to intervene. Luxembourg, 12 October 2016. E. Coulon S. [OSCURATO:PERSONA] * Language of the case: English.
Sentenza Corte di giustizia UE n. 1151/2016 — Fons Iuris — Fons Iuris