Corte di giustizia UE/2014

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 6 March 2014( * ) (Appeals – EAGGF, EAGF and EAFRD – Expenditure excluded from [OSCURATO:PERSONA] financing – Admissibility of an action for annulment – Situation of the appellant who is not directly affected by the decision at issue) [OSCURATO:PERSONA] C‑248/12 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 21 May 2012, [OSCURATO:PERSONA] of Agriculture and [OSCURATO:PERSONA], represented by K. Brown, Solicitor, appellant, the other party to the proceedings being: [OSCURATO:PERSONA], represented by N. Donnelly and P. Rossi, acting as Agents, with an address for service in Luxembourg, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of J.L. da [OSCURATO:PERSONA] (Rapporteur), President of the [OSCURATO:PERSONA], G. Arestis and J.-C. Bonichot, Judges, [OSCURATO:PERSONA]: N. Jääskinen, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give its decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By its appeal, the [OSCURATO:PERSONA] of Agriculture and [OSCURATO:PERSONA] seeks to have set aside the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 6 March 2012 in [OSCURATO:PERSONA] T‑453/10 [OSCURATO:PERSONA] of Agriculture and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (‘the order under appeal’) in which the [OSCURATO:PERSONA] dismissed as inadmissible its action for partial annulment of [OSCURATO:PERSONA] 2010/399/EU of 15 July 2010 excluding from [OSCURATO:PERSONA] financing certain expenditure incurred by the [OSCURATO:PERSONA] under the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (EAGGF), under the [OSCURATO:PERSONA] (EAGF) and under the [OSCURATO:PERSONA] for [OSCURATO:PERSONA] (EAFRD) (OJ 2010 L 184, p. 6, ‘the decision at issue’). Background to the dispute 2 It is apparent from the order under appeal that the [OSCURATO:PERSONA] adopted the decision at issue after deficiencies in the appellant’s management and control of the single area payment scheme in [OSCURATO:PERSONA] were identified. Those deficiencies concerned, in particular, the system for identifying agricultural parcels and the geographical information system, the on-the-spot checks carried out by the appellant’s inspectors and the application of sanctions and retroactive recoveries. 3 [OSCURATO:PERSONA] 1 of the decision at issue states: ‘The expenditure itemised in the Annex hereto that has been incurred by the [OSCURATO:PERSONA]’ accredited paying agencies and declared under the EAGGF [OSCURATO:PERSONA], under the EAGF or under the EAFRD shall be excluded from [OSCURATO:PERSONA] financing because it does not comply with [OSCURATO:PERSONA] rules.’ 4 [OSCURATO:PERSONA] 2 of that decision provides as follows: ‘[OSCURATO:PERSONA] is addressed to the [OSCURATO:PERSONA] of Denmark, the [OSCURATO:PERSONA] of Germany, the [OSCURATO:PERSONA] of Spain, the [OSCURATO:PERSONA] of Luxembourg, the [OSCURATO:PERSONA] of Hungary, the [OSCURATO:PERSONA] of Austria, the [OSCURATO:PERSONA] of Slovenia, the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] of Finland, and the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA].’ Procedure before the [OSCURATO:PERSONA] and the order under appeal 5 By application lodged on 24 September 2010, the applicant brought an action before the [OSCURATO:PERSONA] seeking partial annulment of the decision at issue. 6 More specifically, the application sought annulment of that decision in so far as it concerns a 5% flat-rate correction applied to certain expenditure incurred in [OSCURATO:PERSONA] during the financial period 2007 amounting to EUR 18 600 258.71. 7 By separate document lodged at the [OSCURATO:PERSONA] on 17 January 2011, the [OSCURATO:PERSONA] challenged the admissibility of the action under [OSCURATO:PERSONA] 114(1) of the Rules of Procedure of the [OSCURATO:PERSONA]. 8 In particular, the [OSCURATO:PERSONA] claimed that the action should be declared inadmissible as the appellant was not the addressee of the decision at issue and could not be regarded as being directly and individually concerned by that decision. [OSCURATO:PERSONA] submitted in particular that the effects which that decision had on the appellant’s legal situation cannot be regarded as being the direct consequence of the decision at issue, but stem only from national procedures introduced by the [OSCURATO:PERSONA] concerned. 9 In its observations in reply to that plea of inadmissibility, the appellant stated that, while it is true that it is not the addressee of the decision at issue, the decision nevertheless does concern the appellant directly and individually, since, in particular, that decision caused a net liability in its accounts. 10 By the order under appeal, the [OSCURATO:PERSONA] held that the action had to be regarded as inadmissible, particularly since the appellant does not satisfy one of the conditions laid down in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, according to which the applicant in an action brought against a measure of which it is not the addressee must be directly concerned by that measure. 11 After setting out, in paragraphs 42 and 43 of the order under appeal, the two cumulative criteria which must be met in order for a natural or legal person to be regarded as directly concerned by the measure being challenged, the [OSCURATO:PERSONA] found that those criteria were not met in this case. Relying on paragraph 41 of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 25 April 2001 in [OSCURATO:PERSONA] T‑244/00 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2001] [OSCURATO:PERSONA]‑1275, the [OSCURATO:PERSONA] found, first, in paragraphs 44 to 53 of the order under appeal, that the decision at issue, in so far as it concerns the [OSCURATO:PERSONA]’s refusal to provide financing, affects only the national budget of the [OSCURATO:PERSONA] concerned, so that the consequences of that decision on the budget of the appellant are the result, not of [OSCURATO:PERSONA] legislation or the decision at issue, but of a decision taken by the authorities of the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. 12 Next, the [OSCURATO:PERSONA] found at paragraphs 54 to 57 of the order under appeal that it does not follow either from the decision at issue or from [OSCURATO:PERSONA] law in general that the [OSCURATO:PERSONA] was obliged to place the financial burden on the appellant’s budget for the expenditure referred to in that decision which the [OSCURATO:PERSONA] refused to finance. 13 Finally, in paragraphs 60 to 64 of the order under appeal, the [OSCURATO:PERSONA] examined the relevance to the proceedings before it of [OSCURATO:PERSONA] 11/82 Piraiki-Patraiki and Others v [OSCURATO:PERSONA] [1985] ECR 207, and [OSCURATO:PERSONA] C‑386/96 P Dreyfus v [OSCURATO:PERSONA] [1998] ECR I‑2309, and it found that those judgments, delivered in relation to very specific cases, were not applicable by analogy to those proceedings. Forms of order sought by the parties before the [OSCURATO:PERSONA] of Justice 14 The appellant claims that the [OSCURATO:PERSONA] should: –        set aside the order under appeal, declare its action for annulment admissible and refer the case back to the [OSCURATO:PERSONA] for examination of the substance of the action brought before it; –        order the [OSCURATO:PERSONA] to pay the costs of the appeal proceedings, and those of the proceedings at first instance connected with the plea of inadmissibility; and –        reserve costs in the event that the case is referred back to the [OSCURATO:PERSONA]. 15 [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should dismiss the appeal and order the appellant to pay the costs. The appeal 16 Pursuant to [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 17 It is appropriate to apply that provision in the present case. The first and second grounds of appeal Arguments of the parties 18 By its first and second grounds of appeal, the appellant alleges that the [OSCURATO:PERSONA] erred in law in finding that it could not be regarded as being directly concerned by reason of the criterion laid down in Piraiki-Patraiki and Others v [OSCURATO:PERSONA] and Dreyfus v [OSCURATO:PERSONA] , whereas, in its opinion, that criterion gives expression to a broader legal principle. It adds that the [OSCURATO:PERSONA] infringed the principle of legal certainty by attempting to limit the scope of those judgments. 19 Relying in particular on the judgment in [OSCURATO:PERSONA] 62/70 Werner A. Bock v [OSCURATO:PERSONA] [1971] ECR 897 and on the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 10 September 2002 in [OSCURATO:PERSONA] T‑223/01 [OSCURATO:PERSONA] and JT International v Parliament and Council [2002] [OSCURATO:PERSONA]‑3259, the appellant claims that the [OSCURATO:PERSONA] should have applied the general principle arising from those decisions to this case and concluded that the effects of the decision at issue are not in doubt, and that the possibility that the decision at issue may have a different effect is merely theoretical. The appellant also claims that the criterion relating to ‘a very specific factual context’ is contrary to the principle of legal certainty by reason of its lack of clarity and precision. 20 [OSCURATO:PERSONA] contends that the first and second grounds of appeal must be dismissed. It states that the ‘criterion’ to which the appellant refers is not a general rule, but an exception to one of the two cumulative criteria, making it possible to consider that a measure directly affects the position of an applicant, and that the [OSCURATO:PERSONA] did not in any way limit the scope of the judgments in Piraiki­Patraiki and Others v [OSCURATO:PERSONA] and Dreyfus v [OSCURATO:PERSONA] . Findings of the [OSCURATO:PERSONA] 21 It must be noted that the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, requires two cumulative criteria to be met, namely, (i) the contested measure must directly affect the legal situation of the individual, and (ii) it must leave no discretion to its addressees, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from [OSCURATO:PERSONA] rules without the application of other intermediate rules (see, to that effect, [OSCURATO:PERSONA] C‑15/06 P Regione Siciliana v [OSCURATO:PERSONA] [2007] ECR I‑2591, paragraph 31, and [OSCURATO:PERSONA] C‑463/10 P and C‑475/10 P [OSCURATO:PERSONA] and Germany v [OSCURATO:PERSONA] [2011] ECR I‑9639, paragraph 66). 22 Reference should also be made to the analysis of the [OSCURATO:PERSONA] of Justice in Piraiki-Patraiki and Others v [OSCURATO:PERSONA] and Dreyfus v [OSCURATO:PERSONA] which in certain specific cases makes it possible to consider that a third party can be directly concerned by a decision of the [OSCURATO:PERSONA] not addressed to it, where the possibility of the addressee’s not complying with that decision is purely theoretical. 23 In so far as the appellant argues that the [OSCURATO:PERSONA] erred in law in finding that that analysis applies in exceptional cases and is not a rule of law of general application, it must be stated at the outset that the exceptional nature of the solution laid down in Piraiki-Patraiki and Others v [OSCURATO:PERSONA] and Dreyfus v [OSCURATO:PERSONA] is apparent from the very wording of those judgments. 24 Referring expressly to the judgments in Piraiki-Patraiki and Others v [OSCURATO:PERSONA] and Dreyfus v [OSCURATO:PERSONA] , the [OSCURATO:PERSONA] of Justice has made it clear that it was by way of an exception that it had found that an applicant could be ‘directly affected’ for the purposes of the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, where other factors, including the purely theoretical power not to give effect to the decision in question, implied the existence of direct concern in its regard (see, to that effect, [OSCURATO:PERSONA] C‑445/07 P and C‑455/07 P [OSCURATO:PERSONA] v Ente per le [OSCURATO:PERSONA] and Ente per le [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2009] ECR I‑7993, paragraph 58). 25 Furthermore, and in any event, the appellant has not shown in what way the [OSCURATO:PERSONA] erred in law in finding that that case-law was not applicable to the situation at issue in the main proceedings. 26 Accordingly, the [OSCURATO:PERSONA] was right to find that the case-law from the judgments in Piraiki-Patraiki and Others v [OSCURATO:PERSONA] and Dreyfus v [OSCURATO:PERSONA] is exceptional in nature due to the specific situations in relation to which those decisions were made, and that that case-law was therefore not applicable to this case. 27 It follows that the first two grounds relied on by the appellant in support of its appeal must be dismissed as manifestly unfounded. The third ground of appeal Arguments of the parties 28 By its third ground of appeal, the appellant alleges, in essence, that the [OSCURATO:PERSONA] infringed the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU by applying the locus standi test restrictively. 29 It claims, first, that the Treaty of Lisbon abolished the criteria, laid down in [OSCURATO:PERSONA] 230 EC, that, in the case of acts which do not entail implementing measures, those acts must individually concern the natural or legal person in question, and second, that this provision of the TFEU retains only the criterion that a natural or legal person must be directly concerned by the act at issue. It also states that the latter criterion has exactly the same meaning as when it is used in the context of the assessment of the condition relating to locus standi . 30 The appellant adds that that amendment is of particular relevance in relation to the right to effective judicial protection, a general principle of [OSCURATO:PERSONA] law guaranteed by Articles 6 and 13 of the [OSCURATO:PERSONA] for the Protection of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], signed in Rome on 4 November 1950, and by [OSCURATO:PERSONA] 47 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. It considers that, in those circumstances, the intention of [OSCURATO:PERSONA] was to allow access to the courts by relaxing the criterion of ‘individual concern’, and that it is therefore contrary to that objective and to the principle of effective judicial protection to restrict the scope of that criterion. 31 [OSCURATO:PERSONA] contends that the third ground of appeal should be rejected. It states that the [OSCURATO:PERSONA] correctly applied the two cumulative criteria set out in paragraph 21 above, and it questions whether the appellant, not being a [OSCURATO:PERSONA] or the recipient of the aid which is the subject of the correction, can be considered to derive from the legal order of the [OSCURATO:PERSONA] a right which requires effective judicial protection. Findings of the [OSCURATO:PERSONA] 32 It should be noted that the conditions for admissibility laid down in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (see [OSCURATO:PERSONA] C‑583/11 P [OSCURATO:PERSONA] and Others v Parliament and Council [2013], paragraph 98). 33 [OSCURATO:PERSONA] of Justice has already held that where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of that party by bringing about a distinct change in its legal position overlaps with the conditions laid down in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU ( [OSCURATO:PERSONA] and Germany v [OSCURATO:PERSONA] , paragraph 38). 34 Therefore, the [OSCURATO:PERSONA] was right to apply, in particular in paragraphs 42 and 43 of the order under appeal, the settled case-law of the [OSCURATO:PERSONA] of Justice on the criterion for direct concern, as set out in paragraph 21 above. That case-law, as the appellant acknowledges, is not called into question by the changes introduced by the Treaty of Lisbon, set out in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU. 35 Therefore the appellant’s third ground of appeal must be rejected as manifestly unfounded. The fourth ground of appeal Arguments of the parties 36 By its fourth ground of appeal, the appellant claims that, while the [OSCURATO:PERSONA] had applied the existing law correctly, it should have concluded that the appellant is directly concerned by the decision at issue. 37 The appellant thus considers that it is directly affected by that decision since the financial correction required by that decision first led to the total exhaustion of the credit to cover disallowances which may occur in any given year, and secondly gave rise to a shortfall of EUR 5 million which required the recording of that debt as a liability in the appellant’s accounts. 38 The appellant adds that paragraph 52 of the order under appeal contains a contradiction and that the [OSCURATO:PERSONA] assertion that its situation is directly affected because of the legislation of the [OSCURATO:PERSONA] is wrong in law. 39 [OSCURATO:PERSONA] contends that that ground of appeal cannot be upheld since the decision at issue does not have a direct effect on the appellant’s legal situation. Findings of the [OSCURATO:PERSONA] 40 It follows from paragraphs 21 to 27 and 32 to 35 above that the [OSCURATO:PERSONA] did not misconstrue the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, as interpreted by the [OSCURATO:PERSONA] of Justice, in finding that the appellant is not directly concerned by the decision at issue. 41 Therefore, there is no need for the [OSCURATO:PERSONA] of Justice to rule on the fourth ground of appeal which merely repeats the arguments put forward in the other grounds of appeal, which have already been examined and rejected in this order. 42 Therefore since none of the grounds of appeal raised by the appellant in support of its appeal can be upheld, the appeal must be dismissed as manifestly unfounded. Costs 43 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings pursuant to [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 44 Since the [OSCURATO:PERSONA] has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs of this appeal. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal; 2. Orders the [OSCURATO:PERSONA] of Agriculture and [OSCURATO:PERSONA] to pay the costs of this appeal. [Signatures] * Language of the case: English.