In Case T‑108/03

ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)

28 February 2005 (*)

(EAGGF – Forestry – Decision approving a rural development programming document – Action for annulment – Legal or natural persons – Measures of individual concern to them – Lack of jurisdiction – Inadmissibility)

In Case T‑108/03,

Elisabeth vonPezold, residing in Pöls (Austria), represented by R.von Pezold, lawyer,

applicant,

v

Commission of the European Communities, represented by G.Braun, acting as Agent, with an address for service in Luxembourg,

defendant,

ACTION for annulment in part of the Commission’s decision of 14 July 2000 approving the programming document for the development of the Austrian Republic’s rural areas during the period from 2000 to 2006,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber)

composed of M.Jaeger, President, V.Tiili and O.Czúcz, Judges,

Registrar:H.Jung,

makes the following

Order

Legal framework

1On 17 May 1999, the Council adopted Regulation (EC) No1257/1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L160, p.80).

2Title II of Chapter VIII of that regulation specifies the various support measures for the forestry sector, as well as the terms under which they may be granted.

3Article 29(1) of Regulation No1257/1999 provides:

‘Support for forestry shall contribute to the maintenance and development of the economic, ecological and social functions of forests in rural areas.’

4The second indent of Article 30(1) of the same regulation provides, in particular, that ‘support for forestry shall concern … investment in forests aimed at significantly improving their economic, ecological or social value’.

5Under Article 37(1) of that regulation,

‘Support for rural development shall be granted only for measures which comply with Community law.’

6Article 37(4) of Regulation No1257/1999 provides:

‘Member States may lay down further or more restrictive conditions for granting Community support for rural development provided that such conditions are consistent with the objectives and requirements laid down in this Regulation.’

7According to Article 39(2) of that regulation:

‘The rural development plans submitted by Member States shall include an appraisal of the compatibility and the consistency of the support measures envisaged and an indication of the measures taken in order to ensure compatibility and consistency.’

8Furthermore, according to Article 41(1) of Regulation No1257/1999:

‘Rural development plans shall be drawn up at the geographical level deemed to be the most appropriate. They shall be prepared by the competent authorities designated by the Member State and submitted by the Member State to the Commission after competent authorities and organisations have been consulted at the appropriate territorial level.’

9Lastly, under Article 44(2):

‘The Commission shall appraise the proposed plans to determine whether they are consistent with this Regulation. On the basis of the plans, it shall approve rural development programming documents in accordance with the procedure referred to in Article 50(2) of [Council] Regulation (EC) No1260/1999 [of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L161, p.1)] within six months after the submission of the plans.’

Facts

10In accordance with the provisions of Regulation No1257/1999, the competent Austrian authorities submitted to the Commission the Österreichische Programm für die Entwicklung des ländlichen Raumes (Austrian rural development programme) (‘the rural development plan’) on 1 September 1999, including, inter alia, a description of the measures envisaged for implementing the plan and a general financing plan referring to the national and Community support available for each section of the plan and for each measure within the sections envisaged. Following discussions with the Commission, a definitive version of that plan was submitted to the Commission on 23 June 2000.

11In particular, the plan provided, in the fourth indent of paragraph 9.10.2.1.3, for financial aid for ‘integrated measures for the planting, protection and maintenance of cultivated land’ granted, in accordance with paragraph 9.10.2.1.5, in respect of an area of no more than 20 hectares per year and per measure.

12On 14 July 2000, on the basis of the rural development plan, the Commission adopted Decision C(2000) 1973 final (not published) approving the programming document for the development of the Republic of Austria’s rural areas during the period from 2000 to 2006 (‘the contested decision’), which the latter had submitted to the Commission in accordance with Article 44(2) of Regulation No1257/1999.

13The Austrian authorities adopted several special directives pursuant to the rural development plan, including the Sonderrichtlinie für die Umsetzung der ‘Sonstigen Maßnahmen’ des Österreichischen Programms für die Entwicklung des ländlichen Raums (Special directive for the implementation of the ‘other measures’ of the Austrian rural development programme) (‘the special directive’), which came into force on 27 July 2000. Like paragraph 9.10.2.1.5 of the rural development plan, paragraph 6.2.1.4.1 of the special directive states that financial aid for ‘integrated measures for the planting, protection and maintenance of cultivated land’ may be granted only in respect of an area of no more than 20 hectares per year and per measure (‘the disputed provision’).

14On 27 April and 31 August 2000 the applicant, who is the proprietor of a forestry enterprise with approximately 3500 hectares of woodland, submitted to the Chamber of Agriculture of the Land of Styria two applications under the special directive for aid intended to finance work to clear areas of 20 hectares and 5 hectares respectively.

15By two letters of 18 October 2000, Agrarmarkt Austria Marketing GmbH (‘Agrarmarkt’), acting on behalf of the Federal Ministry of Agriculture and Forests, informed the applicant that, having reviewed the conditions of grant, the Forestry Division of the Chamber of Agriculture of the Land of Styria had approved the aid applications in question in the sum of ATS79999.91 (EUR5813.82) and ATS19999.91 (EUR1453.40) respectively.

16By letter of 18 January 2001, Agrarmarkt informed the applicant that the Forestry Division of the Chamber of Agriculture of the Land of Styria had demanded that it recover the sum of EUR1453.45, corresponding to the second grant of financial aid, on the ground that the aid had been granted to the applicant in error, as the limit laid down by the disputed provision had been exceeded. Agrarmarkt went on to state that as a sum of EUR425.12 had already been deducted from a payment made in favour of the applicant on 20 December 2000 in respect of a proposed forest path, the applicant was invited to repay the balance of EUR1028.33.

17On 19 November 2001 the applicant brought an action before the Bezirksgericht Wien Innere Stadt (City of Vienna District Court) against the decision of the Austrian authorities ordering repayment of the second grant of financial aid. In support of that action, the applicant maintained, inter alia, that the disputed provision was contrary to Regulation No1257/1999 and to Community competition law. In the proceedings, the Austrian authorities argued that the disputed provision was an integral part of the rural development plan, that it had been discussed and subjected to detailed examination, and that it therefore had to be regarded as having been approved by the contested decision.

18Accordingly, the applicant brought the present action by an application lodged at the Registry of the Court of First Instance on 24 March 2003.

Forms of order sought

19The applicant claims that the Court should:

–annul the contested decision, in so far as the disputed provision is thereby approved;

–in the alternative, declare that the contested decision cannot be regarded as having approved the disputed provision;

–order the Commission to pay the costs.

20The Commission contends that the Court should:

–dismiss the action as inadmissible;

–in the alternative, dismiss it as unfounded;

–order the applicant to pay the costs.

Law

21Under Article 113 of the Rules of Procedure of the Court of First Instance, the Court may, when giving its decision in accordance with Article 114(3) and (4) of those Rules, at any time, of its own motion, consider whether there exists any absolute bar to proceeding with an action.

22In the present case, the Court considers that there is sufficient information available to it in the documents in the case and has consequently decided to give its decision without opening the oral procedure.

Arguments of the parties

23Without formally raising a plea of inadmissibility, the Commission disputes the admissibility of the request for annulment in its defence and rejoinder on the ground that the contested decision is not of direct and individual concern to the applicant within the meaning of the fourth paragraph of Article 230EC.

24In the first place, as regards the first of those conditions, the Commission notes that where a decision is addressed to a Member State, it follows from the case-law of the Court that for a person to be directly concerned by a Community measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules. The Commission adds that the same applies where the possibility for addressees not to give effect to the Community measure is purely theoretical and their intention to act in conformity with it is not in doubt (Case C‑386/96P Dreyfus v Commission [1998] ECR I‑2309, paragraphs 43 and 44, and Case C‑404/96P Glencore Grain v Commission [1998] ECR I‑2435, paragraphs 41 and 42).

25It is apparent from the contested decision that it was addressed to the Republic of Austria and that the applicant cannot therefore be regarded as the addressee. The Commission submits that the conditions referred to above have not been fulfilled in the present case. It states that the contested decision merely declares the content of the programme submitted to it to be lawful in the light of Regulation No1257/1999. That declaration does not produce any direct effect with regard to a subsequent applicant for aid given, first, the measure of discretion available to the Member State as regards implementation of the programme and, second, the fact that the Commission has no legal relationship with the applicant. Whilst the Commission accepts that the disputed provision does appear in paragraph 9.10.2.1.5 of the rural development plan approved by the Commission, it emphasises that two national measures, namely the special directive and Agrarmarkt’s decision to grant the aid, intervened before the approval in question produced any effect vis-à-vis the applicant.

26The Commission also states that the Court of Justice has held that the Commission’s approval of a national aid programme does not in any way have the effect of conferring on that programme the nature of an act of Community law. In those circumstances, where an aid contract is incompatible with the programme approved by the Commission, it is for the national courts to draw the appropriate inferences from this under national law, by taking account of the relevant Community law in applying national law (Case C‑336/00 Huber [2002] ECR I‑7699, paragraph 40). That reasoning is equally applicable where, as in the present case, the aid contract is compatible with the programme which has been approved. Thus, in the present case, it is necessary for the applicant to bring the matter before the competent national court and there to challenge the legality of the disputed provision under national and Community law.

27In the second place, as regards the condition that the applicant should be individually affected, the Commission notes that, according to case-law, third parties can be individually concerned by a decision addressed to another person only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann v Commission [1963] ECR 95 and order in Case T‑117/94 Associazione agricoltori della provincia di Rovigo and Others v Commission [1995] ECR II‑455, paragraph 21). The purpose of the contested decision was to approve measures of general application – including the disputed provision – which apply to objectively determined situations and which have legal effects with regard to categories of persons viewed generally and in the abstract.

28As regards the disputed provision specifically, the Commission states that it concerns all Austrian forestry owners without distinction, without any group among them being subject to discrimination of any kind. Thus, the contested decision concerns the applicant only in regard to circumstances that are common to those forestry owners. The mere fact that the applicant operates a sizeable forestry holding, and that the difference between the area owned and the maximum area capable of attracting aid is thus more significant than for smaller holdings, is not enough to distinguish the applicant individually in relation to any other forestry owner.

29The applicant submits that the present action is admissible. As regards, in the first place, the time-limit for bringing the action, the applicant argues that she did not know of the contested decision until 15 January 2003, when the Austrian authorities submitted their arguments in the proceedings before the Bezirksgericht Wien Innere Stadt. Therefore, the action, which was lodged at the Court Registry on 24 March 2003, was brought within the time-limit.

30In the second place, the applicant submits that the contested decision is of direct concern to her within the meaning of the fourth paragraph of Article 230EC, given that that decision, according to the Austrian authorities, confirmed that the disputed provision is consistent with Community law. The provision thus came into force with direct effect in regard to the applicant.

31The fact that the Republic of Austria could, in theory, forgo implementation of the disputed provision following the Commission’s approval is irrelevant. According to the applicant, the direct nature of the effect of a decision approving national legislation cannot depend on the arbitrary approach of national authorities following that decision, given that those authorities laid down the legislation in question and themselves secured its approval by the Commission. There is therefore no doubt that the Republic of Austria intended to implement the approved legislation and thus that it had only a purely theoretical power not to apply the disputed provision, in terms of the case-law cited by the Commission (Dreyfus v Commission, cited in paragraph 24 above, paragraph 44, and Glencore Grain v Commission, cited in paragraph 24 above, paragraph 42).

32In addition, the applicant emphasises that the contested decision left the Austrian authorities with no discretion as regards the application of the special directive, for the transposition of which no other measure was required. Furthermore, such measures are unthinkable given that, under Austrian law, the aid provided for in the special directive is allocated under arrangements governed by private law.

33Consequently, decisions to allocate aid which are taken in that area fall outside the control of the Verfassungsgerichtshof (Austrian Constitutional Court) and of the Verwaltungsgerichtshof (Austrian Administrative Court). The inadmissibility of the present action thus has the effect of depriving the applicant of the fundamental right to effective legal protection that is recognised by the Court of Justice. In that respect, the applicant states lastly that in her application of 19 November 2001 initiating the proceedings before the Bezirksgericht Wien Innere Stadt, she asked that the question be referred to the Court of Justice for a preliminary ruling as to whether a national provision which restricts the object of aid to a certain area per year is compatible with Community law. The Bezirksgericht Wien Innere Stadt indicated that it did not intend to make the reference for a preliminary ruling applied for. The applicant has thus been obliged to bring the present action in order to avoid her action against the contested decision being time-barred. In that regard, the Commission’s argument that it is for national courts to review the compatibility of national legislation with Community law is devoid of merit if those courts do not have jurisdiction to rule on an infringement of Community law by the Commission.

34Lastly, the applicant submits, in the third place, that she is individually concerned by the contested decision. She argues that the forestry enterprise of which she is proprietor includes 1250 hectares of saplings needing care (more than one third of the total afforested area of the enterprise), following the recent reafforestation of 500 hectares at a cost of approximately EUR 4000000 of her own funds. That reafforestation was also necessary because of intensive forestry activity and damage caused by pollution from a local brown coal power station and cellulose factory, both nationalised, and in order to protect against avalanches and to improve the water system. The applicant is capable of looking after only 120 hectares a year. It follows from that unusual circumstance that the applicant is individually affected by the contested decision.

35The applicant acknowledges that she was not specifically targetted by the contested decision. She nevertheless maintains that the Commission should have taken account of the fact, known to the Austrian authorities, that the disputed provision affects precisely those few forestry enterprises which, in the public interest, take on the important task of maintaining large-scale cultivation in high-altitude areas heavily affected by pollutant emissions. Only approximately 5% of Austrian woodland needs attention each year, so that only a small group of operators of an area of more than 400 hectares is affected by the disputed provision.

Findings of the Court

The first head of claim, seeking the annulment of the contested decision

36As a preliminary point, the Court finds that, strictly, the present action seeks the annulment of the contested decision in so far as it approves paragraph 6.2.1.4.1 of the special directive. However, it must be pointed out that, in accordance with Article 44(2) of Regulation No1257/1999, the contested decision approves the programming document submitted to the Commission on the basis of the rural development plan, and cannot therefore strictly be regarded as having approved paragraph 6.2.1.4.1 of the special directive implementing that plan at a national level. Inasmuch as the parties do not dispute that that provision is identical in substance to paragraph 9.10.2.1.5 of the rural development plan, the present action must therefore be treated as in fact seeking the annulment of the contested decision in so far as it approves paragraph 9.10.2.1.5 of the rural development plan.

37On that point, it must further be emphasised that Article 44(2) of Regulation No1257/1999 provides:

‘The Commission shall appraise the proposed plans to determine whether they are consistent with this Regulation. On the basis of the plans, it shall approve rural development programming documents … within six months after the submission of the plans.’

38Moreover, it is apparent from Article 1 of the contested decision that the Commission approved the programming document lodged by the Austrian Republic on the basis of the definitive version of the rural development plan which the latter submitted to the Commission on 23 June 2000.

39It follows that, for the purpose of the decision to approve, the Commission’s examination of programming documents necessarily relates to the content of the rural development plan on the basis of which those documents are drawn up (see, to that effect, Huber, cited in paragraph 26 above, paragraph 39).

40Furthermore, it must be stated that the Commission acknowledges, without contradiction by the applicant on that point, that the rural development plan included a provision in paragraph 9.10.2.1.5 which imposes a limit on aid for the forestry industry in the form of ‘integrated measures for the planting, protection and maintenance of cultivated land’ to an area of 20 hectares per year and per measure. It must therefore be found that the contested decision constitutes the Commission’s approval of that provision.

41As regards the admissibility of the present action for annulment, even assuming that it was brought in good time and that the applicant has an interest in bringing proceedings against the contested decision, it must be pointed out that under the fourth paragraph of Article 230EC, any natural or legal person may institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

42In the present case, it is common ground that the contested decision was addressed solely to the Republic of Austria. Accordingly, it must be pointed out that it is settled case-law that third parties may be individually concerned by a decision addressed to another person only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors are distinguished individually just as in the case of the person addressed (Plaumann v Commission, cited in paragraph 27 above, page 107, and order in Case C‑258/02P Bactria v Commission [2003] ECR I‑15105, paragraph 34).

43In the present case, the aim of the contested decision was to grant and to establish the conditions for financial support by EAGGF for the rural development plan of the Republic of Austria for the period from 2000 to 2006, which included the provision referred to above. That provision, which was approved by the contested decision, can thus be regarded as a measure of general application which applies to objectively determined situations and which has legal effects with regard to categories of persons viewed generally and in the abstract.

44Consequently, the contested decision concerns the applicant only by reason of her objective status as a forester operating in Austria, in the same way as any economic operator in the same position (see, by analogy, order in Associazione agricoltori della provincia di Rovigo and Others v Commission, cited in paragraph 27 above, paragraphs 24 and 25).

45As regards the applicant’s argument that the measure in question places her at a disadvantage, given that she is operating a sizeable forestry holding, it must be noted, assuming her argument to be established, that it is not sufficient that certain traders may be more affected economically by a measure than their competitors for them to be considered to be individually concerned by it (order in Case T‑11/99 Van Parys and Others v Commission [1999] ECR II‑2653, paragraphs 50 and 51). Even if it must be accepted that the disputed restriction is capable of resulting in the applicant being awarded proportionately less aid than is paid to operators of smaller forestry holdings, the fact remains that similar consequences arise for other operators of forestry holdings of comparable size to the applicant’s (see, by analogy, order in Case T‑231/02 Gonnelli and AIFO v Commission [2004] ECR II‑1051, paragraph 45).

46Moreover, even if it must also be admitted that, as the applicant claims, only a small group of forestry holdings of more than 400 hectares need to carry out certain maintenance as a result, inter alia, of damage caused by pollutant emissions, it must be pointed out that the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as it is established that, as in the present case, that application takes effect by virtue of an objective legal or factual situation defined by the measure in question (Case C‑451/98 Antillean Rice Mills v Council [2001] ECR I‑8949, paragraph 52).

47Lastly, the Court cannot accept the applicant’s argument that the contested decision is of individual concern to her, given that the Commission should have taken account of the fact that the provision in question affects precisely those few forestry enterprises which, in the public interest, take on the important task of maintaining large-scale cultivation in high-altitude areas heavily affected by pollutant emissions.

48Whilst, according to settled case-law, certain individuals may be individually distinguished by the fact that the Commission is required, by virtue of specific provisions, to take account of the consequences which a measure it envisages adopting may have for certain individuals (see, to that effect, Case C‑152/88 Sofrimport v Commission [1990] ECR I‑2477, paragraph 11), it must be stated that, in the present case, the Community legislation, in particular Regulation No1257/1999, contains no provision requiring the Commission, when it adopts a decision of approval, to take account of the consequences which that decision may have for the position of individuals such as the applicant (see, by analogy, Joined Cases T‑481/93 and T‑484/93 Levende Varkens and Others v Commission [1995] ECR II‑2941, paragraph 62).

49It follows that the applicant’s factual position does not differentiate her from all other economic operators, and that she is therefore not individually affected by the contested decision.

50Finally, the applicant claims that the inadmissibility of the present action constitutes an infringement of her fundamental right to effective judicial protection.

51As the Court of Justice stated in Case C‑50/00P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 40, by Articles 230 and 241 EC, on the one hand, and by Article 234 EC, on the other, the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Community Courts (see also Case 294/83 Les Verts v Parliament [1986] ECR1339, paragraph 23). Under that system, where natural or legal persons cannot, by reason of the conditions for admissibility laid down in the fourth paragraph of Article 230EC, directly challenge Community measures of general application, they are able, depending on the case, either indirectly to plead the invalidity of such acts before the Community Courts under Article 241EC or to do so before the national courts and ask them, since they have no jurisdiction themselves to declare those measures invalid (Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 20), to make a reference to the Court of Justice for a preliminary ruling in that regard.

52Not only does it fall to Member States to establish a complete system of legal remedies and procedures enabling the right to effective judicial protection to be guaranteed, but the Court of Justice has also ruled inadmissible an interpretation of Article 230EC according to which an action for annulment must be declared admissible if it is shown, following an examination of the national procedural rules by the Community Court, that those rules do not allow an individual to bring proceedings to contest the validity of the Community measure at issue. A direct action for annulment cannot be brought before the Community Court even if it could be shown, following an examination by that Court of the national procedural rules, that those rules do not allow an individual to bring proceedings to contest the validity of the Community measure at issue (order in Bactria v Commission, cited in paragraph 42 above, paragraph 58). Such an interpretation would require the Community Court, in each individual case, to examine and interpret national procedural law. That would go beyond its jurisdiction when reviewing the legality of Community measures (Unión de Pequeños Agricultores v Council, cited in paragraph 51 above, paragraph 43).

53Finally, the Court of Justice has clearly established in any event (Unión de Pequeños Agricultores v Council, cited in paragraph 51 above, paragraph 44), so far as concerns the requirement for individual interest laid down in the fourth paragraph of Article 230EC, that although this last condition must be interpreted in the light of the principle of effective judicial protection, taking into account the various circumstances that may distinguish an applicant individually, such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts.

54The Court cannot therefore accede to the applicant’s argument that, on the assumption that the present action for annulment must be declared inadmissible, the applicant is deprived of any means of defending her rights before a court, an allegation which she has failed moreover to establish.

55It follows that the requirement of effective judicial protection does not call into question the conclusion that the contested decision is not of individual concern to the applicant. Therefore, the present action for annulment must be dismissed, without there being any need to determine whether the applicant is directly affected by the contested decision and whether she brought the action within the prescribed period.

The second head of claim, seeking a declaration that the contested decision cannot be regarded as having approved the disputed provision

56By her second head of claim, the applicant asks the Court in the alternative to declare that the contested decision cannot be regarded as having approved the disputed provision.

57It must be pointed out that Community litigation does not recognise a legal remedy other than that laid down in Article 234EC which allows the Court to rule on the interpretation of a measure taken by a Community institution.

58That head of claim must therefore be dismissed, since the Court manifestly has no jurisdiction over it.

Costs

59Under Article 87(2) 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 applicant has been unsuccessful, and the Commission has applied for costs, she must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1.The action is dismissed.

2.The applicant is ordered to pay the costs.

Luxembourg, 28 February 2005.

* Language of the case: German.