(Action for annulment— Environment— Directive 94/62/EC— Packaging and packaging waste— Directive 2013/2

ORDER OF THE GENERAL COURT (First Chamber)

7July 2014 (*)

(Action for annulment— Environment— Directive 94/62/EC— Packaging and packaging waste— Directive 2013/2/EU— Rolls, tubes and cylinders around which flexible material is wound— Professional association— Absence of direct concern— Inadmissibility)

In Case T‑202/13,

Group’Hygiène, established in Paris (France), represented by J.‑M.Leprêtre and N.Chahid-Nouraï, lawyers,

applicant,

v

European Commission, represented by A.Alcover San Pedro and J.‑F.Brakeland, acting as Agents,

defendant,

APPLICATION for the partial annulment of Commission Directive 2013/2/EU of 7February 2013 amending Annex I to Directive 94/62/EC of the European Parliament and the Council on packaging and packaging waste (OJ 2013 L37, p.10), in so far as the Commission has included rolls, tubes and cylinders around which flexible material is wound, except rolls, tubes and cylinders intended as parts of production machinery and not used to present a product as a sales unit, on the list of examples of products illustrating the application of criteria defining the notion of ‘packaging’,

THE GENERAL COURT (First Chamber),

composed of H.Kanninen, President, I.Pelikánová and E.Buttigieg (Rapporteur), Judges,

Registrar: E.Coulon,

makes the following

Order

Background to the dispute

1On 20December 1994, the European Parliament and the Council of the European Union adopted Directive 94/62/EC on packaging and packaging waste (OJ 1994 L365, p.10) the purpose of which, according to Article1 of the directive, is to harmonise the various national measures with respect to the management of packaging and packaging waste, in order, first, to prevent any impact thereof on the environment of all Member States as well as of third countries, thus providing a high level of environmental protection, and, secondly, to ensure the functioning of the internal market and to avoid obstacles to trade and the distortion and restriction of competition within the European Union. To this end the directive obliges the Member States to introduce measures to prevent the production of packaging waste and to reduce its final elimination, in particular by setting up systems for, on the one hand, the return or collection of used packaging or packaging waste and, on the other hand, for re-using or recovering the packaging or packaging waste collected.

2According to the fifth recital in the preamble to the directive and Article2 thereof, Directive 94/62 is intended to cover all packaging placed on the market in the European Union.

3Article3(1) of Directive 94/62 aims to define the concept of ‘packaging’.

4In that regard, Directive 94/62 has been amended by Directive 2004/12/EC of the European Parliament and of the Council of 11February 2004 (OJ 2004 L47, p.26), which aims, in particular, to clarify the definition of the concept of ‘packaging’ by the insertion of certain criteria, and of an Annex I containing positive and negative illustrative examples of the application of those criteria (second recital in the preamble to Directive 2004/12). Directive 2004/12 amended Article3(1) of Directive 94/62 by the addition of two subparagraphs, the fourth of which provides that the European Commission must, in accordance with the procedure described in Article21 of Directive 94/62, examine and, where necessary, review the list of illustrative examples to be found in Annex I. Tubes and rolls around which flexible material is wound are, henceforth, expressly included in the products to be addressed as a priority by the Commission in its examination.

5Under the fourth subparagraph of Article3(1) of Directive 94/62, and in accordance with the procedure established by Article21 of that directive, the Commission adopted, on 7February 2013, Directive 2013/2/EU amending Annex I to Directive 94/62 (OJ 2013 L37, p.10; ‘the contested directive’). By means of the contested directive the Commission included on the list of examples of products considered as packaging, to be found in Annex I to Directive 94/62, in particular ‘rolls, tubes and cylinders around which flexible material (for example: plastic film, aluminum, paper) is wound, except rolls, tubes and cylinders intended as parts of production machinery and not used to present a product as a sales unit’ (‘roles, tubes and cylinders around which is wound flexible material’).

6Directive 94/62 has been incorporated into French law by, in particular, Articles L541-10 et seq. and R543-42 et seq. of the Environmental Code, amended, for the purposes of the implementation of Directive 2004/12, by Ministerial Order of 7February 2012 relating to examples of the application of the criteria defining the concept of ‘packaging’ as laid down by Article R543-43 of the Environmental Code (JORF of 23February 2012, p.3070). Articles L541-10 II and R543-56 of the Environmental Code provide that producers, importers or undertakings responsible for the first placing on the French market of products consumed or used by households and sold in packaging are required to contribute to, or to provide for, the management of the entirety of their packaging waste. To this end they should identify any packaging that is to be dealt with by a body or undertaking approved for that purpose and should recover any other packaging. Article R543-43 I sets out the criteria aimed at defining the concept of ‘packaging’ and provides that the examples illustrating those criteria are to be specified in an order of the Minister responsible for the environment.

7The contested directive was incorporated into French law by Ministerial Order of 6August 2013, amending the Order of 7February 2012 on examples of the application of the criteria defining the concept of ‘packaging’ as laid down by Article R 543-43 of the Environmental Code (JORF of 27August 2013, p.14487), by including, in particular, rolls, tubes and cylinders around which is wound flexible material as an example of products constituting packaging.

8The applicant, Group’Hygiène, is a professional association established under French law which, in accordance with its statutes, represents the interests of manufacturers of disposable products used in hygiene, health and wiping, such as sanitary and household paper, operating in the French market. The members of Group’Hygiène manufacture products using the cardboard tubes to be found at the centre of rolls of toilet paper or kitchen towel.

9In January 2013 several members of Group’Hygiène were summoned before the French court, by a private eco-organism established in France to undertake the management of packaging waste (‘the eco-organism’), on the ground that they had not declared, in their participation in the system of management of packaging waste, the waste consisting in rolls, tubes and cylinders used in products sold by them on the French market and that, consequently, they had not paid the amounts due in that respect.

Procedure and forms of order sought

10The applicant brought the present action by application lodged at the Registry of the General Court on 9April 2013.

11By separate document, lodged at the Court Registry on 27June 2013, the Commission raised an objection of inadmissibility pursuant to Article114(1) of the Rules of Procedure of the Court.

12By document lodged at the Court Registry on 26July 2013, Sphère France SAS and Schweitzer SAS applied for leave to intervene in these proceedings in support of the form of order sought by the applicant.

13On 23September 2013, the applicant lodged its observations on the objection of inadmissibility.

14In the application, the applicant claims that the Court should:

–annul the contested directive, with immediate effect, in so far as it adds rolls, tubes and cylinders around which flexible material is wound, except for those destined for industrial use, to the list of examples of packaging in Annex I of Directive 94/62;

–order the Commission to pay the costs.

15In its objection of inadmissibility, the Commission contends that the Court should:

–dismiss the application as inadmissible;

–order the applicant to pay the costs.

16In its observations on the objection of inadmissibility, the applicant contends that the Court should:

–reject the objection of inadmissibility;

–annul the contested directive ‘with immediate effect’;

–order the Commission to pay the costs.

Law

17Pursuant to Article114(1) and (4) of the Rules of Procedure, the Court may, if a party so requests, rule on the exception of inadmissibility without considering the merits of the case. Under Article114(3), unless the Court otherwise decides, the remainder of the proceedings is to be oral. In the present case, the Court considers that the information in the documents before it is sufficient for there to be no need to proceed to the oral stage of the proceedings.

18The Commission contends that the action is inadmissible on the following three grounds: first, that the applicant has no legal interest in bringing proceedings because the annulment of the contested directive would benefit neither the applicant nor its members; secondly, that the contested directive is not a regulatory act that directly concerns the members of the applicant and does not contain implementing measures within the meaning of the fourth paragraph of Article263 TFUE, and, thirdly, that the applicant has no standing to institute proceedings, since its members are not directly or individually affected by the contested directive.

19As Group’Hygiène is an association representing the interests of manufacturers of disposable products for hygiene, health or wiping, it is not admissible, according to the case-law, to institute proceedings for annulment unless some or all of the persons represented have locus standi in their individual capacity or are able to demonstrate an individual interest in instituting proceedings (see, to that effect, Joined Cases C‑182/13 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECRI‑5479, paragraph56 and the case-law cited, order of 4June 2012 in Case T‑381/11 Eurofer v Commission [2012] ECR, paragraph18).

20The applicant does not claim to have an individual interest in the annulment of the contested directive, but maintains that its members do have such an interest and that they also have standing, in their individual capacity, to bring proceedings seeking the annulment of that directive.

21It is appropriate to commence with the examination of the locus standi of the members of the applicant.

22Pursuant to the fourth paragraph of Article263 TFEU, ‘[a]ny 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’.

23The third paragraph of Article288 TFEU provides that a directive is addressed to the Member States. Thus, by virtue of the fourth paragraph of Article263 TFEU, natural persons such as the members of the applicant cannot bring an action seeking the annulment of a directive except in cases where the directive constitutes a regulatory act that concerns them directly and does not contain any implementing measures, or where the directive concerns them directly and individually (see, to that effect, Case T‑262/10 Microban International and Microban (Europe) v Commission [2011] ECR II‑7697, paragraph19, and judgment of 6September 2013 in Case T‑483/11 Sepro Europe v Commission, not published in the ECR, paragraph29).

24The Court deems it appropriate to begin by examining the objection of inadmissibility based on an absence of direct concern, and founded on the condition of admissibility of an action common to the second and third categories of acts set out in paragraph22 above.

25In essence, the Commission submits that the contested directive has no direct effect on the legal situation of the members of the applicant. According to the Commission the fact that the directive may affect them financially is not a sufficient reason to consider that it concerns them directly. Moreover, the Member States have a margin of discretion as to the implementation of the objectives established by Directive 94/62 in so far as it concerns rolls, tubes and cylinders around which flexible material is wound, added by the contested directive to the list of products constituting packaging within the meaning of Article3(1) of Directive 94/62.

26The applicant argues, in substance, that the contested directive automatically means that rolls, tubes and cylinders around which flexible material is wound must henceforth be considered as packaging, and leaves no margin of discretion in that respect to the competent national authorities. The contested directive therefore has the direct and immediate consequence of imposing additional obligations, in particular obligations of a financial nature, upon the members of Group’Hygiène, in respect of their participation in the system of management of packaging waste constituted by those products.

27In the present case it should be noted that the contested directive is, both in its form and in its content, a measure of general application, applicable to objectively determined situations and is aimed, in a general and abstract manner, at all economic operators engaged in activities in the field of packaging consisting in products included by the contested directive in Annex I to Directive 94/92, including rolls, tubes and cylinders around which flexible material is wound.

28It should be noted that the Court has, on various occasions, qualified a directive as an act having general application (see, to that effect, Case 70/83 Kloppenburg [1984] ECR 1075, paragraph11; Case C‑298/89 Gibraltar v Council [1990] ECR I‑3605, paragraph16; order in Case C‑10/95P Asocarne v Council [1995] ECR I‑4149, paragraph29). Nevertheless, the possibility cannot be ruled out that, in certain circumstances, the provisions of such a generally applicable measure could be of direct and individual concern to an individual (see to that effect, Case C‑309/89 Cordorniu v Council [1994] ECR I‑1853, paragraphs19 to 22; Joined Cases T‑172/98 and T‑175/98 to T‑177/98 Salamander and Others v Parliament and Council [2000] ECR II‑2487, paragraph30; and Case T‑16/04 Arcelor v Parliament and Council [2010] ECR II‑211, paragraph96).

29Furthermore, with regard to the condition of direct concern as set out in the fourth paragraph of Article230 EC, it is clear from established case-law that the condition that a natural or legal person must be directly concerned by the measure in dispute requires that measure to have a direct effect on its legal situation and to leave no discretionary power to those to whom it is addressed and who are charged with putting it into effect, and, thereby, to have a purely automatic nature deriving solely from the rules of the Union without the application of intermediate rules (Case C‑386/96P Dreyfus v Commission [1998] ECR I‑2309, paragraph43; Salamander and Others v Parliament and Council, cited in paragraph28 above, at paragraph52; Arcelor v Parliament and Council, cited in paragraph28 above, at paragraph97; and Microban International and Microban (Europe) v Commission, cited in paragraph23 above, at paragraph27).

30This means that, where a Community measure is addressed to a Member State by an institution, if the action to be taken by the Member State in response to the measure is automatic or is, at all events, a foregone conclusion, then the measure is of direct concern to any person affected by that action. If, on the other hand, the measure leaves it up to the Member State whether or not to act, it is the action or inaction of the Member State that is of direct concern to the person affected, and not the measure itself. In other words, the measure in question must not depend, in order to produce effects, upon the exercise of a discretionary power by a third party, unless it is evident that such a power can only be exercised in a specified manner (order in Case T‑223/01 Japan Tobacco and JT International v Parliament and Council [2002] ECR II‑3259, paragraph46).

31Given that the condition of direct concern contained in the fourth paragraph of Article263 TFEU has not been amended, that case-law is equally applicable to the present case (order of 9July 2013 in in Case C‑586/11P Regione Puglia v Commission [2013] ECR, paragraph31; see also, to that effect, orders of 15June 2011 in Case T‑259/10 Ax v Council, not published in the ECR, paragraph21, and of 12October 2011 in Case T‑149/11 GS v Parliament and Council, not published in the ECR, paragraph19).

32The Court must therefore ascertain whether the contested directive of itself affects the legal situation of the members of the applicant.

33In this respect it should be recalled that a directive cannot, of itself, impose obligations on an individual and may therefore not be relied upon as such against an individual (Case 152/84 Marshall [1986] ECR 723, paragraph48, and Case C‑192/94 El Corte Inglés [1996] ECR I‑1281, paragraph15; see also, to that effect, Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph25). It follows that a directive that, as in the present case, obliges the Member States to consider certain products as packaging, within the meaning of Article3(1) of Directive 94/62, is not of itself, before the adoption of the national transposition measures and independently of them, such as to affect directly the legal situation of economic operators, within the meaning of the fourth paragraph of Article263 TFEU (see to that effect, and by analogy, Salamander and Others v Parliament and Council, cited in paragraph28 above, at paragraph54).

34The applicant nevertheless maintains that the contested directive has directly affected its members before, and independently of, its transposition.

35In the first place the applicant refers to the financial repercussions that the adoption of the contested directive, by its inclusion of rolls, tubes and cylinders around which flexible material is wound on the list of examples of packaging, has, or may have, on its members. Thus the members of the applicant who use those products in the items that they manufacture would be obliged to participate in the system for the management of the packaging constituted by those products by having to pay certain financial contributions in that regard. The dispute pending before the French court between the applicant and the eco-organism testifies to the rigid and unavoidable nature of those financial repercussions.

36In this respect it is clear that such consequences are not a result of the contested directive but of its transposition by the French authorities. The directive is limited to amending the list of examples of products to be considered, or not, as packaging within the meaning of Article3(1) of Directive 94/62. The mere inclusion of certain products, including rolls, tubes and cylinders around which flexible material is wound, on the list of examples of packaging does not create an obligation for economic operators in the sector of packaging constituted by such products to participate in a system for the management of that packaging. Whereas it is true that Article1 to the contested directive and Annex I to Directive 94/62 result in rolls, tubes and cylinders around which flexible material is wound having to be considered, within national legal systems, as packaging within the meaning of Article3(1) of Directive 94/62, the contested directive does not give any precise indication as to the measures to be taken by the national authorities in order to attain the objectives imposed by Directive 94/62 with regard to those products.

37More particularly, the obligation, arising from Article7 of Directive 94/62, to set up a system for the return, collection and recovery of waste from the products designated by the contested directive to be considered as packaging is not directly applicable to the members of the applicant. It requires the Member State concerned to adopt a measure making clear the manner in which it intends to give effect to the obligation in question with respect, in particular, to rolls, tubes and cylinders around which flexible material is wound (see, to that effect and by analogy, order in Case T‑136/04 Freiherr von Cramer-Klett and Rechtlerverband Pfronten v Commission [2006] ECR II‑1805, paragraph52).

38Accordingly it is the national measures transposing the contested directive, and not the directive itself, that are liable to produce legal effects on the situation of the members of the applicant.

39Consequently, the contested directive cannot be considered as directly affecting the rights of those members or the exercise of such rights.

40The financial repercussions referred to by the applicant do not, in any event, have an impact on the legal situation of its members but on their de facto situation (see, to that effect Salamander and Others v Parliament and Council, cited in paragraph28 above, at paragraph62, and order in Case T‑122/05 Benkö and Others v Commission [2006] ECR II‑2939, paragraph47). Moreover, it is apparent from the case-law that the fact that a measure is capable of having an influence on the material situation of an applicant does not suffice for considering the applicant as being directly concerned by that measure. Only the existence of specific circumstances could confer the capacity to institute proceedings, pursuant to the fourth paragraph of Article263 TFUE, upon an applicant claiming that a measure has repercussions on his position on the market (Joined Cases 10/68 and 18/68 Eridania and Others v Commission [1969] ECR 459, paragraph7; and orders in Case T‑189/97 Comité d’entreprise de la Société française de production and Others v Commission [1998] ECR II‑335, paragraph48, and in Case T‑343/10 Etimine and Etiproducts v ECHA [2011] ECR II‑6611, paragraph41). As the applicant in the present case has merely asserted that its members would be liable to supplementary financial obligations relating to the management of packaging waste consisting in rolls, tubes and cylinders around which flexible material is wound, it has not established the existence of any such specific circumstances.

41In the second place, the applicant submits that the contested directive directly affects the legal situation of its members because the eco-organism could invoke it directly in the litigation pending before the French court in order to require those members to make financial contributions in respect of their participation in the system of management of packaging consisting in rolls, tubes and cylinders around which flexible material is wound.

42In this regard it should be noted, as stated in paragraph33 above, that a directive cannot of itself impose obligations upon an individual and cannot, therefore, be invoked as such against an individual. The applicant’s argument is thus unfounded.

43In the third place, the applicant’s argument that its members are directly concerned by the contested directive, independently of its transposition, in so far as it leaves no discretionary power to the Member States with regard to measures of transposition, is also unfounded. It is certainly true, as the applicant maintains, that the contested directive leaves no discretionary power to the Member States with regard to the possibility henceforth of considering rolls, tubes and cylinders around which flexible material is wound as packaging within the meaning of Article3(1) of Directive 94/62. However, the Member States do have discretionary power with regard to the choice of the measures to be taken in order to attain the objectives of the directive in relation to those products. Thus the potential effects on the legal situation of its members do not derive from the obligation to attain those objectives but from the choice of the measures that the Member State decides to adopt in order to attain them (see, to that effect, Case C‑125/06P Commission v Infront WM [2008] ECRI‑1451, paragraphs62 and 63).

44Neither Directive 94/62 nor the contested directive determine the system for the management of disposable household packaging waste, such as the rolls, tubes and cylinders used in the products manufactured by the members of the applicant, necessary to achieve the required objectives. They leave it to the Member States to choose the most appropriate system (see, to that effect, Case C‑309/02 Radlberger Getränkegesellschaft and S.Spitz [2004] ECR I‑11763, paragraph42). Directive 94/62 also leaves it to the Member States to define the category of operators who are obliged to participate in systems ensuring the return, collection and recovery of packaging, and of packaging waste established pursuant to Article7(1) of Directive 94/62, on condition that such systems are ‘open to the participation of the economic operators concerned and to the participation of the competent public authorities’ (see, to that effect, order of 16February 2006 in Case C‑26/05 Plato Plastik Robert Frank, not published in the ECR, paragraph33). Thus neither Directive 94/62 nor the contested directive stipulate the obligatory participation of users of packaging, such as the members of the applicant, in the system for management of packaging established by the Republic of France for rolls, tubes and cylinders around which flexible material is wound.

45The fact that the national authorities have already adopted measures pursuant to Directive 94/62 does not imply that the margin of discretion of the Member States for giving effect to the contested directive is purely theoretical, since it cannot be excluded that the national authorities will adopt further measures at a later stage (see, to that effect, and by analogy, the order of 14July 2008 in Case T‑366/06, Calebus v Commission, not published in the ECR, paragraph43).

46In the fourth place, the Court cannot accept the applicant’s argument, founded on the judgment in Microban International and Microban (Europe) v Commission, cited in paragraph23, above, in which the Court acknowledged that the decision contested in that case, imposing a ban on the marketing of the chemical substance concerned, had direct effect upon the legal situation of the applicants. First, the measure contested by the parties in that case was a decision that, in accordance with the fourth paragraph of Article288 TFEU, is obligatory in its entirely. In the present case the contested act is a directive that, in accordance with the third paragraph of Article288 TFUE, binds Member States as to the result to be achieved, whilst leaving to national authorities the choice of form and methods.

47Secondly, contrary to the decision at issue in the Microban International and Microban (Europe) v Commission, cited in paragraph23 above, the contested directive does not lay down any prohibition or impose any obligation on the members of the applicant but leaves it to the Member States to determine the consequences for the economic operators concerned of the inclusion of certain products on the list of examples of packaging with regard to the objectives set out by Directive 94/62.

48The same is true of the applicant’s argument based on Case T‑420/05 Vischim v Commission [2009] ECR II‑3841, in which the Court ruled that the applicant in that case was entitled to bring an action for the annulment of a directive that laid down conditions for the marketing in the European Union of an active ingredient that was a constituent component of certain phytopharmaceutical products. In the case giving rise to that judgment the directive in question did, in fact, have direct effects on the legal situation of the applicant as a company producing that active ingredient. However, the circumstances at issue in that case are different from those in the present case because the contested directive in the present case does not lay down conditions for the marketing of the packaging constituted by the products that it includes on the list in Annex I to Directive 94/62.

49Therefore the circumstances in both the case giving rise to the judgment in Microban International and Microban (Europe) v Commission, cited in paragraph23 above (at paragraph29), and in that giving rise to the judgment in Vischim v Commission, cited in paragraph48 above (at paragraph77), are different from those in the present case.

50As the condition of direct concern is a condition of admissibility common to actions instituted against measures of which an applicant is not the addressee, and of those instituted against regulatory acts that do not include measures of implementation, it is not necessary to examine the question whether or not the contested directive is a regulatory act within the meaning of the final phrase of the fourth paragraph of Article263 TFUE in order to conclude that the members of the applicant association do not have locus standi in the present case (see, to that effect orders in Ax v Council, cited in paragraph31 above, at paragraph25, and GS v Parliament and Council, cited in paragraph31 above, at paragraph28).

51As the members of the applicant do not have locus standi and as the applicant has not shown that it has an individual interest that has been affected, the Court concludes, pursuant to the case-law cited at paragraph19 above, that this case is inadmissible and that it is not necessary to rule on whether or not the objection of inadmissibility, based on the lack of locus standi of the members of the applicant association, is well founded.

52In these circumstances there is no need to rule on the request for leave to intervene lodged by Spère France and by Schweitzer in support of the form of order sought by the applicant (see, to that effect, order in Case C‑341/00P Conseil national des professions de l’automobile and Others v Commission [2001] ECR I‑5263, paragraphs33 to 37).

Costs

53Under Article87(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, it must be ordered to bear its own costs and to pay those of the Commission in accordance with the latter’s pleadings.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby orders:

1.The action is dismissed as inadmissible.

2.There is no need to rule on the request for leave to intervene lodged by Sphère France SAS and by Schweitzer SAS.

3.Group’Hygiène is ordered to bear its own costs as well as those incurred by the European Commission.

Luxembourg, 7July 2014.

* Language of the case: French.