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JUDGMENT OF THE COURT (Eighth Chamber)

17 September 2015 (*)

(Appeals Agriculture Common organisation of the markets Fruit and vegetable sector
Regulation (EC) No 1580/2007 Article 52(2a) Implementing Regulation (EU)
No 543/2011 Articles 50(3) and 60(7) Aid to producer organisations Products processed
from fruit and vegetables Flat rate covering certain processing operations Eligibility of
investments and actions connected with the processing Actions for annulment
Admissibility Whether directly concerned)

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

THREE APPEALS under Article 56 of the Statute of the Court of Justice of the European Union,
brought on 8 August and 12 August 2013,
Confederazione Cooperative Italiane, established in Rome (Italy),
Cooperativas Agro-Alimentarias, established in Madrid (Spain),
Fdration franaise de la coopration fruitire, lgumire and horticole (Felcoop), established
in Paris (France),
represented by M. Merola and C. Santacroce, avvocati,
appellants in Case C-455/13 P,
European Commission, represented by K. Skelly, A. Marcoulli and B. Schima, acting as Agents,
with an address for service in Luxembourg,
appellant in Case C-457/13 P
supported by:
French Republic, represented by D. Colas and C. Candat, acting as Agents,
Sociedad Cooperativa de Exportacin de Frutos Ctricos Anecoop (Anecoop) S. Coop.,
established in Valencia (Spain),
Cooperativa Agrcola Nuestra Seora del Oreto (CANSO) Coop. V., established in Valencia,
Cooperativa Agrcola Sant Bernat (Carlet) Coop. V., established in Valencia,
Cooperativa Agrcola SCJ (COPAL) Coop. V., established in Valencia,
Grupo AN S. Coop., established in Navarra (Spain),
Acopaex S. Coop., established in Badajoz (Spain),
Las Marismas de Lebrija Sociedad Cooperativa Andaluza (Las Marismas), established in
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Seville (Spain),
Associaci de Cooperatives Agrries de les Terres de Lleida (ACTEL), established in Lleida
(Spain),
Uni Corporaci Alimentria (UNIO) SCCL, established in Reus (Spain),
Union Cooprative Agricole France Prune (France Prune), established in Casseneuil (France),
Agrial SCA, established in Caen (France),
Triskalia, established in Landerneau (France),
Union Fermire Morbihannaise (UFM), established in Locmin (France),
VOG Products Soc. agr. coop., established in Laives (Italy),
Consorzio Padano Ortofrutticolo (CO.PAD.OR.) Soc. agr. coop., established in Collecchio
(Italy),
Consorzio Casalasco del Pomodoro Soc. agr. coop., established in Rivarolo del Re (Italy),
Agricoltori Riuniti Piacentini (ARP) Soc. agr. coop., established in Gariga di Podenzano (Italy),
Orogel Fresco Soc. agr. coop., established in Pievesestina di Cesena (Italy),
Conserve Italia Soc. agr. coop., established in San Lazzaro di Savena (Italy),
Fruttagel Soc. agr. coop., established in Alfonsine (Italy),
represented by M. Merola and C. Santacroce, avvocati,
Unione Nazionale tra le Organizzazioni di Produttori Ortofrutticoli, Agrumari e di Frutta in
Guscio (Unaproa), established in Rome, represented initially by S. Crisci and subsequently by
G. Coppo, avvocati,
interveners,
Italian Republic, represented by G. Palmieri, acting as Agent, and S. Varone, avvocato dello Stato,
with an address for service in Luxembourg,
appellant in Case C-460/13 P,
the other parties to the proceedings being:
Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav),
established in Naples (Italy), represented by S. Estima Martins and R. Oliveira, advogados,
applicant at first instance in Case T-454/10,
Agrupacin Espaola de Fabricantes de Conservas Vegetales (Agrucon), established in Madrid,
Associazione Italiana Industrie Prodotti Alimentari (AIIPA), established in Milan (Italy),
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Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav),

established in Naples,
Campil-Agro-Industrial do Campo do Tejo Lda, established in Pontvel (Portugal),
Evropaka Trofima AE, established in Larissa (Greece),
FIT Fomento da Indstria do Tomate SA, established in Marateca (Portugal),
Konservopoiia Oporokipeftikon Filippos AE, established in Imathia (Greece),
Panellinia Enosi Konservopoion, established in Athens (Greece),
Elliniki Etairia Konservon AE, established in Nafplio (Greece),
Anonimos Viomichaniki Etairia Konservon D. Nomikos, established in Athens,
Italagro Indstria de Transformao de Produtos Alimentares SA, established in Castanheira
do Ribatejo (Portugal),
Kopas AVEE Trofimon & Poton, established in Athens,
Serraki Konservopoiia Oporokipeftikon Serko AE, established in Serres (Greece),
Sociedade de Industrializao de Produtos Agrcolas Sopragol SA, established in Mora
(Portugal),
Sugalidal Indstrias de Alimentao SA, established in Benavente (Portugal),
Sutol Indstrias Alimentares Lda, established in Alccer do Sal (Portugal),
ZANAE Zymai Artopoiias Nikoglou AE Viomichania Emporio Trofimon, established in Sindos
(Greece),
represented by S. Estima Martins and R. Oliveira, advogados,
applicants at first instance in Case T-482/11,
Associazione Italiana Industrie Prodotti Alimentari (AIIPA), established in Milan,
Agrupacin Espaola de Fabricantes de Conservas Vegetales (Agrucon), established in Madrid,
AIT Associao dos Industriais de Tomate, established in Lisbon (Portugal),
Panellinia Enosi Konservopoion, established in Athens,
Kopas AVEE Trofimon & Poton, established in Athens,
Evropaka Trofima AE, established in Larissa,
Konservopoiia Oporokipeftikon Filippos AE, established in Imathia,
Anonimos Viomichaniki Etairia Konservon D. Nomikos, established in Athens,
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Serraki Konservopoiia Oporokipeftikon Serko AE, established in Serres,

Elliniki Etaireia Konservon AE, established in Nafplio,
ZANAE Zymai Artopoiias Nikoglou AE Viomichania Emporio Trofimon, established in Sindos,
represented by S. Estima Martins and R. Oliveira, advogados,
interveners at first instance in Case T-454/10,
Confederazione Cooperative Italiane, established in Rome,
Cooperativas Agro-Alimentarias, established in Madrid,
Fdration franaise de la coopration fruitire, lgumire and horticole (Felcoop), established
in Paris,
VOG Products Soc. agr. coop., established in Laives,
Consorzio Padano Ortofrutticolo (CO.PAD.OR.) Soc. agr. coop., established in Collecchio,
Consorzio Casalasco del Pomodoro Soc. agr. coop., established in Rivarolo del Re,
ARP Agricoltori Riuniti Piacentini Soc. agr. coop., established in Podenzano,
Orogel Fresco Soc. agr. coop., established in Cesena,
Conserve Italia Soc. agr. coop., established in San Lazzaro di Savena,
interveners at first instance in Cases T-454/10 and T-482/11,
THE COURT (Eighth Chamber),
composed of A. Caoimh, President of the Chamber, E. Jarainas (Rapporteur) and
C.G. Fernlund, Judges,
Advocate General: N. Wahl,
Registrar: I. Illssy, Administrator,
having regard to the written procedure and further to the hearing on 4 June 2015,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1

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

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

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Union in Anicav and Others v Commission (T-454/10 and T-482/11, EU:T:2013:282; the
judgment under appeal), by which that Court annulled the second subparagraph of Article 52(2a) of
Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules
of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and
vegetable sector (OJ 2007 L 350, p. 1), as amended by Commission Regulation (EU) No 687/2010
of 30 July 2010 (OJ 2010 L 199, p. 12; Regulation No 1580/2007), and Article 50(3) of
Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules
for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables
and processed fruit and vegetables sectors (OJ 2011 L 157, p. 1), in so far as those articles provide
that the value of non-genuine processing activities is to be included in the value of marketed
production (VMP) of fruit and vegetables intended for processing, and also annulled Article 60(7) of
Regulation No 543/2011.
Legal context
2

Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of

agricultural markets and on specific provisions for certain agricultural products (Single CMO
Regulation) (OJ 2007 L 299, p. 1), as amended by Council Regulation No 361/2008 of 14 April
2008 (OJ 2008 L 121, p. 1; the Single CMO Regulation) applies, pursuant to its Article 1(1)(i)
and (j) respectively, to the fruit and vegetables sector and the processed fruit and vegetables sector.

Regulation No 361/2008 incorporated into Regulation No 1234/2007 certain provisions of Council

Regulation (EC) No 1182/2007 of 26 September 2007 laying down specific rules as regards the fruit
and vegetable sector, amending Directives 2001/112/EC and 2001/113/EC and Regulations (EEC)
No 827/68, (EC) No 2200/96, (EC) No 2201/96, (EC) No 2826/2000, (EC) No 1782/2003 and (EC)
No 318/2006 and repealing Regulation (EC) No 2202/96 (OJ 2007 L 273, p. 1). It thus inserted into
Regulation No 1234/2007 Section IVa, entitled Aid in the fruit and vegetables sector, of Chapter
IV of Title I of Part II of that regulation, which includes Articles 103a to 103h.

Under Article 103b of the Single CMO Regulation:

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

financial contributions of members or of the producer organisation itself;

(b)

Community financial assistance which may be granted to producer organisations.

2.
Operational funds shall be used only to finance operational programmes approved by Member
States in accordance with Article 103g.
5

Article 103c of the Single CMO Regulation provides:

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

(b)

improvement of product quality;

(c)

boosting products commercial value;

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(d)

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

According to Article 103d(2) of the Single CMO Regulation, the Community financial assistance
is to be capped at 4.1% of the VMP of each producer organisation, but may attain 4.6% of that
value, provided that the amount in excess of 4.1% is used solely for crisis prevention and
management measures.

Article 103f(2) of the Single CMO Regulation provides that Member States are to establish a
national strategy for sustainable operational programmes in the fruit and vegetable market and states
the elements which that strategy must include.

Article 122 of the Single CMO Regulation, which concerns the producer organisations, provides:
Member States shall recognise producer organisations, which:
(a)

are constituted by producers of one of the following sectors:

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

(b)
(c)

are formed on the initiative of the producers;

pursue a specific aim which may in particular, or as regards the fruit and vegetables sector
shall, include one or more of the following objectives:
(i)

ensuring that production is planned and adjusted to demand, particularly in terms of

quality and quantity

(ii)

concentration of supply and the placing on the market of the products produced by its
members;

(iii) optimising production costs and stabilising producer prices.

Regulation (EEC) No 1580/2007, in its initial version, laid down detailed rules for the application
of Regulation No 1182/2007. Article 52(1) and (6) thereof provided in particular that the VMP of a
producer organisation is to be calculated on the basis of the production of members of producer
organisations, for which the producer organisation is recognised and that the marketed production
shall be invoiced at the ex-producer organisation stage, where applicable, as product which is
packaged, prepared, or has undergone first-stage processing. That regulation was amended by
Regulation No 687/2010, recital 4 in the preamble to which states:
The calculation of the value of fruit and vegetables intended for processing has proven difficult. For
control purposes and for the sake of simplification, it is appropriate to introduce a flat rate for the
purposes of calculating the value of fruit and vegetables intended for processing, representing the

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value of the basic product, namely fruit and vegetables intended for processing, and activities which
do not amount to genuine processing activities. Since the volumes of fruit and vegetables needed for
the production of processed fruit and vegetables differ largely between groups of products, those
differences should be reflected in the applicable flat rates.
10

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

The [VMP] shall not include the value of processed fruit and vegetables or any other product that is
not a product of the fruit and vegetables sector.
However, the [VMP] of fruit and vegetables intended for processing, which have been transformed
into one of the processed fruit and vegetables listed in Part X of Annex I to [the Single CMO
Regulation] or any other agricultural product referred to in this Article and described further in
Annex VIa to this Regulation, by either a producer organisation, an association of producer
organisations or their members, who are producers or their cooperatives, or subsidiaries as referred
to in paragraph 7 of this Article, either by themselves or through outsourcing, shall be calculated as
a flat rate in percentage applied to the invoiced value of those processed products.
That flat rate shall be:
(a)

53% for fruit juices;

(b)

73% for concentrated juices;

(c)

77% for tomato concentrate;

(d)

62% for frozen fruit and vegetables;

(e)

48% for canned fruit and vegetables;

(f)

70% for canned mushrooms of the genus Agaricus;

(g)

81% for fruits provisionally preserved in brine;

(h)

81% for dried fruits;

(i)

27% for other processed fruit and vegetables;

(j)

12% for processed aromatic herbs;

(k)

41% for paprika powder.

11

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

12

Regulation No 1580/2007 has been repealed and replaced by Implementing Regulation

No 543/2011, Article 50(3) of which repeats the text of Article 52(2a) of Regulation No 1580/2007.

13

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

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

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(c) of the first paragraph of Article 122 of that Regulation, and provided that they are identified in
the national strategy referred to in Article 103f(2) of [the Single CMO Regulation].
The proceedings before the General Court and the judgment under appeal
14

By application lodged at the Registry of the General Court on 30 September 2010, the Associazione
Nazionale degli Industriali delle Conserve Alimentari Vegetali (Anicav) brought the action in Case
T-454/10. By application lodged at the Registry of the General Court on 5 September 2011,
Agrupacin Espaola de Fabricantes de Conservas Vegetales (Agrucon), Associazione Italiana
Industrie Prodotti Alimentari (AIIPA), Anicav, Campil-Agro-Industrial do Campo do Tejo Lda,
Evropaka Trofima AE, FIT Fomento da Indstria do Tomate SA, Konservopoiia
Oporokipeftikon Filippos AE, Panellinia Enosi Konservopoion, Elliniki Etairia Konservon AE,
Anonymos Viomichaniki Etaireia Konservon D. Nomikos, Italagro Indstria de Transformao
de Produtos Alimentares SA, Kopas AVEE Trofimon & Poton, Serraki Konservopoiia
Oporokipeftikon Serko AE, Sociedade de Industrializao de Produtos Agrcolas Sopragol SA,
Sugalidal Indstrias de Alimentao SA, Sutol Indstrias Alimentares Lda and ZANAE
Zymai Artopoiias Nikoglou AE Viomichania Emporio Trofimonont (Agrucon and Others) brought
the action in Case T-482/11.

15

By five documents lodged at the Registry of the General Court on 13 and 17 January 2011, AIIPA,
Agrucon, AIT Associao dos Industriais de Tomate, Panellinia Enosi Konservopoion, Kopas
AVEE Trofimon & Poton, Evropaka Trofima AE, Konservopoiia Oporokipeftikon Filippos AE,
Anonymos Viomichaniki Etaireia Konservon D. Nomikos, Serraki Konservopoiia Oporokipeftikon
Serko AE, Elliniki Etaireia Konservon AE and ZANAE Zymai Artopoiias Nikoglou AE
Viomichania Emporio Trofimon (AIIPA and Others) sought leave to intervene in Case T-454/10 in
support of the form of order sought by Anicav while, by four documents lodged at the Registry of
the General Court on 24 January 2011, Confederazione Cooperative Italiane, Cooperativas AgroAlimentarias, Felcoop, VOG Products Soc. agr. coop., Consorzio Padano Ortofrutticolo
(CO.PAD.OR.) Soc. agr. coop., Consorzio Casalasco del Pomodoro Soc. agr. coop., ARP Agricoltori
Riuniti Piacentini Soc. agr. coop., Orogel Fresco Soc. agr. coop. and Conserve Italia Soc. agr. coop.
(Confederazione Cooperative Italiane and Others) sought leave to intervene in the same case in
support of the form of order sought by the Commission.

16

By two documents lodged at the Registry of the General Court on 19 December 2011, the
interveners in support of the form of order sought by the Commission in Case T-450/10 also sought
leave to intervene in Case T-482/11.

17

By order of the President of the Second Chamber of the General Court of 22 October 2012, Cases
C-454/10 and C-482/11 were joined for the purposes of the written and oral procedure and of the
judgment.

18

In Case T-454/10, Anicav and AIIPA and Others sought the annulment of Article 52 of and Annex
VIII to Regulation No 1580/2007, as amended by Regulation No 687/2010.

19

In Case T-482/11, Agrucon and Others sought the annulment of Articles 50(3) and 60(7) of
Implementing Regulation No 543/2011.

20

In both cases, the Commission and the interveners supporting it contended that the actions should
be dismissed as inadmissible and, in any event, as unfounded.

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21

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

22

With regard to the standing to bring proceedings of the applicants at first instance, the Commission
argued that those parties were not directly concerned, within the meaning of the fourth paragraph of
Article 263 TFEU, by Article 52(2a) of Regulation No 1580/2007 nor by Articles 50(3) and 60(7) of
Implementing Regulation No 543/2011 (the contested provisions), and the General Court, in
paragraphs 36 to 46 of the judgment under appeal, considered that those provisions introduced a
system under which producer organisations were eligible to receive aid covering processing
activities also carried out by processors which were not members of a producer organisation, that
those provisions did not leave any margin of discretion to the Member States and that the
competitive position of the applicants and their members was the direct result of those provisions, so
that they were directly concerned thereby.

23

Finding, moreover, that Regulation No 1580/2007 and Implementing Regulation No 543/2011 were
regulatory acts within the meaning of the fourth paragraph of Article 263 TFEU, the General Court
took the view that the contested provisions do not entail implementing measures, noting that
although the payment of EU aid under those provisions was made through the national authorities,
the fact remained that the instruments pursuant to which those authorities made the payments in
question did not refer to the applicants at first instance and were neither addressed to nor served
upon them, and that the applicable national rules did not necessarily provide for the adoption of acts
capable of being challenged before the national courts.

24

Secondly, on the substance, the General Court upheld the first two pleas in law raised by the
applicants at first instance, which it examined together, alleging, respectively, infringement of the
Single CMO Regulation and of the principle of non-discrimination, and by which the applicants at
first instance argued that, on the one hand, the possibility of granting aid under the operational
programmes for processing activities was not provided for under that regulation and, on the other,
the contested provisions were discriminatory since they restricted aid for processing activities to
producer organisations and thus excluded processors which were not members of such
organisations.

25

Accordingly, the General Court held that the effects produced by the second subparagraph of
Article 52(2)a of Regulation No 1580/2007 and Article 50(3) of Implementing Regulation
No 543/2011 on the relations between the Commission, the Member States and the producer
organisations were to be maintained to the extent only that payments to producer organisations
executed pursuant to those provisions since the entry into force of Regulation No 687/2010 and until
delivery of this judgment were to be considered definitive. However, it did not maintain the effects
of Article 60(7) of Implementing Regulation No 543/2011 on the ground that the funding relating to
that provision was by its nature vitiated in its entirety by the illegality found.
Procedure before the Court and the forms of order sought by the parties

26

By orders of the President of the Court of Justice of 5 March and 2 July 2014, the French Republic,
Sociedad Cooperativa de Exportacin de Frutos Ctricos Anecoop (Anecoop) S. coop., Cooperativa
Agrcola Nuestra Seora del Oreto (CANSO) Coop. V., Cooperativa Agrcola Sant Bernat
(Carlet) Coop. V., Cooperativa Agrcola SCJ (COPAL) Coop. V., le Grupo AN S. Coop., Acopaex
S. Coop., Las Marismas de Lebrija Sociedad Cooperativa Andaluza (Las Marismas), Associaci de

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Cooperatives Agrries de les Terres de Lleida (ACTEL), Uni Corporaci Alimentria (UNIO)
SCCL, Union Cooprative Agricole France Prune (France Prune), Agrial SCA, Triskalia, Union
Fermire Morbihannaise (UFM), VOG Products Soc. agr. coop., Consorzio Padano Ortofrutticolo
(CO.PAD.OR.) Soc. agr. coop., Consorzio Casalasco del Pomodoro Soc. agr. coop., Agricoltori
Riuniti Piacentini (ARP) Soc. agr. coop., Orogel Fresco Soc. agr. coop., Conserve Italia Soc. agr.
coop., Fruttagel Soc. agr. coop. (Anecoop and Others) and Unione Nazionale tra le Organizzazioni
di Produttori Ortofrutticoli, Agrumari e di Frutta in Guscio (Unaproa) were granted leave to
intervene in Case C-457/13 P in support of the form of order sought by the Commission.
27

After hearing the parties and the Advocate General, the Court decided to join Cases C-455/13 P,
C-457/13 P and C-460/13 P for the purposes of the oral procedure and the judgment, in accordance
with Article 54 of the Rules of Procedure of the Court of Justice.

28

Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, the Commission,

supported by the French Republic, Anecoop and Others and Unaproa, and the Italian Republic (the
appellants) request the Court to set aside the judgment under appeal and, with the exception of the
French Republic, seek an order that the applicants at first instance be ordered to pay the costs.

29

Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, the Commission

and the parties intervening in support of it in Case C-457/13 P also request the Court to give final
ruling in the dispute by declaring that the actions in Cases T-454/10 and T-482/11 were
inadmissible. In the alternative, were those actions to be held to be admissible, they request that the
judgment under appeal be set aside and the action referred back to the General Court for judgment
and, in the further alternative, the setting aside of all or part of the judgment under appeal as regards
the effects of the annulment pronounced.

30

Anicav, Agrucon and Others and AIIPA and Others (the other parties to the appeal) contend that
the appeal should be dismissed and seek an order that the appellants pay the costs.
The appeal
The standing of the applicants at first instance to bring proceedings
Arguments of the parties

31

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

32

Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop and Anecoop and

Others submit, first of all, that the General Court incorrectly interpreted the contested provisions,
leading to an incorrect application of the fourth and sixth paragraphs of Article 263 TFEU. The aid
scheme in question and the alleged discrimination between the industrial processors of fruit and
vegetables and the producer organisations active in processing activities does not follow from the
contested provisions, but from the Single CMO Regulation providing for the funding of the
operations programmes of those organisations. Thus, by their actions, the applicants at first instance
seek in reality to challenge a legislative act without having the standing to do so, by circumventing
the time-limit set in the sixth paragraph of Article 263 TFEU.

33

Next, concerning whether the applicants at first instance are directly concerned by the contested

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provisions, Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias and Felcoop are

of the opinion that the General Court wrongly confirmed that those provisions had directly caused a
competitive disadvantage for the industrial processors of fruit and vegetables as against the producer
organisations, while the provisions on the flat rates do not establish an aid scheme, but merely
regulate a technical aspect of the pre-existing aid scheme, namely the method for calculation of the
VMP of the producer organisations, and do not alter the legal situation of the processors. Similarly,
the eligibility of investments and actions connected with the processing of fruit and vegetables is not
a consequence of Article 60(7) of Implementing Regulation No 543/2011, but follows from the
basic choice to grant effective support to the producer organisations which the EU legislature made
in the Single CMO Regulation. Thus, processors of fruit and vegetables fall entirely outside the
scope of the contested provisions.
34

Furthermore, the appellants are of the opinion that the General Court erred in law in assimilating
the position of the applicants at first instance to that of a competitor of a State aid recipient when
competition law cannot be applied to the aid schemes which form the very essence of the Common
Agricultural Policy. The Commission and Unaproa also note, in that regard, that the aid
management rules in the fruit and vegetables sector by virtue of the Single CMO Regulation are
not specific in nature but are of general application.

35

In the submission of Confederazione Cooperative Italiane, Cooperativas Agro-Alimentarias,

Felcoop, the French Republic, Anecoop and Others and Unaproa, the General Court was also
incorrect in considering that the contested provisions left no margin of discretion to the Member
States. In fact, the Member States and the competent local authorities are not deprived of their
discretion to calculate the VMP and the eligibility of investments and actions connected with the
processing of fruit and vegetables for aid paid under an operational programme is not purely
automatic, since such investments and actions must be identified in the national strategy.

36

Finally, according to the appellants, the General Court similarly erred in law in holding that the
contested provisions do not contain any implementing measures, although those provisions, forming
part of the general system implementing the rules on the operational funds and operations
programmes of the producer organisations in the fruit and vegetables sector provided for in the
Single CMO Regulation, presuppose, for their implementation, that the national authorities
approve the draft operational programmes notified by those producer organisations after having,
inter alia, checked the provisional calculation of the VMP, that those organisations make an
application for aid and provide supporting documents and that an act approving the amount of the
aid is adopted. With regard, more particularly, to the eligibility of the investments and actions, they
add that the selection thereof is entirely entrusted to the national authorities.

37

Since the participants in the hearing had been requested by the Court to focus their oral arguments
on the main points to be drawn from the judgment in T & L Sugars and Sidul Acares v
Commission (C-456/13 P, EU:C:2015:284), delivered on 28 April 2015, the appellants submitted in
particular that that judgment confirmed that the applicants at first instance, as industrial processors
of fruit and vegetables, could not be regarded as being directly concerned by the contested
provisions, since those provisions did not affect their legal position. According to them, it follows
from that judgment that the competitive disadvantage alleged is, at most, only a factual consequence
of those provisions and that the case-law in State aid matters cannot be applied by analogy to aids
under the Common Agricultural Policy.

38

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

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and vegetables sector and to allow the grant of aid only to the first of those sectors. However, they
do contest the fact that the producer organisations receive EU aid for activities falling within the
processed fruit and vegetables sector, in breach of the Single CMO Regulation.
39

They argue, next, that the contested provisions do concern them directly since, by allowing the
inclusion of activities known as non-genuine processing activities in the VMP and the eligibility of
the investments and action connected with the processing activities carried out by the producer
organisations for aid, the legal position of the industrial processors defined by the Single CMO
Regulation has been significantly altered, since they are placed at a competitive disadvantage.

40

They add that the rules on the flat rates and the eligibility of the investments and action connected
with processing activities leave no margin of discretion to the Member States, since the rules on
those rates must be directly and fully followed by the Member States and the possibility that the
national authorities may decide not to include processing activities in the list of eligible expenditure
is purely theoretical.

41

Finally, the other parties to the appeal state, with regard to the lack of implementing measures, that
the national procedures are not implementing measures of Article 52(2a) of Regulation
No 1580/2007 or of Article 50(3) of Implementing Regulation No 543/2011, but mere
administrative procedures followed by the national authorities which act as intermediary for the
payment of the aid. The rules for calculation of the aid are, for their part, clearly set out in those
regulations and, as such, are directly applicable, without the need for implementing measures.
Similarly, the national strategies are not implementing measures of Article 60(7) of Implementing
Regulation No 543/2011, but rather implementing measures of Article 103f(2) of the Single CMO
Regulation. Their aim is not to declare the investments and actions connected with processing
activities eligible for EU aid.

42

In any event, the contested provisions, in their view, adversely affect their rights without needing or
even permitting any implementing measures from the EU or the Member States to have that effect.
The specific measures adopted in that context concern only the producer organisations and not the
processors who cannot challenge them or even have knowledge of them.

43

At the hearing, the other parties to the appeal submitted in particular that the present case can be
distinguished from that which gave rise to the judgment in T & L Sugars and Sidul Acares v
Commission (C-456/13 P, EU:C:2015:284) in that the present case concerns the same activity, using
the same raw materials and producing the same products. Moreover, since, in their view, the
contested provisions run counter to the Single CMO Regulation, there is no reason not to assess
the fact of being directly concerned as in State aid matters.
Findings of the Court

44

By their actions, the applicants at first instance sought the annulment of Article 52(2a) of
Regulation No 1580/2007 and of Article 50(3) of Implementing Regulation No 543/2011 which fix
the flat rates applicable to various categories of fruit and vegetables enabling the calculation of the
VMP of fruit and vegetables intended for processing which were processed by the producer
organisations, which VMP is used to ascertain the amount of Community financial aid which may
be granted to the producer organisations to fund the operational programmes approved by the
Member States. In addition, they sought the annulment of Article 60(7) of Implementing Regulation
No 543/2011 by virtue of which the investments and actions connected with the processing of fruit
and vegetables into processed fruit and vegetables eligible for aid if they pursue the objectives of the
operational programmes and have been identified in the national strategy.

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45

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In order to hold that the applicants at first instance were directly concerned, for the purpose of final
limb of the fourth paragraph of Article 263 TFEU, by the contested provisions,, the General Court,
after having taken the view that those provisions did not leave any discretion to the Member States,
stated as follows:
40

As regards the Commissions argument that the competitive disadvantage stemming from the
contested provisions for the applicants [at first instance] and their members is an indirect
factual consequence, it must be pointed out that the effect on the competitive position of
[those] applicants and of their members results directly from the specific flat rates laid down in
Article 52(2)a of Regulation No 1580/2007 and in Article 50(3) of Implementing Regulation
No 543/2011 and from the eligibility of investments and actions related to the transformation
of fruit and vegetables for European Union funding under Article 60(7) of Regulation
No 543/2011, so that the contested provisions are of direct concern to the applicants and their
members (see, to that effect, the judgment of the General Court of 11 July 1996 in Mtropole
tlvision and Others v Commission, T-528/93, T-542/93, T-543/93 and T-546/93
[EU:T:1996:99], paragraph 64).

41

Moreover, the Commissions interpretation of the meaning of direct concern would prevent
any individual from seeking the annulment of an act whose object is the payment of aid to his
competitors, since the associated disadvantage would be merely an indirect factual
consequence. If, by virtue of settled case-law, it is established that the competitor of an aid
recipient is directly concerned by a Commission decision authorising a Member State to pay
that aid where the intention of that State to make such payment is not in doubt (see, to that
effect, judgments of the General Court of 27 April 1995 in AAC and Others v Commission,
T-442/93 [EU:T:1995:80], paragraphs 45 and 46; ASPEC and Others v Commission,
T-435/93 [EU:T:1995:79], paragraphs 60 and 61; and Skibsvrftsforeningen and Others v
Commission, T-266/94 [EU:T:1996:153], paragraph 49), a provision of EU law which
provides for the grant of aid by the European Union itself is a fortiori likely to be of direct
concern within the meaning of the fourth paragraph of Article 263 TFEU to the competitor of
the recipient of that aid.

46

In that regard, it must be borne in mind that, in accordance with the settled case-law of the Court of
Justice, the condition that the contested decision must be of direct concern to a natural or legal
person, as laid down in the fourth paragraph of Article 263 TFEU, requires that the contested EU
measure must directly affect the legal situation of the individual and leave no discretion to its
addressees responsible for implementing it, such implementation being purely automatic and
resulting from EU rules without the application of other intermediate rules (see judgments in
Glencore Grain v Commission, C-404/96 P, EU:C:1998:196, paragraph 41; Front national v
Parliament, C-486/01 P, EU:C:2004:394, paragraph 34; Commission v Ente per le Ville Vesuviane
and Ente per le Ville Vesuviane v Commission, C-445/07 P and C-455/07 P, EU:C:2009:529,
paragraph 45, and Stichting Woonpunt and Others v Commission, C-132/12 P, EU:C:2014:100,
paragraph 68).

47

In the judgment in T & L Sugars and Sidul Acares v Commission (C-456/13 P, EU:C:2015:284),
the Court held that undertakings engaged in the refining of imported cane sugar were not directly
concerned by two Commission regulations, of which they sought the annulment, which allowed EU
producers to market a limited quantity of out-of-quota sugar and isoglucose. In paragraph 37 of that
judgment, the Court noted that since the appellants [in that case did] not have the status of
producers of sugar and their legal situation [was] not directly affected by those regulations, those
regulations [were] not of direct concern to them within the meaning of the final limb of the fourth

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paragraph of Article 263 TFEU.

48

The position of the applicants at first instance in the present case in relation to the contested
provisions is analogous to that of the applicants in the case which gave rise to that judgment in
relation to those two regulations. Since they are not producers of fruit and vegetables, but industrial
processors of fruit and vegetables, to justify their standing to bring proceedings, they rely only on
the fact that those provisions place them at a competitive disadvantage.

49

Such a fact cannot of itself allow the view to be taken that their legal position is affected by the
contested provisions, adopted in the context of the Common Agricultural Policy and that,
accordingly, those provisions are of direct concern to them (see, to that effect, judgment in T & L
Sugars and Sidul Acares v Commission, C-456/13 P, EU:C:2015:284, paragraph 37 and the caselaw cited).

50

Consequently, by holding, in paragraphs 40 and 41 of the judgment under appeal, that the contested
provisions were of direct concern to the applicants at first instance on the single ground that the
provisions affected their competitive position, the General Court erred in law.

51

Thus, without it being necessary to examine the grounds of the judgment under appeal according to
which the contested provisions do not leave any margin of discretion to the Member States and do
not include implementing measures, that judgment must be set aside in so far as it declared that the
actions seeking annulment of those provisions were admissible.
Admissibility of the actions at first instance

52

In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the
Court of Justice of the European Union, if the decision of the General Court is set aside the Court of
Justice may give final judgment in the matter where the state of the proceedings so permits.

53

In the present case, it follows from the grounds set out in paragraphs 46 to 51 of this judgment that
the General Court was incorrect to declare that the actions at first instance seeking the annulment of
the contested provisions were admissible.

54

Since the General Court did not rule on the action in Case T-454/10 in so far as it sought the
annulment of Annex VIII to Regulation No 1580/2007 on the ground, set out in paragraph 35 of the
judgment under appeal, that there was no need for that Court to annul that annex if it annulled
Article 52(2a) of that regulation and therefore did not rule on the plea that there was an absolute bar
to proceeding also raised by the Commission against that application, it must be held that that plea is
inadmissible, in any event, on the same grounds as those set out in paragraphs 46 and 50 of the
present judgment.

55

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

56

Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well
founded and the Court itself gives final judgment in the case, the Court is to make a decision as to
costs. Under Article 138(1) of those Rules, applicable to appeal proceedings by virtue of
Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful partys pleadings.

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57

In accordance with the second sentence of Article 184(4) of those Rules, where an intervener at first
instance, who did not himself bring the appeal and who took part in the written or oral part of the
procedure, the Court may decide that he is to bear his own costs.

58

Pursuant to the first subparagraph of Article 140(1) of the Rules of Procedure, also applicable to
appeal proceedings by virtue of Article 184(1) of those Rules, the Member States and institutions
which intervene in the proceedings are to bear their own costs.

59

In the present case, since the applicants at first instance have been unsuccessful and Confederazione
Cooperative Italiane, Cooperativas Agro-Alimentarias, Felcoop, the Italian Republic, Anecoop and
Others and Unaproa applied for costs, like the Commission in Case C-457/13 P, they must be
ordered jointly to pay the costs incurred at first instance and/or in the present appeals by the latter
parties.

60

AIT Associao dos Industriais de Tomate and the French Republic must be ordered to bear
their own costs.
On those grounds, the Court (Eighth Chamber) hereby:
1.

Sets aside the judgment of the General Court of the European Union in Anicav and
Others v Commission (T-454/10 and T-482/11, EU:T:2013:282) in that it declared
admissible the actions brought in Cases T-454/10 and T-482/11 which seek the
annulment of the second subparagraph of Article 52(2a) of Commission Regulation (EC)
No 1580/2007 of 21 December 2007 laying down implementing rules of Council
Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and
vegetable sector, as amended by Commission Regulation (EU) No 687/2010 of 30 July
2010, and Articles 50(3) and 60(7) of Commission Implementing Regulation (EU) No
543/2011 of 7 June 2011 laying down detailed rules for the application of Council
Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit
and vegetables sectors;

2.

Dismisses the actions for annulment brought in Cases T-454/10 and T-482/11 as
inadmissible;

3.

Orders Associazione Nazionale degli Industriali delle Conserve Alimentari Vegetali

(Anicav), Agrupacin Espaola de Fabricantes de Conservas Vegetales (Agrucon),
Associazione Italiana Industrie Prodotti Alimentari (AIIPA), Campil-Agro-Industrial do
Campo do Tejo Lda, Evropaka Trofima AE, FIT Fomento da Indstria do Tomate
SA, Konservopoiia Oporokipeftikon Filippos AE, Panellinia Enosi Konservopoion,
Elliniki Etairia Konservon AE, Anonymos Viomichaniki Etaireia Konservon
D. Nomikos, Italagro Indstria de Transformao de Produtos Alimentares SA,
Kopas AVEE Trofimon & Poton, Serraki Konservopoiia Oporokipeftikon Serko AE,
Sociedade de Industrializao de Produtos Agrcolas Sopragol SA, Sugalidal
Indstrias de Alimentao SA, Sutol Indstrias Alimentares Lda, and ZANAE Zymai
Artopoiias Nikoglou AE Viomichania Emporio Trofimon to pay the costs incurred at
first instance and/or in the appeals by Confederazione Cooperative Italiane,
Cooperativas Agro-Alimentarias, Fdration franaise de la coopration fruitire,
lgumire et horticole (Felcoop), the European Commission in Case C-457/13 P, the
Italian Republic, Sociedad Cooperativa de Exportacin de Frutos Ctricos Anecoop
(Anecoop) S. Coop, Cooperativa Agrcola Nuestra Seora del Oreto (CANSO) Coop. V.,

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Cooperativa Agrcola Sant Bernat (Carlet) Coop. V., Cooperativa Agrcola SCJ
(COPAL) Coop. V., Grupo AN S. Coop., Acopaex S. Coop., Las Marismas de Lebrija
Sociedad Cooperativa Andaluza (Las Marismas), Associaci de Cooperatives Agrries
de les Terres de Lleida (ACTEL), Uni Corporaci Alimentria (UNIO) SCCL, Union
Cooprative Agricole France Prune (France Prune), Agrial SCA, Triskalia, Union
Fermire Morbihannaise (UFM), VOG Products Soc. agr. coop., Consorzio Padano
Ortofrutticolo (CO.PAD.OR.) Soc. agr. coop., Consorzio Casalasco del Pomodoro Soc.
agr. coop., Agricoltori Riuniti Piacentini (ARP) Soc. agr. coop., Orogel Fresco Soc. agr.
coop., Conserve Italia Soc. agr. coop., Fruttagel Soc. agr. coop. and Unione Nazionale tra
le Organizzazioni di Produttori Ortofrutticoli, Agrumari e di Frutta in Guscio
(Unaproa);
4.

Orders AIT Associao dos Industriais de Tomate and the French Republic to bear
their own costs.

[Signatures]

* Language of the case: English.

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