Sygn. akt C-368/05
ORDER OF THE COURT (Sixth Chamber)
December 2006 (*)
(Appeal – Council decision determining the Community’s position – Decision of the EEA Joint Committee permitting the Kingdom of Norway to apply more stringent specific concentration limits for acrylamide than those applicable in the Community)
In Case C‑368/05 P,
APPEAL under Article 56 of the Statute of the Court of Justice, brought on 28 September 2005,
Polyelectrolyte Producers Group, established in Brussels (Belgium), represented by K. Van Maldegem and C. Mereu, avocats,
appellant,
the other parties to the proceedings being:
Council of the European Union, represented by G. Curmi, J.-P. Hix and F. Florindo Gijón, acting as Agents,
Commission of the European Communities, represented by J. Forman and M. Wilderspin, acting as Agents, with an address for service in Luxembourg,
defendants at first instance,
THE COURT (Sixth Chamber),
composed of P. Kūris, President of the Chamber, J. Makarczyk (Rapporteur) and L. Bay Larsen, Judges,
Advocate General: Y. Bot,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
By its appeal, Polyelectrolyte Producers Group (‘PPG’) requests the Court to set aside the order of the Court of First Instance of the European Communities in Case T‑376/04 Polyelectrolyte Producers Group v Council and Commission [2005] ECR II‑3007 (‘the order under appeal’), by which that Court dismissed as inadmissible the action brought by PPG seeking, first, annulment of the acts of the Council of the European Union and the Commission of the European Communities permitting the Kingdom of Norway to apply more stringent concentration limits for acrylamide than those applicable in the European Community and set out in Decision of the EEA Joint Committee No 59/2004 of 26 April 2004 amending Annex II (Technical regulations, standards, testing and certification) to the EEA Agreement (OJ 2004 L 277, p. 30) (‘the decision of the Joint Committee’), and annulment of the Community’s position relating to that decision, second, a declaration that the joint statement adopted at the 62nd meeting of the EEA Joint Committee on 26 March 1999 concerning the EEA Agreement – Annex II, Chapter XV – regarding the review clauses in the field of dangerous substances (OJ 1999 C 185, p. 6) (‘the joint statement of 1999’) is unlawful and, lastly, an order that the defendants pay it a provisional sum for the loss suffered.
Legal framework
Community legislation
Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p. 234), as amended for the seventh time by Council Directive 92/32/EEC of 30 April 1992 (OJ 1992 L 154, p. 1) and most recently by Commission Directive 2004/73/EC of 29 April 2004 adapting to technical progress for the 29th time Council Directive 67/548 (OJ 2004 L 152, p. 1, corrigendum OJ 2004 L 216, p. 3) (‘Directive 67/548’), lays down rules concerning the marketing of ‘substances’, which are defined in Article 2(1)(a) of the directive as ‘chemical elements and their compounds in the natural state or obtained by any production process, including any additive necessary to preserve the stability of the products and any impurity deriving from the process used, but excluding any solvent which may be separated without affecting the stability of the substance or changing its composition’.
Article 4 of Directive 67/548 provides that substances are to be classified on the basis of their intrinsic properties according to the categories laid down in Article 2(2) thereof. Annex I to that directive contains a list of dangerous substances, as well as specifications for the classification and labelling of each substance.
Acrylamide was described in Annex I to Directive 67/548 as a carcinogenic substance in Category 2, a mutagenic substance in Category 2 and as a toxic substance, but not subject to a concentration limit.
Chemical preparations, defined as being mixtures of chemical substances, are governed by Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1999 L 200, p. 1). That directive replaces Council Directive 88/379/EEC of 7 June 1988 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1988 L 187, p. 14). Point 7.1 in Part A of Annex II to Directive 1999/45 establishes a concentration limit of 0.1% for carcinogenic substances in Category 2.
The Agreement on the European Economic Area
The Agreement on the European Economic Area (OJ 1994 L 1, p. 3) (‘the EEA Agreement’), signed on 2 May 1992 by the Member States of the European Community, the European Community and the member countries of the European Free Trade Association (EFTA), provides for the possibility of derogations from the provisions of Directives 67/548 and 88/379.
It is stated in point 1 in Chapter XV of Annex II to the EEA Agreement that the Contracting Parties ‘agree on the objective that the provisions of the Community acts on dangerous substances and preparations should apply by 1 January 1995’ and that, ‘[p]ursuant to the cooperation to be initiated from the signature of this Agreement in order to solve remaining problems, a review of the situation will take place’. According to the same provision, ‘[i]f an EFTA State concludes that it will need any derogation from the Community acts relating to classification and labelling, the latter shall not apply to it unless the EEA Joint Committee [“the Joint Committee”] agrees on another solution’.
Article 93(1) of the EEA Agreement provides that the Joint Committee is to consist of representatives of the Contracting Parties and ensure, pursuant to Article 92(1) of the EEA Agreement, the effective implementation and operation of the Agreement.
Under Article 93(2) of the EEA Agreement, the Joint Committee is to take decisions by agreement between the Community, on the one hand, and the EFTA States speaking with one voice, on the other. The Community’s position is determined in accordance with Council Regulation (EC) No 2894/94 of 28 November 1994 concerning arrangements for implementing the Agreement on the European Economic Area (OJ 1994 L 305, p. 6).
Article 1(2) and (3) of that regulation states that the Community’s position regarding Joint Committee decisions which simply extend acts of Community legislation to the European Economic Area, subject to any technical adjustments needed, is to be adopted by the Commission. For other Joint Committee decisions the Community’s position is to be adopted by the Council, on a proposal from the Commission, as follows:
‘(a) for the purpose of adopting the Community’s position regarding … Joint Committee decisions which extend an act of Community legislation to the EEA and in so doing introduce changes which are more than mere technical adjustments, the Council shall act by the majority laid down in the provision adopted as the legal basis of that act;
(b) for the purpose of adopting the Community’s position regarding … Joint Committee decisions other than those which extend Community legislation to the EEA, the Council shall act:
– by a simple majority when the decision which the … Joint Committee proposes to take relates to the said Committee’s Rules of Procedure or a question of procedure,
– by a qualified majority if the decision which the … Joint Committee proposes to take relates to an area for which such a majority is required for the adoption of internal rules,
– unanimously in other cases’.
Article 104 of the EEA Agreement states that decisions taken by the Joint Committee are, unless otherwise provided for therein, upon their entry into force to be binding on the Contracting Parties, which are to take the necessary steps to ensure their implementation and application.
On the basis of the joint statement of the Joint Committee of 1995 on Chapter XV of Annex II to the EEA Agreement regarding the review clauses in the field of dangerous substances (OJ 1996 C 6, p. 7) (‘the joint statement of 1995’), the Kingdom of Norway obtained derogations from Directive 67/548. It follows from Annex II to that joint statement that, first, the Kingdom of Norway may request the use of different classification, labelling or specific concentration limits for substances listed in point 1(a)(i) in Annex II and, second, that the criteria for classification and labelling of carcinogenic substances such as those set out in point 4.2.1 in Annex VI to Directive 67/548 are not to apply to the Kingdom of Norway, which may use different classification criteria. Acrylamide is not one of the substances for which the Kingdom of Norway is entitled to derogations from Directive 67/548.
The joint statement of 1999 replaced the joint statement of 1995. The list of substances referred to in point 1(a)(ii) of Annex II to the joint statement of 1995 was amended without, however, including acrylamide in the list of substances for which the Kingdom of Norway could impose concentration limits different from those prescribed by the Community legislation. However, since the joint statement of 1999 permitted the Kingdom of Norway to adopt different provisions as regards impurities, it increased the scope of derogation provided for in the joint statement of 1995, and thus allowed that State to fix lower concentration limits for acrylamide as an impurity. The Kingdom of Norway thus had the option of classifying polyacrylamide as carcinogenic, if the concentration of acrylamide equalled or exceeded the concentration limits prescribed by the Norwegian legislation, in this case 0.01% of mass.
Background to the case
On 24 February 2004, the Commission submitted to the Council a proposal for the adoption of the draft decision of the Joint Committee amending Annex II to the EEA Agreement. The Council stated its agreement to that proposal on 1 April 2004 (‘the decision of the Council’). That draft common position amends the text relating to Directive 67/548 and set out in Chapter XV of Annex II to the EEA Agreement. The Community’s final position was submitted on 23 April 2004 and the decision of the Joint Committee was adopted on 26 April 2004.
That decision introduced an express derogation from Article 30 of Directive 67/548 as regards the requirements in respect of the classification, labelling and/or specific concentration limits for acrylamide. Point 1.2(d)(i) of Annex I to that decision provides:
‘The following provisions shall not apply to Norway:
(i) Article 30, in conjunction with Articles 4 and 5, with respect to the requirements for the classification, labelling and/or specific concentration limits for the substances or groups of substances listed in Annex I to the Directive and shown in the following list. Norway may require the use of different classification, labelling and/or specific concentration limits for these substances.
…’.
Acrylamide is one of the substances for which Norway may derogate from that provision in particular.
The procedure before the Court of First Instance and the order under appeal
By application lodged at the Court Registry on 17 September 2004, PPG, a European economic interest group which represents producers of coagulants and synthetic flocculants the principal constituent of which is polyacrylamide, brought an action for the purposes set out in paragraph 1 of this order.
By documents lodged at the Court Registry on 22 November and 13 December 2004 respectively, the Commission and the Council raised an objection of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance.
The Court of First Instance decided to give a decision on admissibility without going into the substance of the case and not to open the oral procedure, as it considered that it was sufficiently informed by the documents in the Court file.
As regards, first, the action for annulment before it, the Court of First Instance noted, as a preliminary point, in paragraphs 29 and 32 of the order under appeal, that PPG was challenging three acts, namely the Commission’s proposal as to the Community’s position, the decision of the Council and the decision of the Joint Committee. Regarding the decision of the Joint Committee, the Court of First Instance noted, however, that PPG’s pleadings were unclear as to whether it really wished to challenge it.
The Court of First Instance also pointed out, in paragraph 30 of the order, that it has jurisdiction only in actions brought under Article 230 EC or Article 146 EA against Community institutions and organs established by the Treaties or by acts adopted for their application.
The Court of First Instance went on to state, first, in paragraph 31 of the order, that it had no jurisdiction to adjudicate on the decision of the Joint Committee, on the ground that the latter is not a Community institution or organ.
Second, as regards the action for annulment of the Commission’s proposal as to the Community’s position, the Court of First Instance held, in paragraphs 33 and 34 of the order under appeal, that that proposal could not form the subject of an action for annulment because it is a preparatory measure.
Third, regarding the decision of the Council, the Court of First Instance, having found that it was unnecessary to rule on the legal status of the decision of the Joint Committee, held, in paragraph 36 of the order, that as the decision of the Council was not of individual and direct concern to PPG, the latter therefore had no legal standing to bring proceedings under Article 230 EC.
In reaching that conclusion, the Court of First Instance began by observing in paragraph 37 of the order that, under the fourth paragraph of Article 230 EC, any natural or legal person may institute proceedings for the annulment of a decision addressed to that person or of a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to the former.
Then, in paragraph 38 of the order under appeal, it referred to the settled case-law of the Court of First Instance, according to which an association formed to promote the collective interests of a category of persons cannot be deemed to be individually concerned by a measure affecting the general interests of that category of persons when they are not themselves individually affected. In applying that case-law, the Court of First Instance treated the role played in the present case by a European economic interest grouping in the same way as that played by an association.
In paragraph 39 of the order under appeal, the Court of First Instance stated that PPG had not shown that its member companies were adversely affected by the decision of the Council by reason of certain attributes that were peculiar to them or by reason of circumstances which differentiated them from all other persons.
Moreover, after referring to the case-law of the Court of First Instance according to which the presence of special circumstances, such as the role played by an association in a procedure which has led to the adoption of an act within the meaning of Article 230 EC, may establish the admissibility of an action brought by an association whose members are not directly and individually concerned by that act, in particular where its position as negotiator has been affected by that act, the Court of First Instance found, in paragraphs 40 and 41 of the order, that no provision conferred any procedural rights on PPG and that PPG had played no role in the preparation of the decision of the Council.
In paragraph 42 of that order, the Court of First Instance concluded from the foregoing that the decision of the Council was not of individual concern to PPG.
It further held, in paragraphs 43 to 45 of the order under appeal, that that same decision was not of direct concern to PPG, owing to the lack of direct link between the decision and the Norwegian measures, the only measures capable of causing it damage.
Moreover, in paragraph 50 of the order, the Court of First Instance held that the plea of illegality relating to the joint statement of 1999 was inadmissible, since the claim for annulment constituting the main action was inadmissible.
Lastly, in paragraph 57 of that order, the Court of First Instance held that the claim for damages was inadmissible, as a result of the lack, first, of a clear definition of the nature of the loss and, second, of an approximate quantification thereof.
Having dismissed as inadmissible the action brought by PPG, the Court of First Instance ordered it to bear its own costs and to pay those incurred by the Commission and the Council.
The appeal
By its appeal, PPG asks the Court to set aside the order under appeal, to declare admissible the action brought by it before the Court of First Instance, to rule on the merits of the case or, in the alternative, to refer the case back to the latter and, lastly, to order the Council and the Commission to pay the costs of both proceedings.
The Council contends that the appeal should be dismissed as partially inadmissible and, in any case, unfounded, and that PPG should be ordered to pay the costs of both proceedings.
The Commission contends, principally, that the appeal should be dismissed in so far as it is directed against it. First, PPG accepts that the Community courts have no jurisdiction to rule on the legality of the decision of the Joint Committee and, second, it does not criticise the order under appeal for having found that the Commission’s proposal as to the Community’s position is not an act open to challenge because it is a preparatory measure. The Commission submits, in the alternative, pleas to the same effect as those of the Council.
Pursuant to Article 119 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order dismiss the appeal in whole or in part, without opening the oral procedure (orders in Case C‑360/02 P Ripa di Meana v Parliament [2004] ECR I‑10339, paragraph 18, and in Case C‑482/04 P SNF v Commission, not published in the ECR, paragraph 26).
The Commission’s request that the appeal be dismissed
It appears that the appeal does not criticise the order under appeal in so far as the Court of First Instance found that the Commission’s proposal as to the Community’s position may not form the subject of an action for annulment because it is a preparatory measure. Moreover, PPG indicates that it has never intended to challenge the decision of the Joint Committee. Accordingly, the appeal must be dismissed in so far as it is directed against the Commission.
The first plea
Arguments of the parties
By the first plea put forward in support of the appeal, which comprises three parts, PPG claims that the order under appeal is vitiated by a failure to state reasons.
First, PPG criticises the Court of First Instance for having refused to rule on the legal status of the decision of the Joint Committee, which is a necessary prerequisite for a review of the legality of the decision of the Council, although the Community could be found to have acted ultra vires if it had participated in an unlawful decision, as PPG maintained before the Court of First Instance.
Second, PPG claims that the Court of First Instance did not provide a sufficient statement of reasons in the order under appeal for finding that PPG did not have legal standing to bring proceedings. In particular, it complains that the Court of First Instance did not give specific reasons for deciding not to apply the case-law in Case C‑327/91 France v Commission [1994] ECR I‑3641 to the facts of the present case and did not, in stating its reasons, respond to all of the arguments PPG had put forward in its action. The Court of First Instance thus disregarded the Advisory Opinion of the EFTA Court in Case E-6/01 CIBA Speciality Chemicals Water Treatment and Others v Norway [2002] EFTA Court Report 281, paragraph 33, according to which ‘a decision of the EEA Joint Committee may constitute a simplified form of an international agreement between the Community and its Member States on the one hand, and the EFTA States party to the EEA Agreement on the other’ and set aside, without giving any reasons, the Court of Justice’s statement in Case C‑321/97 Andersson and Wåkerås-Andersson [1999] ECR I‑3551 that it has jurisdiction to give preliminary rulings concerning the interpretation of the EEA Agreement.
Third, PPG criticises the Court of First Instance for having found that it was sufficiently informed by the documents in the Court file and for having decided not to open the oral procedure without giving further explanation.
The Council contends that the first plea should be rejected on the ground that the Court of First Instance complied with its obligation to state reasons. It states, inter alia, that it was not necessary for the Court of First Instance to rule on the legal status of the decision of the Joint Committee, nor was it required to consider the Advisory Opinion of the EFTA Court given in CIBA Speciality Chemicals Water Treatment and Others v Norway and that PPG misunderstands the character of Article 114(3) of the Rules of Procedure of the Court of First Instance.
Findings of the Court
Regarding the first part of the plea, the Court finds that the reasons for which the Court of First Instance held that it was not necessary to rule on the question of the legal status of the decision of the Joint Committee are clearly set out in paragraph 36 et seq. of the order under appeal. The Court of First Instance thus held that, as PPG did not have legal standing to bring an action for annulment of the decision of the Council pursuant to Article 230 EC, it was superfluous to consider the legal status of the decision of the Joint Committee. Accordingly, the Court of First Instance cannot be criticised for its refusal to do so.
Regarding the second part of the plea, although it is common ground that the Court of First Instance did not go into the details of the arguments put forward by PPG in support of the admissibility of its action, it did, as the Council maintains, satisfy the requirement to state reasons, in ruling in the light of the relevant facts of the case at hand. Once the Court of First Instance had held that it was not necessary to rule on the legal status of the decision of the Joint Committee, it was no longer required to respond to some of the arguments put forward by PPG concerning precisely the legal status of that decision and the scope of the case-law of both the Court of Justice and the EFTA Court relating to certain decisions of that committee.
Regarding the third part of the plea, the Court observes, first, that it is clear from Article 114(1) to (3) of the Rules of Procedure of the Court of First Instance that the Court of First Instance is under no duty to hold a hearing and, second, that it is for it alone to assess whether it is appropriate to decide immediately on an objection of inadmissibility or to reserve its decision for the final judgment. It follows that in deciding, in the present case, to rule solely on the objection of inadmissibility raised by the Council and the Commission, without moreover opening the oral procedure on the ground that it considered itself to be sufficiently informed by the documents in the file, the Court of First Instance is not open to the reproach directed against it (see, to that effect, orders in Ripa di Meana v Parliament, paragraph 35, and SNF v Commission, paragraph 30).
Accordingly, the first plea must be dismissed as clearly unfounded.
The second plea
PPG lists a number of errors of law committed by the Court of First Instance, leading that court to declare, wrongly, that the action was inadmissible, which may be regarded as various parts of the plea.
According to the first part of the second plea, the Court of First Instance committed an error of law in paragraphs 29 and 31 of the order under appeal, by stating that it had no jurisdiction to adjudicate on the legality of the decision of the Joint Committee. PPG claims that it has never challenged that decision, nor did it intend to call that decision into question, adding that it identified only two defendants in the action it brought before the Court of First Instance, namely the Commission and the Council.
According to the second part of the plea, the Court of First Instance committed an error of law, first, by stating in paragraph 35 of the order under appeal that the decision of the Joint Committee cannot be assimilated to an international agreement and, second, in omitting to specify the status of that decision.
By the third part of the plea, PPG claims that the Court of First Instance committed an error of law by applying, in the present case, the traditional case-law relating to legal standing to bring proceedings.
In this regard, PPG claims, in the first place, that the Court of First Instance committed an error of law, first, by finding that the decision of the Council was not of individual concern to PPG in that, inter alia, it had not demonstrated that the companies making up the group were adversely affected by the Council’s decision by reason of certain attributes that were peculiar to them or by reason of circumstances which differentiated them from all other persons and, second, in finding that PPG had not assumed the role of negotiator. PPG further claims that the Court of First Instance was also wrong in finding that the decision of the Council was not of direct concern to it.
Regarding the first part of the second plea, the Council considers that the plea is completely irrelevant in so far as PPG itself states that it did not intend to challenge the decision of the Joint Committee before the Court of First Instance. It adds that the second part of the same plea is inoperative, as the Court of First Instance founded its ruling that the action was inadmissible on PPG’s lack of legal standing. Lastly, it contends that the third branch of the second plea should be dismissed because, in its view, the Court of First Instance held precisely, first, that the decision of the Council was not of individual concern to PPG inter alia because it had not assumed the role of negotiator and because the legislation in question did not accord any procedural rights to PPG and, second, that that decision was not of direct concern to PPG.
The first part of the second plea must be dismissed as invalid in so far as in any event, and as the Council submits, PPG did not intend to challenge the decision of the Joint Committee, which PPG moreover acknowledges in its pleadings.
The second part of this plea must also be dismissed as invalid in so far as this complaint, criticising the statement by the Court of First Instance in paragraph 35 of the order under appeal that the decision of the Joint Committee cannot be assimilated to an international agreement, is, as noted in paragraph 44 of the present order, challenging a ground that was superfluous.
Regarding the third part of the same plea, first, it follows from settled case-law that a legislative act applying to the traders concerned in general can be of individual concern to some of them only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and thereby distinguishes them individually in the same way as the addressee of an act would be distinguished (see, inter alia, Case 26/86 Deutz und Geldermann v Council [1987] ECR 941, paragraph 9; Case C-309/89 Codorniu v Council [1994] ECR I‑1853, paragraphs 19 and 20; order in Case C‑10/95 P Asocarne v Council [1995] ECR I‑4149, paragraph 41; and Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 36).
It is, moreover, clear that it was by applying that case-law exactly to the facts of the present case and in the light of the evidence adduced by PPG that the Court of First Instance found that the member companies in the group were not affected by the decision of the Council in the absence of any attribute specific and peculiar to them, since that decision could affect them only inasmuch as they manufactured products containing polyacrylamide, with the result that it would affect them in the same way as it affected the other manufacturers of such products by reason of an objective factual situation and not by reason of an attribute which was specific and peculiar to them (paragraphs 38 and 39 of the order under appeal).
Second, where a provision of Community law requires, before a decision is adopted, that a procedure be followed under which a person is entitled to claim rights that might be available to him, including the right to be heard, the particular legal status enjoyed by that person has the effect of distinguishing him for the purposes of the fourth paragraph of Article 230 EC (see, to that effect, Case 191/82 FEDIOL v Commission [1983] ECR 2913, paragraph 31, and Case C‑263/02 P Commission v Jégo-Quéré [2004] ECR I‑3425, paragraphs 47 and 48).
Furthermore, as pointed out by the Court of First Instance in paragraph 40 of the order under appeal, it is settled case-law that the role played by an association in a procedure which has led to the adoption of an act within the meaning of Article 230 EC may establish the admissibility of an action brought by an association even when its members are not directly and individually concerned by that act, in particular where its position as negotiator has been affected by that act (see, to that effect, Case C-313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraphs 29 and 30).
In the present case, the Court of First Instance observed that no provision conferred any procedural rights on PPG and that PPG played no role in the preparation of the Council decision, adding that it had not shown that its role as negotiator, as a European economic interest grouping, was affected by that decision (paragraph 41 of the order under appeal).
The Court notes, first, that, contrary to the allegations in the plea, the Court of First Instance did not hold that PPG had not assumed the role of negotiator. It found that PPG had not demonstrated that its role as negotiator had been affected by decision of the Council.
Next, it is common ground that the plea does not indicate specifically the reasons for alleging that the Court of First Instance committed an error of law in finding that no provision conferred any procedural rights on PPG, although it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter alia, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34, and Case C‑248/99 P France v Monsanto and Commission [2002] ECR I‑1, paragraph 68).
Lastly, as the Court of First Instance held correctly that PPG was not individually concerned, it was not necessary for it to rule on whether or not it was directly concerned, given that the two conditions laid down in the fourth paragraph of Article 230 EC are cumulative and must both be satisfied (see, to that effect, order of 13 July 2006 in Case C-338/05 P Front national and Others v Parliament and the Council, not published in the ECR, paragraph 32).
It follows from the foregoing that the second plea must be dismissed as in part clearly inadmissible and in part clearly unfounded.
The third plea
By this plea, PPG challenges the Court of First Instance’s rejection, in paragraph 58 of the order under appeal, of the argument that PPG would be deprived of a legal remedy if its action before the Court of First Instance for annulment of certain acts were held inadmissible. PPG thus criticises that court for having failed to assess whether there was effective judicial protection with regard to the specific circumstances of the present case.
The Council maintains, first, that the plea is essentially limited to repeating the line of argument put forward by PPG before the Court of First Instance. Second, it takes the view that the adoption of the Community’s position by the Council could not have any effect on PPG and that it therefore cannot maintain that it has been deprived of a legal remedy.
According to settled case-law, although the condition that a natural or legal person can bring an action challenging a legislative act of general application only if he is concerned both directly and individually must be interpreted in the light of the principle of effective judicial protection given 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. The Community Courts would otherwise go beyond the jurisdiction conferred by the Treaty (see, to that effect, Unión de Pequeños Agricultores v Council, paragraph 44, and Commission v Jégo-Quéré, paragraph 36).
Having held correctly that the decision of the Council was not of individual concern to PPG, the Court of First Instance was right in finding that the only acts capable of adversely affecting PPG were the Norwegian measures implementing the derogations relating to the concentration limits for acrylamide and resulting from the decision of the Joint Committee. It was, accordingly, able to infer therefrom that the competent Norwegian courts are bound, under their national procedural rules, to ensure the judicial protection of persons against national measures taken pursuant to the decision of the Joint Committee. In so doing, the Court of First Instance applied the aforementioned case-law correctly, within the limits of the jurisdiction conferred on it by the Treaty, and rightly rejected the plea alleging a lack of legal remedies at Community level.
Accordingly, the third plea must be dismissed as clearly unfounded.
The fourth plea
By this plea, PPG maintains that, since the Court of First Instance erred in law in holding the action for annulment inadmissible, it also erred in law in holding the plea of illegality raised against the joint statement of 1999 inadmissible. It does not, however, contest the fact that a plea of illegality is inadmissible if the main action is inadmissible.
The Council contends that, if the Court confirms the inadmissibility of the action for annulment brought before the Court of First Instance, this plea must, in consequence, be held inadmissible.
Since the second and third pleas have been dismissed as clearly unfounded, this plea must, in consequence, also be held clearly inadmissible in the light of the inadmissibility of the main action for annulment of the acts of the defendants. Accordingly, the merits of the plea of illegality raised indirectly cannot be examined.
The fifth plea
By the fifth plea, which comprises two parts, PPG claims that the Court of First Instance erred in law by holding its claim for damages inadmissible.
By the first part of this plea, it is submitted that the Court of First Instance wrongly held that PPG had not clearly defined the nature of the loss it claimed, whereas the loss was presented as consisting of the additional costs incurred by the members of the group in labelling the polyacrylamide sold in Norway with a more restrictive label than the one used in the Community.
By the second part of the same plea, PPG claims that the Court of First Instance infringed the principle of proportionality by merely dismissing the action, when it could have considered other solutions.
The Council contends that the plea should be dismissed as clearly unfounded, as the Court of First Instance correctly applied the case-law relating to admissibility of a claim for damages.
Having found, first, that the application did not contain, in respect of the market losses alleged by PPG, any information defining the market and, second, that no precise figures had been provided to quantify, even approximately, the loss which might flow, in PPG’s view, from altering the labels on the products sold by the members of the group in Norway and from warnings as to the dangers posed by products containing acrylamide, the Court of First Instance found that that neither the nature nor the extent of the loss had been clearly established.
Accordingly, the Court of First Instance correctly held the claim for damages inadmissible.
Accordingly, the fifth plea must be dismissed as clearly inadmissible.
It follows from all the foregoing that the appeal brought by PPG must be dismissed, as the pleas relied upon are in part clearly unfounded and in part clearly inadmissible.
Costs
Under Article 69(2) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Council and the Commission have applied for costs to be awarded against PPG and the latter has been unsuccessful, PPG must be ordered to pay the costs of the present proceedings.
On those grounds, the Court (Sixth Chamber) hereby orders:
1. The appeal is dismissed.
2. Polyelectrolyte Producers Group is ordered to pay the costs.
[Signatures]
* Language of the case: English.
