Case T-391/02

Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV and Josef Kloh

v

European Parliament and Council of the European Union

(Actions for annulment – Regulation (EC) No 1774/2002 – Health rules applicable to animal by-products not intended for human consumption – Clearly inadmissible)

Order of the Court of First Instance (Second Chamber), 10 May 2004 

Summary of the Order

1.     Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Action brought by an association of undertakings which took part in the procedure for adopting the measure – Admissibility – Conditions

(Art. 230, fourth para., EC)

2.     Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Action brought by operators particularly affected by the contested regulation – Inadmissibility

(Art. 230, fourth para., EC)

1.     Annulment actions brought by an association of undertakings may, when that association has participated in the procedure leading to the adoption of the contested measure, be regarded as admissible in at least three types of situation: when a legal provision expressly grants it a series of procedural powers; when the association itself is distinguished because of the impact on its interests as an association, in particular because its negotiating position has been affected by the measure whose annulment is sought; and when it represents the interests of members which would, themselves, be entitled to bring proceedings.

Damage to the position as negotiator of an association which took part in the procedure which led to the contested measure being adopted can affect its specific interests only where its position as negotiator is clearly circumscribed and intimately linked to the subject-matter of the contested provision. Therefore, the mere provision of information by the association to the Community institutions during the legislative process leading to the adoption of the contested measure is not sufficient to establish that the contested measure damages a clearly circumscribed position as negotiator of the association.

(see paras 44, 47, 49)

2.     The fact that certain operators are economically more affected by a regulation than others is not sufficient for them to be regarded as individually concerned by that measure within the meaning of the fourth paragraph of Article 230 EC. Nor are they individually concerned on the ground that they are obliged to end an autonomous economic activity which they carry out by virtue of authorisation issued by a national authority.

(see paras 53-54)

ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)

10 May 2004 (*)

(Application for annulment – Regulation (EC) No 1774/2002 – Health rules concerning animal by-products not intended for human consumption – Manifest inadmissibility)

In Case T-391/02,

Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV, established in Bochum (Germany),

Josef Kloh, resident in Eichenried (Germany),

represented by R. Steiling and S. von Zimmermann-Wienhues, lawyers,

applicants,

v

European Parliament, represented by H. Duintjer Tebbens and U. Rösslein, acting as Agents, with an address for service in Luxembourg,

and

Council of the European Union, represented by J.-P. Hix and F. Ruggeri Laderchi, acting as Agents,

defendants,

supported by

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

intervener,

APPLICATION for partial annulment of Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1),

 

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges,

Registrar: H. Jung,

makes the following

Order

 Factual and legal background

1       The Bundesverband der Nahrungsmittel- und Speiseresteverwertung eV (‘the BNS’) is an association constituted under German law the objective of which is the protection and promotion of common economic and health interests connected with the conversion of catering waste into animal feed. It states that it is composed of around 100 companies which, for the most part, collect catering waste and produce from this feed for pigs. The BNS considers that it represents its members’ interests vis-à-vis the various national and Community authorities as well as vis-à-vis public opinion.

2       Mr Kloh (‘the second applicant’) is a farmer and pig breeder, who recycles catering waste in his business. He is a member of the BNS.

3       On 3 October 2002, the European Parliament and the Council adopted Regulation (EC) No 1774/2002 laying down health rules concerning animal by-products not intended for human consumption (OJ 2002 L 273, p. 1). Article 22(1)(b) of this regulation provides that ‘the feeding of farmed animals other than fur animals with catering waste or feed material containing or derived from catering waste [is prohibited]’.

4       Article 32 of Regulation No 1774/2002 provides:

‘1.      After consultation of the appropriate scientific committee on any question that could have an impact on animal or public health, the Annexes may be amended or supplemented and any appropriate transitional measures may be adopted in accordance with the procedure referred to in Article 33(2).

2.      With regard to the ban on the feeding of catering waste referred to in Article 22, where appropriate control systems are in place in Member States prior to the application of this Regulation, transitional measures shall be adopted, in accordance with paragraph 1, to permit the controlled use in feed of certain types of catering waste under strictly controlled circumstances for a period of not more than four years as from 1 November 2002. These measures shall ensure that there is no undue risk to animal or public health during the transitional period.’

5       It may be seen from the second paragraph of Article 38 of Regulation No 1774/2002 that Article 22(1)(b) and Article 32 of that regulation apply from 1 November 2002.

6       After the introduction of this action, the Commission adopted Decision 2003/328/EC of 12 May 2003 on transitional measures under Regulation (EC) No 1774/2002 as regards the use of category 3 catering waste in feed for pigs and the intra-species recycling ban on the feeding of swill to pigs (OJ 2003 L 117, p. 46). Essentially, that decision authorises Germany and Austria, on certain conditions, to continue granting individual approvals to operators of premises and facilities for the use of catering waste in pigfeed.

 Procedure and forms of order sought by the parties

7       By application lodged at the Court Registry on 24 December 2002, the applicants brought the present action.

8       They claim that the Court should:

–       annul Article 32(2) of Regulation No 1774/2002 in so far as it authorises transitional measures as referred to in Article 32(1) of the said regulation for a period of not more than four years as from 1 November 1992 (‘the contested provision’);

–       order the Parliament and the Council to pay the costs.

9       By document lodged at the Court Registry on 10 March 2003, the Commission sought leave to intervene in the proceedings in support of the forms of order sought by the Parliament and the Council. Leave was granted by the President of the Second Chamber of the Court of First Instance by order of 9 July 2003. The intervener submitted, within the time-limit set, a statement in intervention, limited to the question of admissibility.

10     By separate documents, lodged at the Court Registry on 21 and 24 March 2003 respectively, the Parliament and the Council each raised an objection of inadmissibility, pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance.

11     In its objection, the Parliament claims that the Court should:

–       dismiss the action as inadmissible;

–       give a judgment on the costs in accordance with the provisions in force.

12     In its objection, the Council claims that the Court should:

–       dismiss the action as manifestly inadmissible;

–       order the applicants to pay the costs.

13     The applicants submitted their observations on the two pleas of inadmissibility on 19 May 2003.

14     By documents lodged at the Court Registry on 4 and 24 April 2003 respectively, Mr J. Taferner, on the one hand, and the Landwirtschaftskammer Vorarlberg (Chamber of Agriculture of Land Vorarlberg) and Mr Wohlgenannt, on the other hand, sought leave to intervene in support of the forms of order sought by the applicants.

 Admissibility

15     The defendants, supported by the Commission, submit three pleas of inadmissibility. The first is that the subject-matter of the action does not come within the jurisdiction of the Community judicature in the context of an action for annulment. The second is only raised in so far as the action is aimed at the annulment of the unconditional prohibition on feeding certain farmed animals with catering waste after the expiration of the transitional period. The aim is purely to confirm that prohibition. The third plea of inadmissibility concerns the applicants’ lack of locus standi to bring proceedings on the basis that they are neither directly nor individually concerned by the contested provision.

16     In the circumstances of the present case, it is appropriate first to examine the plea of inadmissibility concerning lack of locus standi on the basis that the applicants are not individually concerned by the contested provision.

 Arguments of the parties

17     The defendants, supported by the Commission, submit, first of all, that Regulation No 1774/2002, which legislates in a general and abstract manner, is, by its nature and its scope, legislative in character and therefore does not constitute a decision within the meaning of Article 249 EC. They admit nevertheless that such an act can be the subject of an action for annulment by a natural or legal person to the extent that that person shows that they are affected by it by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as an addressee would be (judgment of the Court of Justice in Case C-50/00 P Unión de PequeñosAgricultores v Council [2002] ECR I-6677, paragraph 36).

18     They then submit that neither the BNS nor the second applicant is distinguished within the meaning of the case-law mentioned in the previous paragraph.

19     Concerning the BNS, the Council submits that, according to case-law, the admissibility of an action for annulment made by an association is only admissible in three cases, which are when a legal provision expressly grants a series of procedural powers to the association, when the association represents the interests of members which would, themselves, be entitled to bring proceedings, and when the association is distinguished individually because of the impact on its own interests as an association, in particular because its negotiating position has been affected by the measure whose annulment is sought (order of the Court of First Instance in Case T-122/96 Federolio v Commission [1997] ECR II-1559). According to the Council, none of these conditions exist in the present case.

20     First of all, neither Article 152 EC, which, according to the Council, is the legal basis for Regulation No 1774/2002, nor Article 251 EC, which lays down the co-decision procedure under which Regulation No 1774/2002 was adopted, recognises in respect of associations such as the BNS any right of a procedural nature.

21     Further, the mere fact that it has promoted its point of view to certain Members of Parliament, certain officials of the Commission and to a national administration does not confer on the BNS the role of negotiator. In this respect, the Council submits that the BNS’s position does not differ from that of the associations which brought actions which resulted in, on the one hand, the order of the Court of First Instance in Case T-173/98 Unión de Pequeños Agricultores v Council [1999] ECR II-3357 and the judgment in Case C-50/00 P Unión de Pequeños Agricultores v Council, and, on the other hand, the order of the Court of First Instance in Case T-99/94 Asocarne v Council [1994] ECR II-871 and the order of the Court of Justice in Case C-10/95 P Asocarne v Council [1995] ECR
I-4149, in which the Community Courts affirmed that the associations in question were not distinguished by virtue of any of the criteria laid down by case-law concerning admissibility of an action for annulment brought by an association.

22     Finally, according to the Council, the BNS cannot take advantage of the locus standi of the undertakings whose interests it defends, including the second applicant, because they do not possess such a capacity.

23     In this respect, the defendants submit, in essence, that the BNS members, including the second applicant, are not individually concerned by the contested provision, because they are only affected by it in their capacity as producers of animal feed using catering waste and are, therefore, in a situation which is objectively defined, and comparable to that of any other undertaking which may, actually or potentially, enter this market. The BNS members are therefore not distinguished by the contested provision.

24     The Parliament, supported by the Commission, adds that, even if the BNS members, which specialise in the conversion of catering waste, have an important market position and are, for that reason, particularly affected by the contested provision, this fact does not suffice for them to be regarded as distinguished from all other operators (order of the Court of First Instance in Case T-11/99 Van Parys and Others v Commission [1999] ECR II-2653, paragraph 50). Moreover, the way in which they are affected is not comparable to the situation of the applicant in the action which resulted in the judgment of the Court of Justice in Case C-309/89 Codorniu v Council [1994] ECR I-1853, in which the applicant was effectively in a situation which differentiated it, from the point of view of the contested regulation, from all other operators.

25     The Parliament further submits that even if, as the applicants allege, the BNS members’ situation was known to the Parliament, the Council, and the Commission, this would not have the effect of making them individually concerned (judgment of the Court of Justice in Joined Cases 789/79 and 790/79 Calpak and Società emilianalavorazione frutta v Commission [1980] ECR 1949, paragraph 9).

26     The applicants submit that both the BNS and the second applicant are individually concerned by the contested provision.

27     First, they submit in essence that, despite the normative character of Regulation No 1774/2002 containing the contested provision, it cannot be excluded that the said provision concerns them individually (Codorniu v Council, paragraph 19).

28     As regards the BNS, the applicants submit, in the first place, that it is individually concerned because of the role of negotiator which it played in the legislative process leading to the adoption of Regulation No 1774/2002.

29     It played the role of negotiator given that it led various discussions with representatives of the Parliament and provided them with several written opinions on the health rules applicable to animal by-products not destined for human consumption. It also met with representatives of the Commission at meetings during which it set out the situation of its members, presented in a detailed manner the situation concerning recycling of catering waste in Germany and provided information on the most recent scientific knowledge as well as on the economic and environmental consequences of a complete ban on the use of catering waste in animal feed. It also sent some information which was the subject of these meetings to the Commission in writing.

30     The BNS’s status of negotiator may also be seen from the fact that it participated in numerous discussions with the German federal minister responsible for consumer protection, food and agriculture. It submitted several written opinions to him on questions linked to prohibitions concerning animal feed. It was also invited by the minister to give its advice on the exceptional and transitional provisions to be adopted within the context of Regulation No 1774/2002 and complied with this request by providing the minister with a written opinion, dated 1 July 2002. Moreover, it had privileged access to the German authorities regarding the finalisation of the transitional measures which were the subject of Decision 2003/328.

31     In the second place, the applicants submit that the BNS is entitled to bring an action against the contested provision on the grounds that it represents the interests of undertakings, including the second applicant, which could themselves have brought admissible actions against the said provision (see, to that effect, the judgments of the Court of First Instance in Joined Cases T-447/93 to 449/93 AITEC and Others v Commission [1995] ECR II-1971, paragraphs 60 to 62, and Case T‑114/00 Aktionsgemeinschaft Recht und Eigentum v Commission [2002] ECR II‑5121, paragraph 63 et seq.).

32     The locus standi of the second applicant as well as that of the other BNS members results from the fact that they are individually and directly concerned by Regulation No 1774/2002 containing the contested provision.

33     The BNS members, including the second applicant, are affected by the contested provision by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, which distinguish them individually just as an addressee of the provision would be (judgment of the Court of Justice in Case 25/62 Plaumann v EEC Commission [1963] ECR 95, 107).

34     According to the applicants, this differentiation results from the fact that Regulation No 1774/2000 was adopted after the BNS members were the subject, from 3 to 7 September 2001, of an inspection carried out on behalf of the Commission. The applicants submit that, according to case-law, differentiation may be established from the fact that the economic operator in question was concerned by the investigations on which the contested act is based (judgments of the Court of Justice in Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraph 12, and Case 240/84 NTN Toyo Bearing v Council [1987] ECR 1809, paragraph 5).

35     Moreover, the BNS members are individually concerned by Regulation No 1774/2002 because they are affected in a particularly severe manner by its effects. In this respect, the applicants submit that, according to case-law, a trader is affected in the same way as an addressee if the contested measure affects it in a particularly serious manner, because of its special market position and the effects of that measure on its undertaking (judgment of the Court of Justice in Case C‑358/89 Extramet Industrie v Council [1991] ECR I-2501, paragraph 16 et seq.; Opinion of Advocate General Lenz in Codorniu v Council ECR I-1856, point 52). It may also be seen from case-law that an applicant is individually concerned by a contested measure if it has, or may have, a substantial adverse effect on its interests (judgment of the Court of First Instance in Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365, paragraph 51, and Opinion of Advocate General Jacobs in Case C-50/00 P Unión de Pequeños Agricultores v Council ECR I-6681, point 102(4)).

36     In the present case, the BNS members are particularly seriously affected by the regulation in that they will be obliged to completely give up their activity, in respect of which they benefit from exceptional authorisations under national legislation.

37     The BNS members are also affected by the prohibition in a distinctive manner in that, unlike methods used to recycle catering waste in other Member States, the method of recycling prohibited by the regulation constitutes, in Germany, an independent economic activity in which the BNS members are specialised and in respect of which they have made the necessary investments to ensure that the waste is processed in such a way that it poses no risks to human or animal health.

38     The applicants add that, because of the various steps taken by the BNS, the particular nature of the situation of its members was known to the authors of Regulation No 1774/2002, which has the effect of distinguishing the said members.

39     The BNS members are, moreover, in a distinctive situation because the transitional provisions laid down by the contested provision apply specifically to them. In this respect, the applicants submit, first, that, if transitional provisions must or may be adopted, this is precisely in respect of the BNS members which are subject to strict authorisation and supervision measures by the German authorities. They also submit that these transitional provisions are specifically aimed at them because members of the Commission’s Directorate-General for Health and Consumer Protection carried out from 28 to 31 October 2002 an information visit concerning the use of catering waste for animal feed, at the premises of some BNS members. They add that their distinctive situation is confirmed by the adoption of Decision 2003/328. In their opinion, this decision is evidence that the Community legislator and the competent scientific body consider that the derogations laid down by the Decision are justified by the special legal and factual circumstances concerning the use of catering waste in Germany and, therefore, by the particular situation of the BNS members.

40     Finally, the applicants submit that if, in the circumstances of the present case, it is decided that the action is inadmissible only on the basis of the legislative character of the contested Community measure, they would find themselves refused legal protection for the sole reason that other persons are also contemplated by the said regulation, who are not in their particular position. Such a refusal would be in contradiction to the letter and spirit of the fourth paragraph of Article 230 EC (see, to that effect, the Opinion of Advocate General Lenz in Codorniu v Council, point 25 et seq.).

 Findings of the Court

41     Pursuant to Article 111 of the Rules of Procedure, when an action is clearly inadmissible the Court may, without taking further steps in the proceedings, give its decision by reasoned order.

42     In the present case, the Court considers that there is sufficient information before it and has decided, pursuant to that article, to give a decision without opening oral proceedings.

43     It has repeatedly been held that a measure of general application such as a regulation may, under certain circumstances, concern certain natural or legal persons individually, and therefore take on the character of a decision with regard to them. Such is the case if the measure in question affects a natural or legal person by reason of certain attributes which are peculiar to them or a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as an addressee of the measure would be (see Case C-50/00 P Unión de PequeñosAgricultores v Council, paragraph 36, and the case-law referred to).

44     In this respect, according to well-established case-law, the admissibility of actions brought, as in the present case, by an association may, when that association has participated in the procedure leading to the adoption of the contested measure, be allowed in at least three types of situation: when a legal provision expressly grants it a series of procedural powers; when the association, itself, is distinguished because of the impact on its interests as an association, in particular because its negotiating position has been affected by the measure whose annulment is sought; and when it represents the interests of members which would, themselves, be entitled to bring proceedings (orders of the Court of First Instance in Federolio v Commission, paragraph 61; Case T-38/98 ANB and Others v Council [1998] ECR II-4191, paragraph 25; and Case T-173/98 Unión de Pequeños Agricultores v Council, paragraph 47).

45     In the present case, the BNS cannot argue on the basis of any of these three situations that it is entitled to bring an action for annulment of the contested provision.

46     It is clear, in the first place, that the applicants cannot claim any right of a procedural nature recognised by Community law in respect of the BNS and which would, moreover, be affected by the contested provision.

47     Regarding the role played by the BNS vis-à-vis the Parliament and Commission, it is true that damage to an association’s position as negotiator may, when that association has participated in the procedure leading to the adoption of the contested measure, mean that the specific interests of that association have been affected (see, to that effect, the judgments of the Court of Justice in Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and Others v Commission [1988] ECR 219, paragraphs 21 to 24, and Case C-313/90 CIRFS and Others v Commission [1993] ECR I-1125, paragraphs 28 to 30), although it must also be mentioned that the position as negotiator occupied by the association must be clearly circumscribed and intimately linked to the actual subject-matter of the measure in question (judgment of the Court of Justice in Case C-106/98 P Comité d’entreprise de la Société française de production and Others v Commission [2000] ECR I-3659, paragraph 45).

48     However, in the present case, the applicants have not demonstrated that the BNS occupied a clearly circumscribed position as negotiator which was intimately linked to the subject-matter of the contested provision or that this position was adversely affected by the adoption of the said provision.

49     The simple provision of information to the Community institutions during the legislative process leading to the adoption of Regulation No 1774/2002, in particular during the meetings between the BNS and these institutions, is not sufficient to establish that the contested provision damages a clearly circumscribed position as negotiator of the BNS. This provision of information allows, at the most, establishment of the BNS’s participation in the procedure of drawing up the regulation containing the contested provision. According to well-established case-law, the fact that a person is involved in some way or other in the procedure leading to the adoption of a Community measure is not capable of distinguishing that person individually in relation to the measure in question unless the applicable Community legislation grants him certain procedural guarantees (order of the Court of First Instance in Case T-585/93 Greenpeace andOthers v Commission [1995] ECR II-2205, paragraph 56, and judgment of the Court of First Instance in Case T-47/00 Rica Foods v Commission [2002] ECR II‑113, paragraph 55). That is not the case here.

50     Nor does the undisputed fact that the BNS had privileged access to the German authorities attest to the fact that the BNS occupied a position as negotiator. Indeed, the BNS’s privileged access, in particular the fact that it was invited to submit to the said authorities an opinion on the question of transitional measures to be laid down in Regulation No 1774/2002, only attests to the fact that the German authorities considered it appropriate to involve it, to an extent that it is impossible to determine, in choosing their position, as expressed within the Council at the time of the adoption of the regulation containing the contested provision. Therefore, it is not established that the contested provision affected the BNS’s position as negotiator (see, to that effect, the order of the Court of First Instance in Case T-268/99 Fédération nationale d’agriculture biologique des régionsde France and Others v Council [2000] ECR II-2893, paragraph 55).

51     Nor do the arguments invoked by the applicants demonstrate that the second applicant or any other BNS member has locus standi.

52     As regards, first, the argument according to which the BNS members are individually concerned by the contested provision because Regulation No 1774/2002 was adopted after some of its members were inspected by the Commission’s services in September 2001, it is sufficient to refer to paragraph 48 above. In the present case, no Community law provision obliged the Parliament or Council to follow, in the adoption of Regulation No 1774/2002, a procedure in the context of which the BNS members would have benefited from procedural guarantees. Under these circumstances, the inspections carried out on behalf of the Commission at the premises of some BNS members do not have the effect of distinguishing these members with respect to the contested provision.

53     As regards the argument according to which the BNS members are individually concerned by the contested provision because they are affected particularly severely by it, it should be pointed out that, in accordance with well-established case-law, the fact that certain operators are more affected by a measure than others is not sufficient for them to be regarded as individually concerned by that measure (orders of the Court of First Instance in Van Parys and Others v Commission, paragraph 50, and Joined Cases T-112/00 and T-122/00 Iberotam and Others v Commission [2001] ECR II-97, paragraph 70).

54     Moreover, the fact that the BNS members are obliged to end an autonomous economic activity which they carry out by virtue of national authorisations is not such as to distinguish them for the purposes of the fourth paragraph of Article 230 EC. In fact, the applicants neither establish nor allege that only BNS members may benefit from such authorisations in Germany. Moreover, they do not demonstrate or allege that such an autonomous economic activity cannot be carried out by an economic operator in another Member State. Under these circumstances, the BNS members are in a situation comparable to that of any other economic operator who might now or at some time in the future carry out an activity analogous to theirs (see, to that effect, the order of the Court of First Instance in Case T-45/02 DOW AgroSciences v Parliament and Council [2003] ECR II-1973, paragraph 43, and the case-law cited).

55     Furthermore, it should also be mentioned that, contrary to what is submitted by the applicants, the fact that the Parliament, Council and Commission were informed of the particular situation of the BNS members, because of approaches made by the BNS, would only have the effect of distinguishing them if a Community law provision existed obliging the authors of Regulation No 1774/2002 to take into account this particular situation (see, to that effect, the judgment of the Court of Justice in Case 11/82 Piraiki-Patraikiand Others v Commission [1985] ECR 207, paragraphs 21 and 28). In the present case, no such provision exists. In fact, neither Article 152(4)(b) EC, on the basis of which Regulation No 1774/2002 was adopted, nor any other provision of Community law obliges the authors of that regulation to take account of the particular situation of companies, such as the BNS members, when regulations concerning public health are adopted. Under these circumstances, the fact that the institutions which participated in the drawing-up of the regulation including the contested provision were informed of the BNS members’ situation cannot have the effect of distinguishing the latter with regard to the said provision.

56     Concerning the allegation according to which the BNS members’ specific situation results from the fact that the transitional measures set out in the contested provision are specifically aimed at them, it is sufficient to recall that the contested provision provides that transitional measures shall be adopted where appropriate control systems are in place in Member States prior to the application of Regulation No 1774/2002. It may be seen from the wording of the contested provision itself that the criterion for adoption of transitional measures is objective and that the BNS members are only concerned in their capacity as economic operators subject to appropriate control systems. There is nothing in the wording of the provision to indicate that the possibility of adopting transitional measures is particularly intended for BNS members (judgment of the Court of First Instance in Case T-138/98 ACAV and Others v Commission [2000] ECR II-341, paragraph 64, and the case-law cited). Under these circumstances, the fact that members of a Commission service carried out an information visit concerning the use of catering waste in animal feed, at the premises of certain BNS members, after the adoption of the contested provision, is without relevance in the present context.

57     Finally, while it is true that the condition of individual concern must be interpreted in the light of the principle of effective judicial protection by taking account of 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 by the Treaty, without going beyond the jurisdiction conferred on the Treaty by the Community Courts (judgment in Case C-50/00 P Unión de Pequeños Agricultores v Council, paragraph 44).

58     It follows from the above that the contested provision does not individually concern any of the applicants within the meaning of the fourth paragraph of Article 230 EC.

59     The present action should therefore be dismissed as manifestly inadmissible without the need to examine the other pleas of inadmissibility.

 The applications for leave to intervene

60     In view of the fact that the present action must be declared manifestly inadmissible, there is no need for the Court to adjudicate on the applications for leave to intervene in support of the applicants presented by the Landwirtschaftskammer Vorarlberg, Mr Wohlgenannt and Mr Taferner.

 Costs

61     Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay both their own costs and those of the defendants, in accordance with the forms of order sought by the latter.

62     Under Article 87(4) and (6) of the Rules of Procedure, the Commission, the Landwirtschaftskammer Vorarlberg, Mr Wohlgenannt and Mr Taferner shall pay their own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby orders:

1.      The application is dismissed as manifestly inadmissible.

2.      There is no need to adjudicate on the applications for leave to intervene presented by the Landwirtschaftskammer Vorarlberg, Mr Wohlgenannt and Mr Taferner.

3.      The applicants are ordered to pay their own costs, as well as those incurred by the European Parliament and the Council of the European Union.

4.      The Commission of the European Communities is ordered to pay its own costs.

5.      The Landwirtschaftskammer Vorarlberg, Mr Wohlgenannt and Mr Taferner, applicants for leave to intervene, are ordered to pay their own costs.

Luxembourg, 10 May 2004.

H. Jung

J. Pirrung

Registrar

President

---

* Language of the case: German.