Case T‑116/20
Società agricola Vivai Maiorana Ss and Others
v
European Commission
Judgment of the General Court (Ninth Chamber), 29 September 2021
(Agriculture – Regulation (EU) 2016/2031 – Protective measures against pests of plants – List of Union regulated non-quarantine pests – Threshold above which the presence of a Union regulated non-quarantine pest on plants for planting has an unacceptable economic impact – Implementing Regulation (EU) 2019/2072 – Professional associations – Action for annulment – Locus standi – Admissibility – Proportionality – Obligation to state reasons)
Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Whether directly concerned – Criteria – Commission Implementing Regulation establishing the list of Union regulated non-quarantine pests – Regulation also establishing thresholds for the presence of such pests on plants for planting – Action brought by a nursery company and associations representing farmers working in various agricultural activities – Whether each of the applicants is directly concerned by different parts of Annex IV to the contested regulation
(Art. 263, fourth para., TFEU; Commission Regulation 2019/2072, Annex IV, Parts A, B, C, F, I and J)
(see paragraphs 32, 34-39, 41, 42, 45-50, 54)
Actions for annulment – Natural or legal persons – Admissibility criteria – Interest in bringing proceedings – Action must be capable of procuring a benefit for the applicant
(Art. 263 TFEU)
(see paragraph 56)
Agriculture – Harmonisation of laws – Plant health regime – Protective measures against pests of plants – Regulation 2016/2031 – Implementation of Regulation 2016/2031 by Implementing Regulation 2019/2072 – Commission Implementing Regulation establishing the list of Union regulated non-quarantine pests – Regulation also establishing thresholds for the presence of such pests on plants for planting – Obligation, incumbent on professional operators, of sanitation by way of genetic selection of plants for planting – None
(Art. 263 TFEU; European Parliament and Council Regulation 2016/2031, Arts 36(e) and (f) and 37(8); Commission Regulation 2019/2072, Annex IV, Parts A, B, C, F, I and J; Council Directive 2000/29; Council Decision 2004/869)
(see paragraphs 81, 85-92, 94, 96-98, 101, 103, 104, 109-111, 113-121, 123-130, 141-143)
Agriculture – Harmonisation of laws – Plant health regime – Protective measures against pests of plants – Regulation 2016/2031 – Implementation of Regulation 2016/2031 by Implementing Regulation 2019/2072 – Commission Implementing Regulation establishing the list of Union regulated non-quarantine pests – Regulation also establishing thresholds for the presence of such pests on plants for planting – Infringement of Regulation 2018/848 – None
(Art. 263 TFEU; European Parliament and Council Regulations 2016/2031, Arts 36 (e) and (f) and 37 (8), and 2018/848, Art. 13; Commission Regulation 2019/2072, Annex IV, Parts A, B, C, F, I and J)
(see paragraphs 132-139)
Résumé
Union regulated non-quarantine pests (‘RNQPs’) are pests (in particular, insects, fungi and bacteria) which are mainly transmitted through specific plants and the presence of which on those plants has an adverse economic impact on the use of those plants. As provided for in particular in the Plant Health Regulation, ( 1 ) the introduction into and movement within the Union territory of such RNQPs on the plants for planting concerned are prohibited, where those pests are present at an incidence above a certain threshold. In Annex IV to Implementing Regulation 2019/2072, ( 2 ) the Commission drew up the list of RNQPs and also established the thresholds for the maximum presence of such pests.
A vineyard nursery company and two associations representing farmers working in various agricultural activities ( 3 ) (together, ‘the applicants’) consider inter alia that establishing 0% thresholds for the presence of RNQPs on the plants covered by Parts A, B, C, F, I and J ( 4 ) of Annex IV to that implementing regulation entails plant health sanitation obligations in respect of the varieties concerned, which has adverse consequences for biodiversity and gives rise to exorbitant sanitation costs for professional operators.
Whilst acknowledging that each of the applicants has standing to bring an action for annulment of various parts of Annex IV to the implementing regulation, cited above, the Court dismisses the applicants’ action for annulment of that annex, and in so doing rules, for the first time, on the legal issues raised.
Assessment of the Court
In the first place, the applicants claimed that the fact that the Commission failed to take account of the negative impact of the thresholds established on biodiversity and the costs borne by the professional operators concerned entailed, primarily, infringement of the Plant Health Regulation. In rejecting that plea, the Court notes first of all the review of the pests and of the thresholds which led to the adoption of Annex IV to the contested implementing regulation. Next, finding that the establishment of the contested thresholds led to a false perception of the obligations on the professional operators concerned, the Court holds, conversely, in particular, that Part C of Annex IV to the contested regulation does not require professional operators to implement methods of sanitation by way of genetic selection, as suggested by the applicants. Finally, the Court observes that several directives governing the marketing of plants for planting contain derogating provisions intended to promote genetic diversity.
In the second place, the applicants considered that establishing a 0% threshold for the presence of RNQPs on the native varieties of plants infringed the International Treaty on Plant Genetic Resources for Food and Agriculture. ( 5 ) In their view, the genetic selection required by the contested parts of Annex IV to the contested implementing regulation for the purpose of the sanitation required led to the rights of farmers, as provided for in that treaty, to save, use, exchange and sell farm-saved seed or propagating material being rendered meaningless. Finding inter alia that that plea is based on the same erroneous premiss as the first plea, and having concluded that there is no obligation of sanitation incumbent on the operators concerned, the Court rejects that second plea.
In the last place, the Court finds, with regard to the plea alleging infringement of Regulation 2018/848, ( 6 ) that, rather than casting doubt on the legality of the establishment of the contested thresholds, Article 13 of Regulation 2018/848 allows, by way of exception and within a strictly defined framework, plant reproductive material of organic heterogeneous material to be marketed without complying with the requirements set out in the directives governing marketing. Thus, that provision cannot be relied on to contest the legality of the abovementioned thresholds, and that third plea must therefore be rejected.
( 1 ) Regulation (EU) 2016/2031 of the European Parliament and of the Council of 26 October 2016 on protective measures against pests of plants, amending Regulations (EU) No 228/2013, (EU) No 652/2014 and (EU) No 1143/2014 of the European Parliament and of the Council and repealing Council Directives 69/464/EEC, 74/647/EEC, 93/85/EEC, 98/57/EC, 2000/29/EC, 2006/91/EC and 2007/33/EC (OJ 2016 L 317, p. 4).
( 2 ) Commission Implementing Regulation (EU) 2019/2072 of 28 November 2019 establishing uniform conditions for the implementation of Regulation (EU) 2016/2031 of the European Parliament and the Council, as regards protective measures against pests of plants, and repealing Commission Regulation (EC) No 690/2008 and amending Commission Implementing Regulation (EU) 2018/2019 (OJ 2019 L 319, p. 1).
( 3 ) More specifically, it appears that the first association has 584842 members, eight of whom are professional operators active in the fodder plant seed, cereal seed, vine propagating material, vegetable seed, vegetable planting and fruit plant sectors. The second association has members who are professional operators active in the vine propagating material, vegetable planting and fruit plant sectors.
( 4 ) Those parts concern, respectively, fodder plant seed (Part A), cereal seed (Part B), vine propagating material (Part C), vegetable seed (Part F), vegetable propagating material and vegetable planting (Part I) and fruit propagating material and fruit plants intended for fruit production (Part J).
( 5 ) International Treaty on Plant Genetic Resources for Food and Agriculture, the conclusion of which was approved, on behalf of the European Community, by Council Decision 2004/869/EC of 24 February 2004 (OJ 2004 L 378, p. 1).
( 6 ) Regulation (EU) 2018/848 of the European Parliament and of the Council of 30 May 2018 on organic production and labelling of organic products and repealing Council Regulation (EC) No 834/2007 (OJ 2018 L 150, p. 1).