61997B0109

Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Regulation registering a designation of origin covering a geographical area larger than the territory bearing that name

(EC Treaty, Arts 173, fourth para., 177 and 189; Council Regulation No 2081/92, Arts 5, 6, 7 and 17; Commission Regulation No 123/97)

An action for annulment brought by a cheese manufacturer established in the district of Altenburger Land, Germany, contesting Regulation No 123/97 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Regulation No 2081/92 in so far as it registers the protected designation of origin `Altenburger Ziegenkäse' for a geographical area extending beyond the said district, is inadmissible.

In the first place, that regulation is, by its nature and scope, a legislative measure and not a decision within the meaning of the fourth paragraph of Article 189 of the Treaty, since it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged generally and in the abstract, by giving all undertakings whose products meet the prescribed geographical and quality requirements the right to market them under the protected designation of origin. The general application and hence the legislative character of the regulation are not called into question by the fact that it is possible to determine with a greater or lesser degree of precision the number or even the identity of the persons to whom it applies at the time of its adoption, since it applies by virtue of an objective legal and factual situation defined in relation to the objective of the regulation, namely to confer the protection afforded by the designation of origin in question with respect to a geographical area defined objectively in relation to the objective of promoting certain rural areas.

In the second place, although in certain circumstances even a legislative measure which applies to the traders concerned in general may concern some of them individually, that is not the case here.

First, the fact that the Commission chose, for the adoption of the contested regulation, the legislative procedure under Article 17 of Regulation No 2081/92, which excludes any participation by persons who might be concerned, instead of that under Articles 5 to 7 of that regulation, which provides for such participation, is not capable of distinguishing an applicant individually for the purposes of the fourth paragraph of Article 173 of the Treaty, since the Commission did not commit an abuse of procedure in this respect.

Second, the mere fact that before adopting the contested regulation the Commission received comments from an applicant on the subject of the geographical area at issue and replied to those comments is not capable of distinguishing him individually from all other traders, since in the absence of expressly guaranteed procedural rights it would be contrary to the wording and spirit of Article 173 of the Treaty to allow any individual who has taken part in the preparation of a legislative measure subsequently to bring an action against that measure.

Third, while the definition of a too extensive geographical area may in theory cause a reduction in the real value of a designation of origin which was previously restricted to a smaller geographical area, and possibly affect the specific rights of the undertakings in the smaller geographical area which use that designation, an applicant, in the absence of any evidence to show that the contested provisions weakened such rights, can also not be regarded as being distinguished individually from the point of view of a possible infringement of his specific rights.

Finally, concerning the possibility of judicial protection against the regulation in question, it does not appear to be legally impossible for an applicant to address himself to a national court which could, if appropriate, make a reference to the Court of Justice for a preliminary ruling under Article 177 of the Treaty on the validity of the regulation.