In 2018 the European Commission adopted (fictitious) Regulation 364/2018, which requires Member States to issue wine import licences each month to importers from outside the EU who submit licence applications during the previous month. On 1 February 2020 the European Commission issued a (fictitious) decision addressed to France allowing it to restrict licences for Argentinian wine imports for February 2020 to limit the amount that could be imported into France by an applicant to 10,000 litres during that month.

Argenco SA (‘Argenco’) imports Argentinian wine into the EU. In January 2020, it applied to import 15,000 litres of wine into France in February. A licence was granted on 2 February but was limited to 10,000 litres. The French authorities claimed to be acting pursuant to the Commission decision of 1 February.

Argenco now seeks your advice on instituting annulment proceedings in the General Court in respect of the Commission decision. Advise Argenco as to whether such an action would be admissible.

How, if at all, would your answer differ if in December 2019 the French authorities had informed Argenco that they had sought permission from the Commission to restrict import licences for Argentinian wine to 10,000 litres for the month of February 2020?

For the purposes of answering this question, please ignore the strict (two month) time limit for actions.

Time limit

• As the question intimates, the action should, of course, had been brought within two months of the publication of the measure or its notification to the Argenco or, in the absence of either, the date on which it came to Argenco's knowledge.

Jurisdiction of the Court of Justice

• Article 263 TFEU grants the Court of Justice of the European Union jurisdiction to review the legality of acts of the EU institutions, including the European Commission, that are intended to produce legal effects vis-à-vis third parties. The Commission decision of 1 February 2020 is a legally binding act and is therefore susceptible to review.
• The Court has jurisdiction in proceedings brought by Member States and the EU institutions. In addition, any legal or natural person may challenge binding acts of the EU institutions, though their standing or locus standi, as 'non-privileged' applicants, is much more limited than the standing of the Member States and the EU institutions, the 'privileged' or 'semi-privileged' applicants.
• As a company, Argenco is a legal person and may, as such, challenge the Commission decision in question in the General Court, provided that it satisfies the standing requirements for non-privileged applicants set out in Article 263, as interpreted by the Court of Justice.

Admissibility: standing requirements for non-privileged applicants

• Argenco's action will be admissible if the company can establish standing.
• Article 263 provides that ‘any natural or legal person may…institute proceedings against an act addressed to that person or which is of direct and individual concern to them or a regulatory act which is of direct concern to the applicant, and which does not entail implementing measures’.
• Whilst ‘regulatory act is not defined in the Treaty, in Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union, the Court clarified that it can be interpreted as all acts of general application except legislative acts.
• Since Argenco's proposed action concerns a legislative act in the form of a decision addressed not to Argenco itself but to France, to establish standing the company will need to show that the decision is of both direct and individual concern to it.

Direct concern

• The Treaty does not define 'direct concern' but the case law of the Court of Justice gives guidance on the meaning of the term. The Court has indicated that the applicant must show a direct link or an unbroken chain of causation between the act and the loss or damage suffered. A link is not established if the measure leaves a Member State discretion in implementation, since in that case the applicant is affected not by the act itself but by its implementation.
• For instance, in Municipality of Differdange the applicant sought annulment of a Commission decision addressed to Luxembourg authorising it to grant aid to steel producers which reduced their production capacity. The applicant claimed that it would lose revenue from local taxes because of the factory closures and sought annulment of the decision. The Court of Justice held that the decision left the national authorities and the companies concerned discretion with respect to the choice of factories to be closed. It was the exercise of that discretion that affected the applicant, which was therefore not directly concerned by the Commission decision.
• The Commission decision of 1 February 2020 allows France to restrict licences for Argentinian wine so as to limit the amount that can be imported in February 2020 to 10,000 litres, but does not require them to do so. Thus, France is left with discretion as to whether to restrict licences. It was the exercise of that discretion by the French authorities, not the Commission decision, which affected Argenco. Consequently, there is no direct concern and the action is inadmissible.
• The position would be likely to be different if in December 2020 the French authorities had informed Argenco that they had sought permission from the Commission to restrict import licences for Argentinian wine to 10,000 litres for February 2020. Here, the Court may well take the view, as it did in Paraiki-Patraiki that although the French authorities could choose whether or not to restrict imports, the possibility that they would not do so was 'purely theoretical'. Prior to the adoption of the Commission decision, France had already made its position clear by seeking permission from the Commission to impose a 10,000-litre limit in February 2020 and, in these circumstances, Argenco will probably succeed in persuading the Court that it is directly concerned by the Commission decision.
• It is not sufficient for Argenco to establish direct concern; the company must also establish individual concern.

Individual concern

• The Court of Justice set out its well-known test for individual concern in Plaumann.
• Persons other than those to whom a decision is addressed are individually concerned only if the decision affects them 'by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons'. The decision must distinguish them individually in the same way that it distinguished the original addressee. Plaumann was affected because of a commercial activity that could be taken up by any other person in the future. The company could not claim to be singled out by the decision and so was not individually concerned.
• Applicants may claim to be singled out, however, if they can show that they are a member of a closed class of applicants that was fixed and ascertainable at the date the measure was adopted. Here, the measure would have only retrospective impact on a specific group of persons (International Fruit Co NV; Paraiki-Patraiki).
• Argenco can claim to be a member of such a class, namely the class of importers which made licence applications during January 2020. That class of applicants was fixed and ascertainable at the date the Commission decision was issued. It has only retrospective impact on that specific group of persons, which can therefore claim that they are affected in 'circumstances in which they are differentiated from all other persons'.
• In the light of these authorities, the General Court may be persuaded that Argenco is individually concerned by the Commission decision.