In Case C-362/06 P Markku Sahlstedt and Others v. Commission the Court of Justice dismissed an appeal against an order of the Court of First Instance declaring inadmissible an action for annulment brought by landowners against a Commission decision classifying certain areas of land as being of ecological significance.
Under the "Habitats Directive", Council Directive 92/43/EC on the conservation of natural habitats and of wild fauna and flora, each member State must propose a list of important ecological sites to the Commission. Then the Commission must publish a list of those important sites together with certain environmental information on each site listed. Finally, the member States must designate the sites in their territory as "special areas of conservation" ("SACs") and take special measures to protect the environment in those areas.
The Commission published the list of sites in the Boreal biogeographical region, mainly up in Finland. But certain landowners with land in those sites and an association of farmers and foresters brought an action before the Court of First Instance to annul that Commission Decision.
The Court of First Instance declared that the action was inadmissible in its order in Case T-150/05 Sahlstedt and Others v. Commission. It held that that the applicants were not directly concerned by the contested decision, within the meaning of Article 230 § 4 EC: The Commission decision challenged, while it binds the member State as to the result to be achieved, leaves the choice of the conservation measures to be undertaken and the authorisation procedures to be followed to the competent national authorities. Consequently, the Court of First Instance dismissed the case without examining the merits.
The Applicants then appealed to the Court of Justice.
In a interesting twist, Advocate General Bot, in his opinion of October 23rd 2008, concluded that the appeal was well-founded, that the landowners were individually concerned by the Commission decision and that the case should be sent back to the Court of First Instance so that it could rule on the merits.
The Court of Justice did not follow the Advocate General's opinion and held that the applicants were not individually concerned.
The Court recalled that persons other than addressees of a decision may claim to be individually concerned only if that 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 and by virtue of those factors distinguishes them individually just as in the case of the person addressed by such a decision (see, inter alia, Case 25/62 Plaumann v Commission at 107, and Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum, paragraph 33). It found in the present case that the contested decision is a measure of general application because it applies to all economic operators who, in whatever capacity, carry on or are likely to carry on activities in the areas concerned which could jeopardize the conservation objectives of the Habitats Directive.
The Court continued to the effect that a provision of general application inasmuch as it applies to the economic operators concerned in general can still be of individual concern to some (see, Case C‑309/89 Codorniu, paragraph 19, and Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission, paragraph 58). Where the decision affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons may be individually concerned by that measure inasmuch as they form part of a limited class of economic operators (Case C‑125/06 P Commission v Infront WM, paragraph 71 - for our post on that case, see here). However, the fact that it is possible to determine more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that that measure must be regarded as being of individual concern to those persons where it is established that that application takes effect by virtue of an objective legal or factual situation defined by the measure in question (Case C‑451/98 Antillean Rice Mills v Council, paragraph 52; the order in Case C‑96/01 P Galileo and Galileo International v Council, paragraph 38; and the order in Case C‑503/07 P Saint-Gobain Glass Deutschland v Commission, paragraph 70).
The Court of Justice held that the contested decision is of concern to the appellants only in so far as they have rights in the lands covered by some of the sites of Community interest adopted by the Commission with a view to enabling the establishment of a coherent European ecological network of SACs. Thus, the decision affects them by virtue of an objective legal or factual situation defined by the measure in question and not in accordance with criteria specific to the category of landowners. Nor was the contested decision adopted in the light of the specific situation of the landowners: The Decision cannot be regarded as a group of individual decisions addressed to each landowner.
Consequently, the appellants are not individually concerned by the contested decision for the purposes of Article 230 § 4 EC.
What is interesting in this case is how the Court of Justice has substituted its reasoning for that of the Court of First Instance. The latter held that the applicants were not "directly" concerned by the contested Decision, whereas the Court of Justice dealt only with the issue as to whether they were "individually" concerned by it.
For a previous post on standing, see here.