Cyprus Turkish Chamber of Industry and Others v Commission (Order) [2016] EUECJ T-41/16

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(Application for interim measures — Procedure for registration of a protected designation of origin — ‘Halloumi’ or ‘Hellim’ — Rejection of opposition — Application for suspension of operation of a measure — No urgency)

Milk and Oil Products Production and Marketing Cooperative Ltd, established in Nicosia,

Süt Ürünleri İmalatçulari Birliği Milk Processors Association, established in Nicosia,

European Commission, represented by X. Lewis, J. Guillem Carrau and P. Aalto, acting as Agents,

APPLICATION on the basis of Articles 278 and 279 TFEU and seeking the grant of interim measures relating to the procedure for registration of the cheese referred to as ‘halloumi/hellim’ as a protected designation of origin under Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs
(OJ 2012 L 343, p. 1),

1 The cheese referred to as ‘halloumi’ (in Greek) or ‘hellim’ (in Turkish) is made with specific ingredients in accordance with traditional production methods. It has a particular taste and texture as well as particular cooking properties, which may essentially be attributed to the topographical features and the fauna and flora of the island of Cyprus. The applicants, Cyprus Turkish Chamber of Industry, Animal Breeders Association, Milk and Oil Products Production and Marketing Cooperative Ltd, Süt Ürünleri İmalatçulari Birliği Milk Processors Association and Ms Fatma Garanti, all established or residing in the northern part of the island of Cyprus, are involved in the production and marketing of halloumi/hellim amongst the Turkish Cypriot community. Cyprus Turkish Chamber of Industry seeks to promote the various economic sectors of the northern part of the island. Animal Breeders Association has the objective of improving the living conditions of the sheep, goat and cow breeders who produce milk amongst the Turkish Cypriot community. Milk and Oil Products Production and Marketing Cooperative Ltd is the largest company producing dairy products and fruit juices and its exports of halloumi/hellim represent 50% of its total sales. Süt Ürünleri İmalatçulari Birliği Milk Processors Association defends the interests of the dairy sector, its members being active, in particular, in the production and exportation of halloumi/hellim. Ms Fatma Garanti produces halloumi/hellim and other dairy products. Since her production of ewe’s and goat’s milk is not sufficient for those purposes, she uses cow’s milk in an industrial process.

2 When the Republic of Cyprus acceded to the European Union in 2004, the Cypriot Government informed the European Commission of its intention to submit an application for registration of halloumi as a protected designation of origin (PDO). That application for registration was submitted to the Commission in 2009. However, as a result of the lodging of numerous oppositions concerning the envisaged composition of the milk used for the manufacture of halloumi, the Cypriot Government withdrew its application.

3 In 2012, various Cypriot companies and organisations active in the cheese production sector, in particular of halloumi, filed an application with the Cypriot authorities for registration of halloumi as a PDO. That application was based on the Cypriot production standard of 1985 (‘the 1985 standard’) and sought to have that standard interpreted as requiring halloumi producers to use more than 50% ewe’s or goat’s milk. In other words, when cow’s milk is used in addition to ewe’s or goat’s milk or a mixture thereof in the production of halloumi, the proportion of cow’s milk must not be greater than the proportion of ewe’s or goat’s milk or the mixture thereof.

4 The application for registration of halloumi is governed by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1). Under that regulation, the procedure for the registration of PDOs consists of two stages. The first stage concerns specifically the Member State in which the agricultural product or foodstuff in question originates. That Member State initiates the procedure by means of an application for registration and the preparation of the necessary documentation establishing the link between the product covered and the protected area; in addition, it must provide for a national opposition procedure enabling any resident on its territory to oppose the application. This is followed by a second stage, carried out by the European Commission, in which the criteria in the application for registration are checked and verified. This involves an examination of the application and its publication, for the purposes of a possible cross-border opposition procedure.

5 In the present case, the application for registration was published in November 2012 in the Episimi Efimerida tis Kypriakis Dimokratias (Official Journal of the Republic of Cyprus) and the applicants raised objections, on 26 December 2012, before the Cypriot Ministry of Agriculture which, by letters of 9 July 2014, were all rejected.

6 In those letters, the Cypriot Minister of Agriculture stated that it was not proven that the applicants were resident and exercised their activities in the Republic of Cyprus. The Ministry added that, on account of the prevailing conditions since 1974 and the fact that the Cypriot Government did not exercise any effective control in the occupied part of the island, it was impossible to check whether the applicants had a legitimate interest in opposing the application. The Minister continued by observing that he had, nevertheless, examined the merits of the grounds for opposition put forward, while having regard to the contents of the administrative file and the report of the Consultative Committee established on the basis of the applicable national law. Following that examination, the Minister rejected the individual grounds for opposition submitted by the applicants, adopting the reasoning given in the Consultative Committee’s report. The Minister’s rejection decision, his decision in favour of the submission of an application for registration to the Commission and the Consultative Committee’s report were annexed to those letters.

7 Following the rejection of those objections by the Cypriot authorities, the applicants brought proceedings before the Cypriot national courts in order to challenge the lawfulness of the rejection decision. Those judicial proceedings are still pending.

8 On 17 July 2014, the Cypriot authorities filed application CY/PDO/0005/01243 with the Commission, seeking registration of halloumi/hellim as a PDO, and stating that, under the specification, the composition of milk required referred to a predominance of ewe’s and goat’s milk. That application is not strictly identical to the initial application for registration (see paragraph 2 above), since the Turkish variation of the ‘halloumi’ designation, namely the ‘hellim’ designation, has been expressly added and the definition of the geographical area has been extended to the entire island of Cyprus and is not restricted solely to the administrative boundaries of the districts of Nicosia, Limassol, Larnaca, Famagusta, Paphos and Kyrenia.

9 Having examined the application for registration, the Commission found that it was justified, in that it satisfied the conditions of Regulation No 1151/2012, in accordance with Article 50 thereof. Consequently, on 28 July 2015, it adopted the measure entitled ‘Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs’ (OJ 2015 C 246, p. 9) (‘the single document’), which summarises the specification submitted by the Cypriot authorities for the purposes of the registration of halloumi/hellim as a PDO. The second stage of the administrative procedure, namely the cross-border opposition procedure provided for in Article 51 of Regulation No 1151/2012, was initiated by that publication.

10 On 26 October 2015, the applicants submitted notices of opposition on the basis of Article 51 of Regulation No 1151/2012. They argued that the national procedure followed in the Republic of Cyprus was legally flawed, the rights of Turkish Cypriot producers having been seriously undermined, that Article 7(1)(b) and (e) of Regulation No 1151/2012 was infringed inasmuch as the product specification failed to respect the traditions of the whole of the geographical area indicated, that Article 7(1)(g) of Regulation No 1151/2012 was infringed inasmuch as the specification designated the Ministry of Agriculture of the Republic of Cyprus as the competent authority for the entire geographical area indicated, without providing for an effective system of control for the whole of that area. Lastly, they alleged breach of the fundamental rights of Turkish Cypriot community producers and their de facto exclusion from the benefits of the registration of the PDO.

11 By letter of 18 November 2015 (Ares (2015) 5171539), the Commission informed the applicants that, under Article 51(1) and (2) of Regulation No 1151/2012, natural or legal persons established or resident in the Member State from which the application originated were not permitted to lodge a notice of opposition in the framework of the opposition procedure carried out at EU level, going on to conclude that the opposition procedure could not be initiated by the applicants because they were established in Cyprus. In response to a request for clarification from one of the applicants, the Commission confirmed, by letter of 15 January 2016 (Ares (2016) 220922), that no formal decision had been adopted concerning the notices of opposition submitted by natural or legal persons established in Cyprus, that a formal decision would be taken by the Commission in the context of its final decision on the application for registration and that the applicants would not be invited to start consultations with the Cypriot authorities with a view to reaching an agreement.

12 The applicants submit that those letters (‘the letters at issue’) have had the effect of excluding them definitively from the registration procedure in question.

13 Accordingly, by application lodged at the Registry of the General Court on 28 January 2016, the applicants brought an action in which they requested the General Court to annul the decision set out in the letters at issue and, pursuant to Article 277 TFEU, to declare Articles 49 to 52 of Regulation No 1151/2012 inapplicable, inasmuch as those articles fail to guarantee respect for their fundamental rights.

14 By a separate document, lodged at the Registry of the General Court on 11 February 2016, the applicants submitted the present application for interim measures, in which they claim, in essence, that the President of the General Court should:

– instruct the Commission to suspend the procedure for registration of halloumi/hellim as a PDO under Regulation No 1151/2012;

15 In its observations on the application for interim measures, lodged at the Court Registry on 29 February 2016, the Commission contends that the President of the Court should dismiss that application and reserve the costs. The Commission submits, primarily, that the main action to which the application for interim measures relates is manifestly inadmissible, the letters at issue being purely preparatory in nature and not producing any legal effects such as to affect the applicants’ interests by bringing about a distinct change in their legal position or their procedural rights, for the purposes of Article 263 TFEU.

16 The applicants replied to the Commission’s observations by a pleading of 7 March 2016. The Commission adopted a final position on that pleading by a pleading of 15 March 2016.

17 In accordance with Article 278 TFEU and Article 279 TFEU, read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only in exceptional cases that the judge hearing an application for interim measures may order the suspension of operation of a measure challenged before the General Court or prescribe interim measures (see order of 7 December 2015 in POA v Commission, T‑584/15 R, unpublished, EU:T:2015:946, paragraph 10 and the case-law cited therein).

18 Furthermore, Article 156(3) of the Rules of Procedure of the General Court provides that applications for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Accordingly, the judge hearing an application for interim measures may order the suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the interests of the party seeking those measures, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (see order of 7 December 2015 in POA v Commission, T‑584/15 R, unpublished, EU:T:2015:946, paragraph 11 and the case-law cited therein).

19 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed. Where appropriate, the judge hearing such an application must also weigh up the interests involved (see order of 7 December 2015 in POA v Commission, T‑584/15 R, unpublished, EU:T:2015:946, paragraph 12 and the case-law cited therein).

20 Having regard to the documents in the case, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

21 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.

22 In that context, the applicants submit that the effect of the letters at issue is to exclude them from the administrative procedure intended to guarantee for all parties the right to be heard before the adoption of a formal decision on the registration of halloumi/hellim as a PDO. Thus, they will incur serious and irreparable damage in the event of the rejection of the application for interim measures.

23 They state that, in itself, their exclusion from the opposition procedure relating to the possible registration of a traditional product which forms part of living gastronomic and cultural heritage of the whole island of Cyprus means that their right to be heard will have been denied, definitively, both at Cypriot national level and before the Commission, even though they have an inherent interest in that procedure. Thus, the urgency of a suspension of that exclusion is res ipsa. Were the application for interim measures not to be granted, the opposition procedure would continue until the end of the main proceedings on the legality of the decision set out in the letters at issue. Nevertheless, if the Tribunal were to annul that decision, the rights of the applicants would be irremediably undermined, in so far as they could no longer express their views on the application for registration of halloumi/hellim. In addition, the final judgment of the General Court would be deprived of any concrete effect in so far as the applicants could not be re-admitted to a procedure which would already have closed at that date.

24 The applicants add that, were the application for interim measures not to be granted before the end of the main proceedings, they would be de facto excluded from the benefits of registration of halloumi/hellim as a PDO. Although the application for registration defines the geographical area of production as the whole of the island of Cyprus, the single document and product specification do not provide for an effective controls system for the whole of the geographical area. The Cypriot Ministry of Agriculture, as the competent national authority, is not in a position to perform official checks with respect to the producers who are established or resident in the northern part of the island where the Republic of Cyprus does not exercise effective control. Thus, the competent authority is not in a position to ensure compliance with its obligations under Regulation No 1151/2012. The exclusion of the applicants from the opposition procedure would preclude any possibility of amending the present application for registration in order to establish an effective controls system with regard to the whole of the island and of amending any PDO for halloumi/hellim so that it might reflect the traditional production methods common to all the producers on the island of Cyprus.

25 According to the applicants, the single document and the specification can be amended only in the context of the consultations provided for under Article 51(3) of Regulation No 1151/2012. The fact that the single document has been published in its current form means that the Commission considers that it meets the requirements of that regulation. Any amendment by the Commission of the single document in the absence of observations arising from the opposition procedure would mean that the Commission erred in its conclusion that the application for registration meets the requirements for registration. Were the consultations on the registration of halloumi/hellim to continue pending the decision of the General Court in the main proceedings, the current single document and specification would have to be registered as they are. That would result in serious consequences. First, the applicants’ fundamental right to be heard and the audi alteram partem principle would be irremediably infringed. Secondly, the General Court’s decision as to the substance would be deprived of any effect. Lastly, the applicants, as Turkish Cypriot community producers, would not be able to benefit from the PDO registration. The risk of irreparable harm is therefore clear.

26 Finally, the applicants argue that the harm caused to them as a result of the infringement of their right to be heard and of the audi alteram partem principle would not be pecuniary, it being impossible to remedy the damage caused by an infringement of rights by the payment of any amount of compensation. If the procedure for registration of halloumi/hellim as a PDO is not suspended and the Commission decides to proceed with that registration, the applicants might not be in a position to challenge that decision before the EU judicature.

27 The Commission contends in reply that the applicants’ procedural rights have not been infringed inasmuch as their oppositions were in fact examined by the Cypriot authorities. Consequently, there are no procedural rights during the second phase of the registration procedure which require the adoption of interim measures in order to be protected. Furthermore, since the applicants have brought proceedings before the Cypriot courts following the rejection of their oppositions on substantive grounds, any fault potentially committed by the Cypriot authorities can be remedied in that context. Lastly, the Cypriot authorities have officially granted Turkish Cypriot operators, among which the applicants are included, a ten-year transitional period to adapt to the specification, in accordance with Article 15(4) of Regulation No 1151/2012. Consequently, the applicants have not established that they are at imminent risk of incurring serious and irreparable harm.

28 In this connection it should be recalled that, pursuant to settled case-law, the urgency of an application for interim measures must be assessed in relation to the need for interim measures in order to avoid serious and irreparable harm being caused to the party seeking interim relief. It is for the party seeking such relief to adduce sound evidence that it cannot await the conclusion of the main action without personally suffering harm of that kind. While it does not have to be established with absolute certainty that the harm claimed is imminent, its occurrence must nevertheless be foreseeable with a sufficient degree of probability and purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 7 December 2015 in POA v Commission, T‑584/15 R, unpublished, EU:T:2015:946, paragraph 22 and the case-law cited therein).

29 In the present case, the applicants’ main argument consists in the claim that the decision set out in the letters at issue in itself entails an infringement of their fundamental right to be heard during the opposition procedure laid down under Regulation No 1151/2012, both at national level and before the Commission, which puts them at risk of serious and irreparable harm.

30 It has repeatedly been held that it is not sufficient to allege infringement of fundamental rights in the abstract for the purpose of establishing that the damage which could result would necessarily be irreparable (see, to that effect, orders of 10 September 2013 in Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 40; 28 November 2013 in EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 42; and 25 February 2015 BPC Lux 2 and Others v Commission, T‑812/14 R, unpublished, EU:T:2015:119, paragraph 28). It is true that a breach of certain fundamental rights, such as the prohibition of torture and inhuman or degrading treatment or punishment enshrined in Article 4 of the Charter of Fundamental Rights of the European Union, may, on account of the very nature of the right violated, in itself give rise to serious and irreparable harm. However, the fact remains that it is always for the party seeking interim measures to set out and establish the likelihood of such harm occurring in his particular case (orders of 10 September 2013 in Commission v Pilkington Group, C‑278/13 P(R), EU:C:2013:558, paragraph 41, and 28 November 2013 in EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 43).

31 A fortiori, a breach of a purely regulatory right, such as that of participating in the opposition procedure laid down under Regulation No 1151/2012, even if proven, is insufficient to establish serious and irreparable harm.

32 It follows that the applicants, in order to establish urgency, are required to identify, specify and prove the serious and irreparable harm, of a financial or non-material nature, which they fear they will incur on account of their purportedly unlawful exclusion from the opposition procedure relating to the application for registration of halloumi/hellim.

33 In that context, it must be recalled that, in order to determine whether the harm alleged — both financial and non-material — is in fact serious and irreparable, the judge hearing the application for interim measures must have actual and specific information, supported by detailed, certified documentary evidence showing the situation of the party seeking interim measures and enabling an assessment of the likely consequences if the measures sought are not granted. It follows that that party must produce, with supporting documentation, an accurate overall picture of the situation which it claims warrants the grant of those measures (see order of 10 December 2015 in GGP Italy v Commission, T‑474/15 R, unpublished, EU:T:2015:958, paragraph 27 and the case-law cited therein).

34 In the present case, the applicants in essence maintain that their exclusion from the opposition procedure would deprive them of the benefit of registration of the halloumi/hellim PDO and would preclude any possibility of amendment of the current application for registration with a view to adapting the PDO to reflect the traditional production methods common to all the producers on the island of Cyprus and to establish an effective controls system with regard to the whole of the island, including the northern part.

35 It must be stated that those are brief, general and vague claims which, moreover, are not based on any explanatory supporting documents or substantiated by evidence such as to establish that the applicants are at risk of incurring serious and irreparable harm. It follows that the judge hearing the application for interim measures, having regard to the fact that such measures are granted only in exceptional circumstances (see paragraph 17 above), cannot uphold a finding of urgency merely on the basis of such claims inasmuch as the Commission has challenged them by specific, detailed arguments (see paragraph 27 above). Consequently, the judge hearing the application for interim measures cannot attribute more value to the applicants’ vague and unsubstantiated claims than to the specific and detailed arguments to the contrary submitted by the Commission (see, to that effect, order of 16 October 2013 in Spain v Commission, T‑461/13 R, unpublished, EU:T:2013:545, paragraphs 39 and 42).

37 For the sake of completeness, the judge hearing the application for interim measures can only assume that the applicants are objecting to the fact that the Commission has excluded them from the opposition procedure despite the fact that the application for registration does not reflect the production methods applied by producers of halloumi/hellim in the northern part of the island of Cyprus, in particular so far as concerns the composition of the milk used for the manufacture of halloumi/hellim, such milk being composed of over 50% cow’s milk.

38 If the applicants actually intended to submit such a line of argument, based on the fear that Turkish Cypriot producers would be excluded from the benefit of the future PDO registered and obliged to cease that method of production, they should have stated in detail, relying on documents containing quantitative data, the economic and financial impact of the feared loss of opportunities for those producers. In that context, they should have stated their view on whether the alleged harm purportedly caused by the letters at issue was imminent, taking account of the fact that the Cypriot authorities have laid down a ten-year transitional period during which producers of halloumi/hellim are allowed to produce the latter using a preponderant proportion of cow’s milk of up to 80%. Neither the application for interim measures nor the applicants’ pleading of 7 March 2016 contains the slightest (quantitative) explanation concerning the abovementioned economic and financial impact. Nor have the applicants commented with regard to the transitional period granted by the Cypriot authorities, which the Commission has pointed to in its observations.

39 It must further be added for the sake of completeness that the applicants have brought proceedings before the competent Cypriot court with a view to obtaining a ruling that the procedure for registration of halloumi/hellim at national level is unlawful, in particular on the grounds of their exclusion from the opposition procedure, and those legal proceedings are still pending. Consequently, it is possible that, in the relatively near future, the national court may rule on the relevance, so far as halloumi/hellim is concerned, of the absence of any effective control by the Cypriot government in the northern part of the island of Cyprus and that that court will require the government to amend the specification it submitted to the Commission for the purposes of the registration of halloumi/hellim as a PDO. Such a development at national level might lead the Commission to reject the application for registration, under Article 52 of Regulation No 1151/2012, or, if already registered, might lead to amendment of the specification or cancellation of the registered PDO, under Articles 53 and 54 of that regulation.

40 It follows that, on any view, the combined effects of the transitional period and the legal proceedings pending at national level do not make it possible to establish, at this stage of the proceedings, the irreparable nature of the harm claimed.

41 It follows from all the foregoing that the application for interim measures must be dismissed for lack of urgency, there being no need to examine the condition relating to a prima facie case, or to weigh up the interests involved. There is, accordingly, likewise no need to rule on the question of admissibility raised by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Cyprus Turkish Chamber of Industry and Others v Commission (Order) [2016] EUECJ T-41/16_CO (13 April 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T4116_CO.html Cite as: EU:T:2016:217, [2016] EUECJ T-41/16_CO, ECLI:EU:T:2016:217

Court of Justice of the European Communities (including Court of First Instance Decisions)