A challenged a regulation which stipulated that the term cremant should be reserved for sparkling wines of a particular quality coming from France or Luxembourg. A made sparkling wine in Spain & held a trademark which contained the word cremant. However, other Spanish producers also used this term. The Council argued that the measure was a regulation within the Calpak test & that it couldn’t be challenged, irrespective of whether it was possible to identify the number or identity of those affected by it. The ECJ held that Article 230 may be used to challenge regulations and directives, as long as the applicant is individually and directly concerned.
ECJ: The fact that a provision is “of a legislative nature in that it applies to the traders concerned in general, that does not prevent it from being of individual concern to some of them.” Following Plaumann, “Natural or legal persons may claim that a contested provision is of individual concern to them only if it 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 fact that the regulation would prevent A’s use of its trade mark sets A apart from all other traders affected by the regulation, rendering it of individual concern to A. Although this appears to be a liberalising move in regard to the form of the provision that affects the parties, it still doesn’t tell us whether the tight Plaumann test will be loosened where there aren’t IP rights concerned (but where there are, say, unique factors of the business e.g. barriers to entry). In terms of formal reasoning at least, the ECJ is still endorsing the Plaumann test.