Here’s our second post on the judgment of the Court of Justice in Case C-583/11 P Inuit Tapiriit Kanatami and others v Parliament and Council.

This time, we’ll concentrate on the condition of “individual concern” that individual applicants must meet if they are to have standing to seek the annulment of a measure which is not a regulatory act.

One of the grounds of appeal brought by the appellants in Case C-583/11 P Inuit Tapiriit Kanatami was they claimed the General Court in its Order of 6 September 2011 in Case T-18/10 [2011] ECR II-5599 committed errors in the application of the conditions for admissibility of the action. According to settled case-law, a natural or legal person is entitled to bring an action for annulment of an act which is not a decision addressed to that person only if the person is directly and individually concerned by it.

Had the Lisbon Treaty changed that ?

When it comes to the condition of “individual concern”, the established test in Case 25/62 Plaumann [1963] ECR 95 is satisfied only if the contested act 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 these factors distinguishes them individually just as in the case of the person addressed.

What is interesting about the judgment in Case C-583/11 P Inuit Tapiriit Kanatami is that the appellants invited the Court to rethink the restrictive interpretation of the “individual concern” requirement that the Plaumann test calls for. They recalled that AG Jacobs in point 60 of his Opinion in Case C-50/00 P Unión de Pequeños Agricultores (UPA) v Council had proposed an alternative test, the “substantial adverse effect” test, which if applied by the Court of Justice would lead it to the conclusion that the regulation is of individual concern to the appellants in this case.

However, what the appellants did not recall, conveniently enough, is that the Court of Justice in its judgment in Case C-50/00 P UPA had not followed AG Jacobs’s Opinion and had rejected the “substantial adverse effect” test. Which is exactly what the Court of Justice does  again in the Inuit case. The Court noted that the appellants did not contest the correct application of the Plaumann test by the General Court but they explicitly asked that the CoJ reviews the assessment criteria for “individual concern”.

The Court of Justice stated that the second limb of the fourth paragraph of Article 263 TFEU corresponds to the second limb of the fourth paragraph of Article 230 EC and that the wording of that provision had not changed with the Treaty of Lisbon. Neither is there any indication by the European legislator of its intention to alter the scope of the conditions for admissibility as laid down in the aforementioned provisions. Thus, the Plaumann test was not altered by the Treaty of Lisbon and the General Court had not erred in applying the assessment criteria set out in that case-law.

In view of the above, the Court of Justice concluded in this case that none of the appellants were distinguished individually by the contested regulation as the prohibition on the placing of seal products on the market laid down in the regulation is worded in general terms and applies indiscriminately to any trader falling within its scope. Thus, this ground of appeal was rejected.

By reaffirming the Plaumann test, the Court of Justice basically reaffirmed the decentralised system of judicial protection in the EU: the judge of the Union for the enforcement of the rights of individuals is mainly the national judge, who can then refer a preliminary question to the CoJ. This reminds us of paragraph 41 of the CoJ’s judgment in Case C-50/00 UPA, that

“it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right of effective judicial protection”.

More about that in yet another post later.