The Court of Justice’s judgment of 3 October 2013 in Case C-583/11 P Inuit Tapiriit Kanatami and others v Parliament and Council is significant in three respects.
- First it makes clear what is – or rather what is not – a regulatory act according to Article 263 paragraph 4 in fine TFEU.
- Second it refuses to change its constant case-law on what “individual concern” means according to Article 263 paragraph 4 TFEU and in particular refuses to endorse a “substantial adverse effect” test.
- Third, it reaffirms the deep attachment of the Court to the system of review of the legality of acts of the EU institutions by the courts of the Member States in cooperation with the Court of Justice via requests for preliminary rulings.
We will deal with the definition of a “regulatory act” in this post first and the other two aspects of the case in separate posts later.
In its judgment in Case C-583/11 P, the Court held that a regulation adopted by the Parliament and Council was a legislative act and thus not a “regulatory act” within the meaning of Article 263 paragraph 4 TFEU. As a consequence, individual plaintiffs who seek the annulment of such an a regulation must demonstrate that they are “directly and individually” concerned by it. And in this case, they could not. Thus, the judgment is in the same vein as in Case C-274/12 P Telefonica we posted about here.
Various seal hunters, trappers and operators engaged in the marketing of seal products brought an action for the annulment of Regulation 1007/2009 of the European Parliament and of the Council of 16 September 2009 on trade in seal products. That regulation imposed certain restrictions on the marketing of seal products in the EU: such products could only be placed on the market if they were the result of hunting traditionally conducted by Inuits and other indigenous people and contributed to their subsistence.
The General Court, at first instance, held in its order of 6 September 2011 in Case T-18/10  ECR II-5599, held that the regulation was a legislative act which could be challenged only if the two conditions laid down by the Court of Justice in its traditional case-law on standing were met: that the applicants were individually and directly concerned by the measure. The General Court held that the applicants in this case did not meet those conditions. It also held that the new rule to be found in the third limb of Article 263 paragraph 4 TFEU introduced by the Lisbon treaty which enables litigants to challenge certain acts of general application, even when they are not of individual concern, applied only to regulatory acts, to the exclusion of legislative acts.
The Court of Justice, in its judgment of 3 October 2013, upheld the Order of the General Court. It made clear that the concept of regulatory act is more restricted than that of “acts” used in Article 263 TFEU and cannot apply to all acts of general application.
The Court of Justice also observed that Article 263 paragraph 4 TFEU reproduced in identical terms the content of Article III-365(4) of the proposed treaty establishing a Constitution for Europe. The travaux préparatoires relating to that provision show that while the alteration of the fourth paragraph of Article 230 EC was intended to extend the conditions of admissibility of actions for annulment in respect of natural and legal persons, the conditions of admissibility laid down in the fourth paragraph of Article 230 EC relating to legislative acts were not to be altered. Accordingly, the use of the term ‘regulatory act’ in the draft amendment of that provision made it possible to identify the category of acts which might thereafter be the subject of an action for annulment under conditions less stringent than previously, while maintaining ‘a restrictive approach in relation to actions by individuals against legislative acts (for which the “of direct and individual concern” condition remains applicable)’ (see, inter alia, Secretariat of the European Convention, Final report of the discussion circle on the Court of Justice of 25 March 2003, CONV 636/03, paragraph 22, and Cover note from the Praesidium to the Convention of 12 May 2003, CONV 734/03, p. 20).
The Court of Justice agreed with the General Court that the regulation in issue in these proceedings was a legislative act, adopted according to the ordinary legislative procedure. As a result, the applicants, in this case, have to show that they are directly and individually concerned by the measure they attack. As we shall see in a subsequent post, the Court of Justice held that they failed to meet those conditions.
The question could be asked at this juncture: what is a “regulatory act” if it is not a legislative act of general application ? A clue can be found in paragraph 44 of the judgment where it is recounted that the European Parliament submitted that the act at issue in Case C-263/02 P Commission v Jégo-Quéré  ECR I-3425 – a Commission implementing regulation imposing minimum fishing net mesh sizes to be used to fish certain types of fish – was a “regulatory act” within the meaning of Article 263 paragraph 4 TFEU.
As we said earlier, more about the other aspects of this interesting judgment later.