Another judgment of the Court of Justice on Article 263 (4) TFEU and what is a “regulatory act not entailing implementing measures”. And again, the Court held on 28 April 2015 in Case C-456/13 P T & L Sugars v Commission that the measure challenged was not “regulatory act not entailing implementing measures”. Does that judgment end the hopes of those who wished for a broader interpretation of Article 263 (4) TFEU and for a loosening of the rules on standing ?
After all, AG Cruz Villalòn was sympathetic to the idea in his Opinion of 14 October 2014 that the measures challenged were indeed “regulatory acts not entailing implementing measures” and advised that the action should be declared admissible.
A reminder, in unusual circumstances, that individual cannot compel the Commission to commence infringement proceedings against a Member State pursuant to Article 258 TFEU. That is what the Court of Justice recalls in its Order in Case C-411/14 P Romano Pisciotti v Commission EU:C:2015:48. The case was a little different ….
The General Court handed down an order recently in Case T-479/14 Kendrion NV v EU represented by the Court of Justice, EU:T:2015:2. It finds that the Court of Justice is the right defendant in an action for damages in a claim for compensation for the loss and damage caused by unreasonable delay in judicial proceedings in the General Court.
A rich and spicy situation ! The General Court dismissing an inadmissibility plea by the Court of Justice.
Here’s some explanation and background how such a situation can arise.
This judgment concerns the payment of a special tax (and its repayment by the Member State concerned) imposed upon the first registration of a motor vehicle in Romania. Initially this tax was introduced as a motor vehicle pollution tax by an order of 2008 (‘the 2008 Order’) and it was later replaced by the environmental stamp duty by an order of 2013 (‘the 2013 Order’) following the judgments in Case C-402/09Tatu (EU:C:2011:219) and Case C-263/10 Nisipeanu (EU:C:2011:466) which found such pollution tax to be contrary to EU law.
Here we go again…. Two more judgments of the Court of Justice on the issue of standing and the “regulatory acts which do not entail implementing measures” business in Article 263 (4), third limb, TFEU. On this, se our previous posts here, here and here.
First, it held that even if the plaintiffs did not meet all the conditions required for their actions to be admissible under the amendment to Article 263 (4) TFEU made by the Lisbon Treaty which relaxed the conditions of admissibility of actions for annulment brought by natural and legal persons against acts of the EU institutions, the General Court made a mistake in law by failing to examine whether they did or not. And that is an interesting insight about how that new, relaxed rule on standing should be applied.
Second – not so exciting – it held that the actions for annulment in these cases were admissible according to the traditional test of individual and direct concern in Plaumann.
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 Kanatamiwas they claimed the General Court in its Order of 6 September 2011 in Case T-18/10  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.
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.
You will recall that one of the heralded changes brought about by the Lisbon Treaty was a change to the rules on the standing of individuals to challenge acts of the EU institutions. The (almost) constant case-law of the Court of justice since 1963 – Case 25/62 Plaumann  ECR 95 – interpreted the phrase “of direct and individual concern” in Article 263 paragraph 4 (and its predecessor Article 230 paragraph 4 EC) rather narrowly. Too narrowly for some. Consequently, the Treaty was amended to obviate the need for the plaintiff to show “individual concern” if the act attacked is a “regulatory act” (on the meaning of that, see Case C-583/11 P Inuit Tapiriit Kanatami and others v Parliament and Council. Yes, we’ll cover that in a later post) and if that act “does not entail implementing measures”.