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.
The Court, in its judgment of 28 April 2015 disagreed and relied on its judgment in Telefonica v Commission C-274/12 P, EU:C:2013:852 (which we noted up in our very first post).
Now and again a judgment comes out which has an importance that transcends the issue being litigated in the case. If we, the authors of this blog, were betting types, we’d bet that the judgment of the Grand Chamber of the Court of Justice of 18 March 2014 in Case C-427/12 Commission v European Parliament and Council is such a judgment.
Why do we think that ? Because it is, we think, the first judgment that adumbrates expressly a “reasonableness” test for judicial review of legislative activity. If we are wrong about that, please leave a comment setting us right (and I take responsibility for the oversight, not Maria).
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.
In its judgments of 27 February 2014 in Case C-132/12 P Stichting Woonpunt and others v Commission, unpublished, and Case C-133/12 P Stichting Woonlinie and others v Commission, unpublished, the Court of Justice did two things, one of which is really interesting.
- 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.
Let’s see in more detail.
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.
What better way to inaugurate our blog than with a note on the important judgment of the Court of Justice of 19 December 2013 in Case C-274/12 Telefonica SA v Commission on the meaning of the phrase “and does not entail implementing measures” contained in Article 263 paragraph 4 in fine TFEU.
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”.
The Court’s judgment sheds light on when that latter condition is met. Continue reading