Dr. Agne Limante
MA candidate in EU Law at King’s College London
This short note is an update to our earlier post Inuit and Microban: ECJ explains notion of ‘regulatory act’.
Yesterday, 3 October 2013, the Court of Justice of the European Union (CJEU) released its final judgment in the Inuit case[i] – a case which concerns the standing requirements in annulment actions and which is an appeal against the earlier General Court’s interpretation.[ii]
Under Article 263(4) of the Treaty on the Functioning of the European Union (TFEU), establishing the basis for annulment actions of private applicants, any natural or legal person may “institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures”. Up until now there was still a doubt as to what a “regulatory act” might include as no further reference could be found in the Treaties, no final decision of the Court of Justice existed and appeal from the General Court was pending.
Inuit was the first case where the CJEU was called to interpret the notion of ‘regulatory act’, a novelty introduced by the Lisbon Treaty. The case concerned the European Parliament and Council Regulation No. 1007/2009 on trade in seal products, which the applicants claimed to be a regulatory act. However, the General Court (order of 6 September 2011) was of the opposite opinion. It concluded that ‘regulatory act’ for the purposes of Article 263(4) TFEU must be understood as covering all acts of general application apart from legislative acts. It dismissed the action for annulment as it was lodged against regulation adopted through the legislative procedure.
Hoping, that the Court of Justice will decide to introduce a more flexible interpretation of ‘regulatory act’, Inuit Tapiriit Kanatami and other applicants brought an appeal against the order of the General Court. However, yesterday’s decision dashed all hope. The Court of Justice decided to follow Advocate’s General Kokott opinion (delivered on 17January 2013) and to stick to interpretation of ‘regulatory act’ presented by the General Court.
The Court firstly noted that it is apparent from the third limb of the Article 263(4) TFEU that its scope is more restricted than that of the concept of ‘acts’ used in the first and second limbs of the Article 263(4) TFEU, in respect of the characterisation of the other types of measures which natural and legal persons may seek to have annulled. Thus, according to the Court, ‘regulatory act’ cannot refer to all acts of general application but relates to a more restricted category of such acts. The Court of Justice supported the position of the General Court agreeing that legislative acts, which, although they may also be of general application, are not covered by the concept of ‘regulatory acts’, and, therefore, continue to be subject to more stringent admissibility rules (applicants must prove direct and individual concern).
Thus, it can now finally be stated that the case is solved and it is clear what types of acts are ‘regulatory acts’ and might be subject to less stringent standing rules. According to the jurisprudence of the CJEU, for an act to fall under the concept of ‘regulatory act’, it shall satisfy the following requirements:
– It shall be an act of general application (not an individual act)
– It shall be non-legislative. Whether an act is legislative or not is determined by the procedure which led to its adoption: legislative is an act adopted through legislative procedure (ordinary or special).
Considering such case law, the ‘floodgates’ were not opened and the possibilities for private applicants to challenge legislative acts remain extremely limited. On the other hand, the doors for challenging non-legislative acts after Lisbon Treaty became more open. Well, as one would say, you cannot get it all at once…