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The ECJ confirms the General Court’s restrictive reading of the new Art. 263 TFEU

Araceli Turmo , 16 octobre 2013

On 3 October 2013, the European Court of Justice settled the Inuit Case (C-583/11 P, on appeal from the Order of the General Court in T-18/10), in which the applicants sought to rely upon the reform of the standing of individuals to institute proceedings introduced by the Lisbon Treaty in order to challenge the validity of Regulation n° 1007/2009 on trade in seal products. In this first case concerning this issue since the entry into force of the new treaty, the applicants argued that the reform brought about a significant change in EU procedural law, and granted individuals easier access to direct legal remedies against legislative acts. The ECJ followed the General Court in ruling that the action was inadmissible, thereby restricting the significance of the reform.

The appellants put forward four grounds of appeal, the main one concerning the General Court’s interpretation of the fourth paragraph of Article 263 TFEU, and the others arguing breaches of the court’s obligation to state reasons, a disregard of Article 47 of the Charter and Articles 6 and 13 ECHR, and adistortion of the clear sense of evidence. The second was ruled to be unfounded, and the fourth was rejected because it did not affect the operative part of the order. By their first ground of appeal, the appellants argued, firstly, that the concept of ‘regulatory act’ under Article 263 TFEU must include legislative acts, and, secondly, that they satisfied the conditions laid down in that provision, under which the contested act must be of direct and individual concern to the person seeking its annulment.

The Court relied upon the wording, objectives, context and origins of the new provision concerning ‘regulatory acts’ in order to establish the scope of the new fourth paragraph of Article 263 TFEU. It noted that the concept must have a more restricted scope than that of the concept of ‘acts’ used within the same paragraph, and thus cannot refer to all acts of general application. Quoting from the travaux préparatoires relating to the same provision in the proposed treaty establishing a Constitution for Europe, it held that the authors of the Treaty had never intended to alter the conditions of admissibility relating to legislative acts. Regulatory acts are therefore only ‘acts of general application other than legislative acts’ (§60), as the General Court had ruled at first instance.

As to the condition of individual concern, the appellants argued that the Court should review the criteria set out in the Plaumann case-law, and replace them with a looser criterion of ‘substantial adverse effect’. The ECJ rightly stated that the wording of the provision has not been altered, and there is no evidence that the authors of the Treaty wished to loosen this condition of admissibility as interpreted by the Court. Since the General Court correctly applied the criteria laid out in the case-law, the second part of the first ground was also rejected.

By their third ground of appeal, the appellants argued that such an interpretation of the fourth paragraph of Article 263 TFEU is in breach of the right to an effective judicial protection, under Article 47 of the Charter and Articles 6 and 13 ECHR. The Court replied with an extensive reasoning, which provides a restatement of its case-law according to which the FEU Treaty has established ‘a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts’ (§ 92). It emphasized the role of national courts in providing sufficient remedies to ensure judicial protection, quoting more recent decisions such as Opinion 1/09 and the new Article 19(1) TEU. According to the Court, Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties, and, in any case, cannot lead to the setting aside of the express conditions of admissibility laid out in Article 263 TFEU. Accordingly, this provision does not give individuals an ‘unconditional entitlement to bring an action for annulment of European Union legislative acts directly before the Courts of the European Union’ (§ 105).

Although this ruling was to be expected, as it confirms both the Order of the General Court and the Opinion of Advocate General Kokott, it may prove to be a disappointment to those who expected the reform introduced by the Lisbon Treaty to put an end to the restrictive standing of individuals before the Courts of the European Union. The exact reach of the new admissibility rules is yet to be determined, but it may be doubted whether they will effectively provide better protection to individuals.

Reproduction autorisée avec l’indication: Araceli Turmo, "The ECJ confirms the General Court's restrictive reading of the new Art. 264 TFEU", www.ceje.ch, actualité du 16 octobre 2013.