Case T-18/10 Inuit Tapiriit Kanatami and others v. Parliament and Council

Key point

  • This case defined the meaning of ‘regulatory’ under paragraph 4 of Article 263 TFEU as referring acts of general application excluding legislative acts
  • The paragraph 4 of Article 263 TFEU permits a natural or legal person to institute proceedings
    1. against an act addressed to that person
    2. against a legislative or regulatory act of general application which is of direct and individual concern to them and
    3. against certain regulatory acts of general application, which are of direct concern to them and do not entail implementing measures

Facts

  • Applicants which included companies, associations and natural persons sought the annulment of a regulation on seal products under paragraph 4 of Article 263 TFEU
  • The EU Parliament and Council argued that the action was inadmissible on the following grounds:
    1. the contested regulation is not a regulatory act (we only concerned with this ground here)
    2. it entails implementing measures and
    3. it does not individually concern the applicants
  • The applicants argued the meaning of ‘regulatory’ in the third possibility of paragraph 4 includes legislative acts while the Parliament and Council argue that legislative and regulatory acts are distinct under the TFEU

Ruling

  • The act is inadmissible; the meaning of ‘regulatory’ in the third possibility of paragraph 4 excludes legislative acts; the regulation is a legislative act

Judgment

Meaning of ‘regulatory’

  • From the ordinary meaning of the word ‘regulatory’, it refers to acts of general application not including legislative acts
  • It is apparent from the ordinary meaning of the word ‘regulatory’ that acts covered by the third possibility under Article 263(4) are of general application

Justifications for the meaning

  • The court adopted, literal, historical and teleological (i.e. purposive) approaches
  • Literal interpretation
    • Article 263(1) TFEU distinguishes between legislative acts and other acts intended to produce legal effects on third parties (which may be individual or of general application)
    • Article 114 TFEU distinguishes between ‘provisions laid down by law, regulation or administrative action in Member States’
  • Historical interpretation
    • In the drafting process, a proposal for amendment mentioning ‘an act of general application’ was substituted with ‘a regulatory act’
    • The wording a distinction to be made between legislative acts and regulatory acts, maintaining a restrictive approach in relation to actions by individuals against legislative acts (for which the “of direct and individual concern” condition remains applicable)
  • Teleological interpretation
    • The purpose of that provision is to allow a natural or legal person to institute proceedings against an act of general application which is not a legislative act, which is of direct concern to them and does not entail implementing measures, thereby avoiding the situation in which such a person would have to infringe the law to have access to the court
    • As is apparent from the analysis in the preceding paragraphs, the wording of the fourth paragraph of Article 263 TFEU does not allow proceedings to be instituted against all acts which satisfy the criteria of direct concern and which are not implementing measures
    • Consequently, the conditions of admissibility of an action for annulment of a legislative act are still more restrictive than in the case of proceedings instituted against a regulatory act.

Current case

  • The regulation is a legislative act since it was adopted through the ordinary legislative procedure
  • Just because an act is of general application does not mean that it is a regulatory act

Commentary

  • The result was affirmed by the Court of Justice in Case C-583/11 P, Inuit, judgment of 3 October 2013
  • Conditions of admissibility of an action for annulment of a legislative act still remain more restrictive than in the case of proceedings instituted against a regulatory act – a legislative act may form the subject-matter of an action for annulment brought by a natural or legal person only if it is of direct and individual concern to them
  • The restrained approach led the Court to a conclusion which it accepted might sometimes prove inadequate to guarantee respect for the fundamental right to effective judicial protection, a general principle of law having constitutional status. The result was to leave the Union dependent on the national courts to ensure full respect for that principle, one which seems to impose greater burdens on them than it does on the Union Courts