Case Comment: Inuit Tapiriit Kanatami and Others (C-583/11 P)

Arnaud Van Waeyenberge and Jérémie Van Meerbeeck

The locus standi of individuals in direct actions for annulment of EU legislative acts remains a central topic with respect to judicial protection, as it plays a decisive role on whether individuals and private legal persons may challenge acts of EU institutions directly (rather than indirectly, via preliminary ruling proceedings).

The issue has been one of ongoing debate and, from the beginning, the ECJ took a rather restrictive stance on the locus standi of natural and legal persons. The Court’s interpretation of the criteria requiring “direct and individual concern” – the so-called “Plaumann formula” – was quite restrictive and translated into exceeding difficulty for private individuals to challenge directly EU legislative acts.

In Jégo-Quéré[1], however, the General Court proposed a rather bold reasoning in order to facilitate access to the Court of Justice. It basically opened the possibility of allowing ECJ access to private individuals within the Union in instances where the inadmissibility of an annulment action would effectively deprive such individuals of judicial protection.

Two months later, the ECJ unequivocally rejected the General Court’s reasoning, though in a different case. In its UPA holding[2], it repeated that a natural or legal person could only bring an action challenging a regulation if concerned both directly and individually and that, although that last condition had to be “interpreted in the light of the principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individually”, such an interpretation could not “have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts”. The Court concluded that while it was possible to envisage a different system of judicial review of the legality of EU measures of general application, it was for the Member States, “if necessary, in accordance with Article 48 EU, to reform the system currently in force” (point 44-45).

That message was finally heard by the Member States, and they modified the conditions of locus standi in the Treaty of Lisbon.  The new text (TFEU Art. 263) is a “copy-paste” from the Constitutional Treaty draft, which is surprising insofar as it keeps on referring to the notion of “regulatory acts” – a category of acts which had an actual meaning in the Constitutional draft but is nowhere defined in the Lisbon Treaty.  Specifically, the wording of TFEU Article 263 no longer requires individual applicants to be “individually concerned” when challenging “regulatory acts” which do “not entail implementing measures”[3]. Consequently, it was crucial for the Court to provide a clear definition of these notions. This was the question raised in its recent Inuit judgment, rendered on the 3d of October by the Grand Chamber, on an appeal lodged against an order from the General Court.

The General Court

An action for annulment had been brought in front of the General Court by various natural persons and associations concerning EC Regulation n°1007/2009 on the trade of seal and sealskin derived products.[4]  In reaching their decision, the Luxembourg judges surrendered themselves to a “literal, historical, and teleological” interpretation of Article 263 Section 4[5].  As such, the General Court held that “regulatory acts” should be understood as “general non-legislative acts”. More precisely, the General Court stated that “the meaning of ‘regulatory act’ for the purposes of TFEU Article 263 Section 4 must be understood as covering all acts of general application apart from legislative acts.  Consequently, 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” [6]. This interpretation, since confirmed by the General Court,[7] had still to receive support from the Court.

The applicants from the Inuit case, whose action had been dismissed as being inadmissible, lodged an appeal against the General Court’s order.

Opinion of Advocate General Kokott

In her Opinion, the Advocate General Kokott endorsed the approach taken by the General Court regarding the notion of “regulatory acts” as introduced by the Treaty of Lisbon.  She therefore considered all “regulatory acts” to be acts of general application apart from legislative acts.

The Advocate General found this distinction to be most comprehensible:

The absence of easier direct legal remedies available to individuals against legislative acts can be explained principally by the particularly high democratic legitimation of parliamentary legislation.  Accordingly, the distinction between legislative and non-legislative acts in respect of legal protection cannot be dismissed as merely formalistic; rather, it is attributable to a qualitative difference.  In many national legal systems individuals have no direct legal remedies, or only limited remedies, against parliamentary laws” (point 38)

AG Kokott added that the distinction was discussed in European Convention working groups and was moreover written into the Constitutional Treaty.  The General Court’s interpretation was thus in line with the drafting history of the Lisbon Treaty (point 40).

Regarding the issue of why the Treaty of Lisbon took the term “regulatory acts” from the Constitutional Treaty project without providing a definition, AG Kokott explained :

The ‘end product’ of the Intergovernmental Conference was therefore to be as similar as possible in substance to the failed Constitutional Treaty, and to stop short of it only in a few particularly symbolic aspects”. (point 44).

The European Court of Justice’s judgment

Rather unsurprisingly, the ECJ follows the reasoning of the General Court and of the Advocate General. First of all, the ECJ confirms that the historical method of interpretation has now its place, beside the “traditional” literal, teleological and contextual methods of interpretation[8].

The Court then considers that the fourth paragraph of article 263 TFEU makes a clear distinction between the (pre-Lisbon) “acts” that natural or legal persons may institute proceedings against because they are adressed to them or concern them directly and individually (“any European Union act which produces binding legal effects”, a concept that “covers acts of general application, legislative or otherwise, and individual acts”) on one side, and (post-Lisbon) “regulatory acts” on the other side. Short of “nullifying” that distinction, that latter concept cannot “refer to all acts of general application but relates to a more restricted category of such acts” (point 56-58).

After having recalled that the fourth paragraph of Article 263 TFEU reproduces “in identical terms the content of Article III-365(4) of the proposed treaty establishing a Constitution for Europe” and that it was “clear from the travaux préparatoires relating to that provision” that the conditions of admissibility of actions for annulment relating to legislative acts “were not (…) to be altered”, the Court concluded that the concept of regulatory act “does not encompass legislative acts” (point 59-61).

The regulation at stake being a legislative act, the appellants were also asking the Court, in the second part of their first ground of appeal, to review the criteria established by the “Plaumann formula” and to replace them with a criterion of “substantial adverse effect”.

The ECJ rejected that proposal, by referring again to the intention of the authors of the proposed treaty establishing a Constitution for Europe and of the Treaty of Lisbon, which did not point towards such a change (point 69-71).

By their third ground of appeal, the appellants claimed that the General Court’s interpretation of Article 263 TFEU was in breach of Article 47 of the Charter and Articles 6 and 13 of the ECHR in refusing to natural and legal persons the right to an effective remedy enabling them to challenge the legality of acts of general application affecting directly their legal situation.

After its UPA judgment and the Lisbon reform, the ECJ could hardly start a revolution against the Member States. The Court repeated that the FEU Treaty had “established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the Courts of the European Union” (point 92). It also decided that Article 47 of the Charter was “not intended to change the system of judicial review laid down by the Treaties” (point 97).

The Court went on to describe the role that national judges were expected to play regarding the respect for the fundamental right to effective judicial protection. Having recalled Article 19(1) TEU, which states that Member States “shall provide remedies sufficient to ensure effective judicial protection in the fields covered by European Union law”, the ECJ tried to detail, in a rather confusing way, the obligations of the Member States.

In a nutshell, despite their obligation to “designate (…) the courts and tribunals with jurisdiction and to lay down the detailed procedural rules governing actions brought to safeguard rights which individuals derive from European Union law”, the Lisbon treaties did not intend “to create new remedies before the national courts to ensure the observance of European Union law other than those already laid down by national law” (point 102-103). It would only be different “if the structure of the domestic legal system concerned were such that there was no remedy making it possible, even indirectly, to ensure respect for the rights which individuals derive from European Union law, or again if the sole means of access to a court was available to parties who were compelled to act unlawfully” (point 104). Even then, though, EU law does not require that “an individual should have an unconditional entitlement to bring an action for annulment of European Union legislative acts directly before the Courts of the European Union” or “should be entitled to bring actions against such acts, as their primary subject matter, before the national courts or tribunals” (point 105-106).


The solution adopted by the ECJ in its Inuit judgment does not really revolutionize the question of access to the Court for individuals and private legal persons. The model that prevails remains a decentralised system that relies mostly on national courts as first instance judges of the EU. At the end of the day, the changes brought about by the Lisbon treaty were mainly aimed at tackling situations as the one described in the Jego-Quéré judgment or the ECHR’s Posti Rahko case.

The Court chose undoubtedly the most respectful interpretation of the intention of the authors of the treaty, making it very difficult for individuals to challenge legislative acts. This is hardly surprising since many Member States have opted for similar solutions in their domestic legal order. At the national level, allowing the challenge of legislative acts amounts to hurting popular sovereignty, but forbidding it leads to providing these acts with a quasi impunity. This respect of democratic legitimacy must, however, be put into perspective when one talks about the EU legal system. Indeed, many special legislative procedures only provide a limited role to the European Parliament. Did the Court of Justice miss an opportunity to promote its status of the Supreme Court of the European Union to the status of Supreme Court of the citizens of the European Union? It left, in any case, some questions unanswered, like its definition of a “legislative act”[9]. To be continued …

[1] 3 May 2002, Jégo Quéré/Commission (T-177/01, Rec. p. II-2365).

[2] 25 July 2002, Union de Pequeños Agricultores/Council (C-50/00 P, Rec, p. 6677).

[3] Article 263, section 4 now reads as follows : “Any natural or legal person may, under the conditions laid down in the first and second paragraphs, 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”.

[4] 6 September 2011, Inuit Tapiriit Kanatami e.a./Parliament and Council, T-18/10.

[5] 6 September 2011, Inuit Tapiriit Kanatami e.a./Parliament and Council, T-18/10, point 40 and forward. For an analysis of the different interpretations, see WATHELET (M.) and WILDEMEERSCH (J.), “Recours en annulation : une première interprétation restrictive du droit d’action élargi des particuliers ?”, Journal des tribunaux / droit européen,  2012,  nº 187 pp. 77-78.

[6] 6 September 2011, Inuit Tapiriit Kanatami e.a./Parliament and Council, T-18/10, point 56. This solution was already contemplated in the Ordinance by the President of the Tribunal of 6 September 2011, Inuit Tapiriit Kanatami e.a./Parliament and Council , T-18/10 R, Rec. II-00075, point 33 and echoed in point 44 that “it would probably be advisable to define this category of acts [regulatory acts] in relation to those falling under ‘legislative acts’.”

[7] See e.g., 25 October 2011, Microban c/ Commission, T-262/10, point 21 and General Court Ordinance of 4 June 2012, Hüttenwerke Krupp Mannesmann GmbH et al. v. the European Commission, T-379/11, point 52. On these decisions and on the Inuit ordinance, see CREUS (A.), “Commentaire des décisions du Tribunal dans les affaires T-18/10-Inuit et T-262/10-Microban”, CDE, 2011, p. 659 et s. ; SIMON (D.), “Actes attaquables”, Europe, 2011 Décembre, nº 12, p.19; BUCHANAN (C.), “Long Awaited Guidance on the Meaning of “Regulatory Act” for Locus Standi Under the Lisbon Treaty”, European Journal of Risk Regulation 2012 Vol. 3 nº 1 p.115-122 et PEERS (S.) et COSTA (M.), “Judicial Review of EU Acts after the Treaty of Lisbon; Order of 6 September 2011, Case T-18/10 Inuit Tapiriit Kanatami and Others v. Commission & Judgment of 25 October 2011, Case T-262/10 Microban v. Commission”, European Constitutional Law Review, 2012, Vol. 8 p.82 à 104.

[8] 3 October 2013, Inuit Tapiriit Kanatam i.a., C‑583/11 P, point 50 (“The origins of a provision of European Union law may also provide information relevant to its interpretation”).

[9] Are “legislative acts” only those which are adopted by legislative procedure qualified as such by the treaty or do they cover acts adopted with the intervention of the Parliament but according to procedures which are not, as such, qualified as a “legislative procedure” by the Treaty (for example, article 329, §1, al. 2 or 352, §1 TFEU) ?

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