UNTIL the entry into force of the Treaty of Lisbon, there were two sets of standing conditions for private applicants wishing to challenge directly acts of the EU institutions before the General Court. First, if the applicant was the addressee of the measure, it would have automatic standing. Second, if the applicant was a non-addressee, it would have to show that it was directly and individually concerned by the measure. The test of direct concern caused few difficulties and was interpreted by the Court of Justice to mean that a natural or legal person would be directly concerned by an EU act where the addressee of the measure had either no discretion in its implementation or, if it had some, the discretion was entirely theoretical (Case 11/82 Piraki-Patraiki v Commission [1985] E.C.R. 207, [6]–[10]). In contrast, the Court construed the test of individual concern in a highly restrictive manner: a non-addressee would be individually concerned by a Union act only when it belonged to a group that was fixed and ascertainable before the measure entered into force – i.e. a “closed category” (Case 25/62 Plaumann v Commission [1963] E.C.R. 95). This created a formidable standing barrier that very few private applicants could surmount and resulted in the dismissal of most actions for annulment, even where the act in question gravely affected the applicants' economic interests or potentially breached a fundamental human right (Case C-345/00 P FNAB v Council [2001] E.C.R. I-3811 [35]–[40]). Furthermore, and to compound the lack of certainty in this area of the case law, the closed category test was not consistently applied and a cluster of satellite interpretations soon appeared (e.g. Case C-308/89 Codorniu v Council [1994] E.C.R. I-1853; Case 294/83 Les Verts v European Parliament [1986] E.C.R. 1339), some of which imposed additional requirements putting standing even further beyond the reach of private parties (Case 11/82 Piraiki-Patraiki (above)). Calls for the relaxation of the test, including those from within the Court (see the Opinion of Advocate General Jacobs in UPA v. Council (Case C-50/00P [2002] ECR I-6677) and the judgment of the General Court in Case T-177/01 Jégo Quéré v. Commission [2002] ECR II-2365) went unheeded and the Court of Justice held in UPA that any changes to the standing rules could take place only through Treaty reform.

The Lisbon Treaty, adopting the formula provided in the ill-fated Constitutional Treaty, finally amended the original standing rules applicable to private parties. Article 263(4) TFEU now gives standing to private applicants to challenge “regulatory acts” which are of direct concern to them and which do not entail implementing measures. It therefore introduces a new specific standing test for the challenge of so-called regulatory acts alongside the general standing formula of direct and individual concern that continues to apply for the challenge of all other EU acts by non-addressees. The most significant aspect of the new specific test is that applicants do not have to demonstrate individual concern – an unquestionable advantage over the general standing test. Hence, it is unsurprising that that a decision from the General Court applying the Lisbon test was eagerly awaited, particularly given that the TFEU does not provide a definition of what constitutes a “regulatory act”.

The first significant opportunity for the interpretation of the new test arose in Case T-18/10 Inuit Tapiriit Kanatami and others v European Parliament and Council (Order of the General Court of 6 September 2011, not yet reported), followed shortly afterwards by Case T-262/10 Microban v Commission (Judgment of the General Court of 25 October 2011, not yet reported). In the first case, a group of Inuit seal hunters and trappers and companies involved in the processing of seal products brought annulment proceedings against a Parliament and Council Regulation – adopted under the ordinary legislative procedure – which imposed restrictions on the placing of these products in the EU market. In the second, an American manufacturer of antibacterial additives and its European subsidiary challenged a Commission decision adopted in the exercise of implementing powers which removed a substance called triclosan from the list of antibacterial additives that could be used in the manufacture of plastics intended to come into contact with foodstuffs that had been drawn up by a previous Commission directive.

In Inuit, the General Court defined a “regulatory act” as an act of “general application apart from legislative acts”, at [56]. Such an interpretation was justified in the light of the ordinary meaning of the word “regulatory”, at [42], the equivalent word in the different language versions of the Treaty, at [46], and the history of the Article 263(4) TFEU amendment – namely the decision of the Praesidium of the Convention for the establishment of the Constitution for Europe to remove legislative acts from the scope of the specific standing test, at [49]–[50]. This construction of regulatory acts as non-legislative acts of general application, while predictable, is nonetheless problematic. First, Article 289 TFEU is clear as to what constitute legislative acts, namely those adopted either by ordinary or special legislative procedure, but non-legislative acts can only be defined by default as those not adopted by legislative procedure. The latter category would seemingly include the two types of measures set out in Articles 290 and 291 TFEU – delegated and implementing acts – as well as non-legislative acts adopted directly under the Treaties, i.e. Commission decisions adopted in state aid proceedings. However, this is an uncertain classification. It is also likely that determination of the “general” character of the act will be fraught with difficulties if the Court decides to look at the substance of EU measures rather than purely at their form. Secondly, and in adopting such a narrow interpretation, the Court dashed any hopes that the gap in the Treaty system of judicial protection identified in UPA (where applicants who were refused standing to bring an action for annulment against a legislative regulation due to lack of individual concern could not even obtain an indirect review via the national courts) would be fully closed. A direct challenge to a legislative measure continues to be subject to the general standing test, as indeed happened in Inuit where the action to challenge a legislative regulation was dismissed as inadmissible because the applicants were not individually concerned, even when four applicants were held to be directly concerned.

Microban is the first case where the Lisbon test has been fully satisfied. Applying the Inuit interpretation, the General Court held that the Commission decision at stake was a regulatory act of general application, at [21]–[25]. It then went on to find that the measure was of direct concern to the applicants because it had a direct effect on the applicants' legal position and left no discretion to the Member States, which were the addressees of the decision, at [27]–[30]. On this point, the Court was at pains to emphasise that the test of direct concern would be subject to the same interpretation in both the general and specific standing tests, at [32]. Finally, since the decision constituted a direct prohibition on the marketing of triclosan, there was clearly no need for any implementing measures by the Member States, at [33]–[38]. The applicants were given standing and the Court annulled the decision because it was grounded on the wrong legal basis and infringed an essential procedural requirement.

While the outcome in Microban sends a message of hope to private applicants, it would be hasty to view it with undiluted optimism. The finding that the Court is not going to venture into more restrictive interpretations of the test of direct concern is to be welcomed. However, a clarification of the third limb of the specific standing test – namely that the challenged act must not entail implementing measures – is still needed. The facts in Microban were conveniently straightforward on this point, but depending on how the Court interprets this requirement, the potential of the Lisbon test might be severely restricted. If the Court takes the view that any action, however minimal, that a Member State is required to take by the EU act constitutes an “implementing measure” then not only non-legislative directives but also a myriad of non-legislative regulations and general decisions will be automatically excluded from its scope of application.

The caution of the General Court is understandable given the strength of the ruling of the Court of Justice in UPA. It is also consistent with the historical background that led to the adoption of the specific standing test. However, by confirming that the way in which an act was adopted decides the application of the general or the Lisbon test, the General Court is heading dangerously towards a formalistic interpretation of the locus standi conditions which would be detached from the actual impact of EU measures on private interests. In the absence of any willingness to revise the test of individual concern, the Court will still have opportunities to make the Lisbon test more meaningful. First, the appeal against the Order in Inuit (Case C-583/11P) may give the Court of Justice a chance to qualify the General Court's narrow definition of regulatory acts. Secondly, an interpretation of the notion of “implementing measures” might be necessary in the pending Inuit II case (Case T-526/10) where the same parties are challenging a non-legislative Commission regulation that implemented the original Parliament and Council regulation before the General Court. If the Court does not muster its legendary drive to render EU law effective and continues to argue that this is an area where change can only be propelled by political agreement, private parties will be the losers once more.