THE Treaty of Lisbon raised hopes for a new dawn in the beleaguered history of the locus standi of private parties wishing to challenge acts of the EU institutions directly before the European Union (“EU”) Courts. It introduced a new third limb to what is now Article 263(4) TFEU, which allows private parties to challenge “regulatory acts”, if they concern them “directly” and “do not entail implementing measures”. This new standing test was widely hailed as a welcome relaxation of the locus standi of private parties for it contained no condition of individual concern. It was that condition, as interpreted in the case-law (Case 25/62 Plaumann v Commission [1963] E.C.R. 95) that had proved to be, in all but exceptional circumstances, an unsurmountable obstacle for private applicants. Post-Lisbon, the condition of individual concern remains applicable only in respect to those acts which are not addressed to the applicant and which are not covered by the new standing test.
The true potential of the new standing test depends, however, on how its constituent elements are construed in the case-law. The recent decisions of the Court of Justice in Inuit Tapiriit Kanatami and others v European Parliament and Council (henceforth Inuit I) (Case C-583/11, Judgment of 3 October 2013, not yet reported) and in Telefónica v Commission, (C-274/12 P Judgment of 19 December 2013, not yet reported) shed essential light on the Court's approach in the interpretation of the new standing test. Given that this test applies only to “regulatory acts” and that this term is not defined in the Treaties, the Court's interpretation thereof had been long awaited. The opportunity arose when a group of Inuit seal hunters and companies involved in the processing of seal products brought annulment proceedings against a regulation adopted jointly by the Parliament and the Council under the ordinary legislative procedure, which introduced a ban on the placing of seal products on the internal market. The General Court held that “regulatory acts” were acts of “general application apart from legislative acts” (T-18/10 Inuit Tapiriit Kanatami and others v European Parliament and Council [2011] ECR II-5599, at [56]). On appeal, the Court of Justice agreed with this definition (Case C-583/11 P, above at [60]). The Court justified its interpretation on the wording of Article 263(4) TFEU (at [56]-[58]), and its drafting history, in particular the travaux préparatoires of the ill-fated Constitution for Europe, which indicated that the intention of the drafters was not to alter the pre-Lisbon conditions of admissibility relating to legislative acts (at [59]). Against this historical background, the narrow definition of the term “regulatory act”, i.e. one that excludes legislative acts, seems uncontestable. More generally, it must be borne in mind that legislative acts enjoy democratic legitimacy since they are enacted by elected representatives of the people. Their democratic legitimacy would thus, admittedly, justify shielding them from an actio popularis.
Whether an act is “regulatory” will therefore depend, first, on the procedure by which it was adopted. Only acts adopted by non-legislative procedure are “regulatory”. Delegated and implementing acts enacted under, respectively, Articles 290 and 291 TFEU, non-legislative acts adopted in a sui generis procedure (e.g., Articles 31, 43(3), 45(3)(d), 66, 103, 108(2), 109 and 215(1)(2) TFEU), or on the basis of secondary legislation (e.g., Case T-262/10, Microban v Commission [2011] E.C.R. II-7697) could thus be classified as “regulatory”. Second, only acts of “general application” are “regulatory”. Whether an act is of individual or of general application depends on its substance, not its form (e.g., Case 789-790/79 Calpak v Commission [1980] E.C.R. 1949). Thus, given that both form and substance appear relevant for the definition of “regulatory acts”, this construction might prove trickier than expected.
The requirement that regulatory acts “do not entail implementing measures”, which is the other crucial element of the new standing test, has also been interpreted narrowly. An EU act will most likely be found to “entail” implementing measures, if its “specific consequences” for the individual are to be defined at the national level (Case C-274/12 P, above at [35]–[36]). The test seems to consist of verifying whether the contested EU act is liable to produce “real and definitive legal effects” on the situation of the individual “only through the intervention of the national authorities”, even if such intervention is purely automatic. This condition is therefore different from the condition of “direct” concern, which is satisfied where the national authorities have no discretion in the implementation of the contested EU act (Case T-380/11 Palirria Souliotis v Commission, Judgment of 12 September 2013, not yet reported, at [42]–[44]).
The potential of the revised locus standi rules has thus been significantly restricted. The practical result is that legislative acts will remain subject to the test of individual concern, as will “regulatory acts”, if some sort of national measures are likely to intervene in the broader context of their implementation. Challenging directly such acts before the EU Courts will thus remain difficult.
This might be problematic for the right to effective judicial protection, enshrined in Article 47 of the EU Charter of Fundamental Rights, unless indirect challenges can offer an alternative. One such alternative is the plea of illegality under Article 277 TFEU. But it does not always – and certainly not a priori – ensure effective judicial protection. For instance, in Inuit II, the appellants had to wait almost a year before being able to challenge the Commission implementing regulation in order to plead, in that proceeding, the illegality of the underlying legislative regulation (Case T-526/10, Judgment of 25 April 2013, not yet reported). In the meantime, the normal course of business was likely to have been significantly disrupted.
The alternative is to bring an action before a national court and request it to make a preliminary reference to Luxembourg under Article 267 TFEU on the validity of the contested EU act. However, if the latter is self-executing – i.e. does not require implementing measures at the national level – gaining access to a national court might be problematic. For instance, in UPA (Case C-50/00 P [2002] ECR I-6677) the applicants sought the annulment of a self-executing legislative regulation. Given that they were not individually concerned by it, they could challenge it neither directly, nor indirectly. Admittedly, this proved the existence of a gap in the judicial protection of private parties in EU law.
In Inuit I the Court strongly suggested that the new Article 19(1) TEU, which states that Member States “shall provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law”, has now bridged this gap. The Court explained that this provision was not meant to create new national remedies, unless (i) national law made it impossible to challenge, even indirectly, an EU act that could not be contested under Article 263(4) TFEU for lack of standing, or (ii) the sole means of gaining access to a national court was to act unlawfully (at [103]–[104]).
Article 19(1) TFEU has thus been interpreted as imposing a positive obligation on the Member States to allow in all circumstances (at least indirect) challenges of EU legislative acts before the national courts, even where they are self-executing. But how can this be achieved in the absence of national implementing measures stricto sensu? Advocate General Kokott, whose Opinion was largely followed by the Court, suggested that the appellants in Inuit I could, for example, write to the competent national authority and request confirmation that the ban in question was not applicable to them. A negative decision could then be challenged before the national courts, where the invalidity of the contested regulation could be pleaded (at [120]). Such scenarios imply that the individual should contrive a dispute with the national authorities capable of ending up in a court. Against this background, the gap identified in UPA might start to look illusionary.
Moreover, while the Court emphasised that EU law did not require the creation of national remedies allowing direct challenges to EU legislative acts, at [106], it does not preclude the creation of such remedies either. Thus, national law could allow actions for a declaration that an EU act is invalid.
Crucially, the Inuit I judgment articulates the Court's vision of the new architecture of the post-Lisbon EU judicial landscape. It suggests that the pre-Lisbon gaps in the judicial protection of individuals have now been filled in two distinct ways. First, the new third limb of Article 263(4) TFEU has filled the gap with respect to non-legislative acts of general application which do not entail implementing measures. Second, the new Article 19(1) TEU is supposed to fill in the UPA type of gap by obliging the Member States to provide an appropriate alternative remedy in their domestic law. The true challenge that lies ahead is the practical application of Article 19(1) TEU at the national level. The Member States are now on call. Theirs is the formidable task of creating national remedies capable of closing the gap left behind by the new Article 263(4) TFEU. The clock is ticking.
