Case C- 274/12 P, Telefónica SA/Commission
Ever since the Plaumann case, the CJEU’s strict understanding of the standing of natural and legal persons to challenge EU acts, has been subject to strong criticism. One of the most eagerly awaited changes brought about by the Treaty of Lisbon was the introduction in a new, third limb of the text of the fourth paragraph of article 263 TFEU, ex article 230 EC, of a new legal remedy for the non-privileged (private) applicants against EU regulatory acts which are of direct concern to them and do not entail implementing measures.
In the Inuit Tapiriit Kanatami case, the Court defined the notion of “regulatory act” for the purposes of the fourth paragraph of Article 263 TFEU. According to the Court, the meaning of “regulatory act” must be understood as covering all acts of general application other than legislative acts.
For the first time in the present case, the Court had to address the notion of acts, which “do not entail implementing measures”.
The Telefónica case could not however be qualified as revolutionary and the Court’s approach could easily be foreseen. In fact, as Advocate General Kokott indicated in her opinion after examination of the legislative history of the third limb of the fourth paragraph of article 263 TFEU, the addition of “implementing measures” was intended to ensure that the extension of the right to institute proceedings was restricted to cases where an individual “must first infringe the law before he can have access to a court”. From this restrictive idea the Advocate General drew her view, subsequently implicitly adopted by the Court, that direct legal protection is required only if the regulatory act itself produces definitive and specific legal effects for the individual.
This particular idea seems to have guided the Court when it established the main principles to be remembered out of its judgment of 19 December 2013:
(1) The question whether a regulatory act entails implementing measures should be assessed by reference:
- only to the position of the applicant, notwithstanding the implementing measures it entails with regard to other persons; and
- exclusively to the subject-matter of the action.
Therefore, the CJEU shall find admissible the action of any private applicant brought against an EU regulatory act that is of direct concern to him and which:
- does not entail implementing measures with regard to this specific applicant, although it might entail implementing measures with regard to other persons; and
- does not entail implementing measures with regard to the subject matter of the action, although it might entail implementing measures in other regards.
(2) The requirement that the regulatory act does not entail implementing measures covers both EU and national measures.
The combination of those two lessons learned out of the Telefónica case makes the Court’s interpretation of the “not entailing implementing measures” criterion quite neutral as a whole, rather than restrictive. In fact, although in the Inuit-Telefónica case law the Court’s approach resulted in the dismissal of the private applicants’ appeals, the General Court’s Microban case demonstrates that such criteria are far from impossible to be fulfilled. Moreover, in the Stichting Woonpunt case, additionally shaping the Inuit-Telefónica case law, the Court held that the criteria laid down in the second and third limb of the fourth subparagraph of article 263 TFEU raise an absolute bar to proceeding and the European Union Courts may consider them at any time, even of their own motion. By considering though that the General Court has erred in law by limiting itself to an examination of the second limb of the fourth paragraph of article 263 TFEU, the Court actually states that the European Union Courts not just may, but must, when the conditions of one of the two limbs are not fulfilled, examine whether the conditions of the other limb are met.
The intention of the authors of the FEU Treaty has thus predetermined the Court’s case law. It is disputable whether or not, the Inuit-Telefónica case law responds to all the critics towards the EU system of legal remedies and procedures, offering legal protection to individuals. As a matter of fact, the CJEU’s case law has always denied the presence of any deficiencies in this system. Therefore, it cannot stay unnoticed the inconsistency of such case law with the Court’s statement that the interpretation it provided in the Telefónica case is guided by the idea that the extension of the right to institute proceedings had to be restricted to cases where an individual must first infringe the law before he can have access to a court. It could be considered therefore that in the Telefónica case the Court has somehow recognized the existence in the past of deficiencies in the EU system of legal remedies and procedures, thus offering legal protection to individuals.
It is worth noticing however that a broader interpretation by the Court of the third limb of fourth subparagraph of article 263 TFEU would have entailed an extension, by the Court, of its own jurisdiction, and this, in spite of the clear intention of the European Convention, author of this provision, which included in its composition democratically elected members of the national parliaments and governments, and of the European Parliament.
The question is, if following the Inuit-Telefónica case law, it turns out that there are still certain deficiencies in the EU system of legal remedies and procedures, offering legal protection to individuals, how the CJEU should fill the gap and whether it would be this EU institution’s responsibility to do it.
 Associate, Pavlov and Partners Law Firm in cooperation with CMS Reich-Rohrwig Hainz;
 Case 25/62 Plaumann v Commission  ECR 95;
 Case C‑583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council  ECR;
 Inuit Tapiriit Kanatami and Others v Parliament and Council, paragraph 60;
 Case T‑262/10 Microban International and Others v Commission  ECR II-0000;
 Case C-132/12 P, Stichting Woonpunt e.a. / Commission, unpublished.