Hristo Mihaylov*

With the entry into force of the Treaty of Lisbon, introducing new solutions to the European Union legislation by refreshing already existing concepts and implementing modern ideas, the regulation of the direct action for annulment under Article 263, paragraph 4 TFEU brings forward a line of potential questions. Among other things, the Treaty introduced in the said Article a new, third possibility for private individuals to institute proceedings against a regulatory act which is of direct concern to them and does not entail implementing measures. The novelty and relaxation of standing consist in the abolishment of the obligation to prove individual concern when seeking annulment of a regulatory act not entailing implementing measures. However, the wording of that provision, and more specifically – the meaning of the term “regulatory act”, as well as the case law of the Court of Justice and the General Court may give rise to some difficulties with regard to the application of the mentioned paragraph in practice with regard to the establishing of standing (locus standi) by individuals. The following lines try to throw some light on the matter, taking into account the findings of the General Court in its Order in the case InuitTapiriitKanatami (“Inuit”), along with the conclusions of Advocate General Kokott in her Opinion on the appeal case before the CJEU and the Judgment of the Court of Justice of the European Union in the said case.

On 6 September 2011, the General Court issued its Order in the case Inuit, wherein it applied the fourth paragraph of Art. 263 TFEU and, for the first time, interpreted the notion of “regulatory act”. The case concerned an action for annulment brought by private individuals against Regulation No. 1007/2009 of the European Parliament and of the Council on trade in seal products. The applicants (a group of companies, associations and natural persons) stated that the Regulation is a regulatory act and therefore the Court should apply the relaxed standing rules. The respondents – the European Parliament and the Council, supported by the Kingdom of the Netherlands and the Commission, opposed the view taken by the applicants. Consequently, the examination of admissibility of the action involved the interpretation of the term “regulatory act”.

Carrying out literal, historical and teleological interpretation of Art. 263, para 4 TFEU the General Court concluded that regulatory acts are all EU acts of general application with the exception of legislative acts. In the view of the General Court, a legislative act may form the subject-matter of an annulment action under the second variant of Art. 263, para 4, i.e. if it concerns private individuals both directly and individually, and went on to examine whether these standing conditions are fulfilled. In her Opinion the Advocate General considered the expression “regulatory act” to be a sui generis term of EU law and by interpreting it she took into consideration the objective of Art. 263, para 4 TFEU, the context in which the provision is used, and its drafting history. Finally the Advocate General concluded that the General Court’s interpretation of the term “regulatory act” was correct. In its Judgment in the appeal case the Court of Justice also upheld the interpretation given by the General Court.

The author fully agrees with the findings of the General Court and the Advocate General, and the Court of Justice. In the view of the author the language of the Treaty, the ordinary meaning of the terms in their context, the object and purpose of the provision and the intentions of the Treaty drafters support the conclusion that regulatory acts are all acts of general application apart from legislative acts. Since the contested regulation is a legislative act, the last variant of Art. 263, para 4 is inapplicable to the case Inuit but instead direct and individual concern must be proven by the applicants, as the second variant of the said provision so requires.

The notion of direct concern has the same content in the second and third variant of Art. 263, para 4 TFEU. The general principle is that a measure will be of direct concern every time it affects directly the legal situation of the applicant, who is not the addressee of the measure, and leaves no discretion to the addressee with regard to its execution – the execution must be automatic without the application of other immediate rules. With respect to that observation one might happen to be confused by the requirement for absence of implementing measures under the last variant of Art. 263, para 4 because it might appear that that requirement is identical with the notion of direct concern. In my view, the rationale behind this standing-establishing requirement is to immunize regulatory (i.e. non-legislative) acts which entail implementing measures (non-legislative directives, decisions and regulations) from being easily contested and eventually declared void since applicants would not need to prove individual concern.

After an examination of whether the contested regulation was of direct concern to the applicants, the General Court concluded that only four of them were actively engaged in the placing on the market of seal products and as such only these four applicants were directly concerned by the regulation. The Advocate General further examined the situation of the applicants and in her Opinion she agreed with the position of the General Court, adding to the former four applicants a fifth directly concerned applicant. By contrast with the General Court and the Advocate General, the Court of Justice did not examine whether and how many of the applicants fulfill the requirement of direct concern.

Since under the second variant of Art. 263, para 4 TFEU the conditions for direct and individual concern are cumulative, the General Court examined whether the contested regulation was also of individual concern to the directly concerned applicants by applying the Plaumann formula. According to the Plaumann test, an act of the Union institutions is to be regarded as of individual concern to a natural or legal person if that act affects him by reason of certain attributes which are peculiar to him or by reason of circumstances in which he is differentiated from all other persons and by virtue of these factors distinguishes him individually just as in the case of the person addressed. The General Court held that the contested regulation applied to objectively determined situations and produced legal effects to categories of persons envisaged in a general and abstract manner. In the view of the General Court the contested regulation affected the applicants like any other trader who is covered by its provisions and consequently, it was not of individual concern to the applicants. On that ground the General Court dismissed the action of the applicants as inadmissible. In her Opinion the Advocate General supported the conclusion of the General Court, and so did the Court of Justice in its appeal Judgment.

The author is of the opinion that the approach of the Court to the notion of individual concern should be liberalized. The Plaumann formula, as it stays today, is inadequate to the demands of present-day EU and the needs of its citizens. In the view of the author the Court should reform the test for individual concern by omitting the word “all” and abandoning its last element – the contested act to distinguish the applicant individually just as in the case of the person addressed. This at first sight small correction would have great impact on the application of the formula for individual concern, making the test more flexible and able to provide private persons with an effective legal remedy against EU acts.

In conclusion it has to be pointed out that the Treaty of Lisbon succeeded in reforming the system of judicial protection to some extent. The leading positive innovation is the removal of the requirement for individual concern in the case of regulatory acts not entailing implementing measures. The term “regulatory act” has just recently been given an exact meaning by the Court of Justice as covering all EU acts of general application with the exception of legislative acts. It has to be pointed out that the firm definition of this expression was eagerly awaited by jurists, academics and EU law practitioners. And finally, although the Treaty of Lisbon did not abolish the condition for individual concern as standing-establishing requirement for private individuals, it is apparent that the new solution laid down in the last variant of Article 263, para 4 TFEU nevertheless is a step forward which was desired for a long time.


* Student at the Faculty of Law, Sofia University “St. Kliment Ohridski”, winner of the Special Individual Speaker’s Award in the Central and East European Moot Court Competition, held in Malta (4 – 7 May 2012), trainee at chambers of Judge Alexander Arabadjiev in the CJEU.