On 17 January, Advocate General Kokott, in her Opinion in Inuit Tapiriit Kanatam, clarified the law on standing in direct actions taken by individuals for annulment of EU regulations. The Advocate General looked at the circumstances where individuals can challenge acts of EU institutions directly, rather than indirectly via national courts.
The case concerned a number of individual direct actions before the Court of Justice of the European Union (CJEU) seeking annulment of EU regulations banning trade in seal products.
Article 263 TFEU (Treaty on the functioning of the European Union) provides for judicial review of acts adopted by the EU institutions, through direct actions in the Court of Justice. Direct actions may be brought by Member States, the EU institutions (privileged applicants), and individuals (non privileged applicants). Member States, the European Parliament, the Council, and the Commission have automatic right of access to the Court in such cases. By contrast, an individuals’ right of access or ‘standing’ or to bring Article 263 proceedings is limited and it is very difficult for individuals to directly challenge EU legal acts. The requirement for individual concern, established in Plaumann, is especially hard for individuals to meet.
Under Article 263, an individual (non privileged) applicant may challenge:
· an act addressed to the applicant
· an act addressed to another person which is of direct and individual concern to the applicant
· a regulatory act which is of direct concern to the applicant, and which does not entail implementing measures
In order to satisfy the ‘individual concern’ requirement you have to be distinguished individually in the measure. Satisfying the ‘direct concern’ requirement is not as difficult. It is ‘direct’ if the act directly affects the legal situation of the applicant and leaves no discretion to those who have to implement the act.
Following the Lisbon Treaty, individual applicants are not required to be individually concerned when challenging ‘regulatory acts’. The broader the term ‘regulatory act’ is interpreted, the more acts can be challenged by individuals directly without having to demonstrate the very high threshold of individual concern.
The Advocate General in her Opinion said that regulatory acts are all acts of general application apart from legislative acts. Legislative acts can only be challenged if a non privileged applicant can demonstrate direct and individual concern.