The EU makes a rule. When can the ordinary person affected seek annulment of the rule on the basis that it is unlawful? This is the big issue tussled with in this important and informative Advocate General’s opinion. You might have thought that if the basic ground for challenge was unlawfulness (and that is a high hurdle in itself), then as long as you were in some way affected by the decision, then you should be able to complain about the decision. That is broadly how we do things here in our UK system of judicial review.
But when you get to the EU Courts very different rules of engagement apply – far fewer people can complain about the illegality directly.
Article 263 of this EU Treaty (TFEU), a masterpiece of opacity, sets the tests for direct complaint to the EU Courts. Member States and EU Institutions can challenge the lawfulness of “acts” (which includes the making of laws) of EU institutions. But the bar is set much higher for others by Article 263(4) – with some lettering inserted by me :
Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against
(A) an act addressed to that person or
(B) which is of direct and individual concern to them, and
(C) against a regulatory act which is of direct concern to them and does not entail implementing measures.
(A) only helps the tiny number of persons actually named in a measure. The phrase “individual concern” in (B) has been narrowly defined by the EU Courts since the early 1960s. The Inuit case is about an EU ban on seal goods – it is not enough to be an EU seal good importer for such a ban to be of “individual concern”. You have to be distinguished individually in the measure – the fact that your trade is affected like that of all other seal goods importers is too generic to be “individual”. “Direct” is not so 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. If discretion is allowed, then you may be able to challenge the institution exercising that discretion, rather than the law under which the discretion is exercised.
This leaves (C), a relative “new boy”, and a creation of the Lisbon Treaty, which was intended to broaden the standing rules – but by how much? Note it still has to be of “direct” concern (which hurdle some of our Inuit claimants scrambled over). But, and this was the major problem for the Inuit, (C) does not cover all EU acts – only “regulatory” ones, whatever that means.
Much of the AG’s opinion explains why regulatory acts do not include legislative acts. The act under challenge in this case was EU Regulation 1007/2009 made by the EU Parliament and Council – hence a legislative act – rather than a Regulation made by the EU Commission without any wider legislative involvement. An example of the latter might be a delegated or implementing Regulation (a Commission measure – not involving Parliament or Council – filling in the details not dealt with in the primary Regulation).
The phrase “regulatory act” is not defined in TFEU. An innocent abroad might think that it included all and any regulation (the regulat- bit being a bit of a clue) – but, it turns out, he or she would be very wrong. Because whilst, like the English, the phrases “regulation” and “regulatory act” share an etymological link in the German, French, Greek, Irish, Italian, Latvian, Lithuanian, Maltese, Portuguese and Spanish versions of the Treaty, there is no such shared etymology word in Bulgarian, Danish, Estonian, Dutch, Polish, Romanian, Slovak, Slovene, Swedish and Czech versions. So more fool the Euro-lawyer who only knows 11 out of the 23 EU official languages.
The most convincing part of the AG’s opinion is where she goes excavating into the origins of Article 263, deeply embedded in the EU Constitution which was vetoed by certain members states, and from which much of the TFEU wording was cannibalised. She shows that it was not intended that regulatory acts include legislative acts. So it will include measures like implementing regulations or indeed any other non-legislative measure whether in the form of regulation, directive or decision.
The result seems right judged against that legislative history - but what on earth were the drafters doing when they came up with the phrase “regulatory act” without defining it, and allowing the divergence in phraseology over the 23 official languages? This was after all meant to be a reform designed to improve standing, and was evidently going to be carefully scrutinised by ordinary people wanting to go to the Luxembourg Court – so why did they not say what they meant?
The AG discusses one of the major policy reasons for keeping standing so restrictively defined at -. The standing rules apply in actions for annulment – i.e. direct action against the law. But they do not affect indirect challenges to such measures. So say a member state wants to implement such a measure (e.g. the seal products ban) against an individual. The individual challenges implementation by the member state on the basis of unlawfulness, and the domestic court is then duty-bound to refer any arguable case to the EU Courts to determine that unlawfulness. So through this roundabout route the EU Courts can strike down a law on this basis.
In addition, the AG was well aware that there were separate proceedings by the Inuit currently pending before the General Court, challenging the implementing regulations – which would fall within the definition of “regulatory act.”
The Inuit also sought to rely on the right to an effective remedy in their arguments about the narrowness of the standing rules. They relied upon Article 47 of the Charter of Fundamental Rights and Articles 6 and 13 ECHR as general principles of EU law.
The AG explained concisely how these various provisions fitted together, and why the right to a remedy did not advance the argument:
108. The Court has already made clear, however, that the right to an effective remedy does not require an extension of the direct legal remedies available to natural and legal persons against European Union acts of general application. Contrary to the view taken by the appellants, it cannot simply be inferred from that fundamental right that natural and legal persons must necessarily have available a direct legal remedy against European Union legislative acts before the European Union Courts.
109. With the entry into force of the Treaty of Lisbon on 1 December 2009, the applicable requirements as regards fundamental rights have not changed substantially. That Treaty has now elevated the Charter of Fundamental Rights to the status of binding EU primary law and prescribed that the Charter and the Treaties have the same legal value (first subparagraph of Article 6(1) TEU). However, this has not changed the substance of the fundamental right to an effective remedy recognised at EU level….
110. The situation is the same in respect of the homogeneity clause, which is enshrined in the first sentence of Article 52(3) of the Charter and, under the third subparagraph of Article 6(1) TEU, must be given due regard in interpreting and applying the fundamental right to an effective remedy. Under that clause, fundamental rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR. Consequently, regard must be had, in connection with the fundamental right under EU law to an effective remedy, to Articles 6 and 13 ECHR, on which Article 47 of the Charter of Fundamental Rights is based. Contrary to the view taken by the appellants, however, those two fundamental rights under the ECHR do not, as their interpretation by the European Court of Human Rights stands at present, require that individuals must be accorded a direct legal remedy against legislative acts.
So the fundamental right to a remedy cannot pull the main argument up by its bootstraps. Yes, it might work, if there was a real doubt after full interpretation of the Treaty whether the provision extended to legislative acts – but once that point was made, and supported by the argument that there was still an indirect route of challenge, the remedy argument had nowhere to go.
I have complained about the opaque drafting of the Treaty – but any reader of the AG’s opinion (whether or not they think she got the right answer) will have to admire the clarity of her expression.
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