No standing for the Inuit in Luxembourg

ipTteC6iztnEInuit Tapiriit Kanatami et al v. European Parliament, CJEU, 3 October 2013 (read judgment), following Advocate General Kokott, 17 January 2013, read opinion and my post

This important case is all about “standing” before the EU courts, namely the ability to complain about some EU act that affects you. Lack of standing means that even if a measure was wrong and unlawful, you cannot get your foot in the door of the court. Domestic rules are quite relaxed, though proposals by Government to make it more difficult to sue Government and other public authorities are currently being consulted upon. But you cannot say that an EU law is unlawful without going to Luxembourg.

The EU Courts have always been very restrictive about the circumstances in which an individual can do so. A brief blip (C-50/00 UPA) a few years ago by a UK Advocate-General suggesting that things be done differently was squashed by the Court. And since then it has been one-way traffic in the EU Courts, brushing off criticism from NGOs and indeed the Aarhus Convention Compliance Committee in 2011 (see here). For a good summary of the EU case law up to 2011, see the ACCC at [20]-[31]

Recent Treaty amendments in Lisbon have, it will be seen, made little difference to the result.

The case concerned Inuit seal traders who wished to challenge an EU Regulation. This  prohibited the placing of seal products on the EU market unless they were traditionally hunted or occasional or on a non-profit basis. But could the traders go to Luxembourg to say it was unlawful and should be annulled?

The shape of Article 263

One needs to tangle with Article 263 of Treaty on the Functioning of the EU.  I called it previously a masterpiece of opacity and I need to explain how it works – in terms drawn from my last post.

It sets the tests for direct complaint to the EU Courts. By Article 263(1) and (2) Member States and EU Institutions can challenge the lawfulness of “acts” (which includes legislative acts) of EU institutions in the EU Courts. 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. This 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 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. It does however get rid of the requirement that the regulatory act be of “individual” concern in addition to being of “direct” concern.

The judgment

Arguments about (C)

The Court decided that regulatory acts in Article 263(4) do not include legislative acts. The act under challenge in this case was EU Regulation 1007/2009 made by the EU Parliament and Council, and was therefore a legislative act and unchallengeable. Contrast, say, an implementing regulation made by the Commission alone, filling in the details not dealt with in the primary Regulation, which could be challenged under Article 263(4) if of direct concern.

The phrase “regulatory act” is not defined in TFEU. As I pointed out in my previous post, one has to be careful about assuming that a regulation is a regulatory act, because the reg- prefix to “regulatory act” only occurs in about half of the official EU languages.

The Court, following the lead from the AG, looked into the legislative history of the amended Article 263 (then 230) which was rooted in the proposed Constitution which the EU never got.

Facing a proposal for an amendment to Article 230(4) to include “an act of general application”, the Praesidium drafting the Constitution did not adopt this, but chose the present wording. As a note from the drafters recorded, this enabled

a distinction to be made between legislative acts and regulatory acts, maintaining a restrictive approach in relation to actions by individuals against legislative acts (for which the ‘of direct and individual concern’ condition remains applicable).   [59] 

So this history strongly supported the arguments of the EU institutions which said that their legislative acts could not be challenged under Article 263(4) 

Arguments about (B) – “individual”

Our Inuit also argued that the interpretation of “individual” concern found in the case law was too narrow. They relied on AG Jacobs’ opinion in UPA which proposed a criterion of “substantial adverse effect.”

The difficulty about this argument, as the Court pointed out, was that the Lisbon Treaty, drafted in the light of the settled case law on “individual,” chose not to make an amendment to (B), and decided to modify standing rules by amending (C). Indeed the travaux preparatoires for the proposed Constitution expressly said that (B) was not to be altered: [70].

So we are to stay with the test which goes back to Plaumann in the early 1960s – “individual” concern means that the person is affected “by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee of a decision.”

Prospectively, this is almost impossible to satisfy, with its only area of likely application where the decision has retrospective impact on the applicant.

Policy reasons

The standing rules apply in actions for annulment  – proactive action, using the law as a sword. But they do not stop someone arguing defensively that he should not be prosecuted under the law, because it is invalid. Where the measure is an EU law, that can only be determined by an EU court, and domestic courts have to refer the case to the CJEU if they think there is any real doubt about it. This means that cases get to the CJEU in which individuals can in effect get a law struck down, but only reactively.

A-G Jacobs in UPA made all the obvious points about why this was not a very sensible way of going about things, not least because it might involve deliberate law-breaking in order to trigger a prosecution. Better to know where you stand as early as possible. And this is all the starker in the Inuit case. The Inuit would have to get their stock from Qikiqtarjuaq or wherever into the EU and then be prosecuted for it.

The Court did not really engage with these points, once it had decided that Lisbon had positively decided to leave the existing case law alone.

A-G Kokott had engaged with the reasoning. She said that it was always open to an individual to seek an opinion as to lawfulness from a domestic body and to request confirmation that the requirement or ban in question is not applicable to him. A negative decision by the national authority must, on grounds of effective legal protection, be open to review by national courts, which may refer the question of the validity of the underlying EU act to the Court for a preliminary ruling. If it were a matter for an EU body, the individual may request confirmation that the requirement or ban in question is not applicable to him. The body would have to decide on that request.

A negative decision by that body would, on grounds of effective legal protection, have to be regarded as a decision within the meaning of the fourth paragraph of Article 288 TFEU, against which the person to which it is addressed could bring an action for annulment pursuant to the first variant of the fourth paragraph of Article 263 TFEU, in the course of which he would be free to make an ancillary challenge in accordance with Article 277 TFEU to contest the lawfulness of the underlying EU legislative act. [122]

Helpful advice from the A-G as to how to get your case permissibly into the CJEU.

Effective remedies

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.

I described this earlier as a bootstraps argument. If you cannot get standing out of Article 263(4), then the Charter is never going to get it for you. It would only be if there was a real doubt after looking at the terms of the Treaty.

The CJEU followed the A-G on this.  Article 47 was not intended to change the system of judicial review in the Treaties; see the Explanation on Article 47 of the Charter. So even though the conditions of admissibility in Article 263(4) had to be interpreted in the light of the fundamental right to effective judicial protection,

 such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty

Comment

We are where we thought we were. Repeated attempts to batter down the door of standing have failed.

Let’s leave the last word to the ACCC in 2011 on the CJEU case law about standing as it affects environmental matters

94. With regard to access to justice by members of the public, the Committee is convinced that if the jurisprudence of the EU Courts, as evidenced by the cases examined, were to continue, unless fully compensated for by adequate administrative review procedures, the Party concerned would fail to comply with article 9, paragraphs 3 and 4, of the [Aarhus] Convention

Well, it does continue. 

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