The fine distinction between regulatory acts and acts that regulate

Under EU law, limits on standing are written into article 263 TFEU. The fourth paragraph of that article permits a natural or '¨legal person to challenge acts addressed to them, or which are of "direct and individual concern" to them, or which '¨are "regulatory" acts which are of "direct concern" and do not "entail implementing measures".

Case C-583/11 P Inuit Tapiriit Kanatami (3 October 2003) concerned Regulation 1007/2009 which provided that seal products could only be placed on the market if the products "result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence", subject to certain narrow exceptions. Various persons sought to challenge that regulation. The General Court rejected that challenge (Case T-18/10 [2011] ECR II-5599). The ECJ has now dismissed the appeal.

Regulatory act

The first question is: what is meant by a "regulatory act"? This is an important question, because the expression is a new one, introduced into the treaty by the Treaty of Lisbon. The General Court held that it was necessary to draw a distinction between "regulatory acts" and "legislative acts", and that the intention was that acts that were legislative should only be subject to challenge by those who could show "direct and individual concern", so that legislative acts are never "regulatory".

Having referred to the travaux préparatoires, the ECJ agreed that the intention was to deal with acts of general application which are not legislative. This is only partly helpful, because it is rather obscure what category of acts (having any legal effect at all) might count as "regulatory" rather than legislative, and the ECJ's judgment studiously resists providing any answer to this question. But it seems clear that it must be a narrow category: legislative acts - although they regulate - are not "regulatory" for these purposes.

The court then turned to the question whether the applicants could show 'direct and individual concern'. The General Court had found that only those applicants who were currently active in placing seal products on the EU market could show "direct" concern, and that it was not of "individual" concern to them, because they were no differently affected than any other trader who happened to engage in that sort of trade. On appeal, it was argued that behind the reformulation of article 263 lay '¨a desire on the part of the member states to 'loosen up' the rules on standing, taking inspiration from suggestions in the case law for possible reform, and abandoning the highly restrictive interpretations '¨which had prevailed under '¨the older formulation since the early 1960s.

Hard sell

This was always going to be a hard sell. For if the member states had wished to reform the law, it seems almost perverse that they should have chosen to do so by replicating precisely the expression ("direct and individual concern") on which the old law was based. And the ECJ duly rejected the suggestion. Nor was it willing to countenance any departure from the established law on the meaning of "individual concern": the applicant must be affected differently because of peculiar attributes or circumstances which mark him or her out from others. But all the applicants in this case were affected as traders, and they were not differently affected.

Finally, the ECJ considered various arguments to the effect that the standing rules are so restrictive that they deny applicants their human rights. It rejected that suggestion, pointing out that it is not a question of whether a challenge can be made but of how and when. Those who cannot challenge directly can, however, challenge indirectly, by challenging the measures under which the contested legislation is applied to them.