EUR-Charts

Regarding the box entitled “For non-privileged applicants: only certain types of acts” (bottom, on the right-hand side), second bullet point, a case involving the definition of the terms “regulatory act” has been decided by the General Court: Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council, order of 6 September 2011, n.y.r.

In a previous order of 30 April 2010 concerning the application for interim measures, the General Court stated (para. 44 et seq. of the Order): “[…] should Article 263 TFEU be applicable to the present case, the admissibility of the main action could depend on the interpretation of the concept of “regulatory act” in the fourth paragraph of that provision. In that regard, as the Parliament and the Council point out, that category of act would probably have to be defined in relation to that of “legislative acts”, subject to the particular circumstance, in the present case, that Regulation No 1007/2009 was not adopted in accordance with the legislative procedure laid down in Article 294 TFEU. […] in the context of the interpretation of the fourth paragraph of Article 263 TFEU, the question would arise as to the circumstances in which a regulatory act does not require implementing measures.” The General Court observed that the Courts of the European Union had not, as yet, had the opportunity to rule on these issues “which are, moreover, of some legal complexity”.

On 6 September 2011, the General Court (7th Chamber, extended composition consisting of 5 judges) issued an order deciding of the admissibility of the action in the Inuit case, and more specifically about the question of whether the Regulation at issue in this case (Regulation 1007/2009 on trade in seal products) is a „regulatory act“ within the meaning of Art. 263(4) TFEU. The Court, relying on a literal, historical and teleological interpretation approach, decided that the term „regulatory act“ within the meaning of Art. 263(4) TFEU covers „all acts of general application apart from legislative acts“. In the context of the historical interpretation element, the Court relied on the history of the new part of Art. 263 TFEU, i.e. the corresponding provision in the Constitutional Treaty, and the meaning given to it by the Praesidium of the Convention. As for the term “legislative act”, following the Lisbon revision, under Art. 289 TFEU legislative acts are acts adopted in a legislative procedure, i.e. in a procedure in which the European Parliament and the Council jointly adopt the act in question. That was the case in relation to the specific regulation in question in the Inuit case, which had been adopted on the basis of Art. 95 EC, and thus in the ordinary legislative procedure (co-decision).

An appeal against the Court’s decision is pending (Case C-583/11 P).

In order to reflect the above case-law, Chart 12/7 has been updated and a new Chart 12/7a has been created. They are available for download here.

The fifth box (underneath the box “Acts must have legal effects“) must read:

Art. 263 TFEU: “acts intended to produce legal effects vis-à-vis third parties”.

Meaning: measures with legal effects which are binding on the applicant and are capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position; Bank Austria (2006), Vischim (2009).

Examples of non-reviewable acts:
• Informal communications such as telex messages; Sucrimex (1980); unless they have legal effects; France v Commission (1997);
• Internal instructions, unless in reality they constitute a decision; France v Commission (1990);
• Preliminary, preparatory or intermediary measures; e.g. IBM (1981), Fern Olivieri (2003), Reynolds Tobacco (2006), Cestas (2008).