Jégo-Quéré revisited

The case law of Court on individual standing for review of legality of measures of general application has faced criticism over the years for being too strict. Applicants had to fulfill the conditions contained in the (in)famous Plaumann judgment: an act of general application had to affect ‘them 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’ (the Plaumann formula).

It has been very difficult for individuals who wish to challenge EU measures of general application to satisfy this test. Article 230 EC has now been amended with the entry into force of the Treaty of Lisbon.

Article 263 TFEU now provides:

Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

The question is: what is a regulatory act? The Treaties do not define it anywhere.

The General Court in a recent order (T-18/10, Inuit Tapiriit Kanatami and Others v Parliament and Council) provides the answer:

45. It must be concluded that the fourth paragraph of Article 263 TFEU, read in conjunction with its first paragraph, permits a natural or legal person to institute proceedings against an act addressed to that person and also

(i)                  against a legislative or regulatory act of general application which is of direct and individual concern to them and

(ii)                against certain acts of general application, namely regulatory acts which are of direct concern to them and do not entail implementing measures.

(…) it must be held that the meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts. Consequently, a legislative act may form the subject-matter of an action for annulment brought by a natural or legal person only if it is of direct and individual concern to them.

So, an applicant must still be directly and individually concerned if it wishes to challenge measures adopted through the ordinary or special legislative procedure. By contrast, any other measure of general application that does not entail implementing measures (e.g. a Commission Regulation) can now be challenged by applicants that can demonstrate to be directly concerned. So in those instances, the applicant no longer has to satisfy the Plaumann formula.

5 comments

  1. Alberto Alemanno

    In the INUIT order the Court concluded that ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts. Therefore a regulation does not qualify as a ‘regulatory act’ within Article 263.4 TFEU.
    You may also want to add a reference to Microban, another important judgment that squares the circle on the interpretation of Article 263.4 TFEU. We still wait to hear from the ECJ on the final interpretation of this provision.

    • Laurens Ankersmit

      Thanks Alberto, also for the Microban reference!

      In the second case concerning trade in seal products (case T-526/10) the implementing regulation was challenged. We will see how that turns out.

  2. Zuzana Vikarska

    An update one year later: there is now an AG opinion in the Inuit case (Case C-583/11 P), and there is a new case by the General Court (Case T-381/11 Eurofer v Commission). Anyway, the most interesting moment will be the Court’s decision in the Inuit case on appeal – will the ECJ follow the reasoning of AG Kokott or not? :))

Leave a Reply