1. Actions for annulment – Natural or legal persons – Meaning of ‘regulatory act’ for the purposes of the fourth paragraph of Article 263 TFEU – All acts of general application apart from legislative acts
(Art. 263, fourth para., TFEU)
2. Actions for annulment – Natural or legal persons – Conditions of direct concern to them for the purposes of the fourth paragraph of Article 263 TFEU – Whether contrary to the principle of effective judicial protection – Not contrary
(Art. 263, fourth para., TFEU)
3. Acts of the institutions – Legal nature – Legislative acts and regulatory acts – Distinguishing criteria – Procedure for the adoption of the act
(Art. 251 EC; Arts 289(1) and (3) TFEU and 294 TFEU)
4. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Regulation No 1007/2009 on trade in seal products
(Art. 263, fourth para, TFEU; European Parliament and Council Regulation No 1007/2009)
1. 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.
First, although the fourth paragraph of Article 263 TFEU introduces a change from the EC Treaty so far as concerns access to the Courts of the European Union, namely that now a natural or legal person may institute proceedings against a regulatory act which is of direct concern to them and does not entail implementing measures, the meaning of ‘regulatory act’ is not defined by the FEU Treaty. In that regard, that provision, by omitting the word ‘decision’ permits the institution of proceedings against individual acts, against acts of general application which are of direct and individual concern to a natural or legal person and against a regulatory act which is of direct concern to them and does not entail implementing measures. Against that background, that possibility does not relate to all acts of general application, but to a more restricted category, namely regulatory acts. It follows 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.
In the second place, that interpretation of the fourth paragraph of Article 263 TFEU is borne out by the history of the process which led to the adoption of that provision, which dates from the draft Treaty establishing a Constitution for Europe, from which it is apparent, that the wording used enables ‘a distinction to be made between legislative acts and regulatory acts, maintaining a restrictive approach in relation to actions by individuals against legislative acts.
In the third place, the purpose of the fourth paragraph of Article 263 TFEU is to allow a natural or legal person to institute proceedings against an act of general application which is not a legislative act, which is of direct concern to them and does not entail implementing measures. Consequently, the wording of that provision does not allow proceedings to be instituted against all acts which satisfy the criteria of direct concern and which are not implementing measures or against all acts of general application which satisfy those criteria, but only against a specific category of acts of general application, namely regulatory acts. Consequently, the conditions of admissibility of an action for annulment of a legislative act are still more restrictive than in the case of proceedings instituted against a regulatory act.
(see paras 39, 42-43, 45, 49-50, 56)
2. As regards the right to effective judicial protection, inter alia having regard to Article 47 of the Charter of Fundamental Rights of the European Union, the Courts of the European Union may not, without exceeding their jurisdiction, interpret the conditions under which an individual may bring an action for annulment of a regulation in a way which has the effect of setting aside those conditions, expressly laid down in the Treaty, even in the light of the principle of effective judicial protection.
(see para. 51)
3. It is apparent from Article 289(1) and (3) TFEU that legal acts adopted according to the procedure defined in Article 294 TFEU, referred to as ‘the ordinary legislative procedure’, constitute legislative acts. As the procedure defined in Article 294 TFEU reproduces, in essence, that defined in Article 251 EC, a regulation, adopted on the basis of Article 95 EC according to the co-decision procedure referred to in Article 251 EC, must, within the categories of legal acts provided for by the FEU Treaty, be categorised as a legislative act.
Furthermore, although, according to settled case-law the test for distinguishing between a regulation and a decision is whether or not the measure is of general application, that case-law relates in particular to the second part of the fourth paragraph of Article 230 EC. The objective of that provision was, in particular, to prevent the institutions of the European Union from being in a position, merely by choosing the form of a regulation, to exclude an application by an individual against a decision which concerns him directly and individually; it therefore stipulates that the choice of form cannot change the nature of a measure.
Whilst the test for distinguishing between an act of general application and an individual act is whether the act in question is of general application, its categorisation as a legislative act or a regulatory act according to the FEU Treaty is based on the criterion of the procedure, legislative or not, which led to its adoption.
(see paras 59-61, 63-65)
4. The condition that a natural or legal person must be directly concerned by an act of general application for the purposes of the fourth paragraph of Article 263 TFEU, which must be satisfied in order to make an action for annulment of that act admissible, requires first, that the European Union measure contested must directly affect the legal situation of those persons and, secondly, that there must be no discretion left to the addressees of that measure who are responsible for its implementation, that implementation being purely automatic and resulting from European Union rules alone without the application of other intermediate rules.
As regards an action brought by individuals against Regulation No 1007/2009 on trade in seal products, while it cannot be precluded that the general prohibition of placing seal products on the market provided for by that regulation may have consequences for the business activities of persons intervening upstream or downstream of that placing on the market, the fact remains that such consequences cannot be regarded as resulting directly from that regulation. As regards the products which may be subject to the exception to the general prohibition provided for by that regulation, the national authorities are not in a position to apply it without the implementing measures established by an implementing regulation, which must, specifically, define the conditions for the placing on the market of those products. Such a provision does not therefore constitute a complete set of rules which are sufficient in themselves, require no implementing provisions and may thus be of direct concern to persons.
As regards whether natural or legal persons are individually concerned by that regulation for the purposes of the fourth paragraph of Article 263 TFEU, in such a way as to be entitled to bring an action for its annulment, even if those persons were covered, in addition to the general prohibition, by the exception relating to the products in question, that would not be sufficient to distinguish them individually in the same way as the addressee of a decision.
(see paras 71, 75, 78, 92)