Case C‑398/13 P

Inuit Tapiriit Kanatami and Others

v

European Commission

‛Appeal — Regulation (EC) No 737/2010 — Regulation laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 — Trade in seal products — Restrictions on the import and marketing of those products — Validity — Legal basis — Article 95 EC — Charter of Fundamental Rights of the European Union — Article 17 — United Nations Declaration on the Rights of Indigenous Peoples — Article 19’

Summary — Judgment of the Court (Fifth Chamber), 3 September 2015

1. Approximation of laws — Measures intended to improve the functioning of the internal market — Legal basis — Article 95 EC — Judicial review — Limits — Assessment in the light of the information available at the time of the adoption of the measure

   (Art. 95 EC)

2. Approximation of laws — Measures intended to improve the functioning of the internal market — Legal basis — Article 95 EC — Obligation to state reasons — Scope

   (Arts 95 EC and 253 EC)

3. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the facts or evidence have been distorted

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

4. Approximation of laws — Measures intended to improve the functioning of the internal market — Legal basis — Article 95 EC — Recourse not dependent on the size of trade in the products covered by the measure at issue

   (Art. 95 EC)

5. Fundamental rights — European Convention on Human Rights — Instrument not formally incorporated into EU law

   (Art. 6(3) TEU; Charter of Fundamental Rights of the European Union, Art. 52(3))

6. Appeals — Grounds — Lack of specific criticism of a point in the General Court’s reasoning — Failure to indicate the paragraphs of the judgment under appeal that are contested — Inadmissibility

   (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2))

7. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility

   (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.)

8. Fundamental rights — Charter of Fundamental Rights of the European Union — Right to property — Scope — Rights conferring an established legal position — Concept

   (Charter of Fundamental Rights of the European Union, Art. 17)

9. Approximation of laws — Trade in seal products — Regulation No 1007/2009 — Detailed rules for implementation — Obligation to consult and cooperate with Inuit communities by virtue of the United Nations Declaration on the Rights of Indigenous Peoples — No such obligation)

   (European Parliament and Council Regulation No 1007/2009, recital 14 and Art. 3(1))

1.  The legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted. Thus, in the case of an action calling into question recourse to Article 95 EC for the adoption of a regulation, it is necessary to place oneself at the time when the EU measure at issue was adopted in order to examine whether the conditions permitting recourse to Article 95 EC were met. On the other hand, the date of the Commission’s proposal for a regulation cannot be relevant for that examination. In an action challenging a legislative measure, it is not that proposal, liable to be amended during the legislative procedure, whose lawfulness is reviewed by the EU judicature, but the legislative measure as adopted at the end of that procedure by the EU legislature.

   Furthermore, the number of Member States which had legislated or had the intention to legislate in the field concerned on the date of the Commission’s proposal is not, in itself, decisive for assessing whether the EU legislature’s recourse to Article 95 EC was lawful if the conditions for recourse to that article were met on the date on which the legislative measure at issue was adopted.

   (see paras 22-24)

2.  The object of measures adopted on the basis of Article 95(1) EC must genuinely be to improve the conditions for the establishment and functioning of the internal market. While a mere finding of disparities between national rules and of the abstract risk of infringements of fundamental freedoms or distortion of competition is not sufficient to justify the choice of Article 95 EC as a legal basis, the EU legislature may have recourse to it in particular where there are differences between national rules which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market or to cause significant distortions of competition. Recourse to that provision is also possible if the aim is to prevent the emergence of such obstacles to trade resulting from the divergent development of national laws. However, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them.

   As regards the statement of reasons that must be included in a regulation in order to justify recourse to Article 95 EC, since the statement of reasons for a measure of general application may be confined to indicating the general situation which led to its adoption and the general objectives which it is intended to achieve, the EU legislature cannot be criticised for having only set out generally the divergences between the national rules governing the matter at issue and the resulting adverse effect on the operation of the internal market. In particular, the EU legislature is not required to specify in the very text of the preamble to the regulation the number and identity of the Member States whose national rules are the source of that measure.

   In addition, where the statement of reasons for the regulation is, in itself, sufficient, the EU judicature cannot be criticised for having taken into consideration during its examination supplementary information, submitted during the judicial proceedings, which relates to the situation regarding the legislation of the Member States that led to the adoption of the regulation and which merely clarifies the statement of reasons for the regulation.

   (see paras 26, 27, 29, 30)

3.  See the text of the decision.

   (see paras 36-38)

4.  There is no legal criterion that measures taken on the basis of Article 95 EC are limited solely to markets for products in which trade is relatively sizeable, as the wording of Article 95 EC does not reveal such a requirement.

   (see paras 39, 40)

5.  See the text of the decision.

   (see paras 45, 46)

6.  See the text of the decision.

   (see para. 53)

7.  See the text of the decision.

   (see para. 57)

8.  See the text of the decision.

   (see paras 60, 61)

9.  Since Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), concerning consultation and cooperation with indigenous peoples, does not, in itself, have binding legal force, recital 14 in the preamble to Regulation No 1007/2009 on trade in seal products likewise does not confer binding effect on the obligation, referred to in that article, to consult and cooperate in order to obtain the Inuit communities’ consent. According to that recital, in order not to affect adversely the fundamental economic and social interests of Inuit communities engaged in the hunting of seals as a means to ensure their subsistence, the placing on the market of seal products which result from hunts traditionally conducted by those communities and which contribute to their subsistence should be allowed. As such authorisation is provided for in Article 3(1) of Regulation No 1007/2009, it is apparent that, in referring to the recognition by the UNDRIP of that hunting as an integral part of the culture and identity of the members of the Inuit communities, recital 14 in the preamble to Regulation No 1007/2009 merely states the reason for that derogation from the prohibition pursuant to that regulation on placing seal products on the market.

   On the other hand, it is not possible to infer from the wording of recital 14 in the preamble to Regulation No 1007/2009 a legally binding obligation to comply with Article 19 of the UNDRIP, a provision which indeed is not referred to by that recital.

   (see paras 64-67)