Inuit Tapiriit Kanatami and Others v European Commission.
Date: 2015-09-03
22. As regards the first argument, it is settled case-law that 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 (judgments in Agrana Zucker , C‑309/10, EU:C:2011:531, paragraphs 31 and 45 and the case-law cited, and Schaible , C‑101/12, EU:C:2013:661, paragraph 50). In particular, the Court places itself at the time when the EU measure at issue was adopted in order to examine whether the conditions permitting recourse to Article 95 EC as a legal basis were met (see judgments in Arnold André , C‑434/02, EU:C:2004:800, paragraph 38; Swedish Match , C‑210/03, EU:C:2004:802, paragraph 37; Germany  v Parliament and Council , C‑380/03, EU:C:2006:772, paragraphs 45 to 51 and 55; and Vodafone and Others , C‑58/08, EU:C:2010:321, paragraphs 39 and 41).
26. So far as concerns the second argument, it should be recalled that, according to settled case-law, 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 (judgments in British American Tobacco (Investments) and Imperial Tobacco , C‑491/01, EU:C:2002:741, paragraph 60; United Kingdom  v Parliament and Council , C‑217/04, EU:C:2006:279, paragraph 42; and United Kingdom  v Parliament and Council , C‑270/12, EU:C:2014:18, paragraph 113). 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 (judgment in Vodafone and Others , C‑58/08, EU:C:2010:321, paragraph 32 and the case-law cited).
27. 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 (judgments in Germany  v Parliament and Council , C‑380/03, EU:C:2006:772, paragraph 38 and the case-law cited, and Vodafone and Others , C‑58/08, EU:C:2010:321, paragraph 33).
29. As 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 (see judgment in AJD Tuna , C‑221/09, EU:C:2011:153, paragraph 59 and the case-law cited), the EU legislature cannot be criticised for having only set out generally, in recitals 4 to 7 in the preamble to the basic regulation, the divergences between the national rules governing the marketing of seal products and the resulting adverse effect on the operation of the internal market that justified recourse to Article 95 EC. In particular, the EU legislature, contrary to the appellants’ submissions, was not required to specify in the very text of the preamble to the basic regulation the number and identity of the Member States whose national rules are the source of that measure.
30. Since the statement of reasons for the basic regulation is, in itself, sufficient, the General Court cannot be criticised for having taken into consideration during its examination, in paragraph 50 of the judgment under appeal, the supplementary information, submitted by the Commission during the judicial proceedings, relating to the situation regarding the legislation of the Member States that led to the adoption of that regulation, information which merely clarified the statement of reasons for the basic regulation, in accordance with the Court of Justice’s case-law. In the context of examination of the choice of Article 95 EC as a legal basis, account is taken in that case-law of such clarification provided during the judicial proceedings of the statement of reasons for the act at issue (see, in particular, judgments in British American Tobacco (Investments) and Imperial Tobacco , C‑491/01, EU:C:2002:741, paragraphs 68, 70 and 73; United Kingdom  v Parliament and Council , C‑217/04, EU:C:2006:279, paragraph 61, and Germany  v Parliament and Council , C‑380/03, EU:C:2006:772, paragraphs 46 and 47).
37. Under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court therefore has sole jurisdiction to establish and assess the relevant facts and to assess the evidence, save where such facts and evidence have been distorted (judgment in Ryanair  v Commission , C‑287/12 P, EU:C:2013:395, paragraph 78 and the case-law cited).
40. Furthermore, whilst in certain cases the Court has classified the trade on the markets concerned as relatively sizeable (see judgments in Arnold André , C‑434/02, EU:C:2004:800, paragraph 39 and the case-law cited; Swedish Match , C‑210/03, EU:C:2004:802, paragraph 38; and Germany  v Parliament and Council , C‑380/03, EU:C:2006:772, paragraph 53), it has not in any way established a 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.
45. Whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (see, to this effect, judgments in Åkerberg Fransson , C‑617/10, EU:C:2013:105, paragraph 44; Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraph 32; and Telefónica and Telefónica de España  v Commission , C‑295/12 P, EU:C:2014:2062, paragraph 41).
46. Thus, the General Court was correct in holding, in paragraph 105 of the judgment under appeal, that Articles 17, 7, 10 and 11 of the Charter secure in EU law the protection conferred by the provisions of the ECHR relied on by the appellants and that it is appropriate, in this instance, to base the examination of the validity of the basic regulation solely on the fundamental rights guaranteed by the Charter (see, to this effect, judgments in Otis and Others , C‑199/11, EU:C:2012:684, paragraph 47, and Ziegler  v Commission , C‑439/11 P, EU:C:2013:513, paragraph 126 and the case-law cited).
50. By the third part of this ground of appeal, the appellants complain that the General Court held, in paragraph 112 of the judgment under appeal, that the UNDRIP does not have binding force and that it failed to examine whether the EU institutions obtained the appellants’ prior consent in accordance with Article 19 of that declaration before the basic regulation was adopted. Although that declaration does not in itself have binding legal status, the European Union, in recital 14 in the preamble to the basic regulation, acknowledged the obligation to comply with the provisions of the UNDRIP in good faith. In accordance with the Court of Justice’s case-law, the European Union cannot derogate from the rules it has laid down in applying that declaration (judgment in NTN Toyo Bearing and Others  v Council , 113/77, EU:C:1979:91, paragraph 21). Furthermore, it is apparent from a resolution of the International Law Association published in 2012 that Article 19 of the UNDRIP lays down a rule of customary international law with which the European Union is required to comply in the exercise of its powers.
53. So far as concerns the plea of inadmissibility put forward by the Parliament relating to the third part of the second ground of appeal in its entirety, it is apparent from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Articles 168(1)(d) and 169(2) of the Rules of Procedure that an appeal must identify precisely the contested points in the grounds of the judgment which the appellant seeks to have set aside and indicate precisely the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible (see, to this effect, judgments in Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraph 43, and Ezz and Others  v Council , C‑220/14 P, EU:C:2015:147, paragraph 111 and the case-law cited).
57. According to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would in effect allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment in Nexans and Nexans France  v Commission , C‑37/13 P, EU:C:2014:2030, paragraph 45 and the case-law cited).
60. It should be pointed out that the protection of the right to property afforded by Article 17 of the Charter does not apply to mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity, but applies to rights with an asset value creating, under the legal system, an established legal position enabling the holder to exercise those rights autonomously and for his benefit (see judgment in Sky Österreich , C‑283/11, EU:C:2013:28, paragraph 34 and the case-law cited).