Inuit Tapiriit Kanatami and Others v European Parliament and Council of the European Union.
Date: 2013-10-03
46. It must, first, be recalled that, according to settled case-law, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by the General Court, does not satisfy the requirement to state reasons under those provisions (see, inter alia, Case C-41/00 P Interporc  v Commission  [2003] ECR I-2125, paragraphs 15 and 16, and Case C-280/08 P Deutsche Telekom  v Commission [2010] ECR I-9555, paragraph 24 and the case‑law cited).
47. However, provided that the appellant challenges the interpretation or application of European Union law by the General Court, the points of law examined at first instance may be argued again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (Case C‑131/03 P Reynolds Tobacco and Others  v Commission [2006] ECR I-7795, paragraph 51 and the case-law cited).
48. In this case, it must be held that by the first part of their first ground of appeal the appellants are not seeking to obtain a mere re-examination of the application submitted to the General Court. By that first part, the appellants clearly indicate the passages in the order under appeal which they consider to be vitiated by errors in law and the legal arguments on which they rely in support of their appeal, including, in particular, those relating to the various methods of interpretation applied by the General Court. Accordingly, contrary to what was contended by the Parliament, the arguments already put forward at first instance are not merely repeated, but are in fact directed against an essential part of the reasons stated in the order under appeal, and, consequently, enable the Court to undertake its review.
50. As regards the merits of this part of the first ground of appeal, it must be observed that, in accordance with the Court’s settled case-law, the interpretation of a provision of European Union law requires that account be taken not only of its wording and the objectives it pursues, but also its context and the provisions of European Union law as a whole (see, to that effect, Case 283/81 Cilfit and Others  [1982] ECR 3415, paragraph 20). The origins of a provision of European Union law may also provide information relevant to its interpretation (see, to that effect, the judgment of 27 November 2012 in Case C‑370/12 Pringle [2012] ECR I‑0000, paragraph 135).
53. Next, Article 263 TFEU makes a clear distinction between the right of the European Union institutions and Member States to institute proceedings, on the one hand, and the right of natural and legal persons to do so, on the other. Thus, the second paragraph of Article 263 TFEU grants the European Union institutions there listed and the Member States the right to challenge, by an action for annulment, the legality of any act covered by the first paragraph, and it is not a condition of that right being exercised that any legal interest in bringing proceedings is established (see the judgment of 5 September 2012 in Case C‑355/10 Parliament  v Council [2012] ECR I-0000, paragraph 37 and the case‑law cited). Further, in accordance with the third paragraph of Article 263, the institutions and the Committee listed there may bring before the Court an action for annulment of those acts, provided that the action is brought for the purpose of protecting their prerogatives.
55. First, it must be stated that the first two limbs of the fourth paragraph of Article 263 TFEU correspond with those which were laid down, before the entry into force of the Treaty of Lisbon, by the EC Treaty, in the fourth paragraph of Article 230 thereof (see, in relation to the latter provision, Unión de Pequeños Agricultores  v Council , paragraphs 34 to 37).
56. Given the reference to ‘acts’ in general, the subject matter of those limbs of Article 263 is any European Union act which produces binding legal effects (see, to that effect, Case 60/81 IBM  v Commission [1981] ECR 2639, paragraph 9; Case C‑521/06 P Athinaïki Techniki  v Commission [2008] ECR I‑5829, paragraph 29; Case C-322/09 P NDSHT  v Commission [2010] ECR I‑11911, paragraph 45; and Joined Cases C‑463/10 P and C‑475/10 P Deutsche Post  v Commission [2011] ECR I‑9639, paragraphs 36 to 38). That concept therefore covers acts of general application, legislative or otherwise, and individual acts. The second limb of the fourth paragraph of Article 263 TFEU specifies that if the natural or legal person who brings the action for annulment is not a person to whom the contested act is addressed, the admissibility of the action is subject to the condition that the act is of direct and individual concern to that person.
57. Secondly, by means of the Treaty of Lisbon, there was added to the fourth paragraph of Article 263 TFEU a third limb which relaxed the conditions of admissibility of actions for annulment brought by natural and legal persons. Since the effect of that limb is that the admissibility of actions for annulment brought by natural and legal persons is not subject to the condition of individual concern, it renders possible such legal actions against ‘regulatory acts’ which do not entail implementing measures and are of direct concern to the applicant.
58. As regards the concept of ‘regulatory act’, it is apparent from the third limb of the fourth paragraph of Article 263 TFEU that its scope is more restricted than that of the concept of ‘acts’ used in the first and second limbs of the fourth paragraph of Article 263 TFEU, in respect of the characterisation of the other types of measures which natural and legal persons may seek to have annulled. The former concept cannot, as the General Court held correctly in paragraph 43 of the order under appeal, refer to all acts of general application but relates to a more restricted category of such acts. To adopt an interpretation to the contrary would amount to nullifying the distinction made between the term ‘acts’ and ‘regulatory acts’ by the second and third limbs of the fourth paragraph of Article 263 TFEU.
59. Further, it must be observed that the fourth paragraph of Article 263 TFEU reproduced in identical terms the content of Article III-365(4) of the proposed treaty establishing a Constitution for Europe. It is clear from the travaux préparatoires relating to that provision that while the alteration of the fourth paragraph of Article 230 EC was intended to extend the conditions of admissibility of actions for annulment in respect of natural and legal persons, the conditions of admissibility laid down in the fourth paragraph of Article 230 EC relating to legislative acts were not however to be altered. Accordingly, the use of the term ‘regulatory act’ in the draft amendment of that provision made it possible to identify the category of acts which might thereafter be the subject of an action for annulment under conditions less stringent than previously, while maintaining ‘a restrictive approach in relation to actions by individuals against legislative acts (for which the “of direct and individual concern” condition remains applicable)’ (see, inter alia, Secretariat of the European Convention, Final report of the discussion circle on the Court of Justice of 25 March 2003, CONV 636/03, paragraph 22, and Cover note from the Praesidium to the Convention of 12 May 2003, CONV 734/03, p. 20).
60. In those circumstances, it must be held that that the purpose of the alteration to the right of natural and legal persons to institute legal proceedings, laid down in the fourth paragraph of Article 230 EC, was to enable those persons to bring, under less stringent conditions, actions for annulment of acts of general application other than legislative acts.
61. The General Court was therefore correct to conclude that the concept of ‘regulatory act’ provided for in the fourth paragraph of Article 263 TFEU does not encompass legislative acts.
70. In that regard, it can be seen that the second limb of the fourth paragraph of Article 263 TFEU corresponds, as stated in paragraph 55 of this judgment, to the second limb of the fourth paragraph of Article 230 EC. The wording of that provision has not been altered. Further, there is nothing to suggest that the authors of the Treaty of Lisbon had any intention of altering the scope of the conditions of admissibility already laid down in the fourth paragraph of Article 230 EC. Moreover, it is clear from the travaux préparatoires relating to Article III‑365(4) of the proposed treaty establishing a Constitution for Europe that the scope of those conditions was not to be altered (see, inter alia, Secretariat of the European Convention, Final report of the discussion circle on the Court of Justice of 25 March 2003, CONV 636/03, paragraph 23).
71. In those circumstances, it must be held that the content of the condition that the act of which annulment is sought should be of individual concern, as interpreted by the Court in its settled case-law since Plaumann v Commission , was not altered by the Treaty of Lisbon. It must therefore be held that the General Court did not err in law in applying the assessment criteria laid down by that case-law.
72. According to that case-law, natural or legal persons satisfy the condition of individual concern only if the contested act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see Plaumann  v Commission ; Case C‑298/00 P Italy  v Commission  [2004] ECR I‑4087, paragraph 36; and Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’  v Commission [2011] ECR I‑4727, paragraph 52).
75. It is apparent, from the actual wording of the fourth paragraph of Article 263 TFEU and from settled case-law, that a natural or legal person is entitled to bring an action for annulment of an act which is not a decision addressed to that person only if the person is not only directly concerned by such an act but also individually concerned by it (see, with regard to Article 230 EC, Case C-167/02 P Rothley and Other s  v Parliament [2004] ECR I-3149, paragraph 25 and the case‑law cited).
76. Accordingly, since the conditions that the act of which annulment is sought should be of direct concern and individual concern are cumulative, the consequence, if one of those conditions is not met by an applicant, is that an action brought by him for annulment of that act must be held to be inadmissible.
82. In accordance with the Court’s settled case-law, the General Court was not required to provide an account which follows exhaustively all the arguments put forward by the parties to the case. According to that case‑law, the reasoning of the General Court may be implicit, on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review (see Case C‑385/07 P Der Grüne Punkt – Duales System Deutschland  v Commission [2009] ECR I‑6155, paragraph 114 and the case-law cited).
90. First, it must be recalled that judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, by the Court of Justice and the courts and tribunals of the Member States (see, to that effect, Opinion of the Court 1/09 [2011] ECR I-1137, paragraph 66).
91. Further, the European Union is a union based on the rule of law in which the acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, the general principles of law and fundamental rights (see, to that effect, Case C‑550/09 E and F [2010] ECR I‑6213, paragraph 44).
92. To that end, the FEU Treaty has established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the Courts of the European Union (see Case 294/83 Les Verts  v Parliament [1986] ECR 1339, paragraph 23; Unión de Pequeños Agricultores  v Council , paragraph 40; Reynolds Tobacco and Others  v Commission , paragraph 80; and Case C‑59/11 Association Kokopelli [2012] ECR I‑0000, paragraph 34).
93. Accordingly, natural or legal persons who cannot, by reason of the conditions of admissibility stated in the fourth paragraph of Article 263 TFEU, challenge directly European Union acts of general application do have protection against the application to them of those acts. Where responsibility for the implementation of those acts lies with the European Union institutions, those persons are entitled to bring a direct action before the Courts of the European Union against the implementing measures under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead, pursuant to Article 277 TFEU, in support of that action, the illegality of the general act at issue. Where that implementation is a matter for the Member States, such persons may plead the invalidity of the European Union act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (see, to that effect, Les Verts  v Parliament , paragraph 23).
94. In that context, it must be emphasised that, in proceedings before the national courts, individual parties have the right to challenge before the courts the legality of any decision or other national measure relative to the application to them of a European Union act of general application, by pleading the invalidity of such an act (see, to that effect, Unión de Pequeños Agricultores  v Council , paragraph 42, and E and F , paragraph 45).
95. It follows that requests for preliminary rulings which seek to ascertain the validity of a measure constitute, like actions for annulment, means for reviewing the legality of European Union acts (see Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415, paragraph 18, and Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04 ABNA and Others [2005] ECR I-10423, paragraph 103).
96. In that regard, it must be borne in mind that where a national court or tribunal considers that one or more arguments for invalidity of a European Union act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare a European Union act invalid (Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraphs 27 and 30 and the case-law cited).
97. Having regard to the protection conferred by Article 47 of the Charter, it must be observed that that article is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Articles 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (see the judgment of 22 January 2013 in Case C‑283/11 Sky Österreich [2013] ECR I‑0000, paragraph 42, and the judgment of 18 July 2013 in Case C‑426/11 Alemo‑Herron and Others [2013] ECR I‑0000, paragraph 32).
98. Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (see, to that effect, Unión de Pequeños Agricultores  v Council , paragraph 44, and Commission  v Jégo-Quéré , paragraph 36).
99. As regards the role of the national courts and tribunals, referred to in paragraph 90 of this judgment, it must be recalled that the national courts and tribunals, in collaboration with the Court of Justice, fulfil a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed (Opinion of the Court 1/09, paragraph 69).
100. It is therefore for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection ( Unión de Pequeños Agricultores  v Council , paragraph 41, and Commission  v Jégo-Quéré , paragraph 31).
101. That obligation on the Member States was reaffirmed by the second subparagraph of Article 19(1) TEU, which states that Member States ‘shall provide remedies sufficient to ensure effective judicial protection in the fields covered by European Union law’.
102. In that regard, in the absence of European Union rules governing the matter, it is for the domestic legal system of each Member State to designate, with due observance of the requirements stemming from paragraphs 100 and 101 of this judgment and the principles of effectiveness and equivalence, the courts and tribunals with jurisdiction and to lay down the detailed procedural rules governing actions brought to safeguard rights which individuals derive from European Union law (see, to that effect, inter alia, Case C-268/06 Impact [2008] ECR I-2483, paragraph 44 and the case-law cited; Case C-118/08 Transportes Urbanos y Servicios Generales [2010] ECR I-635, paragraph 31; and Joined Cases C-317/08 to C‑320/08 Alassini and Others [2010] ECR I-2213, paragraphs 47 and 61).
103. As regards the remedies which Member States must provide, while the FEU Treaty has made it possible in a number of instances for natural and legal persons to bring a direct action, where appropriate, before the Courts of the European Union, neither the FEU Treaty nor Article 19 TEU intended to create new remedies before the national courts to ensure the observance of European Union law other than those already laid down by national law (Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 40).
104. The position would be otherwise only if the structure of the domestic legal system concerned were such that there was no remedy making it possible, even indirectly, to ensure respect for the rights which individuals derive from European Union law, or again if the sole means of access to a court was available to parties who were compelled to act unlawfully (see, to that effect, Unibet , paragraphs 41 and 64 and the case-law cited).
105. As regards the appellants’ argument that the interpretation adopted by the General Court of the concept of ‘regulatory act’, provided for in the fourth paragraph of Article 263 TFEU, creates a gap in judicial protection, and is incompatible with Article 47 of the Charter in that its effect is that any legislative act is virtually immune to judicial review, it must be stated that the protection conferred by Article 47 of the Charter does not require that an individual should have an unconditional entitlement to bring an action for annulment of European Union legislative acts directly before the Courts of the European Union.