T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council: enigma unveiled (at least in part)

In 2009, Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products was negotiated under the auspices of the Czech Presidency. A controversial piece of legislation, drafted amidst emotional reactions of the public in a number of the Member States to reports showing that seals are killed under cruel and "inhuman" circumstances (in particular in Canada). The EU legislator's reaction was also extremely strong. It prohibited marketing of seal products altogether, unless they result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence (see Article 3.1 of the Regulation).
The Regulation was attacked by a group of entities, most of them established in Canada. By the order of 6 September 2011, the General Court dismissed the action as inadmissible.(1)

Regulatory act

The General Court starts by summarising that, after the Lisbon Treaty amendments, the fourt paragraph of Article 263 TFEU permits a natural or legal person to attack:
a/ an act adressed to that person,
b/ a legislative or regulatory act of general application which is of direct and individual concern to that person,
c/ against certain acts of general application, namely regulatory acts which are of direct concern to that person and do not entail implementing measures.(2)
The third category is the new locus standi introduced by the Lisbon Treaty. But because the term "regulatory acts" is not defined anywhere in the Treaties, the scope of the term was somewhat unclear. Now we know better.
The General Court summarises it in paragraph 56: ... 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.
In the present case, the General Court was quick to conclude that the attacked Regulation is not a "regulatory act", simply because it is a legislative act (for which stricter locus standi conditions continue to apply, see point b) above). In this regard, the General Court dismissed the applicants' argument that a measure should be categorised according to its true nature, not just its form: Although 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.

Of direct and individual concern

As a result, the General Court found itself back in the "old" regime under point b), as mentioned above, and had to consider whether the contested Regulation is of (both) direct and individual concern to the applicants.
This is a classic test, so there is no need to dwell upon it, but one point is still interesting. The General Court concluded that most of the applicants are not directly concerned because the Regulation regulates placing on the market and the applicants concern do not engage (directly) in placing the seal products on the market. Paragraph 75 is of particular relevance in this regard:
Consequently, the contested regulation directly affects only the legal situation of those of the applicants who are active in the placing on the market of the European Union of seal products. That regulation does not in any way prohibit seal hunting, which indeed takes place outside the European Union market, or the use or consumption of seal products which are not marketed. Consequently, it should be observed that, while it cannot be precluded that the general prohibition of placing on the market provided for by the contested 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 (see, to that effect, order of the General Court in Case T‑40/04 Bonino and Others v Parliament and Council [2005] ECR II‑2685, paragraph 56). Furthermore, as regards the possible economic consequences of that prohibition, it must be borne in mind that, according the case-law, those consequences do not affect the applicants’ legal situation, but only their factual situation (see, to that effect, Joined Cases T-172/98 and T-175/98 to T-177/98 Salamander and Others v Parliament and Council [2000] ECR II-2487, paragraph 62).

(1) The Regulation - together with Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 - is also under attack in T-526/06 Inuit Tapiriit Kanatami and Others v Commission. That procedure is still pending.
(2) See paragraph 45 of the judgment.