Regulatory act which does not entail implementing measures

          • ECJ’s strategy of getting national courts to interpret national procedural rules compatibly to allow applicants to challenge EU norms of general application does not resolve procedural difficulties, nor problems cos of discretionary nature of the indirect route! Doesn’t address issue that A might first have to contravene the rule!
          • Preliminary rulings will go to ECJ, yet same issues could have been heard by General Court if admissible as a direct challenge.
          • ECJ’s argument based on boundaries of legitimate Treaty interpretation is unconvincing – Treaty always required indiv concern, but it is ECJ’s overly-restrictive interpretation of this that is being criticised. ECJ has filled gaps for other parts of art 263 where it felt it was warranted – not evident why AG Jacobs’ interpretation would transgress bounds of interpretation.
          • In normative terms, those who have suffered substantial impact should have access to JR! This aligns with national legal orders.
          • No reason why there would be increase in number of cases: fact that art 263 is restrictive forces As to use art 267, over which ECJ has less control. EU Courts can also influence number of cases brought through the standards of review it applies.

 

 

  • Regulatory act which does not entail implementing measures, & is of direct concern to A Manchester Taxi

 

        • Introduced by the Lisbon Treaty, to amend the rules on standing following above criticism!
        • Proponents thought ECJ would give “regulatory act” wide interpretation, so we could do away with the problematic “individual concern”. But ECJ didn’t follow expectations – instead, looked at textual meaning – said since “legislative acts” is terminology used elsewhere, then “regulatory act’ must mean something different!
          • Hence, definition of this term is super important – determines barriers A must surpass!

 

  • Inuit case, 2011: Gen Court confirmed that “regulatory act” covers all acts of general application apart from legislative acts. Legislative acts can only be challenged under first or second channel!

 

        • “regulatory act” = secondary norms, not primary legislative acts.
          • Doesn’t sit well with Lisbon classification of legal acts: does it mean any legally binding act (legislative/delegated/implementing), or does it have to take form of regulation/decision which does not entail implementing measures?
          • It has been proposed that the narrowest interpretation aligns with the drafters’ intent: only delegated acts in the form of regulations/decisions that are of direct concern and do not entail implementing measures.
          • ➔ but if this is so, it doesn’t really address the above problems on standing.

 

  • Hence, to alleviate the difficulties, should be interpreted as covering any legislative, delegated or implementing act which does not entail implementing measures (hence excluding directives)
  • ➔ remains to be seen if ECJ will adopt this approach

 

        • “implementing measure”
          • Natural meaning: Regulations and (most) decisions do not require any measure to be implemented into the national legal order – directly applicable.
          • But directives do!
          • True that for Regs, MSs might need to modify laws to comply with/fulfil demands, but this should not preclude recourse to the liberalised standing rules – would also cause inconsistency across MSs. Further, this factor depends on national law, not the EU regulatory act itself, hence not really accurate to say that the EU act ‘entailed’ implementing measures.
          • **Microban case, 2011: general court found that an act that does not entail implementing measure must leave no discretion to its addressee – implementation, if any, must be purely automatic and result only from Community rules (not any other rules). If there’s only one valid legal option, then there is no true discretion.
          • ➔ see new case of Arcelor.
          • **must be aware of the above discussion when answering problem question!