What's left of the 'new limb' of Art 263(4) TFEU after Inuit and Telefonica? (C-274/12 P)

In its Judgment of 19 December in case C-274/12 P Telefonica v Commission, the CJEU has continued to define (and minimise) the scope of Article 263(4) TFEU and, particularly, the 'new' third limb introduced by the Treaty of Lisbon according to which 'Any natural or legal person may [...] institute proceedings against [...] a regulatory act which is of direct concern to them and does not entail implementing measures.'
The restrictive approach adopted in the interpretation of this provision is largely based on the (substitutive) potential reliance on requests for a preliminary ruling under Article 267 TFEU against the measures not susceptible of a direct challenge by 'non-qualified' applicants. Therefore, the CJEU has now (almost) completed the reinterpretation of the post-Lisbon mechanisms for judicial review, where it seems clear that Article 263(4) TFEU, and particularly its last limb, is bound to have (or continue having) a marginal role.
In Inuit, the CJEU made it clear that legislative measures are not covered by the concept of 'regulatory act'. However, that negative approach to the definition of 'regulatory act' left some questions unanswered (are those only legislative measures derived from the ordinary legislative procedure as the GC had found, or are there all legislative measures, independently from their ultimate legal basis?). It was also not considered what 'implenting measures' meant. This has now been addressed in Telefonica.
The arguments provided by the CJEU are worth reading carefully:
27 As the Advocate General has observed in points 40 and 41 of her Opinion, the concept of a ‘regulatory act which … does not entail implementing measures’, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, is to be interpreted in the light of that provision’s objective, which, as is clear from its origin, consists in preventing an individual from being obliged to infringe the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he did not have a direct legal remedy before the European Union judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts.
28 It should be explained in this regard, first, that where a regulatory act entails implementing measures, judicial review of compliance with the European Union legal order is ensured irrespective of whether those measures are adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the European Union judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails.
29 Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic 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 (Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [2013] ECR I-0000, paragraph 93).
30 Second, as the Advocate General has observed in point 48 of her Opinion, the question whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons.
31 Third, in order to determine whether the measure being challenged entails implementing measures, reference should be made exclusively to the subject-matter of the action and, where an applicant seeks only the partial annulment of an act, it is solely any implementing measures which that part of the act may entail that must, as the case may be, be taken into consideration (C-274/12 P at paras 27 to 31, emphasis added).
The Judgment could be criticised in view of the fact that it includes implementing measures to be adopted by the Member States within the definition of 'regulatory acts...' in Article 263(4) TFEU--which (under a more generous approach) could have been limited to acts that require implementing measures by the European Institutions, but not those that require implementation by the Member States. However, the logic of the Judgment is clear and the strong push to 'redirect' litigation towards Article 267 TFEU is clear and consistent.
It is also clear from the Inuit and Telefonica Judgments that the CJEU is keeping the 'Plaumann test' alive and kicking when it comes to the interpretation of 'direct and individual concern' under the second limb of Article 263(4) TFEU.
Finally, it is also cleat that the CJEU sees no violation of Articles 6 and 13 of the European Convention on Human Rights or Article 47 of the Charter of Fundamental Rights of the EU as a result of its restrictive interpretation of the locus standi criteria in Article 263(4) TFEU (see paras 56 to 61, where the CJEU stresses once again 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. To that end, the FEU Treaty has established, by Articles 263 TFEU and 277 TFEU, on the one hand, and Article 267 TFEU, 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 European Union judicature', at 57).
Bottom line, the CJEU is clearly stressing that domestic courts of the Member States are EU courts for all purposes. In my view, from the perspective of the design and manageability of the system, this is certainly the only sensible and viable strategy.

"Ask responsibly": a warning on the hypertrophy of referrals for preliminary rulings

The tendency towards saturation and the risk of a bottleneck in the activities of the Court of Justice of the European Union (CJEU) are one the main concerns that prompted the recent changes in the rules of procedure of this institution (adopted on 25 September, published in the OJ and due to enter into force on the 1st of November). 

As the CJEU expressly remarked: 
"Faced with a constant rise in the number of cases brought before it, dominated by references for a preliminary ruling, the Court is adapting its rules of procedure to ensure that the particular features of those cases can more readily be taken into consideration, while at the same time strengthening its ability to dispose within a reasonable period of time of all the cases that are brought before it" (see press release here, emphasis added). 
Indeed, references for a preliminary ruling account for more than 60% of the CJEU’s caseload and the hypertrophy of this mechanism for the consistent and harmonized interpretation and enforcement of EU Law risks leaving us with a CJEU without time and resources to effectively deal with any of its other duties under the Treaties.

In that regard, the proactive approach adopted by the CJEU in changing its rules of procedure must be welcome, but at the same time it should be stressed that preventing the hypertrophy of the preliminary ruling mechanism is a two way avenue and that referring courts should also make an effort to "ask responsibly" and avoid referring unnecessary questions to the CJEU. However, the open question is whether the current drafting of Article 267 TFEU allows them to do so. 

As is well known, according to Article 267 TFEU, the CJEU shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; and (b) the validity and interpretation of acts of the  institutions, bodies, offices or agencies of the Union. And domestic courts are under an asymmetrical duty/possibility to raise such questions before the CJEU. Indeed, where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. However, where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

In my view, the imposition on the highest courts of the Member States of an absolute duty to refer cases for a preliminary ruling prevents them from exercising the basic degree of judicial discretion required to "ask responsibly" and generates a potentially non-negligible number of unnecessary referrals without the national courts or the CJEU being able to avoid them. Even if those unnecessary referrals can be replied by way of a reasoned order under the new Article 99 of the rules of procedure of the CJEU, that still takes significant time and costs. Therefore, in my view, some flexibility needs to be introduced to prevent such cases from the very beginning.

The recent Judgment of the CJEU of 18 October 2012 in case C-385/10 Elenca Srl Ministero dell’Interno is an example of an unnecessary referral. The case involved the interpretation of Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products as amended by Regulation (EC) No 1882/2003, and also the interpretation of the free movement of goods in the TFEU. More specifically, the case involved a mandatory requirement for construction materials used in chimney pipes sold in Italy to bear the CE mark.

Under the applicable Italian rules, all products used to insulate chimneys and make them fire proof had to bear a CE mark that ensured compliance with a given European technical standard. However, the complainant in the case was using innovative materials for which there exists no equivalent European standard and, consequently, cannot bear the CE mark. As put by the complainant, the contested Italian rule infringed Articles 34 TFEU to 37 TFEU because it made the marketing of a product originating from another Member State of the European Union (in this case, Hungary) subject to a technical condition, namely the affixing of the CE marking, a requirement that is impossible to fulfill because there is no corresponding harmonized standard in Hungary, which makes it impossible in practice to import and distribute the product in question.

The Italian Council of State shared the complainant's doubts as to the validity of the national legislation under European Union law but had to refer the case regardless of such doubts. It should come as no surprise that the CJEU indeed ruled that, in the absence of a harmonized standard for those specific construction products,
18 [... Directive 89/106] provides that the Member States are to allow such a product to be placed on the market in their territory if it satisfies national provisions consistent with the Treaty until the European technical specifications provide otherwise [...]
19 It follows that a Member State may not require the affixing of CE marking on a construction product not covered by [a harmonized European standard], originating from another Member State, in order for that product to be marketed on its territory. That Member State may subject the placing on the market of that construction product only to national provisions which comply with its obligations under the Treaty, in particular with the principle of the free movement of goods set out in Articles 34 TFEU and 36 TFEU.
20 [...] Directive 89/106 must be interpreted as precluding national provisions which automatically make the marketing of construction products, such as those at issue in the main proceedings, originating from another Member State, subject to the affixing of CE marking.
Moreover, the CJEU also dismisses very clearly any possibility to consider such a disproportioned restriction of free movement of goods justified on public interest grounds:
28 Although [...] it is established that, in the absence of harmonising rules, the Member States are free to decide on their intended level of protection of human life and health and on the need to monitor the goods concerned when being used (see, to that effect, Case C-293/94 Brandsma [1996] ECR I-3159, paragraph 11, and C-432/03 Commission v Portugal [2005] ECR I-9665, paragraph 44), it must be observed that legislation which prohibits, absolutely and automatically, the marketing on national territory of products lawfully marketed in other Member States because those products do not have CE marking is not compatible with the requirement of proportionality imposed by European Union law.
29 [...] such a strict requirement of CE marking, which prevents at the outset the very application of the principle of mutual recognition of products for which the European legislature has not effected full harmonisation or drawn up European technical approvals, by prohibiting compliance by the products in dispute with the required safety standards on the basis of approval and certification procedures conducted in the Member State of origin, goes beyond what is necessary to attain the safety objective pursued.
30 [...] Articles 34 TFEU to 37 TFEU must be interpreted as precluding national provisions which automatically make the marketing of construction products, such as those at issue in the main proceedings, originating from another Member State, subject to the affixing of CE marking.
The outcome of the case seems rather straightforward to anyone acquainted with the case law on free movement of goods and, consequently, it seems that the Italian Council of State (which already indicated its position by sharing the doubts of the complainant) did not need this answer from the CJEU in order to be able to give a judgment consistent with EU Law. Therefore, this is a good example of an unnecessary preliminary ruling that has taken up time and resources of the CJEU (and the Italian Council of State) without facing an actual difficulty of interpretation of EU Law. Therefore, in terms of prioritization in the development of EU Law, such a case ranks very low, and should have been avoided.

In my opinion, this shows that we need to allow all domestic courts, including the highest courts of the Member States against whose decisions there is no judicial remedy under national law to "ask responsibly". Otherwise, the risk of hypertrophy of the preliminary ruling instrument and the suffocation of the European Courts will still be a storm over our heads.