Inuit Tapiriit Kanatami and Others v Parliament and Council

June 7, 2011

By Sanna Katariina Elfving, PhD student (University of Surrey)

Brought before the European Union General Court on 11 January 2010, Case T 18/10 R [2010] OJ C 100/41, Inuit Tapiriit Kanatami and Others v Parliament and Council  challenges the European Union by seeking the annulment of Regulation (EC) No 1007/2009 on trade in seal products which imposed a ban on imports into the EU and sale of products deriving from all species of seals on 20 August 2010.

The applicants (natural persons, commercial companies and non-profit-making organisations and associations representing Inuit interests) have also applied for interim measures on the grounds that the regulation causes them ‘serious and irreparable harm’ as it affects their living conditions (1) by preventing them from exporting their seal products to the EU and (2) interfering with the whole social fabric of Inuit communities since seal hunting forms part of their ancestral tradition.

Although the General Court dismissed the two applications for interim measures in April 2010 and October 2010, the decisions are still significant because the arguments submitted by the applicants involve a range of issues relating to the legislative competence of the EU institutions, the standing rules of private applicants before the European Courts, the application of the fundamental human rights within the EU as well as the status of Indigenous peoples in EU law.

In order to support their action for annulment, the applicants argue amongst others that the European Parliament and the Council adopted Regulation No 1007/2009 on an inappropriate legal basis. According to them, Article 95 EC (now Article 114 TFEU), which used to facilitate the functioning of the Union’s internal market is not a valid legal basis for the contested regulation, because the stated aim of the regulation is the protection of animal welfare, rather than harmonisation of the internal market. They also argue that since the ban introduced by the regulation effectively has an impact on trade with third countries the legal basis should have included Article 133 EC (nowArticle 207 TFEU). This was because the draft regulation referred to both provisions whereas the final version of it only refers to Article 95 EC.  They further argue that the regulation infringes the principle of proportionality because it will not lead into an improvement of animal welfare and the defendants deliberately chose the ban, which disproportionally affects the applicants although a less restrictive measure would have been available.

In second place, the applicants argue that the EU infringes their fundamental rights in light of The European Convention on Human Rights (ECHR) and international law on the protection of Indigenous peoples. According to them, the contested regulation first has an adverse impact on their living conditions and therefore infringes Article 8 ECHR (the right to respect for private and family life). Secondly, the seal hunting as it is practiced by Inuit forms part of their ‘moral convictions’ and beliefs which are protected by Articles 9 ECHR (right to freedom of thought, conscience and religion) and 10 ECHR (right to freedom of expression). Thirdly, the Regulation fails to take into account of the right to property established in Article 1 of Protocol 1 of the ECHR and the right of the applicants to engage in commercial exploitation of seal products, which constitute a significant part of their income. According to the applicants, they were not given opportunity to present their views to the defendants before the adoption of the Regulation. The Council and the Parliament have refuted all the arguments submitted by the applicants.

So what?

The outcome of Inuit Tapiriit Kanatami and others is likely to be significant because it is one of the rare cases before the European Courts involving Indigenous peoples. Furthermore, as noted by the Court, it will be one of the first cases where the Court has an opportunity to rule for the first time on the provisions of the newly amended Treaty of the Functioning of the European Union (TFEU) due to the entry into force of the Lisbon Treaty on 1 December 2009.

One of the issues rising from this relates to the admissibility of the applicants’ action under the new Treaty provisions. This is of particular significance as the new provisions have potential to expand the restrictive standing rules for private applicants and make it easier for them to challenge acts of the EU institutions. In the past, the European Courts have interpreted the standing rules very narrowly, which has effectively made it challenging for private applicants to gain standing and overcome the requirement for ‘direct and individual concern’ under Article 230 EC. According to Article 230(4) EC, private individuals and companies are able to bring proceedings either against a decision adopted by any European Union institution, which has been addressed to them or against a decision or a regulation which is addressed to another person but is of direct and individual concern to the former.

Although both the applicants and defendants argue that the admissibility of the main action in Inuit Tapiriit Kanatami should be decided under Article 263(4) TFEU (ex Article 230(4) EC), which stipulates that any natural or legal persons are able to challenge ‘an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’,the General Court has indicated that since the contested Regulation was adopted before the entry into force of the new Treaty, the Court has to decide whether Article 263(4) TFEU or 230(4)EC is applicable.

To add further to the complexity, should the Court in the main action decide that Article 263(4) TFEU applies instead of Article 230(4) EC, the admissibility of the main action would still depend on the Court’s interpretation of term ‘regulatory act’ under Article 263(4) TFEU since the defendants argue that Regulation No 1007/2009 a legislative rather than regulatory act on the grounds that it entails implementing measures.

Sanna Katariina Elfving is a PhD student at the University of Surrey School of Law. She holds a MA in European Politics, Business and Law. She researches on the interaction between EU environmental law and International Trade Law of the World Trade Organization, especially regarding the rights of Indigenous peoples inhabiting the Arctic region as well as laws governing the conservation and use of wild animals. Sanna was a trainee with the Public Affairs Consultancy Company and Think Tank called the Centre in Brussels, Belgium where she carried out, among other things research in the field of the environment, human health, development aid, and energy; as well as participated in informal roundtable discussions on energy between the EU and the US

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