The interpretation of the direct standing rights according to Article 263(4) TFEU is very strict according to the Plaumann Test. The Lisbon Treaty aimed to increase the protection by opening for the possibility to apply for the annulment of a regulatory act. The Opinion of AG Kokott explains in detail that a regulatory act is a non-legislative act of general application; it refers to rule-making by the executive. Regulations are on the other hand legislative acts and individuals can not apply directly before the Union court for the annulment of a Regulation.
The alternative left for an individual as suggested by AG Kokott is to contact the national authorities trying to obtain a decision and if the decision were negative then it could be challenged before the national court. However, I am not sure that the administrative procedures of the member states allow this type of action. If the authority choose not to answer the questions sent by the applicant (in abstracto) the only practical solution is to commit an infringement and in this manner initiate the procedure. What is your opinion on this matter?
http://curia.europa.eu/juris/liste.jsf?language=en&num=C-583/11%20P
Access is hypothetically equal and on a de jure basis but due to the cost of legal talent reflecting their skill level and the relative benefits of skill levels in litigation, the party that pays more will probably get more talented legal representation. Therefore, even though access is hypothetically equal, you get what you pay for.
The preliminary ruling mechanism is an European (EU) invention that has been proven to be quite efficient as integration tool. The indirect access to Court is possible via the preliminary ruling mechanism in certain cases. It can be time consuming. The action is brought before the national court of a member state and then it's up to that instance to decide the necessity to require a preliminary ruling decision from the CJ of the EU. There are cases when the national court is nevertheless obliged to ask for such a preliminary ruling. The Inuit case belongs to this range of cases since the national court is not competent to decide a case of validity of an EU act. Therefore the hinders I am talking about are more of practical nature and they are different from member state to member state since the procedures are based on national laws. Now supposing that you can pay one of the best lawyers, it is still not sure that your action will be admissible. The financial aspect is relevant of course, but here I am speaking about hinders that no matter how big your pocket might be the answer of the Court can still be negative (for procedural reasons).
I am happy that the seals will not be hunted for commercial reasons, but I am not happy that the Inuit does not have the right to challenge the act imposing this ban. (as twisted as it might sound, it's true:)-
Philosophically justice is an ideal impossible to reach, law serves justice but it can never fully attain justice. (Access to justice signifies here merely access to legal remedies with no ambitious attempt to define justice as a concept)
In Canada Inuit have the right to hunt anything they have traditionally hunted using either traditional or modern methods.
Your comments about cases getting to the supranational level reinforces one of the problems that exists in the EU due to its ad hoc nature. As it gravitates towards a federal system, this process will become less ad hoc if the member states' legal systems are harmonized. In cases such as Britain, this may prove to be impossible' It would be interesting to do a study of how long cases are taking to reach the EU level and what factors mitigate and agravate the
process.
Yes, exactly, John this was what I've meant in a sense. According to the EU Regulation their right to hunt is restricted to the pursuit of subsistence (non-profit).
As it should be. When profit becomes involved you are talking about commerce and a different set of principles come into effect
In EU law the seals' hunting is forbidden, this is the main rule, while the Inuits benefit of an exception (known as the 'Inuit exception') to hunt for reasons of subsistence and to sell the bi-product related. The commerce with seal products is fully illegal (no special rules). Are you sure that in Canada there are such rules allowing the commerce under specific circumstances?
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