CJEU - C-398/13 P / Opinion
Key facts of the case:

Was the EU legislature entitled to rely, in 2009, on Article 95 EC (now Article 114 TFEU) in order to impose an extensive ban on the placing on the market of seal products in the European internal market? This is in essence the question with which the Court must deal in the present appeal proceedings.

There is no need to stress the high sensitivity of legal problems relating to the interpretation and application of Article 95 EC for the division of powers between the European Union and the Member States. Apart from the scope of this general power of harmonisation within the internal market, the present case also raises problems in relation to EU fundamental rights. Furthermore, it is necessary to consider what effects are to be attributed to a declaration by the United Nations General Assembly within the European Union.

These questions are being taken to the European Union Courts for a second time by Inuit Tapiriit Kanatami, as the body representing the interests of the Canadian Inuit, and a number of other parties, mainly producers of or traders in seal products. After, in a direct action brought against the basic regulation of the European Parliament and of the Council, it was found that they did not have standing to institute proceedings, they are now challenging the European Commission implementing regulation and making an indirect challenge (pursuant to Article 277 TFEU) alleging that the basic regulation is unlawful.

Once again the claim put forward by Inuit Tapiriit Kanatami and its co-appellants was unsuccessful at first instance. By judgment of 25 April 2013. the General Court of the European Union dismissed their action for annulment as unfounded. They are now challenging that judgment by way of the present appeal.

Results (sanctions) and key consequences of the case:

...I propose that the Court should:

dismiss the appeal;

order the European Parliament and the Council of the European Union to bear their own costs;

order, for the remainder, the appellants jointly and severally to bear the costs of the proceedings.
Paragraphs referring to EU Charter
In the second ground of appeal, the appellants criticise the General Court, first of all, for making reference to the Charter of Fundamental Rights of the European Union only, but not to the ECHR as a source of general fundamental rights principles. They allege that the General Court ‘requalified’ their submissions made at first instance relating to the ECHR. They consider this to be an error in law.

It should be noted in this regard that the ECHR does not, at present, form part of EU law as such, as it is a legal instrument which has not yet been formally incorporated into the legal order of the European Union. Accordingly, that Convention cannot, as things stand at present, itself be applied as a standard for reviewing the lawfulness of acts of the EU institutions.

Instead, in this case the General Court was fully entitled to rely on the Charter of Fundamental Rights, which has had constitutional status since the entry into force of the Treaty of Lisbon on 1 December 2009 (first subparagraph of Article 6(1) TEU) and has grown to become the most important source of fundamental rights in EU law.

As far as the ECHR is concerned, it admittedly also still fulfils two important functions for the protection of fundamental rights at EU level: first of all, it provides information on the meaning and scope of the fundamental rights enshrined in the Charter in so far as those rights correspond to rights guaranteed by the ECHR (first sentence of Article 52(3) of the Charter). Second, it is and remains the most important source of inspiration for unwritten fundamental rights, which, as general principles, form part of EU law (Article 6(3) TEU). The ECHR thus ultimately defines the minimum standard for the protection of fundamental rights to be guaranteed at EU level (see also Article 53 of the Charter).

However, it is not clear in the present case to what extent the ECHR — whether in conjunction with Article 6(3) TEU or with the first sentence of Article 52(3) of the Charter — might thus impose higher requirements on the EU legislature than the Charter cited by the General Court. In their appeal Inuit Tapiriit Kanatami and its co-appellants have not put forward any specific arguments in this regard and they failed to provide an explanation in reply to my express enquiry at the hearing.

It is not therefore evident in this case what additional benefit a reference by the General Court to the ECHR, the absence of which is criticised by the appellants, might have had or to what extent that lack of reference could result in the setting-aside of the judgment under appeal.

Accordingly, I concur with the Parliament that the assertions by the appellants relating to the ECHR are ineffective (French: ‘inopérant’). Consequently, the first part of this second ground of appeal is unfounded. 2. Consideration of commercial interests in connection with the fundamental right to protection of property (second part of the second ground of appeal).

In this second ground of appeal, the appellants claim, second, that the General Court erred in law in excluding commercial interests from the scope of the right to property.

This argument cannot be accepted either.

It is settled case-law that the protection of the right to property guaranteed under EU law, as now established in Article 17 of the Charter of Fundamental Rights, does not apply to mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity. Nor can an economic operator claim an acquired right or even a legitimate expectation that an existing situation which is capable of being altered by measures taken by the EU legislature will be maintained.

The situation is the same in respect of Article 1 of Additional Protocol No 1 to the ECHR, which must be taken into consideration pursuant to the first sentence of Article 52(3) of the Charter and Article 6(3) TEU. According to the case-law of the European Court of Human Rights, the guarantee of the right of property enshrined therein also does not encompass the protection of mere earning prospects.