Inuit Tapiriit Kanatami and Others v Commission (Advocate Generals opinion)

(Appeal — Regulation (EU) No 737/2010 — Regulation (EC) No 1007/2009 — Trade in seal products — Ban on placing on the market in the European Union — Exception in favour of Inuit communities — Choice of correct legal basis — General power of harmonisation within the internal market (Article 95 EC) — Fundamental rights — International law — United Nations Declaration on the Rights of Indigenous Peoples)

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. ( 2 ) 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.

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. ( 7 ) 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.

The rules of EU law on the placing on the market of seal products in the European internal market are contained partly in a basic regulation adopted by the European Parliament and the Council of the European Union in 2009 (Regulation No 1007/2009) and partly in a Commission implementing regulation adopted in 2010 (Regulation No 737/2010). The present proceedings are directed, formally speaking, against the implementing regulation, but in substance pleas are raised exclusively against the lawfulness of the basic regulation.