#3516 - Jr & Standing - European Law

2 ways to challenge EU acts

1. Direct (Art 263 TFEU)

2. Indirect (Art 267 TFEU)

• If C can’t challenge the measure directly under Art 263, could seek to challenge the implementing measures by way of preliminary reference under Art 267 only where:

1. C wouldn’t have standing under Art 267

   • TWD Textilwerke: Comm. held aid given by German govt.to TWDincompatible w/free market & had to be repaid; decision addressed to govt. which informed TWD it could challenge it under Art 263but TWDchose to challenge under 267; ECJ: no indirect challenge possible b/cTWDwas informed it could challenge under 263 but failed to do so in the specified time limit. It was ‘obvious’ P would have had standing under Art 263

2. Not clear whether C would have standing under Art 267

• Eurotunnel SA v Seafrance [1997]: C could challenge provisions of Dir. addressed to MS under Art 267, if it was unclear whether he would have been granted standing under Art 263. TWD distinguished.

Direct Review

• 5 conditions

1. Body amenable to JR

2. Act of the type that can be challenged

3. Institution/person has standing

4. Illegality one of the 4 grounds of review in 263(2)

5. Challenge brought within applicable time limits

Body amenable to JR(Art 263(1))

• Council, Commission, ECB – all acts, incl. legislative acts, other than recommendations & opinions

• EP, European Council, other EU bodies, agencies etc. – only acts intended to produce legal effects on TPs

Acts open to review

1. Pre-Lisbon

• Decisions – Cs to whom they’re addressed/Cs directly & individually concerned

• Regulations – individuals directly & individually concerned (even ‘true’ regulation)

• Directives – little, if any, possibility, since MS had large margin of discretion

2. Post Lisbon

• Acts addressed to C/ of direct & individual concern to C

• Regulatory acts of direct concern to C not entailing implementing measures

• Meaning of “regulatory acts” not defined in Treaty - travaux preparatoire referred to non-legislative acts of gen. application (as opposed to acts of individual application). B/c under Lisbon legal acts are divided into

1. Legislative acts (adopted through legislative procedure)

2. Delegated acts

3. Implementing acts

Conclusion: “regulatory acts” = all non legislative acts (delegated & implemented) of general application. Remains to be seen how strictly court will interpret this category.

1. Regulations – no implementing measures, C must show direct concern

• e.g. Jego Querre would now be likely to have standing

2. Directives – have implementing measures, so Lisbon relaxation won’t apply (can still challenge under Art 267); concerns of AG Jacobs remain unresolved

3. Decisions – 3 situations

1. decision addressed to C (often competition law) automatic standing

2. decision addressed to TP as legislative/regulatory act w/no implementing measures C must show direct concern

3. decision addressed to TP as legislative/regulatory act w/implementing measures no standing

4. decision addressed to TP as an act of individual application likely no standing, since not a “regulatory act” under Lisbon

• Sui generis acts w/binding force & legal effect

• Key: substance, not form + challenged measure must be final, not preparatory

• Limitations

• Validity & PP of police & law agencies/exercise of MS resp. for maintenance of law & order + internal security

• Common foreign & security policy/w some exceptions

Standing

1. Privileged & quasi privileged Cs (Art 263(2)-(3))

• MS, EP, Council, Commission - all actions for JR

• Court of auditors, ECB – only to safeguard own prerogatives

• European Council – possibly, quasi privileged status

2. Non privileged Cs

• Any natural legal person

1. addressee of decision

2. act is of direct & individual concern

3. regulatory act of direct concern (can’t include implementing measures!)

1. Direct Concern

1. Causation – direct link b/w the act & loss/damage to C

• Question: whether institution has discretion yes: chain of causation likely to be broken (high threshold, since resp. is mostly shared b/w MS & Comm. institutions)

• PiraikiPitraiki– exporters seeking to challenge Comm.’s decision allowing France to continue applying a restriction to cotton imports had direct concern b/c there was previously no more than theoretical possibility that France will continue w/regime & Comm.’s act legalised it (direct link)

• International Fruit Company– importers seeking to challenge Comm.’s Reg. setting up a system of apple import licences had direct concern b/c MS had no discretion in implementing it.

2. Legal nature of C’s interest – measure adversely affected C’s legal position

• Chalmers: direct concern hasn’t been the main obstacle to standing pre-Lisbon but may become pretty much the sole test post Lisbon if large proportion of measures is qualified as regulatory acts.

2. Individual Concern

• Plaumann’s formula – if C isn’t the addressee of decision, he’s only individually concerned if affected by reason of attributes peculiar to him or by reason of circumstances which distinguish him from others in the same way as the addressee.

• Plaumann v Commission–C sought to challenge Commission’s decision addressed to Germany refusing its request to lower import duty on mandarins. ECJ: C not individually concerned b/c affected by commercial activity which can be practised at any time by any person.

• Craig & DB’s criticisms

1. Pragmatic – economically unrealistic application of the test, since the number of firms pursuing a particular trade depends on supply & demand and, even if there are incentives for entering the market, new entries might not occur during the application of the contested decision.

2. Conceptual – standing should be judged at the time when application for JR is lodged, not on the basis of some undefined future date.

• Hartley’s “open & closed categories”

• Decision in Plaumann is correct, since C wasn’t a member of a closed category

1. Open – membership defined at the time of decision = no individual concern

2. Closed – membership closed at the time of decision = individual concern

• e.g. International Fruit Company–importer argued he was a part of closed class b/c terms of Comm.’s decision to issue licences was made by ref to certain no of traders under a system whereby MS notified Comission. at the end of the week of no of import licences requested. ECJ: number of applications fixed at the time when Reg. adopted = individual concern & MS had no discretion = direct concern C had standing (application failed on merits)

• Justification

1. Allowing too many challenges by private parties will disrupt Union’s decision making process – has particular force @ EU level b/c decisions involve delicate balancing b/w many actors & interests. Exposing them to wide ranging incessant challenges ignores the nature of this process (Arnull, Harding)

• Doesn’t explain arbitrariness of Plaumann’s test & rationale behind open & closed categories. If real concern is restricting no of Cs, ECJ should look @ actually affected Cs and confine standing to ltd group, not @ those affected speculatively (Chalmers)

2. Restrictive standing protects ECJ’s status – Cs challenge EU measures in national courts under prel. ref. procedure which acts as a filter for ECJ

• Arguably, nat. courts aren’t filters – post Foto Frost, almost everything needs to be referred since nat. courts can’t invalidate Comm. acts

• Actions under Art 263 are referred to General Crt. & Art under 267 to ECJ – the risk of floodgates is exaggerated

• Case law on dumping, competition & state aid in the interim exhibited a slightly more lenient approach bringing into light the strict Plaumann’s approach & generating criticism.

• UPA–association of farmers sought annulment of Reg. amending common organisation of olive oil market; General Court dismissed the action b/c not individually concerned. UPA argued it was denied effective judicial protection b/c couldn’t bring a prel. reference due to lack of nat. implementing measures & Reg. being valid for a period of 3 years only (not enough time to challenge under 267). ECJ upheld Plaumann.

• Critique

1. Highly restrictive/prevents adversely affected Cs from obtaining judicial redress

2. Textually unjustified – nothing in 263 requires such restrictive reading

3. Goes against the principle of effective judicial protection b/c prel. ref. procedure isn’t adequate to provide it (AG Jacobs in UPA)

1. decision to refer lies w/nat. court, not C himself

2. costly & delayed

3. interim measures granted by nat. courts might differ = no uniformity particularly damaging to C w/cross border business (must seek interim relief in all jurisdictions!)

4. nat. court determines the substance of the question – C not a party to proceedings

• Enchelmaier– AG views the nat. court’s participation in controlling the validity of secondary EU legislation as a weakness, whereas ECJ sees them as ordinary Comm. courts which should act as the 1^st port of call for Cs. Seen in this way, the system of 263 & 267 isn’t defective but embodies a balance b/w efficiency & integration the question then if any correction to it should be done by jurisprudential means or Treaty amendment.

4. C should be considered individually concerned where, by reason of his particular characteristics, the measure has substantial adverse effect on his interests. Advantages (AG Jacobs)

1. Avoids total lack of judicial protection

2. Allows issues of validity to be addressed in context of best suited procedure

3. Provides clarity to case law criticised for lack of clarity & coherence

4. Encourages use of direct challenges...