European Law Week Five Notes –
Challenges to Community Acts & Community Liability
Reading: Craig and de Burca chapters 14 and 15
★Review of Legality: Access
⇒ Clear that the EC develops policy through regulations, directives & decisions any
developed legal system must have a mechanism for testing the legality of such measures.
Below is ∴ concerned with the access to justice & review of legality by the C courts.
⇒ There are numerous ways in which C norms can be challenged, but the principal Treaty
provision = Article 230:
⇒ 4 broad conditions have to be satisfied before an act can be successfully challenged:
1.) Act has to be a kind which is open to challenge at all;
2.) Institution or the person making the challenge has to have the standing to do so;
3.) There must be illegality of a type mentioned in Article 230(1); &
4.) The challenge must be brought within the time limit indicated in Article 230(5).
⇒ The judicial interpretation of Article 230 has been problematic, particularly the extent to
which private individuals have the standing to contest the legality of C acts extremely
difficult for individuals to challenge the legality of C actions directly before the C courts.
⇒ Also possible for the validity of C actions to be challenged indirectly via Article 234.
Inter-relationship between the 2 Articles = important. C courts have defended their narrow
interpretation of standing for direct actions by arguing that the Treaty provides a complete
system of legal protection through a combination of both articles, but there are real
difficulties with this hypothesis.
REVIEWABLE ACTS
Article 230:
1
,⇒ Article 230(1) allows the Court to review the legality of acts, other than recommendations &
opinions, which are taken by the institutions listed in Article 230(1) ∴ clearly covers
regulations, decisions & directives, which are listed in Article 249. ECJ has however held
that this list isn’t exhaustive & other acts which are sui generis can also be reviewed,
provided that they have binding force or produce legal effects.
⇒ General principle = a reviewable act will have legal effect until it is set aside by one of the
Courts & the challenge must be brought within the time limit of Article 230(5).
⇒ Only exception = where the act has been tainted by particularly serious illegality & is
deemed to be non-existent. In these cases, the normal time limits for challenge don’t apply
(so the act can’t be clocked in legality with the passage of time), such acts don’t have any
provisional legal effects & non-existent acts aren’t actually susceptible to annulment,
because there is no ‘act’ to annul. However, a judicial finding that an act is non-existent will,
however, have the same effect in practice as if it had been annulled.
⇒ Have been particularly difficult cases concerning the reviewability of acts, where the
challenged Community action is designed to directly implement a Security Council
resolution:
E.g. See Kadi (2005), below
STANDING FOR PRIVILEGED APPLICANTS ARTICLE 230(2)
⇒ Article 230(2) states that an action may be brought by a MS, the EP, the Council or the
Commission. Appears that these As are always allowed to bring an action, even where the
decision is addressed to some other person or body. EC law doesn’t oblige a MS to bring an
action under Article 230 or 232 for the benefit of one of its citizens, although EC law
doesn’t preclude national law from containing such an obligation.
⇒ EP wasn’t initially accorded any formal privileged status prior to the TEU, but the Nice
Treaty added EP to the list of privileged As. The Court of Auditors & the European Central
Bank are covered by Article 230(3) & only have standing to defend their own prerogatives.
STANDING FOR NON-PRIVILEGED APPLICANTS ARTICLE 230(4)
⇒ Standing for non-privileged As = governed by Article 230(4) (ex 173(2) EC prior to TEU &
ex 173(4) post TEU).
⇒ Article 230(4) allows non-privileged As to seek review in 3 types of case:
1.) An addressee of a decision can challenge it before the ECJ or the CFI.
2.) Where the decision is addressed to another person & the A claims that it is of direct &
individual concern to him.
3.) Where the decision is in the form of a regulation & A claims that it is of direct &
individual concern to him.
⇒ On the face of Article 230, the Article doesn’t allow any challenge by non-privileged As to
directives. Nonetheless has been held that the mere fact that the measure is a directive will
2
, not in itself render the action inadmissible since C institutions can’t, by their choice of legal
instrument, deprive A of judicial protection. Still, A will have its work cut out convincing
the courts that it is individually concerned.
⇒ Commentators make a big deal out of ‘direct & individual concern’ case law but it’s
relatively straightforward. A is only ‘individually concerned’ when the act in question
individualises that person in the same way as an addressee of a decision. What characterises
a decision addressed to I is that it takes account of the characteristics of that person. Follows
that I is individually concerned where the law-maker took P into account when adopting the
act in question, or ought to have done so. Consistent with the outcome of virtually all case
law apart from maybe Codorniu. – Georg Ringe, NOT CRAIG
⇒ ‘Direct Concern:’
− A needs to show a decision was of direct concern if it’s to be accorded standing.
− Generally a decision is ‘of direct concern’ when it directly affects the legal situation of
A & leaves no discretion to the addressees of the measure, who are entrusted with its
implementation. See International Fruit
− Implementation must be automatic & result from C rules without the application of other
intermediate rules.
⇒ ‘Individual Concern:’
Plaumann = the leading authority & it’s v. difficult for private applicants to succeed
under the test. (see below). But reasoning can be criticised both on pragmatic &
conceptual grounds:
Pragmatic: Application of the test = economically unrealistic. If there are only a very
few firms pursuing a certain trade this isn’t fortuitous but simply supply & demand.
The argument that the activity of importing clementines can be undertaken by any
person, this number might alter significantly & so A isn’t individually concerned isn’t
very convincing. Anyway, even if there were incentives for other traders to enter the
relevant industry, this might still take considerable time & might well not occur
during the period of application of the contested decision.
Conceptual: the test renders it literally impossible for A to ever succeed except in a
very limited category of retrospective cases. Test has to be applied at some point in
time:
1.) Could be held that the test for standing must be judged when the application for
review was lodged, which is sensible but not very comforting for an A in a Plaumann
type case to be told that standing will be judged then, but the application fails because
the activity of Clementine-importing could be carried out by anyone at any time.
2.) This in reality shifts the focus to some random future ill-defined date ‘the
possibility of standing is like a mirage in the desert, ever receding and never capable
of being grasped.’
⇒ Preceding argument might be opposed by contending that A in Plaumann was
properly rejected because he was the member of an open rather than a closed category
of As & hence was not individually concerned.
3
, Open Category: membership is not fixed at the time of decision.
Closed Category: membership is fixed.
But there are practical & conceptual problems here too. In practical terms, the
language of open categories is used to rule out standing for any A, even if there is
only a very limited number presently engaged in that trade, on the ground that others
may undertake the trade after. This ignores the practical economics that determine the
number of those who supply a product.
In conceptual terms, to regard any category as open merely because others may
undertake the trade leads to bizarre results, because any decision with a future impact
would be unchallengeable because the category would be regarded as open. Plaumann
is based on the assumption that some people have attributes which distinguish them
from others & that they possess these attributes when the contested decision is made.
The fact that others might acquire these attributes later, by joining that trade, does not
mean that they are presently part of the category.
Plaumann has effectively prevented all direct actions being brought by private parties
to challenge decisions addressed to others, except where the challenged decision had a
retrospective impact. ECJ & CFI have reiterated the Plaumann test for individual
concern & applied it in the same manner as in Plaumann itself.
INDIVIDUAL CONCERN: CHALLENGES TO REGULATIONS
⇒ Other problematic case – where I asserts that, although the challenged measure is in
the form of a regulation, it is in reality a decision which is of direct & individual
concern to him.
⇒ Originally 2 tests in case law, the ‘closed category test’ (used in International Fruit
etc) & the ‘abstract terminology’ test, which was stricter than the former & became
the general test applied by the court.
⇒ The abstract terminology test placed those who challenged an act in the form of a
regulation in a difficult position. The purpose of allowing such challenge is to prevent
C institutions from immunizing matters from attack by the form of their classification.
Article 230(4) prevented this by permitting a challenge when the regulation was in
reality a decision which was of direct & individual concern to A. This required the
Court to look behind the form of the measure in order to determine whether in
substance it was really a regulation or not.
⇒ Problem with the test = rather than looking behind form substance, it came
perilously close to looking behind form form. A regulation would be accepted as a
true regulation if it applied to ‘objectively determined situations & produces legal
effects with regard to categories of persons described in a generalised & abstract
manner.’ (Calpak). But it’s always possible to draft norms in this manner & to
immunize them from attack & many regulations regarded as ‘true’ regulations (thus
characterised as ‘legislative’ in nature) were short-lived in terms of time & applied
4
Challenges to Community Acts & Community Liability
Reading: Craig and de Burca chapters 14 and 15
★Review of Legality: Access
⇒ Clear that the EC develops policy through regulations, directives & decisions any
developed legal system must have a mechanism for testing the legality of such measures.
Below is ∴ concerned with the access to justice & review of legality by the C courts.
⇒ There are numerous ways in which C norms can be challenged, but the principal Treaty
provision = Article 230:
⇒ 4 broad conditions have to be satisfied before an act can be successfully challenged:
1.) Act has to be a kind which is open to challenge at all;
2.) Institution or the person making the challenge has to have the standing to do so;
3.) There must be illegality of a type mentioned in Article 230(1); &
4.) The challenge must be brought within the time limit indicated in Article 230(5).
⇒ The judicial interpretation of Article 230 has been problematic, particularly the extent to
which private individuals have the standing to contest the legality of C acts extremely
difficult for individuals to challenge the legality of C actions directly before the C courts.
⇒ Also possible for the validity of C actions to be challenged indirectly via Article 234.
Inter-relationship between the 2 Articles = important. C courts have defended their narrow
interpretation of standing for direct actions by arguing that the Treaty provides a complete
system of legal protection through a combination of both articles, but there are real
difficulties with this hypothesis.
REVIEWABLE ACTS
Article 230:
1
,⇒ Article 230(1) allows the Court to review the legality of acts, other than recommendations &
opinions, which are taken by the institutions listed in Article 230(1) ∴ clearly covers
regulations, decisions & directives, which are listed in Article 249. ECJ has however held
that this list isn’t exhaustive & other acts which are sui generis can also be reviewed,
provided that they have binding force or produce legal effects.
⇒ General principle = a reviewable act will have legal effect until it is set aside by one of the
Courts & the challenge must be brought within the time limit of Article 230(5).
⇒ Only exception = where the act has been tainted by particularly serious illegality & is
deemed to be non-existent. In these cases, the normal time limits for challenge don’t apply
(so the act can’t be clocked in legality with the passage of time), such acts don’t have any
provisional legal effects & non-existent acts aren’t actually susceptible to annulment,
because there is no ‘act’ to annul. However, a judicial finding that an act is non-existent will,
however, have the same effect in practice as if it had been annulled.
⇒ Have been particularly difficult cases concerning the reviewability of acts, where the
challenged Community action is designed to directly implement a Security Council
resolution:
E.g. See Kadi (2005), below
STANDING FOR PRIVILEGED APPLICANTS ARTICLE 230(2)
⇒ Article 230(2) states that an action may be brought by a MS, the EP, the Council or the
Commission. Appears that these As are always allowed to bring an action, even where the
decision is addressed to some other person or body. EC law doesn’t oblige a MS to bring an
action under Article 230 or 232 for the benefit of one of its citizens, although EC law
doesn’t preclude national law from containing such an obligation.
⇒ EP wasn’t initially accorded any formal privileged status prior to the TEU, but the Nice
Treaty added EP to the list of privileged As. The Court of Auditors & the European Central
Bank are covered by Article 230(3) & only have standing to defend their own prerogatives.
STANDING FOR NON-PRIVILEGED APPLICANTS ARTICLE 230(4)
⇒ Standing for non-privileged As = governed by Article 230(4) (ex 173(2) EC prior to TEU &
ex 173(4) post TEU).
⇒ Article 230(4) allows non-privileged As to seek review in 3 types of case:
1.) An addressee of a decision can challenge it before the ECJ or the CFI.
2.) Where the decision is addressed to another person & the A claims that it is of direct &
individual concern to him.
3.) Where the decision is in the form of a regulation & A claims that it is of direct &
individual concern to him.
⇒ On the face of Article 230, the Article doesn’t allow any challenge by non-privileged As to
directives. Nonetheless has been held that the mere fact that the measure is a directive will
2
, not in itself render the action inadmissible since C institutions can’t, by their choice of legal
instrument, deprive A of judicial protection. Still, A will have its work cut out convincing
the courts that it is individually concerned.
⇒ Commentators make a big deal out of ‘direct & individual concern’ case law but it’s
relatively straightforward. A is only ‘individually concerned’ when the act in question
individualises that person in the same way as an addressee of a decision. What characterises
a decision addressed to I is that it takes account of the characteristics of that person. Follows
that I is individually concerned where the law-maker took P into account when adopting the
act in question, or ought to have done so. Consistent with the outcome of virtually all case
law apart from maybe Codorniu. – Georg Ringe, NOT CRAIG
⇒ ‘Direct Concern:’
− A needs to show a decision was of direct concern if it’s to be accorded standing.
− Generally a decision is ‘of direct concern’ when it directly affects the legal situation of
A & leaves no discretion to the addressees of the measure, who are entrusted with its
implementation. See International Fruit
− Implementation must be automatic & result from C rules without the application of other
intermediate rules.
⇒ ‘Individual Concern:’
Plaumann = the leading authority & it’s v. difficult for private applicants to succeed
under the test. (see below). But reasoning can be criticised both on pragmatic &
conceptual grounds:
Pragmatic: Application of the test = economically unrealistic. If there are only a very
few firms pursuing a certain trade this isn’t fortuitous but simply supply & demand.
The argument that the activity of importing clementines can be undertaken by any
person, this number might alter significantly & so A isn’t individually concerned isn’t
very convincing. Anyway, even if there were incentives for other traders to enter the
relevant industry, this might still take considerable time & might well not occur
during the period of application of the contested decision.
Conceptual: the test renders it literally impossible for A to ever succeed except in a
very limited category of retrospective cases. Test has to be applied at some point in
time:
1.) Could be held that the test for standing must be judged when the application for
review was lodged, which is sensible but not very comforting for an A in a Plaumann
type case to be told that standing will be judged then, but the application fails because
the activity of Clementine-importing could be carried out by anyone at any time.
2.) This in reality shifts the focus to some random future ill-defined date ‘the
possibility of standing is like a mirage in the desert, ever receding and never capable
of being grasped.’
⇒ Preceding argument might be opposed by contending that A in Plaumann was
properly rejected because he was the member of an open rather than a closed category
of As & hence was not individually concerned.
3
, Open Category: membership is not fixed at the time of decision.
Closed Category: membership is fixed.
But there are practical & conceptual problems here too. In practical terms, the
language of open categories is used to rule out standing for any A, even if there is
only a very limited number presently engaged in that trade, on the ground that others
may undertake the trade after. This ignores the practical economics that determine the
number of those who supply a product.
In conceptual terms, to regard any category as open merely because others may
undertake the trade leads to bizarre results, because any decision with a future impact
would be unchallengeable because the category would be regarded as open. Plaumann
is based on the assumption that some people have attributes which distinguish them
from others & that they possess these attributes when the contested decision is made.
The fact that others might acquire these attributes later, by joining that trade, does not
mean that they are presently part of the category.
Plaumann has effectively prevented all direct actions being brought by private parties
to challenge decisions addressed to others, except where the challenged decision had a
retrospective impact. ECJ & CFI have reiterated the Plaumann test for individual
concern & applied it in the same manner as in Plaumann itself.
INDIVIDUAL CONCERN: CHALLENGES TO REGULATIONS
⇒ Other problematic case – where I asserts that, although the challenged measure is in
the form of a regulation, it is in reality a decision which is of direct & individual
concern to him.
⇒ Originally 2 tests in case law, the ‘closed category test’ (used in International Fruit
etc) & the ‘abstract terminology’ test, which was stricter than the former & became
the general test applied by the court.
⇒ The abstract terminology test placed those who challenged an act in the form of a
regulation in a difficult position. The purpose of allowing such challenge is to prevent
C institutions from immunizing matters from attack by the form of their classification.
Article 230(4) prevented this by permitting a challenge when the regulation was in
reality a decision which was of direct & individual concern to A. This required the
Court to look behind the form of the measure in order to determine whether in
substance it was really a regulation or not.
⇒ Problem with the test = rather than looking behind form substance, it came
perilously close to looking behind form form. A regulation would be accepted as a
true regulation if it applied to ‘objectively determined situations & produces legal
effects with regard to categories of persons described in a generalised & abstract
manner.’ (Calpak). But it’s always possible to draft norms in this manner & to
immunize them from attack & many regulations regarded as ‘true’ regulations (thus
characterised as ‘legislative’ in nature) were short-lived in terms of time & applied
4
