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The Standing of Private Parties to Challenge Community Measures: Has the European Court Missed the Boat?

Published online by Cambridge University Press:  27 June 2003

Albertina Albors-Llorens
Albertina Albors-Llorens*
Affiliation:
University of Cambridge, and Fellow of Girton College
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Extract

This article will consider recent case-law developments concerning the standing conditions that natural and legal persons must satisfy in order to bring annulment proceedings against acts of EC institutions. These conditions, set out in Article 230(4) EC, have been so narrowly interpreted by the European Court of Justice for over forty years that private parties have rarely been able to surmount this formidable admissibility barrier when challenging Community acts. In March 2002, Advocate General Jacobs delivered a compelling Opinion in Unión de Pequeños Agricultores (UPA) v. Council, where he suggested a new interpretation of the test of individual concern, which stands at the core of the locus standi requirements in Article 230(4) EC. Only a few weeks later the Court of First Instance dramatically departed from previous case law and re-defined that same test in Jégo Quéré v. Commission, although it did so in narrower terms than those proposed by Advocate General Jacobs. However, any hopes that the time was ripe for a re-examination of the case law on individual concern, were dashed by the European Court in its judgment in UPA v. Council. The Court did not follow either the suggestions of Advocate General Jacobs or of the Court of First Instance, stating instead that it was for the Member States acting in the European Council and not for the Court, to reform the conditions of admissibility set out in Article 230(4) EC.

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Articles
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The Cambridge Law Journal , Volume 62 , Issue 1 , 01 March 2003 , pp. 72 - 92
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Copyright © Cambridge Law Journal and Contributors 2003

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Footnotes

I am very grateful to Catherine Barnard, John Bell, Michael Dougan and Rosa Greaves for their comments on an earlier draft.

References

1 Case C-50/00P, [2002] 3 C.M.L.R. 1,7.

2 Case T-177/01, judgment of 3 May 2002, not yet reported.

3 Case C-50/00P, note 1 above.

4 See the Opinion of Advocate General Lagrange in Joined Cases 16 and 17/62 Confédération Nationale des producteurs de fruits et légumes v. Council [1962] 471, 486 and Louis, J.V., Les Règlements de la CEE (Brussels, 1969), p. 121Google Scholar.

5 On the divergent trends that emerged from the case law of the Court over three decades, see Schermers, H.G. and Waelbroeck, D., Judicial Protection in the European Communities, 5th edn. (Deventer, 1992), pp. 231233Google Scholar; P. Craig, “Legality, Standing and Substantive Review in Community Law” (1992) 14 OJLS 507, 513; Hartley, T., The Foundations of European Community Law, 4th edn. (Oxford, 1998), pp. 358362Google Scholar, and the Opinion of Advocate General Da Cruz Vilaça in Mannesmann-Rohrenwerke v. Council [1987] E.C.R. 1381, 1390.

6 See Case 162/78 Wagner v. Commission [1979] E.C.R. 3467; Joined Cases 789-790/79 Calpak v. Commission [1980] E.C.R. 797 and Case 45/81 Moskel v. Commission [1982] E.C.R. 1129. See also R. Greaves, “Locus Standi under Article 173 when seeking annulment of a regulation” 11 E.L.Rev. [1986], 119. Exceptionally, the Court adopted a more lenient interpretation in some isolated cases (see Case 100/74 CAM v. Commission [1975] E.C.R. 1393; Case 264/81 Agricola Commerciale Olio v. Commission [1984] E.C.R. 3881 and Case C-152/88 Sofrimport v. Commission [1990] E.C.R. I-2477).

7 See Joined Cases 239 and 275/82 Allied Corporation v. Commission [1984] E.C.R. 1005, para. 11, and in even clearer terms, Case C-358/89 Extramet v. Council [1991] E.C.R. I-2501, para. 14.

8 Case C-308/89 [1994] E.C.R. I-1853, para. 19.

9 See Case T-135/96 Union européenne de l’artisanat et des pelites el moyennes entreprises (UEAPME) v. Council [1998] E.C.R. 11-2335, paras. 67-69, and Joined Cases T-172 and T- 175-177/98 to T-177/98 Salamander v. European Parliament and Council [2000] E.C.R. 11-2487, paras. 27-30.

10 See A. Arnull, “Private Applicants and the Action for Annulment since Codorniu’ (2001) 38 C.M.L.Rev. 7, 8-9. The terseness of the judgments of the Court on this point is startling, given the very comprehensive reasoning provided by Advocate General Jacobs in his Opinion in Extramet v. Council (Case C-358/89, note above,) and by Advocate General Lenz in Codorniu (Case C-308/89, note 8 above).

11 The case law of the Community courts post-Codorniu is consistent on this point. See, for example, Case T-484/93 Exporteurs in Levende Varkens v. Commission [1995] E.C.R. 11-2941; Case T-109/97 Molkerei Grofibraunshain v. Commission [1998] E.C.R. 11-3533; Case C-451/98 Antillean Rice Mills v. Council, judgment of 22 November 2001, not yet reported; Case T-47/ 00 Rica Foods v. Commission, judgment of 17 January 2002, not yet reported.

12 See, for example, the Court's interpretation of the concept of measures having equivalent effect to quantitative restrictions in Article 28 EC in Case 8/74 Procureur du Roi v. Dasonville [1974] E.C.R. 837, para. 5, or of the notion of “worker” in Article 39 EC in Case 53/81 Levin v. Staatssecretaris [1982] E.C.R. 1035, paras. 9-17.

13 See, for example, the case-law evolution whereby—and despite the silence of Article 230 EC—the Court first recognised that acts of the European Parliament that produce legal effects visa-vis third parties were reviewable (Case 294/83 Les Verts v. European Parliament [1986] E.C.R. 1339) and then subsequently recognised that the Parliament had a limited capacity to bring annulment proceedings (Case C-70/88 European Parliament v. Council [1990] E.C.R. 1-2041). These case-law developments culminated with the amendment of the letter of Article 230 EC by the Treaty on European Union.

14 See Joined Cases 106-107/63 Toepfer v. Commission [1965] E.C.R. 405; Joined Cases 41-44/70 International Fruit Company v. Commission [1971] E.C.R. 411 and Case 92/78 Simmenthal v. Commission [1979] E.C.R. 777.

15 See Joined Cases 10 and 18/68 Eridania v. Commission [1969] E.C.R. 459, para. 11, and Case 69/69 Alcan v. Commission [1970] E.C.R. 385.

16 See Case 62/70 Bock v. Commission [1971] E.C.R. 897, and Case 11/82 Piraiki-Patraiki [1985] E.C.R. 207.

17 This has been the case where private applicants have sought to challenge decisions addressed to Member States (see, for example, Joined Cases 106-107/63, note 14 above) and to other private parties (see Case 294/83, note 13 above).

18 See Joined Cases 41-44/70, note 14 above, and Case C-152/88, note 6 above.

19 See Article 249 EC.

20 See Arnull, op. cit., note 10 above, p. 30.

21 The European Court has yet to pronounce on this issue, but the Court of First Instance took a very narrow approach to directives in its judgment in Salamander v. European Parliament and Council (Joined Cases T-172- T-175/98 to T-177/98, note 9 above, paras. 54-71). See Arnull, who has convincingly argued that the Court of First Instance has in recent years adopted a progressively more severe interpretation of the test of direct concern (op. cit., note 10 above, pp. 25-30).

22 Case 25/62 [1963] E.C.R. 95.

23 Ibid., at p. 107.

24 Ibid., at p. 107.

25 See P. Craig, op. cit., note 5 above, 509; A. Arnull, “Private Applicants and the Action for Annulment under Article 173 EEC” (1995) 32 C.M.L.Rev. 7, 44-49; A. Barav, “Direct and Individual Concern: an Almost Insurmountable Barrier to the Admissibility of Individual Appeals to the European Court” (1974) 11 C.M.L.Rev. 191, 191-192, 198.

26 See, for example, Case 100/74 Cam v. Commission [1975] E.C.R. 1393, and Case C-354/87 Weddel v. Commission [1990] E.C.R. 1-3847.

27 Case 38/64 [1965] E.C.R. 203; see also Case 231/82 Spijker v. Commission [1983] E.C.R. 2559.

28 See Case 1/64 Glucoseries Réunies v. Commission [1964] E.C.R. 413.

29 Joined Cases 10 and 18/68, note 15 above; Case T-268/99 Fédération nationale d’agriculture biologique des régions de France v. Council [2001] E.C.R. 11-2893. Direct competitors, particularly if there is only one of them, have been treated more leniently in some cases (see Case C-354/89 Schiocchet v. Commission [1991] E.C.R. 1-1775).

30 See Case C-321/95P Greenpeace v. Commission [1998] E.C.R. 1-1651, at para. 28.

31 See Joined Cases 16 and 17/62, note 4 above, and Case C-321/95P, note above. Actions brought by associations are only admissible in three cases: (a) when a legal provision grants procedural rights to these associations; (b) where every single member of the association would be directly and individually concerned, and (c) where the association's position as a negotiator is affected by the measure which it seeks to annul (see Case C-122/96 Federolio v. Commission [1997] E.C.R. 11-1559, at para. 61). These criteria have proved almost impossible to satisfy in practice and their severity is striking when compared with the approach followed in the national legal systems regarding the locus standi of associations (see, for example, under English law, R. v. Her Majesty's Inspectorate of Pollution, ex parte Greenpeace Ltd. (no. 2) [1994] 4 All E.R. 329, and Miles, J., “Standing in a Multi-Layered Constitution” in Leyland, P. and Bamforth, N. (eds.) Public Law in a Multi-layered Constitution (Oxford 2003, forthcoming)Google Scholar.

32 See Case T-298/94 Roquette Frères v. Council [1996] E.C.R. 11-1531, at para. 41.

33 See Joined Cases 106-107/63 Toepfer v. Commission, note 14 above; Case 62/70 Bock v. Commission, note 16 above.

34 See Case C-321/95P, note 30 above, at para. 28 of the judgment and Case T-100/94 Michailidis v. Commission [1998] E.C.R. 11-3115 at para. 59 of the Order of the Court of First Instance.

35 See Case 11/82, note 16 above; Case C-152/88, note 6 above; Joined Cases T-480 and T-483/93 Antillean Rice Mills and others v. Commission [1995] E.C.R. 11-2305.

36 It became very clear in a series of cases that the two requirements were, indeed, cumulative (see Case T-489/93 Vnifruit Hellas v. Commission [1994] E.C.R. 11-1201; Case C-209/94P Buralux and others v. Council [1996] E.C.R. 1-615; Case T-60/96 Merck v. Commission [1997] E.C.R. 11-849; Case C-451/98 Antillean Rice Mills v. Council, note 11 above). In some of these cases the applicants did belong to closed categories, but their applications were dismissed as inadmissible because they failed to prove that the Community institution in question had a legal duty to take their situation into account.

37 See Case 11/82, note 16 above; Case C-152/88, note 6 above, and Joined Cases T-480 and T-483/93, note 35 above. Significantly, the European Court, having considered the merits of the first two cases, found a breach of the principle of legitimate expectations, thereby highlighting a clear overlap between issues of admissibility and of substance.

38 See Case C-300/00 P (R) Federación de Cofradías de Pescadores de Guipúzcoa v. Council [2000] E.C.R. 1-8797; Case T-166/99 Luis Fernando Andres de Dios v. Council, judgment of 27 June 2001, not yet reported; Case C-351/99P Eridania v. Council, judgment of 28 June 2001, not yet reported; Case C-451/98, note 11, above; Case T-47/00, note 11 above.

39 Case 294/83 [1986] E.C.R. 1339.

40 Ibid., at paras. 35-36 of the judgment.

41 On the special nature of this case see Craig, op. cit., note 5 above at pp. 519-520 and Arnull, op. cit., note 25 above, at pp. 28-30.

42 See for example, Case 26/76 Metro v. Commission [1977] E.C.R. 1875 (competition proceedings); Case 169/84 Compagnie Francaise de I’Azote (COFAZ) v. Commission [1986] E.C.R. 391 (state aids proceedings); Case 264/82 Timex v. Commission [1985] E.C.R. 849 (anti-dumping proceedings).

43 Case C-198/91 Cook v. Commission [1993] E.C.R. 1-2486.

44 See Case C-358/89, note 7 above. See also, in the framework of competition and state aid proceedings respectively, Cases T-528, 542-543 and 546/93 Metropole v. Commission [1996] 11-649 and Case T-435/93 Association of Sorbitol Producers within the EC (ASPEC) v. Commission [1995] E.C.R. 11-1281.

45 Case C-358/89, note 7 above.

46 Ibid., at para. 17 of the judgment. See the Opinion of Advocate General Jacobs in that case, at paras. 54-68.

47 Case C-308/89, note 8 above.

48 Ibid., at para. 21 of the judgment.

49 See A. Arnull, op. cit., note 10 above, at p. 43. See also the Opinion of Advocate General Lenz in Codorniu (Case C-308/89, note 8 above) at pp. 1861-1871.

50 Case T-99/94 Asocarne v. Council [1994] E.C.R. 11-873, para. 24; Case C-87/95P Cassa Nazionale v. Council [1996] E.C.R. 1-2003, para. 36; Case T-482/93 Webber v. Commission [1996] E.C.R. 11-609; Case T-109/97, note 11 above, at para. 70.

51 See Case T-597/97 Euromin v. Council, [2000] E.C.R. II- 2419, and Case T-598/97 British Shoe Corporation v. Council, judgment of 28 February 2002, not yet reported.

52 For some recent examples, see Case T-47/00, note 11 above, at paras. 27-31, and Case C-96/01 The Galileo company v. Council, judgment of 25 April 2002, not yet reported.

53 See Case 123/77 UNICME v. Council [1978] E.C.R. 845, at para. 12, and Case C-321/95P, note 30 above, at para. 33.

54 See the Opinions of Advocate General Jacobs in Extramet v. Council (Case C-35S/S9, note 7 above, at paras. 69-74) and in UPA v. Council (Case C-50/00P, note 1 above, at paras. 38-44 of his Opinion).

55 Ibid. See also Albors-Llorens, , Private Parties in European Community Law (Oxford, 1996, 188–195)Google Scholar.

56 Ibid.

57 See Case 40/64 Sgarlata v. Commission [1965] E.C.R. 215; Case C-321/95P, note 30 above; Case T-173/98, Unión de Pequeños Agricultores v. Council [1999] E.C.R. 11-3357, and Case T- 177/01, note 2 above.

58 In a recent case pending before the European Court, however, a challenge to the validity of a Community directive has been mounted in the national courts before any measures of implementation were adopted (See the Opinion of Advocate General Geelhoed of 10 September 2002 in Case C-491/01 The Queen v. Secretary of State for Health, ex parte British American Tobacco, not yet reported).

59 Case C-50/00P, note 1 above.

60 Case T-173/98, note 57 above.

61 Case C-50/00P, note 1 above.

62 Ibid., at para. 60 of the Opinion. See also Arnull, op. cit., note 25 above, at p. 49.

63 Case T-177/01, note 2 above.

64 Ibid., at para. 47.

65 The judgment expressly refers to the Opinion of Advocate General Jacobs on this point (see paras. 49 and 50).

66 Ibid., at para. 51.

67 Ibid.

68 The Commission, however, lodged an appeal against the judgment of the Court of First Instance on 17 July 2002 (Case C-263/02, pending appeal).

69 See paras. 36 to 44 of the Advocate General's Opinion in UPA, and paras. 45-47 of the judgment of the Court of First Instance in Jégo Quéré.

70 Ibid., at paras. 50-53 and at para. 48 respectively.

71 The Opinion of Advocate General Jacobs outlined the disadvantages that would follow from such an approach (see paras. 50-53 of the Opinion, to which the Court expressly referred in its judgment and note 84 below and corresponding text).

72 In this respect, see the “sufficient interest” test applied in English law which has been on the whole, though not entirely, unproblematic. See Wade, and Forsyth, , Administrative Law, 8th edn. (Oxford, 2000), pp. 678687Google Scholar.

73 Case C-50/00 P, see note 1 above.

74 Ibid., at paras. 36-37 of the judgment.

75 See, for example, the approach followed by the Court in earlier cases where the applicants had put forward similar arguments (Case 40/64, note 57 above, at 227, and Case C-87/95P CNPAAP v. Council [1996] E.C.R. 1-2003, at para. 38).

76 Case C-50/00P, note 1 above, at paras. 39 and 40 of the judgment. The Court referred expressly to the constitutional traditions of the Member States and to Articles 6 and 13 of the ECHR.

77 Ibid., at paras. 41-42 of the judgment.

78 This was also the express conclusion of the Court of First Instance in Jego Quere (Case T-177/01, note 2 above) at para. 47.

79 See Advocate General Jacobs’ Opinion at paras. 38-49 and notes 52-57 above and corresponding text. See also the judgment of the Court of First Instance in Jégo Quéré (Case T-177/01, note 2 above) at paras. 44-47. The Court considered not only the adequacy of the system of preliminary rulings as an alternative to annulment proceedings but also that of the action for damages provided in Articles 235 and 288(2) EC. See, by way of contrast, the approach of the Court of First Instance to this argument in earlier cases (Joined Cases T-172 and 175/98 to T-177/98, note 21 above at paras. 74-75).

80 Ibid., at para. 59. See also the judgment of the Court of First Instance in Jégo Quéré (Case T-177/01, note 2 above) at para. 49.

81 See Case T-173/98, note 57 above, at paras. 61-64 of the Order. See also Joined Cases T-172 and T-175/98 to T-177/98, note 21 above, at para. 74.

82 This observation was made by Advocate General Jacobs in a paper presented at a Conference of référendaires and former référendaires at the Court of Justice, Luxembourg, on 5 October 2002.

83 See the Opinion of Advocate General Geelhoed in Case C-491/01, note 58 above, which reflects the impact of the Court's interpretation of Article 230(4) EC on the admissibility of preliminary references.

84 Case C-50/00P, note 1 above, at para. 43.

85 Ibid. Another important reason why UPA's approach should be rejected, which the Court did not mention expressly, was that its adoption would result in unequal levels of access to Article 230(4) EC proceedings in the different Member States (see the conclusions of the Advocate General, at para. 53).

86 Advocate General Cosmas suggested in Greenpeace v. Commission (Case C-321/95, note 30 above, at paras. 107-108 of the Opinion) a different construction of the test of individual concern that would be applicable to environmental cases, but the Court did not consider this argument and applied the traditional “closed category” test.

87 Ibid., at paras. [44]—[45] of the judgment.

88 For a survey of the possible explanations for the standing limitations in Article 230(4) EC and for the Court's traditionally restrictive construction of these conditions, see Harlow, “Towards a Theory of Access for the European Court of Justice”, (1992) 12 Y.E.L. 213, 227-231; Craig, op. cit., note 5 above, pp. 520-527; Arnull, op. cit., note 25 above, at pp. 44-46.

89 Perhaps one of the most striking examples is the judgment in CNL-SUCAL v. HAG (Hag II) (Case C-10/89 [1990] E.C.R. 1-3711), concerning the relationship between intellectual property rights and the Treaty provisions on free movement of goods. In this case, and following the Opinion of Advocate General Jacobs, the Court abolished the so-called common origin doctrine (Ibid., at paras. 10-20 of the judgment) established in its judgment in Van Zuylen v. HAG (Hag I) (Case 192/73 [1974] E.C.R. 731). Other examples include the ruling in Keck and Mithouard (Cases C-267 and 269/91 [1993] E.C.R. 1-6097), where the Court re-examined its case law on the interpretation of indistinctly applicable rules in the context of Article 28 EC (Ibid., at paras. 14-17 of the judgment).

90 Case C-50/00P, note 1 above at paras. 75-81 of the Advocate General's Opinion.

91 Ibid., at paras. 80—81.

92 Ibid., at para. 79. Furthermore, as some authors have argued, an increase of applications for judicial review via Article 234 EC proceedings could equally impose a considerable burden on the European Court (see Harlow, op. cit., note 88 above, at 246).

93 See section II.B above.

94 In this respect, see the Opinion of Advocate General Jacobs in UPA (note 1 above) at para. 75.

95 See Section II above.

96 See also the recent decision of the Court in Case C-253/00 Muñoz v. Frumar, (Judgment of 17 September 2002, not yet reported) where the Court held that, in order to ensure the effectiveness of Community rules, compliance with the provisions of a Council regulation should be capable of enforcement by means of civil proceedings instituted before the national court by a trader against a competitor. See also the Opinion of Advocate General Geelhoed in that case (Opinion of 13 December 2001, not yet reported), at paras. 63-77.

97 See further A. Arnull, “The Action for Annulment: a Case of Double Standards?” in D. O’Keefe and A. Bavasso (eds.), Judicial Review in European Union Law, (Liber Amicorum in honour of Lord Slynn of Hadley, Volume I) (The Hague, 2000), 177, 188.

98 Case C-294/96 [1998] E.C.R. 1-621.

99 Case C-376/98 Germany v. European Parliament and Council [2000] E.C.R. 1-8419.

100 [1996] E.C.R. 1-1759.

101 See “Suggestions of the Court of Justice on European Union’’, Bulletin of the European Communities, Suppl. 9/75, 17, 18.

102 “Report of the Court of Justice on certain aspects of the application of the Treaty on European Union”, Annual Report of the Court of Justice of the European Communities [1995] 19, 30. This is an argument that has been raised by private applicants in several cases (See, for example, Case C-345/00 P, Fédération d’agriculture biologique des regions de France v. Council, Order of 10 May 2001, not yet reported at paras. 35-40 of the Order of the Court).

103 For other calls for the relaxation of the conditions of Article 230(4) via a Treaty amendment, see N. Neuwahl, “Article 173 Paragraph 4 EC: Past, Present and Possible Future” (1996) 21 ELRev 17, 30-31.

104 Member States have been, on occasions, highly suspicious of the Court. See, for example, the reaction of the Member States to the judgment of the Court in Barber v. Guardian Royal Exchange Assurance Group [1990] E.C.R. 1-1889, which resulted in the annexation of the Barber Protocol to the EC Treaty by the Treaty on European Union.

105 This is a conclusion that the Community courts have reached on several occasions, but to which the particular circumstances surrounding the UPA judgment are likely to give a definitive force (see Case 40/74, note 57 above, and Joined Cases T-172/98 and T-175/98- T-177/98, note 9 above, at para. 74).