Revision:Art 230 - Policy Arguments Concerning Standing Of Non-privileged Applicants

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A - Appellate court argument

Rasmussen argues that the ECJ is trying to take a longtermist approach and is trying to gradually reshape the Comm judicial system, setting itself up as High court and having the national courts of the MS as a court of first instance. Letting individuals have direct access to the ECJ therefore is detrimental to this plan.

Craig and de Burca argues that the early case law would not suggest that the court was trying to set itself up as a high court.

B - Restrictive access and the language of the treaty

Harding, the wording of the Treaty did nt anticipate a broader category of applicants. From treaty it is clear that true regulations cannot be challenged by individuals. It is likely that Art230(173) was never intended to offer the individual much hope.

C - The nature of the subject matter: quasi-judicial determinations and the more liberal case law

what about the more liberal approach taken by the ECJ in anti-dumping, state aids and competition cases?

2 distinguishing features:

1. procedure in these areas does either expressly or impliedly envisage a role for the individual complainant
2. the substantive nature of the subject matter of the case law. State aids can be taken as an example, the provision of state aids to a firm could be perceived as going contrary to the objectives of the Comm as it places the firm at a competitive advantage over the industry. Therefore the courts are much more willing to consider a case against the court in such areas.

D - 2 central issues concerning standing: I-the meaning to be given to individual concern

the meaning to be given to individual concern is of central issue after the Cordoniu and Extramet cases. Note that the test itself has been given different meanings in different cases. There are three different approaches that the court has taken (see above) and within these different approaches there are significant differences. For example, approach 2 takes into consideration the damage caused to the applicant whereas approach 3, the Plaumann approach takes a much narrower stance, with the applicants damage being irrelevant. If the courts persist with the latter then it hasn’t really liberalised standing at all. The decision has yet to be made.

E - 2 central issues concerning standing: II- standing, participation and intervention

standing to seek judicial review; participatn in the making of the original decision which is now being challenged; and interventn rights for third parties, are all connected. Connexion may be explained thus: the greater the participation rights which are afforded to parties when the initial decision is being made, the greater the likelihood that such parties will also be afforded standing to challenge the resultant decision before the courts via judicial review.

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