From The Student Room

TSR Wiki > Study Help > Subjects and Revision > Revision Notes > Politics > Article 230 - a critical analysis

---

Article 230: a critical analysis of the general standing rules for non-privileged applicants.

Review can only be brought in three types of cases:

1. the addressee of a decision may challenge it before the ECJ;
2. where the decision is addressed to another person yet the applicant claims that it is of direct and individual concern to him;
3. where there is a decision in the form of a regulation and the applicant claims that it is of direct and individual concern to him.

Challenges to decisions addressed to another person

Plaumann v Commn:

Germany requested that the Commn authorised it to suspend the collection of duties from clementines from non EU members. commn refused and addressed the answer directly to the German govt. applicant was an importer of clementines and sought to contest the legality of the Commn’s decision.

Held: “ persons other than those to whom a decision is addressed may only claim to be individually concerned if that decin affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.”

Because the distinguishing factor in this case was a commercial activity which could be practised by anyone at anytime, the clementine importer did not have sufficient locus standi.

According to the test, if an applicant is to be successful then they must prove to have distinguishing factors that set them aside from everyone else. The test does allow for more than 1 person to have direct and individual concern.

The reasons for why the court rejected the application can be criticised on 2 grounds:

1. pragmatic terms: economically unrealistic reasons for making the ruling. There are only a few clementine importers and were the demand to suddenly rise, all that would happen is that the few firms would simply bring in more. Unlikely that many new importers would come into existence.
2. conceptual basis: on applying the courts reasonings, it would be almost impossible for one to have direct and individual concern. The applicant would have failed even if he was the only importer in Germany because it would be equally possible for someone else to set up business as an importer. This is true for almost all types of businesses.

However the decision may be defended on ground that the importer was part of an open and not closed class of applicants & therefore didn’t have ‘d & i.c.’

Nonetheless the decision had a direct effect on the clementine importers even though it was addressed to the German govt.

Challenges to regulations: the traditional approach

In some cases the individual asserts that although the measure is in the form of a regulation is in fact a decision which is of ‘d & i.c.’ to him. This type of application is not often successful. Until recently there were 2 types of tests:

1. the closed category test
2. the abstract terminology test.

An example of the latter test is the Calpak case. The abstract terminology test places those who wish to challenge the act which is in the form of a regulation in a difficult position.

Purpose of allowing challenges to any regulations is to prevent the institutions from immunising a measure by putting it into regulation format thereby preventing it from being annulled by private action. Requires the court looking at the substance rather than the form of the measure in order to determine whether it is a regulation or not.

Problem is that a regulation will be deemed as a regulation according to Calpak, providing that it is ‘objectively determined situations and produces legal effects with regards to a

Categories of persons described in a general and abstract manner.’ Problem lies in the fact that the institutions may still word the act I such terms so as to make it immune to private litigation yet the effect of the measure may still only apply to a tiny class of people.

Court has held that it doesn’t matter that the institution has prior knowledge as to exactly who the regulation will effect.

However the court has taken a closed catagory approach to cases involving a completed set of past events and where the regulation relates to a fixed and closed category of traders. In such cases the regulation will only have effect as re the past events and cannot have a future impact.

e.g. International fruit case.

Therefore, the abstract terminology test is a genera criterion applied by the courts. The closed category test is applied when there is a completed set of past events.

Challenges to regulations and decisions: the emerging jurisprudence

In the past, where the application of the abstract terminology test concluded that the measure used was indeed a regulation, the court would then stop proceedings at that point. However in the recent emerging jurisprudence, it seems that the ECJ is willing to recognise the fact that even a regulation may have direct and individual concern thereby giving the plaintiff sufficient locus standi to litigate.

e.g. Codorniu case in this case the applicant appealed against a regulation that stipulated that a certain term could only be given to wines of a certain quality coming out of France and Luxembourg. The applicant used this term for his own wines even though they were produced in Spain. The fact is that many other wine producers in Spain also used this term. The council argued that the regulation was the same ilk as that in the Capak case.

Held: the applicant has direct and individual concern because the regulation infringed their trade mark right to have the term.

NB this doesn’t mean that Art 230 is revolutionised, it just signals a different approach from earlier cases. However, note that in order to establish direct and individ concern one must apply the Plaumann test. the Plaumann test has its own inherent difficulties so in order for the courts to take a significantly more liberal approach, they must also take a liberal reading of the Plaumann test.

There are three different interpretations:

1. the ‘infringement of rights or breach of duty approach.’ Exemplified by Cordorniu case.
2. the ‘degree of factual injury’ approach - existence of individ concern will be found on the basis of the degree of significance the regulation has on the applicant. The approach is exemplified by Extramet case. Anti-dumping regulation. ECJ held that the applicant had d & i. c. because they were the largest importer of the good on which the anti-dumping regulation had been imposed and that it would be very difficult for them to find an alternative source.
3. pure Plaumann approach - applicants will be denied standing by applying the Plaumann test as it was applied in Plaumann itself. i.e. that the company will be denied d & i. c. because others could set up business in the same field.

e.g. Buralux case

Evident from the case law that unless the individ can successfully place himself in either of the first two approaches, the courts will adopt the third approach by default.

Comments