• Revision:Locus standi

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Standing breaks into two different headings. Privileged Applicants and Non-Privileged Applicants. It is very difficult for non-privileged applicants to prove locus standi.

Privileged Applicants

  • MS
  • Council
  • Commission
  • EP
  • ECB

Prior to the TEU, the EP had no formal privileged status under Art. 230 EC. In Parliament v. Council (Comitology) [1988], the EP challenged Comitology decision-making and its exclusion from this procedure. EP argued that process undermined the institutional balance of the EC and was concerned about the lack of openness, etc. The ECJ held that the EP could not bring an action because it did not have standing. In Parliament v. Council (Chernobyl) [1990], however, the ECJ held that the EP did have locus standi to protect its prerogatives. The ECJ reached the decision by relying on concepts of institutional balance. How wide is this locus standi to protect prerogatives? Why no full locus standi? The Chernobyl ruling was enshrined in Art. 230 EC by the TEU.

EP have used this power tactically, even where they do not disagree with the provisions, in order to ensure that they maintain their political weight - Students' Rights of Residence case.

Institutions have locus standi because Community acts, by definition, concern the institutions. MSs have locus standi because of the hybrid nature of the EU - intergovernmental as well as federal.

Non-Privileged Applicants

This covers any legal or natural persons. There are 3 categories for individuals to claim locus standi:

  1. A decision addressed to them;
  2. A decision addressed to another person which is directly and individually of concern;
  3. A regulation of direct and individual concern.

The literal interpretation of this is very restricted, but the Court has sometimes taken a teleological view - looking at the aim the provision, e.g. administrative propriety, government according to law, etc. Similar o Mischief Rule in English Interpretation, or Golden Rule.

  1. Decisions addressed to the person

The traditional position was that what matters is the true nature of the provision, not its formal designation. In the Confed. Nationale des Producteurs de Fruits et Légumes v. Council, the Court stipulated that:

"the essential characteristics of a decision arise from the limitation of the persons to whom it is addressed, whereas a regulation, being essentially of a legislative nature, is applicable not to a limited number of persons...but to categories of persons viewed abstractly and in their entity."

A fixed closed class is needed. In Spijker, a Decision was addressed to three MSs, but, in fact, only applied to one company. The Court stated that a measure does not cease to be a Regulation because it is possible to ascertain the number or even the identity of the persons to whom it applies at any given time. Where the category of the persons to whom the measure in the form of a Regulation applies is a fixed and closed class, the court is more likely to find that the measure is in fact a decision - International Fruit Co. Case.

In Extramet, it was held that measures imposing anti-dumping duties may, without losing their character as regulations, be of individual concern in certain circumstances to certain traders. Equally, in Cordoniu, the Court held that a provision of a legislative nature in that it applies to the traders concerned in general, that does not prevent it from being of individual concern to some of them. The current position, therefore, seems to be that even a true Regulation can, in certain circumstances, be challenged by an individual.

  1. Decisions and Regulations of Direct and Individual Concern

Direct concern - the measure is the direct cause of an effect on the applicant.

Individual concern - the Plaumann test - applicants are individually concerned where a measure 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."

Generally speaking, the decision has to be referable specifically to the person wishing to challenge it. It must affect that person either alone, or as a member of a fixed and closed class. This criteria is very difficult to fulfil.

Critical view of the Plaumann Test:

  • Economically unrealistic - supply matches demand. It is unlikely that hundreds of new companies are going to be set up.
  • Impossible to succeed except in very limited retrospective cases. Why should you apply the test at some indeterminate point in the future rather than at a specific point?
  • Language of "open class" could prevent locus standi even if there was only one company in the world to whom it was applicable.
  • The test is internally inconsistent. If you subjected current distinguishing factors to this test then they too would fail since others can acquire the attributes at some future date. If you applied the test consistently, then no one would ever have locus standi.
  • Test does not reflect the reality that companies complain to MSs who send things on to EC. Why should decision addressed to a MS prevent a person affected by it from challenging it directly?

Hartley draws a broad distinction between matters of policy and discretion and those which are quasi-judicial (Quasi-judicial decisions are those where the Commission, in taking the action, is bound by clear rules). The latter are much easier to challenge and the Court is more willing to grant locus standi. Alternatively, the categories below can be seen as specialised situations.


Anti-dumping

Anti-dumping legislation must be made by Regulations, not Decisions. The ECJ cannot, therefore, use the nature/substance test to give standing. It has, instead, been very liberal when granting locus standi: Japanese Ball Bearings - existing importers named in Regulation; Allied Corporation - parties not named, but still given standing; Extramet.


Anti-competition

In the Metro Case, Metro complained about an anti-competition complaint they had made. Did they have standing despite the fact that the decision was addressed to their competitor? ECJ granted standing. Note that, if the Plaumann criteria had been applied, Metro would have failed. Does this mean that the person who instigates the investigation has locus standi for JR over the result?


State Aid

A similar approach to anti-competition proceedings seems to be taken with state aid cases - COFAZ.

It is very difficult to prove that, although a measure is labelled as a Regulation, it is really a decision of direct and individual concern. The purpose of this category is to prevent the EU from avoiding scrutiny from individuals simply by passing Regulations instead of issuing Decisions.

One possible development in JR for individuals is a willingness to accept that a Regulation can be a true Regulation, outside the traditional exceptions, and yet still be of individual concern to the applicant. The Cordoniu case concerned trademarks on sparkling wine. The measure was definitely a Regulation and the class of persons affected was not fixed and closed, but locus standi was still granted. This constitutes a very wide reading of Art. 230. BUT, it is important to realise that an applicant will still have to prove individual concern and this is still covered by the Plaumann test. Consequently, unless Plaumann is altered, applicants will theoretically be able to seek JR of Regulations but, in practice, will not have locus standi.

If Hartley's model of specialised areas is disregarded, there are three different approaches to locus standi for challenges to Regulations:

  1. infringement of rights or breach of duty test - Cordoniu.
  2. degree of factual injury - Extramet.
  3. pure Plaumann - followed in Greenpeace [1995] case. C. recognised JR,

but P. meant no standing.

The reasons for the Court's restrictive approach on locus standi of non-privileged applicants are as follows:

  1. Perceived intention of Treaty drafters - The Treaty of Rome lays down more stringent conditions than the ECSC Treaty for JR by private individuals.
  2. International law status of the EC - EC is as the borderline between the federal and the international. In international law, the ides of the individual having locus standi before an international tribunal is revolutionary.
  3. The Court's wider policy of establishing itself as a constitutional court - a court for the MSs and for issues of high Community law. In the case of appeals, the national courts and CFI acting as courts of first instance is consistent with restricting citizens' direct access to the ECJ.
  4. Too many direct actions could disrupt the functioning of the EC legislative system - This is the floodgates argument. This situation was especially problematic in the pre-SEA Luxembourg compromise era. There was little consensus, so the litigation was enacted anyway. The ECJ tends to support the EC institutions in preference to individual citizens where the two come into conflict.


TIME LIMITS

Pursuant to Art. 230 EC, judicial review proceedings must be instituted within two months of the publication of the measure. This tight time-span is to prevent the Court from being overloaded. Look for two months in problem questions.


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