Actions for Annulment and the Development of Legal Protection in EU Courts - Dissertation Example

?Running Head: Development of Legal Protection in EU Courts Critical analysis of Article 263-267 TFEU The action of annulment, as discussed in this paper, is a major mechanism that examines the legitimacy of decisions and actions that the EU’s institutions take. However, its restrictive approach has been at the center of a heated debate and has been extensively criticized by members of the judiciary and scholars. In particular, the restrictive approach can be criticized for violating principles of effective judicial protection and has the potential to deny an individual justice. The analysis this paper presents does not imply a conclusive rejoinder to the debate on standing under Article 263 TFEU. Rather, it attempts to approach the discussion through a different angle. Chapter 3: Direct Concern Technically, the narrow and restrictive approach to direct concern by the Court of Justice limits the success of the applicants. Additionally, if the applicant can show that the measure of personal concern, they are still required to demonstrate that the decision is of direct concern. For instance, the applicant can only establish direct concern in relation to a measure if it was maintained by ECJ that the measure directly affects the applicant’s legal situation and discloses its addressees charged with the task of implementing it. Other restrictions include, even though the applicant can establish direct concern, it must be dependent on whether the action that affects the applicant was with discretion of the Member State (Usher, 2005). On the other hand, citizens can only challenge decisions that are only addressed to them, and even though addressed to them, it must have a direct impact on them. The Court of Justice views this to be the case if a person is clearly affected in a distinct way in a way that affects him with the UE undertakings or other individuals. Ultimately, it can be argued that the Member States may face a major barrier from their role of taking all suitable measures to ensure the fulfillment of the objectives or obligations of the EU as they face major opposition from the citizens who perceive the union as being “super-state” and inaccessible. The restrictive nature inhibits the Member States from facilitating the achievement of the Union’s objectives (Abaquense de Parfouru, 2007). Firstly, the interested parties cannot start direction actions by any interested party other than the EU institutions or member states in pending cases before the Court of Justice as such. This is discernible through a procedure where only that party that can demonstrate direct or indirect interest that determine the outcome of the case. In this case, the intervener is restricted from supporting the conclusions of one of the parties, and in that case cannot raise new ground to on which either of the parties has used. This recalls the case in Stichting Greenpeace Council (Greenpeace International) v. Commission, where Fisherman, farmers and environmental groups wished to challenge a decision by the commission, to grant financial assistance to the European Regional Development Fund, to construct new power stations on the Canary Islands. Stichting Greenpeace illustrates that even those who may suffer from hazards resulting from an activity will not have standing if the activity poses a threat to an entire population rather than specific parts of it. A similar conclusion was reached in Danielson concerning the equivalent of Article 263 in Euratom. Initially, where the application an abstract terminology test found that the measure used was without doubt a regulation, the court would stop the proceedings then. However, in current jurisprudence, it appears the European Union Court of Justice (EUCJ) is showing willingness to recognize that some regulations have the potential to cause direct and individual concern. Accordingly, a plaintiff must have enough locus standi to take legal action. Such as in the case of Codorniu SA V Council (Case: C-309/89 [1994] ECR I-1853 ECJ) where the applicant, brought a court case against a regulation that specified that certain term could strictly be used on wines of specific quality exported from Luxembourg and France, a term he used for his Spanish wines. In this case, the applicant has a direct and individual concern as the regulation had infringed his trademark right to use the term. In this case, the Court found that private parties could seek judicial review of those decisions that have not been addressed expressly to them on condition that they can distinguish themselves from other persons. This means applicants must demonstrated the measure affects them based on particular attributes, which are unique to them. The Plaumann test comprises a restrictive approach to individual standing. In fact, the application of the test lead to the reasoning that the applicant must demonstrate it belongs to a closed category, meaning it is uniquely affected by the measure above all other persons. As a result, the Plaumann test has made it nearly impossible to obtain standing before the Court (Craig and de Burca (2008), 512). The requirements were however partly relaxed in the the Codorniu case. Even so, it can be observed that the applicant must still show individual concern in conformity to the Plaumann test. However, apart from Codorniu, the Court of Justice has sustained strict approach to individual concern as specified by Plaumann. For instance, the Extramet case (Note 12) is viewed as a unique case as the Court measured the intensity of factual injury to establish if the individual was concerned individually (Craig and de Burca (2008), 517). Codorniu liberalizes this standpoint by allowing true regulations to also stand to be challenged, this in effect echoes Plaumann’s restrictive nature. However, this doesn’t mean Article 263 is revolutionized as it merely signals a different approach that was extensively assumed in earlier cases. Even so, to establish direct or indirect concern, the Plaumann test has to be applied, which however has its inherent shortcomings, meaning the Court of Justice will have to take a considerably liberal approach. From these illustrations, it can further be deduced that the Court’s ruling on Extramet and Codorniu cannot be viewed as the start of liberal approach, as they have remained strands of the case law that facilitated creation of individual concern that is limited to unique sets of facts (Albors-Llorens (2003), 80-81). After the Codorniu, the dominant approach was based strictly on the Plaumann test, which even denied the applicants access. The requirement of direct concern describes the existence of a direct causal link between a measure and its effect on the applicant (Albors-Llorens 2003, Arnull 2001). However, it has been perceived to mean a measure that affects the legal situation of the applicant and the addressee is left without discretion on the manner of its impact, like in the case 41-44/70 International Fruit v Commission. Chapter 4: Critical Analysis of Standing Every advanced legal system has mechanisms that examine the legality of measures its institutions adopt. In the European Union’s legal system, given the democratic deficit as well as the decision-making role of the European Parliament, the European Court of Justice serves a great significance in assuming control the conduct of the European institutions through the Article 263-267. Few would dissent the perception that some means of judicial control should exist over the powers wielded by the state, or an institution. In the European Community law, the concept is enshrined in the EC Treaty – which the Lisbon Treaty renamed the Treaty on the Functioning of the European Union [TFEU] (Craig, 2008). TFEU provides various avenues for reviewing the judicial system that legally binds the EU institutions, which primarily consists of the Council and the Commission (Griller & Ziller, 2008). The most fundamental of these that sanction a direct review of the institutions’ legality comprise Article 263-267 TFEU, on standing in actions for annulment and the development of legal protection operate. Article 265 however also fails to present sufficient theoretical angles that elucidate the development of locus standi. Instead, it merely tends to show that political theories are applicable in these articles, and that newer insights can be further developed. The action of annulment is the major mechanism that examines the legitimacy of decisions and actions that EU’s institutions take. However, its restrictive approach has been at the centre of a heated debate and has been extensively criticized by members of the judiciary and scholars. In particular, the restrictive approach can be criticized for violating principles of effective judicial protection and has the potential to deny an individual justice. The restrictive locus standi to bring an action for annulment is one of the most contentious aspect of Article 263-267 TFEU. It can further be deduced that the restrictive nature of Article 265-267 is a strategy by the Court of Justice to act as a tactical partner that predicts when the states will not be approval and thence doesn’t even make them, as they only engage in judicial activism when it anticipates that the Member States would support its judgments. The reasoning in the UPA and Jego-Quere by the Court of Justice to refrain from starting reforms could be said to reflect the Court’s anticipation that the Member States would not support it. It can however be assumed that the Court was calculative in the estimation as the Member of States directly elaborated they would not revise the standing. The Court had come to defense of its jurisprudence on account that the Treaty specified mechanism for legal protection. As a result, applicant who lacked standing for direct action under Article 263 TFEU could not examine the legitimacy of the measure indirectly using Article 267 TFEU. The Court of Justice, being EU’s highest court, maintains exclusive jurisdiction over legal actions pursued by Member States against any EU institution, or by the institutions against each other. Before an applicant brings an action for the review of a measure at the Court of Justice, he must first demonstrate he has locus standi. Craig notes that a legal system may have very advanced tools for substantive judicial review, but an individual’s opportunity may be limited if access to such tools are narrowed down (Cortes Martin & Manuel, 2004). On critical analysis of the Article 263-267 TFEU, it is evident that the approach of the Court of Justice to standing requirement in proceedings where applicants can contest a measure is so narrow and restrictive such that individuals looking to challenge the legality of some EU institutions or undertaking find it practically impossible to do so. Technically, this restrictive element has been criticized for discouraging individuals to pursue cases at the EU Court. Although it is designed to ensure that a issue only gets referred to the court if the plaintiff’s position is clearly affected, and that facts as well as adverse effects can be established, to a considerable extent, this contradicts the EU’s objective of ensuring that citizens have free access to it (Abaquense de Parfouru, 2007). In addition, Article 265-267 ensure that the Union’s institution and agencies act within the powers they are entitled by the EU treaties, and that they must act within the powers they are conferred. Indeed, the action of annulment has also allowed the Court of Justice to review the manner in which the Union’s institutions discharge and act within their obligations. This is included within the Court of Justice’s mandate under Article 265 that allows it to review the legality of the failure by the Union’s institutions to take charge of their roles accordingly (Fairhurst, 2007). However, an action of annulment must have been lodged against the institution, which conforms to Article. Actions for annulment under Article 263 of the Treaty on the Functioning of the European Union consists of means to ensuring objective judicial control of the actions of the European Union’s institutions as well as providing its citizens with access to the Union’s justice, though with some restrictions. This analysis is significant in showing the restrictive nature and extent of the rules on access to judicial review under Article 236-237, as well as to elaborate on the likely reasons behind its existence. The judicial review of Article 236-237 offers striking evidence on the most prominent features of the EU that distinguishes it from previous attempts to unite Europe as it works entirely by means of law, and not by subjugation or force. The actions for annulments can be lodged against all manners and measures of the EU institutions such as directive, decision or regulation, which may tend to offer legal bindings that can infringe on the interests of the applicant’s, in this case the member states, thus altering their legal positions in a serious way. Aside from the member states, the Commission, the Council and the European Parliament as well as a number of other bodies such as the European Central Bank, the Court of Auditors and the Committee of Regions can also lodge actions for annulment as long as they call upon violations of their rights. There is even more limited access for third party interventions before the CJEU in direct actions, for instance in preliminary ruling procedure. This means interested parties or representatives of the human rights organizations of civil societies are denied the facility of addressing the Court of Justice directly, even though they are entitled to intervene before it. This has been criticized for inhibiting EU’s readiness to deliver justice and mandate on fundamental rights when it is faced with cases of potential or alleged violations of fundamental rights. This has, and continues to, raise much policy dilemmas from the angle of judicial and legal accountability (Burley & Mattli, 1998). If the action for annulment succeeds, the EU Court of Justice may declare the instrument in question void from the date of judgment. However, the Court of Justice also has the power to dismiss the case under Article 264 of the TFEU. Article 263 is not clear on matters of appeal regarding the cases that have been dismissed (Usher, 2005). It also fails to detail out all criteria that Member States can use to pursue the case further, and leaves it to the sole jurisdiction of the Court of Justice. This is further pointed out by Article 256 that stipulates that the General Court has the jurisdiction to hear appeals in Article 265, except for those assigned to a specialized court established under Article 257. Further, the case may be heard only if they are subject to right of appeal to the Court of Justice, the intricacy in this case appears to only serve to protect the risk of the consistency of the Union law being jeopardized, but not the right of applicants (Cortes & Manuel, 2004). Additionally, the articles do not offer remedy for the gaps to ensure effective judicial protection. This is as the locus standi of individual applicants is extended on regulatory acts that do not call for implementing measures, or when the applicants can only get justice by breaching provisions of the challenged measure and citing on its invalidity as a defense in a legal proceeding (Temple Lang, 2003). The article also fails to reform the test for individual concerns, therefore limiting the possibilities for direct action by applicants who are non-privileged, hence their only means to challenge the EU is only through the preliminary reference procedure. The issue whether an alternative means to challenge the Union’s measures through the reference procedure guarantees the right of applicants to access justice will continue to be posed as the preliminary reference procedure also has its problems, which remain unresolved To assume a different angle, academic researches on the shortcomings of Article 263-267 TFEU has failed to investigate further the Courts motivation to maintain its rather conservative interpretation of the standing in actions for annulment and the development of legal protection. However, those explanations mentioned tend to be backed by purely legal reasoning. In addition, despite the call for more liberalism, with regard to EU’s political side, there is much merit in applying the theories from the angle of political science to analyze the Court of Justice’s position on restrictive locus standi. The restrictive approach of the Court of Justice in relation to the concept of individual concern, criticized for leading to inadmissibility of most of the actions of annulments and development of legal protection under Article 263-267 TFEU has not been sufficiently justified by the Court. Among the unconvincing justifications have been made by the Court by referring to the concept of a ‘complete system of remedies (Chalmers & Monti, 2006).’ According to the Court of Justice, the system is complete as applicants who lack standing for a direct action under Article 263 could even so examine the legitimacy of a Community measure indirectly via the ruling procedure. In this case, the restrictive interpretation of the concept of individual concern failed to create a gap in the development of judicial protection in the Community system (Barents, 2004). This is because individuals are likely to bring actions against the measure before national courts (Dougan, 2004). As a result, Advocate General (AG) Jacobs in the Union de Pequenos Agricultores (UPA) case challenged the suitability of the Court’s approach (Corthaut, 2003). Further, the fact that it can be lodged on all measures of the EU institutions, including even those charged with enforcing the laws, shows that the Union is not just a creation of the law but it pursue its objectives on the basis of the law. By allowing the member states the right to lodge actions for annulment appears poised to attain what wars and battles have failed to achieve for centuries, as only unity founded on the fundamentals of equality and freedom and protected by law. Article 263-267 in this case appears as the insight that forms the basis of the treaties that formed the European Union. This further implies that the EU is committed to ensuring peaceful co-existence of its citizens, as the Member States are closer to the citizens of the EU and therefore answerable to any harm caused on the citizens upon violations of the law (Biernat, 2003). Considering the active role of the EU Courts on the issue of standing, the article builds upon the principle that EU institutions play a significant role in the EU. It must however be acknowledged that theories such as the rational choice institutionalism, institutions do have a limited impact on policy-making. The theory points out that the state should be the leading actor and not the states, as they establish states to reduces transaction cost as they benefit from the actions they perform (Albors-Llorens, 2003). Chapter 5: Reform suggestions Several suggestions targeted at swaying the European’s Court of Justice to reconsider its restrictive stance on the standing have been made. Advocate General (AG) Jacobs in the Union de Pequenos Agricultores (UPA) case challenged the suitability of the Court’s approach (Corthaut, 2003). He later made some suggestions including to have the judicial protection increased to applicants to ensure the direct access to the Court. Jacobs further suggested the elimination of existing anomalies such as that the greater the number of people affected the less likely the judicial remedy would be effective. In addition, Article 263 though intended to be simple, is much complex and should be further simplified. In Jacobs view, the counter arguments are less convincing as the texts of Article 263 fails to preclude such interpretations (Corthaut, 2003). The Lisbon Treaty can also be blamed for adopting a rather ambiguous angle when in the definition of some terms. There have been pressure that it becomes specific while defining some concepts. For instance, it should distinguish between regulatory acts (Craig, 2008). In addition, the articles need to be very specific on matters of appeal regarding the cases that have been dismissed by the Court (Usher, 2005). They should also detail out all criteria that Member States can use to pursue the case further, and leaves it to the sole jurisdiction of the Court of Justice. Article 265 should also present sufficient theoretical angles that expound on the development of locus standi Instead of strictly specifying that political theories are applicable in these articles. This way, newer insights can be further developed. Chapter 6: Conclusion Upon proving the restrictive nature of the EUCJ’s approach to the standing, it is critical to elaborate a number of the differing policy arguments that explain it. Rasmussen’s appellate court thesis contends the court’s long-term interest in reshaping the judiciary as it allows itself to pose as a high court of appeals of the Community law” (1980, 122). Craig (2008) however observes that Lisbon Treaty limits standing and that the interpretation on the limits is very limiting. He further acknowledges that challenging a discretionary act is possible in the substantive hearing such as misuse of power and so forth. Although basing on the restrictive nature of the Article 263-267 it would be difficult to succeed n some contentions, some cases may be possible. It is wrong that the Court if Justice adopts a practically restrictive approach, as applicants who may succeed in the hearing may even not gain access to the court (Craig, 2008). It has further been suggested that little has been done to illustrate an alteration of the Plaumann test in cases not concerning ‘regulatory acts’ (Craig, 2008). According to the Plaumann test, before any legally binding community act can be dismissed to be a non-privileged applicant, reasons of circumstances or attribute must be showed by the applicant that he is significantly affected by the measure in question. This can be very limiting. Moreover, it has widely been criticized for discouraging even to applicants whose chances of winning a case are high. Even as full coverage of Article 263 is outside the coverage of this paper, it is hoped that the Court of Justice can use it to justify the adoption of a less restrictive and a more liberal approach (Ragolle, 2003). It is almost certain that the prospects of private parties looking to attain standing in respect to Article 263-267 TFEU seem bleak more so in mainstream cases. In fact, the Court of Justice’s standpoint is rather independent and does not portend much for such parties. It is therefore of much concern that the Court of Justice’s standing requirements are in fact designed to be restrictive so that Member States or individuals looking to challenge the legality of the Community often find it technically impossible to do so. In any case, the Court’s persistent use of the Plaumann test means that applicants may only succeed in very rare cases, mostly narrow class of retrospective cases. Nevertheless, there is currently a more liberal public interest to the Court’s approach to the standing. Even as the Court has attempted to espouse more liberal approaches in some cases such as of a quasi-judicial nature, as well as those raising issues of constitutional significance. Except in circumstances that are exceptional, it appears almost unlikely that approaches that are more liberal will be adopted in standing in actions for annulment and the Development of Legal Protection in the Courts any time soon (De Witte, 1999). References Abaquense de Parfouru, A. 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