Development of Legal Protection in EU Courts - Dissertation Example

 Development of Legal Protection in EU Courts The EU legal order protects individuals before the European Union Court of Justice and before the domestic courts. The critical discussion draws attention to the action for annulment by private applicants before the Court of Justice and the Development of Legal Protection in EU Courts for non-privileged applicants under - Article 263 TFEU that was introduced by the Lisbon Treaty. Additional procedures before the Court of Justice are treated as a substitute to the action for annulment. In addition, the paper underscores the uncertainties and the ineffectiveness of EU’s judicial protection given the strict approach the European Union Court of Justice interprets Locus standing of the non-privileged applicants. Introduction Each established judicial system offers a mechanism for testing the legitimacy of the measures adopted by its respective institutions. In the European Union judicial system, given the democratic deficit as well as the restricted supervisory functions of the European Parliament, it is of the essence that a system be created to control the actions, decisions or privileges enjoyed by the European Union institutions. In this case, the fundamental position rests with the European Union Court of Justice, which is considered as an independent institution charged with defending the rule of law within the Union (Albors-Llorens, 1996). Before the Treaty of Lisbon brought amendments to the European Union, the major procedure in the event of judicial review was provided for in Article 230 EC Treaty, which gave non-privileged applicants the right to directly challenge the unjustifiable acts of the Union’s institutions such as the European Parliament, the Commission, the Council and the European Union Central Bank. Hypothetically, this previous mechanism stood as the standard judicial review instrument that was open to individuals. However, in reality, the possibility has been limited given its restrictive requirements on the issue of standing conditions for annulment and the strict interpretation of the requirements of individual concern that was adopted by the Court in the Plaumann case (Albors-Llorens, 2003), (Note 1). This means that these possibilities have been restrictive given the nature of the requirements on the locus standi conditions, which are very strict. Again, hypothetically, they should be the primary channel for individuals to seek when reviewing the EU measures (Parfouru, 2007). The restrictive nature of the action for annulment as well as its strict interpretation by the Court denote a key impediment to access by the non-privileged applicants to the Court contrary to the privileged position enjoyed by the Member States and the EU institutions. This off-putting approach has been at the center of controversy and has been strongly criticized by members of the judiciary and scholars (Note 2). For instance, the adversaries of the system have challenged the approach claiming it violates the principle of effective judicial protection (Gormley, 2006). According to them, such restrictive approach is unfortunate as it leads to denial of justice. This condition is inconsistent with the common constitutional values, including the European Convention on Human Rights and Charter of Fundamental Rights, both of which the EU is based. The action for annulment, as provided for by Article 263 TFEU, is at the focal point of the EU judicial system. Its origin can be traced in the annulment proceedings against the unlawful administrative action as referred as by the Member States’ legal system. The Article allows non-privileged applicants, who may comprise any natural or legal person, to directly challenge the illegal measures. This results from the direct effect, which the EU has with regard to natural and legal persons as well as the Member States. Further, 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 approved 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 Court had come to defense of its jurisprudence on account that the Treaty specified mechanism for legal protection. As a result, a non-privileged 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 action of annulment is the 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 (Fairhurst, 2007). The objective of this paper is to examine the manner in which the Court of Justice grants standing to individuals and the recommended solutions on ways in which to improve the systematic judicial review. The restrictions entailed on the chances of an individual to challenge the European Union measures as well as the restrictive interpretation of the concept of individual concern by the Court of Justice have been a subject of controversy by legal scholars as being against the effective judicial protection. This paper also attempts to discuss the restrictive interpretation of the concept of individual concern as well as possible improvements to the current system of judicial protection, including the likelihood of introducing a fundamental rights complaints procedure as well as the right by the Member States to offer effective judicial remedies before domestic courts. Article 263 TFEU Procedures and the ECJ’s restrictive approach The rules that govern the locus standi (the standing actions of annulment) of non-privileged applicants are found in Article 263 – 267 TFEU. Article 263 provides for the review of the measures and acts adopted by the EU institutions, through the direct actions in the European Court of Justice. In the first instance, actions that individuals bring are heard in the General Court, which was originally called the Court of First Instance. Non-privileged applicants are given the freedom to challenge the measures or acts on the grounds of lack of violation of an important procedural requirement, incompetence, abuse of power and violation of treaties. If the challenge is triumphant, the act or measurement would be annulled. According to the Article, the actions of annulment may be brought EU institutions against other actions, the member states, non-privileged individuals, the European Parliament and the Council. On the contrary, the locus standi of non-privileged actions are however restrictive for non-privileged applicants, compared to the EU institutions. To show the restrictive approach the Court of Justice defines the revival act, in IBM V Commission, the court held that reviewable acts are any measures whose legal effects are binding and can affect the interests of the applicant by evoking a unique change in a legal position. Some scholars have however raised concern when a particular act results in changes that cannot always be established easily. Time Limit Applicants seeking to bring an action of annulment against an act must do so within two months after the measures or the notifications of the measures are published to the applicant. Alternatively, the two months must be within the date when the measure came to the applicant’s knowledge. Some scholars have criticized this period as rather short as many factors may impede the procedure to bring an act, particularly legal constraints (as will be shown in this paper). Reasons to Seek Judicial Review By seeking a judicial review, applicants are offered the mechanism to challenge European Union acts that view as having affected them unfavorably. For example, in Commission v Council (ERTA), the Commission sought to challenge the Council’s privileges to take part in negotiation as well as the conclusion of the European Road Transport Agreement. The Commission claimed that it held the powers and the Council did not. Technically, individuals challenge the acts that have adverse effects on their business interest. For instance, Jégo-Quéré, a fishing company challenged a rule on the protection of hake stocks that outlawed the application of small-meshed fishing nets. Additional challenged constituted the pulling out of subsidies and the imposition of import quotas (Commission v Jégo-Quéré, Case C-263/02 P). Justifications for annulment Article 263 TFEU specifies the grounds for annulment. These include lack of competence, where the institution that adopts the EU measures lacks the necessary powers. For example in the Germany v European Parliament and Council (Tobacco Advertising) (Case C-376/98), a regulation that prohibited tobacco advertising that was claimed to be a public health measure, was ultimately annulled as it had been adopted under the Lisbon Treaty with regard to the internal market. The second grounds for annulment include the “infringement of an essential procedural requirement,” as was witnessed in the Roquette Frères v Council (Case 138/79) case, which concerned the failure to confer with the Parliament before a measure is adopted as called for by the Treaty of Lisbon. The third ground is “infringement of the Treaty or of any rule of law relating to its application,” which covers any noticeable violation of the European Union law, which includes the concepts of nondiscrimination and fundamental rights. For instance, the case Transocean Marine Paint v Commission (Case 17/74), offered an example of an annulment that was considered on the basis of violation of the principles of natural justice. Lastly, on the grounds of misuse of powers, which entails the implementation of a measure for the purpose rather than that meant for the provision of Lisbon Treaty, which constituted its legal basis, For instance, in the UK v Council case (Case C-84/94), the UK government claimed that the Working Time Directive was erroneously based on Article 153 TFEU, which concerns health and safety at work. Acts that can be Challenged Article 263 gives the court the mandate to review the legality of the measures of acts of the EU institutions, rather than suggestions, that are meant to generate legal effects in relation to the third parties’. The Lisbon Treaty increased the category of the acts that can be reviewed to also include those concerning the agencies, offices or bodies of the EU to produce legal effects in relation to the third parties’. Even as the reviewable acts without doubt include legally binding measures or acts, such as directives, decisions or regulations, there are a number of acts that may also be vulnerable to judicial review. For example, The European Court of Justice held that a Council’s resolution on the European Road Transport Agreement might as well be challenged (Commission v Council (ERTA) (Case 22/70). Who can bring Article 263 Proceedings? Locus standi, or standing, which means the right to bring legal action before the European Court is dependent on the potential status of the applicant. Article 263 TFEU divides the potential applicants into three categories, first the Council, the Member States and the European Parliament which are regarded as privileged applicants and therefore they can bring actions for annulment against acts by other institutions without restriction. Secondly European Court of Auditors and the Central Bank, which are classified under semi-privileged applicants and can only bring the actions if done for the purposed of protecting their privileges, and lastly, the natural and legal persons who are classified under non-privileged applicants, and therefore have limited access to judicial review of the acts or measures by the institutions. Direct Concern The Treaty of Lisbon changed the requirements of Article 230 EC concerning the locus standi of non-privileged applicants. To interpret the restricted approach imposed on non-privileged applicants, an individual can only bring actions for annulment of the decisions are directly addressed to the applicant, in which case the applicant can challenge the decision without any restrictions (Chalmers and Monti, 2007). Nevertheless, if a decision has been addressed to a third party or it was in the form of a regulation, the private parties only stand to challenge it only if they successfully indicated that the measure or act was of individual and direct concern to the applicant (Craig and de Búrca, 2008). Thus, a decision is reviewable when: It is specifically addressed to the applicant It is addressed to third parties and the applicant alleges that it is of direct and of individual concern to the applicant. When it is in the form of regulation and it is of individual and direct concern to the applicant. Some scholars have observed that the first requirement is comparatively simpler and more straightforward than of individual concern. (Note 3) The Court of Justice has constantly maintained that a measure can only be regarded as of direct concern if it affects the applicant’s legal situation directly and when it leaves no prudence to the addressees of the act or measure delegated with the role of implementing it. In the case International Fruit Company BV v. Commission, employees of a company on the verge of a merger who were not granted locus standi to dispute a Commission’s decision to permit the merger. The European Court of Justice, denied the standing on the grounds that the fact that likely termination of employments would not be regarded as the direct result of the Commission’s decision. This means that there must be a direct link between the measure that is challenged for review and the damage suffered by the applicant. (Note 5) Another condition is that the implementation has to be automatic as well as result from the EU rules without the application of transitional rules (Craig and de Búrca, 2008). In addition, if the measures or acts that can be referred to the domestic authorities of the Member States, a level of discretion on how the measures have to be implemented, then the applicant will not be considered as being a directly concerned applicant (Chalmers and Monti, 2007). Consequences of annulment In the event of annulment, for instance, when the Court of Justice ascertains that the grounds for annulment, then the disputed measure would be declared void and the institution implicated must implement measures that comply with the Court’s judgment. Individual Concern The second requirement is even more fraught with controversies as is much more restrictive and has extensively proved a stumbling block for applicants. The Plaumann formula is a classic test for this requirement. For instance, the Court of Justice defined the requirement of individual concern in the Plaumann case, which concerned the importation of clementines where the German government has asked the Commission to permit it to shelve the duty on the imported clementines. However, the Commission denied the German government the permission to do so. In the case, the applicant company was a dealer in clementines and had sought judicial review of the Commission’s decision to do so. In this case, the Court of Justice held that private parties can seek judicial review of decisions that are not particularly addressed to them, on condition that they can distinguish themselves from the rest of the other persons potentially and in actuality (Chalmers and Monti, 2007). This means that the non-privileged applicant must indicate that the decision affects him by reason of certain attributes that are in a way unique to them. Alternatively, he must indicate that they are affected by reason of circumstances where they are distinguished from the rest of the other persons and by the high merit of these factors which must distinguish them independently in the same manner as the person addressed (Arnull, 1995). Plaumann was adversely affected as the commercial activity he engaged in could in future be entered into by any other person. Therefore, the company couldn’t claim to have been isolated or discriminated upon by the decision, thus it was not individually concerned. In this way, individual concern can be ascertained when the non-privileged applicant has kind of a trade that could be entered into at any particular time by any person. In fact, the Plaumann test comprises a much restrictive approach (De Witte, 1999). The Plaumann test has faced huge criticism for being impracticable commercially and unfeasible. While anyone in the EU can hypothetically set up business in a specific industry, such as in the case of Clementine importer, it may not be practicable where the industry is dominated by a small number of select operators. Concerning its commercial feasibility, any individual can in theory make entry into the market that the differentiating characteristics the applicant claims may be acquired by any other person in the future. Accordingly, it is difficult to ascertain individual concern. However, in the face of the difficulties, non-privileged applicants can sometimes ascertain individual concern, specifically in the event when they were a member of a category of person (closed class), which was fixed and ascertainable on the date when the measure was endorsed, and therefore, when the measure showed impact on a particular group of individuals. In the Paraiki-Patraiki v Commission (Case 11/8, 1985 ECR 207), it can be recalled that the applicants brought an action against the annulment of a Commission’s decision that authorized France to enforce quotas on cotton yarns imported from Greece. With regard to individual concern, the Court maintained that merely because the applicant exported the cotton yarns to France would not provide enough grounds to differentiate them from any other person – future or current exporter. Nevertheless, they were differentiated by the sole reason that before the decision was adopted; they had already entered into contracts to sell the products. They were ascertained as being individually concerned as the applicants had entered into contracts before the adoptions of the decisions. Thus they were part of the closed class category of applicants – a class that was fixed and ascertainable at the date when the measure was endorsed. Further Analysis On critical analysis, the European Union Court of Justice had consistently maintained that the restrictive approach of individual concern, as it appeared apprehensive of the opening of floodgates determined to challenge the European Union Law, and of impeding the institutions’ capacities to adopt legislations that are of general interests. Furthermore, the Court of Justice, sought to refer to other likely routes that are open to the applicants in the specifically indirect challenge through Article 267 TFEU as well as the damages claims that were against the European Union under Article 340. The persistent criticisms of the Court’s strict approach, disallowing access to judicial review to a large extent to non-privileged applicants, resulted in the pressure for reform, for instance in the UPA v Jégo-Quéré case. In the case, Union de Pequeños Agricultores (UPA) challenged a regulation that withdrew aid for producers of olive oil, which had been held as unacceptable by the Court of First Instance (CFI). It can be recalled that UPA had failed to ascertain individual concern. Consequently, the CFI rejected UPA’s claims that the current formula for ascertaining individual concern restricted individuals from enjoying effective legal protection. The CFI ruled that the UPA should have brought proceedings in the national court as well as a sought reference of Article 267 on the legitimacy of the regulations. During the appeal at the Court of Justice, it was expressed by Advocate-General Jacobs that the difficulties of Article 267 would also emerge. For instance, none existence of a national implementing measure that the national action could be grounded on. This means that the national court has no powers to annul the European Union law, which further implies that it would be futile for an applicant to insist on referring the case, in addition to the fact that the reference procedure is costly and causes delays. AG Jacobs suggested a new test for individual concern that has, or is liable to have a significant adverse effect on the interests of the applicant. However, the Court of Justice disregarded his arguments and reasserted the existing case law on individual concern. However, before the Court of Justice delivered its judgment in the UPA case, it considered AG Jacob’s argument in the case, in Jégo-Quéré v Commission (Case T-177/01), the review of the test for individual concern was recommended. It was proposed that an applicant be regarded as individually concerned by a regulation if his legal situation is affected, in a way that is immediate and specific, by limiting his rights. Consequentially, the Court of Justice upheld the Commission’s appeal against the decision made by CFI in Jégo-Quéré, which also reasserted the Plaumann test for individual concern (Commission v Jégo-Quéré, Case C-263/02P). Impetus for Change Even as no clear justification can be ascertained on why the Court of Justice adopted such as a restrictive approach in the interpretation of the locus standi provisions for individuals, much scholarly debate is ongoing on the issue. In addition, even as a number of explanations put in defense of the approach have seemed conceivable particularly at the period the Plaumann case was decided, a great number of them have today become outdated (Koch, 2005). In fact, it is not quite possible to equate the EU’s newly found competence after the Lisbon Treaty along with the likely developments in the area protection of human rights, and simultaneously justify the Court of Justice’s case law on individual concern, the hesitance to impede the Commission’s difficult discretionary options or the fact that the Court of Justice never saw the need to offer redress to non-privileged applicants (Griller and Ziller, 2008). The Fundamental Rights Complaint Procedure When an applicant fails to obtain direct access to the EU courts via the judicial review procedure, some legal systems offer to compensate this inadequacy by introducing a distinct special procedure that the applicant apply directly to the constitutional court. The constitutional complain procedure is connected directly to the protection of individual rights (Biernat, 2003). AG Jacobs however maintained that the introduction of the fundamental rights complaint procedure was inappropriate and unnecessary as issues concerning fundamental rights arose in connection with the application of ordinary remedies. Nevertheless, as aforementioned even as the introduction of the fundamental rights complaint procedure was intended to be of value to the European Union, it was strongly criticized by scholars and members of the European Judiciary. Protecting obligations of Member States to offer effective judicial remedies In the UPA case, the Court of Justice held that it was upon the Member States to ascertain a system of legal remedies and procedures that would ensure the rights to effective judicial system is protected (Groussot, 2003). This meant that members states would be expected to reform their own locus standi, to ensure that effective judicial protection of individuals so as to ensure direct and individual concerns under Article 263 are demonstrated. The Court of Justice however continues to observe the principle of loyal cooperation that requires national courts to interpret as well as applied national procedures in a manner that allows individuals to challenge the legality of any national measures or decisions (Dougan, 2004). Although the Lisbon Treaty sought to improve the European system of judicial protection by taking considerations of the modifications made to the annulment procedure, it modified the standing provisions for non-privileged applicants by stating that any legal or natural person can institute proceedings against acts addressed to the person that is of individual and direct concern. By analyzing this requirement, it is apparent that the basic policy that underlies the system of judicial review has remained unchanged, individuals looking to challenge the acts are in addition not addressed to them still have to prove individual or direct concern (Lewis, 2007). In this way, the only avenue individuals can seek to challenge the EU measures will therefore still remain the preference procedure. Indeed, the relaxation of the locus standi rules will specifically apply in circumstances where two requirements are satisfied (Koch, 2005). First, when the measure that is disputed is a regulatory act and secondly, when the measure that is challenged fails to entail implementing measures. In conclusion, the European Union has been widely argued as conceived by elites to be implemented by elites as there has been restricted accountability and restriction of individuals to participate. Acts that have been adopted by the EU institutions have to a much limited extent been subjected to judicial review by the private individuals, who have clearly have had restricted privileges to challenge decisions, measures or regulations, regardless of how adverse their effects or unconvincing their legality is. In addition, the contents of Article 263 TFEU impose restrictions on the locus standi of individuals, since it specifies that the applicant ought to be directly and individually concerned by the disputed measures. The provision, specifically in case of individual concern, has been criticized for being impractical and difficult to satisfy. Nevertheless, it is the European Union Court of Justice that interprets the requirement using a strict approach. References Albors-Llorens, A. (1996). Private parties in European Community Law. Challenging Community Measures. NY: Clarendon Press. Albors-Llorens, A. (2003). The Standing of private parties to challenge Community Measures: Has the European Court Missed the Boat? Cambridge Law Journal, 62(1), 72-92. Arnull, A. (1995). Private applicants and the action for annulment under Article 173 of the EC Treaty. Common Market Law Review, 32(1), 7-49. Biernat, E. (2003). The Locus Standi of Private Applicants under Article 230 (4) EC and the Principle of Judicial Protection in the European Community. Jean Monnet Working Paper 12/03. Chalmers, D. & Monti, G. (2007). European Union Law. (4th ed.). Cambridge: Cambridge University Press. De Witte, B. (1999). The Past and Future Role of the European Court of Justice in the Protection of Human Rights. In P. Alston (Ed.), The EU and Human Rights (pp. 859-897). Oxford: Oxford University Press. Dougan, M. (2004). National Remedies before the Court of Justice- Issues of Harmonization and Differentiation. NY: Hart Publishing. Craig, P. & De Bùrca, G. (2008). EU Law: Text, Cases and Materials. (5th ed.). Oxford: Oxford University Press. Fairhurst, J. (2007). Law of the European Union. (6th ed.). Pearson Education Limited. Gormley, L.W. (2006). Judicial Review: Advice for the Deaf? Fordham Internatioal Law Journal, 29(4), Griller, S. & Ziller, J. (2008). The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? Springer-Verlag. Groussot, X. (2003). The EC System of Legal Remedies and Effective Judicial Protection: Does the System Really Need Reform? Legal Issues of Economic Integration, 30, 221-248. Koch, C. (2005). Locus standi of private applicants under the EU Constitution: preserving gaps in the protection of individuals’ rights to an effective remedy. European Law Review, 30(4), 511-527. Lewis, X. (2007). Standing of Private Plaintiffs to Annul Generally Applicable European Community Measures: if the System is Broken, where Should it be Fixed? Fordham International Law Journal, 30(5), 1496-1544. Note 1. Case 25/62 Plaumann v. Commission [1963] ECR-95. Note 2. For criticism on the standing requirements of individual applicants under Article 230 EC, see Arnull, A. Note 3. Cases 41-44/70, International Fruit Company BV v. Commission [1971] ECR 411. Cortés, M., & Manuel, J. (2004). Ubi ius, Ibi Remedium? – Locus standi of private applicants under Art. 230 (4) EC Treaty at a European Constitutional Crossroad. Maastricht Journal of European and Comparative Law, 11(3), 233-261, 655-689. Paraiki-Patraiki v Commission (Case 11/82) [1985] ECR 207 Parfouru, A. (2007). Locus Standi of Private Applicants Under the Article 230 EC Action for Annulment: Any Lessons to be Learnt From France? Maastricht Journal of European and Comparative Law, 14(4), 361-402. Note 16. Case T-173/98 UPA v. Council [1999] ECR II-3357. Note 17. T-177/01 Jégo-Quéré & Cie v. Commission [2002] ECR II-2365. Germany v European Parliament and Council (Tobacco Advertising) (Case C-376/98) Roquette Frères v Council (Case 138/79), IBM v. Commission [1981] ECR-2639 (Case 60/81) Piraiki – Patraiki v. Commission [1985] ECR-207 (Case 11/82) Read More