European Union Law Issues - Essay Example

Critically analyse the jurisprudence of the Community Courts, including the opinion of the Advocate Generals, regarding the locus standi of non-privileged applicants to challenge the validity of Regulations. Article 230 of the EC Treaty is the main source of law which enables challenge to the validity of Community acts, by reviewing the legality of acts adopted. Article 230 provides for an action to be brought before the European Court of Justice to review validity of acts of the institutions of the Community. If the acts are found to be invalid, the Court of Justice including the Court of First Instance as the sole right to declare acts void1. However, Article 230 names the Member States, the Council, the European Parliament and the Commission as privileged applicants, who have the right to attack any act. It further names the Court of Auditors and the European Central Bank as institutions who may invoke Article 230 as a matter of course but only to protect their own prerogative powers. All other persons are termed non-privileged applicants. The focus of this paper is to critically evaluate the Community approach to determining locus standi of individuals as non-privileged applicants against to challenge the validity of Regulations in particular. As mentioned above, the Article 230 method of challenge hinges on the Community act being amenable to review. In the case of Parti Ecologiste ‘Les Verts V. Parliament2 it was held that “Article 230 (ex173) … makes a direct action available against “all measures adopted by institutions… which are intended to have legal effects”3. Furthermore, the relevant piece of Community legislation must have legal effects and satisfy the requirement of being a “reviewable act” to be amenable to challenge under Article 230. For example, in the case of Cimenteries v Commission4 it was reiterated that measures which create legal effects are subject to review under Article 230. Additionally, in the case of Parliament v Council5 it was held that an act must be implemented by one of the Community institutions in order to be amenable to review under Article 230. Moreover, in the case of Commission v BASF6 it was held that “acts tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the Community legal order”7 will be subject to review under Article 230. Any party seeking a review under Article 230 must have locus standi and national governments will have privileged application locus standi and can challenge any measures adopted by any of the institutions8. However, there are stringent rules applicable to non-privileged applicants and in such cases the measure must be of direct concern9. A measure will be regarded as being of direct concern if there is a direct cause and effect between the act and impact on the applicant10. There are four grounds for review under Article 230, namely: 1) lack of competence; 2) infringement of essential procedural requirement; 3) infringement of treaty or rule relating to its powers; and 4) misuse of powers11. The main stumbling block with Article 230 is the time limit and the locus standi requirements of the Treaty. Individuals can only challenge acts which could and should have been addressed to them12. With regard to Regulations, in the case of Lord Bethell v Commission13 and Holtz v Council14 it was asserted that Regulations are normative acts and cannot be addressed to individuals15. Therefore individuals will only be able to plead the matter under Article 230 if it can be established that the Regulations concerned them as an individual, however it has been established as a general rule that Regulations do not directly and individually concern individuals16. Nevertheless, the main method of direct challenge of a Regulation is Article 230 of the EC Treaty. With regard to non-privileged applicants, Article 230 expressly states that any natural or legal person may institute proceedings against a Decision which, although in the form of a Regulation or Decision addressed to another person, is of direct and individual concern to the former. With regard to Regulations, as highlighted above, in the case of Lord Bethell v Commission17 and Holtz v Council18 it was asserted that Regulations are normative acts and cannot be addressed to individuals19. Additionally in the case of KSH v Council and Commission20, it was held as a general rule that cannot challenge Regulations as they apply to categories of persons and not individuals. The KSH case involved a direct challenge to a glucose levy Regulation in respect of certain producers, which was held to be inadmissible. In addition to demonstrating individual concern, the individual had to demonstrate in substance the Regulation is really a Decision or a bundle of Decisions in order to be able to challenge it21. Nevertheless, as highlighted above it has been established that the general principle is that Regulations do not directly and individually concern individuals22. The relevant test for the purpose of Article 230 is to determine whether it is in substance a decision. Therefore, if the act is in substance a regulation, then a non-privileged applicant will have no locus standi to challenge the Regulation as established in the case of Fruit and Vegetable Confederation v Commission23. In this case, a group of fruit importers were held entitled to challenge a Regulation where the identity of the natural or legal persons affected was already known and thus fixed and identifiable and therefore the regulation was a bundle of decisions addressed to each applicant. Therefore if a non-privileged applicant can demonstrate that the regulation has in mind or has named in the regulation a number of individuals to whom it applies then can be a bundle of decisions rather than a regulation. However, even if an individual is part of a class that the Regulation applied to, locus standi may still fall if the non-privileged applicant is not specifically addressed or mentioned by the Regulation. For example, in the Japanese Ball Bearing cases24whilst the Regulation was formulated as a measure of general application, it was substance found to be a bundle of Decisions as the Regulation specifically referred to the applicant companies and not the applicant. In determining whether a legislative measure is in substance a decision, in the case of Noordwijks Cement Accord25, it was argued that the reviewable acts test was to determine whether the act had binding effects on and altered the legal position of the applicant. Furthermore, in the case of Commission v Council it was held that the true nature of the measure was the determining factor although the ability to challenge acts outside of those listed in article 249 would be rare. For example, in the CAM case, the Regulation was able to be challenged because of its direct and individual concern. Additionally in the UNICME CASE, it was held that if the act was of direct and individual concern then there was no need to consider whether the measure is a decision or a regulation. However, even if a non-privileged applicant can establish that the Regulation is in substance a Decision, the next question to determine will be whether the decision is addressed to the applicant in order to establish locus standi. Furthermore, it has been observed that in practice the case law demonstrates that most applicants fail in establishing locus standi or that a Regulation was really a Decision in substance26. This is further compounded by the fact that the Court of Justice often fails to take a consistent approach in answering the same issue. Often, the direct and individual concern issue appears to be determined first27.For example, in the CAM case28, the Regulation was able to be challenged solely on the basis of having direct and individual concern, without considering whether it was in substance a Decision. Indeed, in Codorniu v Commission29, despite the ECJ confirming that the regulation was a legislative measure applying to traders in general, it could still of individual concern to one of them. In the Codorniu case, Codorniu had in fact distinguished themselves by virtue of their ownership of the trademark for the term Crement from 1924, which the Community had tried to reserve solely for French and Luxembourg producers. Additionally, the ECJ’s approach to reviewable EU acts is to consider the individual definition first. For example, in the case of Plaumann v Commission30, a Decision was addressed to the German government refusing permission to reduce duties on clementines. It was determined that the test was whether the decision affected the applicant by virtue of the fact that he is a member of the defined class addressed by that rule. For example, applied in the Plaumann case, the question was whether the application was within the class of importer of clementines generally, or whether the regulation affected him because of attributes peculiar to him which differentiated him from all other persons31. In the Plaumman case it was held that the applicant was one of a class of importers and not therefore individually concerned. Conversely, in the case of Jego-Quere v Commission32, it was asserted that a strict application of individual concern should not be adopted and that following test to individual concern: “If the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him, the number and position of other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard33.” However, this adverse impact test was rejected in the case of Union de Pequenos v Council34 and the test remained of individual concern. Additionally, in the Zuckerfabrick Schoppendstedt case35 it was held that “direct concern” meant that the effect of the decision must not depend on the discretion of another person. Accordingly, in general non-privileged applicants have to establish that they are specifically and individually concerned by Regulations to establish locus standi under Article 230. If however, locus standi can be established, a non-privileged applicant will have the burden of demonstrating the merits or substantive grounds for an action under Article 23036. Bibliography Craig & Burca (2007). EU Law: Text, Cases and Materials. 4th Edition Oxford University Press. Damian Chambers, Christos Hadjiemmanuil, Giorgio Monti & Adam Tomkins (2006). European Union Law. Cambridge University Press Trevor Hartley., (2004). European Law in a Global Context: Text Cases and Materials. Cambridge University Press. Norbert Reich., (2003). Understanding EU Law: Objectives, Principles and Methods of Community Law. Intersentia. Hanlon, J., (2003). European Community Law. 3rd Edition Sweet & Maxwell. Lasok, D., & Bridge, J.W (1994). Law and Institutions of the European Communities. Butterworths. Jo Shaw. (2000). Law of the European Union. 3rd Edition Palgrave Macmillan Steiner, Woods & Twigg-Flesner (2003). Textbook on EC Law. 8th Edition Oxford University Press. 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