The European Court of Justice - Term Paper Example

The European Court of Justice Summary: Article 230(4) of the EC Treaty places restrictions on individual concerns and the possibility of individuals challenging Community Acts by individuals. This measure has been criticized as leading to an inhibition of judicial protection and a case review establishes this to be the case. However, Articles 235 and 288 which permit individuals to claim damages for breach of contract are being well implemented by the ECJ. Introduction: The Treaty establishing the European Community under Article 2301 (4) states: “Any natural person may….institute legal proceedings….” in a decision which involves him even indirectly. This provides for annulment of illegal administrative action and it allows citizens and firms to proceed against decisions, but only against those which have a direct effect on them personally2. Actions for annulment must be based upon allegations of ultravires or violation of procedures, infringement of treaties or the abuse of discretionary powers3. The issue emerged in the case of Van Gend en Loos v Nederlanse Administratie der Belastingen.4 European Court of Justice can further influence the framework of internal law of a member state by ordering that State to change its laws in the event that a noncomplianace with the European regulations is found5. In fact, in the case of Francovich and Bonifachi6, the States were asked to make reparation to individuals for the violation of the EC treaties. But in spite of these cases that demonstrate the victory of individual actions, a strict locus standi has been established in order to obtain an annulment.7 While member states and community institutions have free access to the Courts, the restriction on individuals through the imposition of the locus standi, in permitting them to approach the Court only if they are directly and personally affected by the violation creates an unequal and inequitable framework. For example in the case of Piraiki-Patriaki8 where some applicants sought to challenge a decision to permit France to restrict cotton imports from Greece, only those individuals who were directly affected through their contractual agreements were differentiated from those who were also liable to suffer but did not specifically belong to the category of applicants specified in the Act of Accession. In the case of Les Verts9, the applicant was a political party that sought the annulment of two measures adopted by Parliament and the Court agreed with the parties about the importance of judicial review. It also stated that the EC Treaty was intended to make direction action available against institutions, in terms of any measure which was intended to have a legal effect.10 However in its original form, the Treaty gives no power for action vis a vis third parties.11 In this case the Court allowed action against the measure adopted by the European Parliament. The definitive case in the implementation of the “individual effect” clause of the annulment action proceedings was laid out in the caes of Plaumann v Commission.12 The court held that in order to bring an action for annulment, the defendants must show that they are individually concerned and that the decision “affects them by reason of certain attributes which are peculiar to them or by reason of circumstances by which they are differentiated from all other persons….”13 This has set very restrictive standards which are often difficult to meet. The open category has been specified which renders it next to impossible for an individual to win an action for annulment because any decision with a future impact could be regarded as open and would therefore be unchallengeable.14 The rationale behind the implementation of this restriction by the Courts appears to be that it would not be proper to permit private individuals to challenge measures such as regulations etc that are addressed to the Member States. Therefore, the interpretation of these limits according to the Treaty can be considered to be overly restrictive.However, in the present time, the restrictive nature of the provision does not appear to spell the intent of the treaty neither is it conducive to the needs of the Community which has moved on, from the time of framing of the original treaty. There is a need that has arisen for control of illegality through individual actions, and the need for reformation is a simportant in the individual context as it is in the community context and States context. The decisions that have been rendered by the ECJ with reference to the annulment clause demonstrate that there are certain actions such as anti dumping, state aids and competition where there has been added flexibility adduced to individual interests, while there are other fields such as agricultural policy where the restrictive effects are fully applied. Therefore, the conclusion that may be drawn is that the ECJ, through its decisions has revealed that the procedure that has been specified has bene done with the idea of assigning a specific role to a Complainant, wherein he/she may be able to clarifgy whether the alleged breach of administrative policy has in fact occurred. In the areas where the interests of the Community can be stated in a less equivocal manner, it is likely that grounds for annulment will be permitted to individual citizens. Articles 235 and 238 of the EC Treaty concern the action that can brought by citizens or individual firms who sustain damages as a result of faults and procedural violations by member states or EC staff members. In this caes also, the Court will look into the effect of the actual damages that have been sustained. While intent or negligence does not have to be proved, it is nevertheless necessary that some extent of damage should have been sustained by the party that is filing the suit, which can thus render a third party who is not subject to the contract also liable for damages. These include the instances where there is a direct effect of EU Directives, which have been violated by the State in question. The concept of Direct Effect is mooted in the supremacy of European law15. Directives are said to be policy decisions, regulations or recommendations that are to be followed by the member states. The EU has framed a set of laws and regulations and has provided for their enforcement16 wherein a “public enforcement mechanism” is called for. However, this was found to be inadequate to involve EU citizens and their national courts in the need to frame legislation and implement measures that would be compatible with the “new legal order” that would hold good for all member states17.Therefore it has introduced the “EC Judicial Liability System18 in order to ensure that an individual will always have recourse to remedies under EU law. This has increased the has increased the reparation due to individuals for breach of EU Directives by the States19. For example, the case of Francovich20 is the best example of the ECJ’s vigorous implementation of the rights of the individual through an application of the Direct Effect to ensure that individual action which was brought for damages against a Member State was not only actionable but was also adjudicated in the Plaintiff’s favor. These cases establish the validity of the cause of action by individuals against member States in the event that they have suffered damages. This right is accorded by virtue of their being citizens of the European Union, which provides them with certain rights to approach the ECJ or the Court of First Instance on the issue of damages and European law will prevail over national law in such cases. Conclusion: Therefore, on an examination of the clauses in question, it may be noted that the qualification of individual effect placed upon the action for annulment places a restriction upon individuals. Although in certain cases, the ECJ has been flexible in its decisions and has taken into consideration the changing conditions in the European community, nevertheless, there is more reform that is needed in this article 230 in order to make it more equitable and less restrictive. It is only then that the States and institutions will be made truly accountable to private individuals. As it exists now, it is only other member institutions that have the flexibility and freedom to approach the Court for redressal of grievances without any restrictions in place. However the Articles 235 and 288 of the EC Treaty which permit individuals the right to claim damages for harm inflicted by EC institutions staff and member States is one that is being well implemented by the ECJ. These Articles provide enough scope for the redressal of damages. Although it is necessary for the individuals or even the States or other institutions concerned to first establish that there is a genuine cause of action and that some law has been breached or that some procedural violation has taken place; although it is also necessary to establish that damages have been sustained, nevertheless the decisions of the ECJ so far have shown that there is enough scope for individuals to appear under these Articles and when they can show sufficient proof of damages, they do receive remedy. There is no restrictive clause that stands in the way of justice to individuals as is the case with Article 230 (4), in which the individual effect clause as established by the case of Plausmann has made it difficult for individuals to successfully bring such an action in the European Court of Justice. ……………………………………………………Word Count: 1489 Abstract Word Count: 66 Bibliography * Albors Llorens, Albertina (1996). “Private parties in European Community law: Challenging Community Measures. Clarendon Press, p 8. * Arnull (1999) The European Court and its Court of Justice Oxford EC Library, p 35 * Articles 169-171 EC (new 226-228) * Case C-94 & 95/95, Bonifaci & Berto v Istituto Nazionale della Previdenza Sociale (INPS), [1997] ECR I-3969 * Case C-261/95, Palmisani v INPS, [1997] ECR I-4025 * Case C-373/95, Maso & Gazzetta v INPS, [1997] ECR I-4051. * Cases C-6 & 9/90, Francovich and Bonifaci v Italy, [1991] ECR I-5357 * Case 26/62, Van Gend en Loos, 1963 E.C.R. 1 (English special edition) * Case 39/72 Commission v. Italy [1973] ECR-101, * Case 41/74 Van Duyn v. Home Office [1974] ECR 1337 * Case C-246/89R Commission v UK (1989) ECR 3125 * Cases C-6 & 9/90, Francovich and Bonifaci v Italy, [1991] ECR I-5357 * Case 11/82 “Piraiki-Patriaiki v Commission (1985) ECR 207 * Case 294/83 Partie Ecologiste “Les verts” v Parliament (1986) ECR 1339 * Costa v. ENEL [1964] ECR 585, * Case 25/62, Plaumann v Commission (1963) ECR 95 * Craig, Paul and Deburca , Grainne (2003). EU Law, text, cases and materials. 3rd edition. Oxford: Oxford University Press, p 489 * Craig, P (1992. ) “Once Upon a Time in the West : Direct Effect and the Federalisation of EEC law”. 12 Oxford Journal of Legal Studies 453 * Direct Effect: Sorting out the confusions.” [Online] Available at: http://www.learnedcounsel.com/de.htm * Snyder, F (1993) “The Effectiveness of European Community Law : Institutions, Processes, Tools and Techniques”. 56 Modern Law Review 19. * “The System of Legal protection” [Online] Available at: http://europa.eu.int/eur- lex/en/about/abc/abc_22.html; accessed 11/29/2005 Read More