Change in the Locus Standi Rules in an Action for Annulment of Community Measures - Research Paper Example

PART A This question requires the discussion of whether a decision issued by the EU commission can be challenged by a member or an individualbasically concerning the admissibility element or the 'locus standi' requirements of Art 230 and the particular difficulties encountered by non-privileged applicants. Based on the information given in the question I would like to point out firstly that France will be able to challenge this decision which is aimed at UK. This is because Article 230 EC recognises the Council, the Commission, the Parliament and the Member States as 'privileged applicants' who will always have the locus standi to bring actions against Community acts. Also on the basis of Article 230 EC, individuals and other private parties will always retain the jurisdiction to challenge decisions addressed to them. As far as the claims of Jacques St Malo, Pierre St Michel, and Sainsbury's Supermarkets are concerned they will be subject to the limitation to this principle which is the personal interest principle. Furthermore this "personal interest" will only be held to exist where the annulment of the act can produce legal effects for these applicants.1 Private parties do not have standing to act in the interest of the law or of the Community in general.2 Private parties like the ones mentioned above therefore can also challenge decisions addressed to other persons, as well as regulations or other general legislative acts. However, they can only do this when they can show that these are of 'direct and individual concern' to them. .3 The Court of Justice has interpreted the concept of 'direct concern' to mean that a direct causality must exist between the act that is challenged and the legal situation of the individual challenging that act.4 A measure will be of direct concern if it affects the legal position of the defendant/applicant directly and leaves no discretion to the addressees of the measure who are responsible for its implementation.5Such an implementation has to be automatic and a result of Community rules without the application of other intermediate rules6. For determining individual concern, the case Plaumann v. Commission7was a seminal one and gave judicial review a rather restricted application in the Court of Justice8 where the court defined applicants as individually concerned if the decision or act "'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 and by virtue of these factors distinguishes them individually (para 107) Based on the Court's view in Plaumann where he was affected by the decision as an importer of Clementines, and it was held that this did not distinguish him in relation to the contested decision as in the case of the addressee.Since the test in this case requires the applicants to belong to a closed category, membership of which is fixed and ascertainable at the date of the adoption of the contested measure it would seem that Pierre St Michel, a Breton poultry farmer, who intends to export poultry to the UK this month and .Sainsbury's Supermarkets, who sell French and other countries' poultry might not have locus standi under this test. Later cases have followed the trend in Plaumann and in Toepfer v. Commission9 the applicant was held to be individually concerned, because the issue concerned only those importers, who applied for an import license particular day. 10. However in case Spijker Kwasten v. Commission11no individual concern was found because the court held that 'a decision addressed to certain Member States with the purpose of authorizing them not to apply community treatment for a fixed period to imports of products originating in a non - member country and in free circulation in the other Member States is not of individual concern to the only importer of the products in question established in the member states to which the decision is addressed since it concerns the importer merely by virtue of his objective status as an importer in the same manner as any other trader who is, or might be in the future, in the same situation'. In the light of the above discussion it can be concluded that where as France and .Jacques St Malo the Breton poultry farmer, who sent 2 tones of poultry to the UK in September would be able to claim based on the case law stated, Pierre St Michel and Sainsbury's Supermarkets have a thin chance of achieving this locus standi due to the strict application of the Plaumann test. PART B In case of challenging regulations it has been held that true regulations being normative acts are not open to individual challenge.12 In addition to showing direct and individual concern an individual applicant will also have to show that in substance the Regulation is really a decision or a bundle of decisions in order to challenge it .13 Therefore on the face of it none of the above parties should be able to gain locus standi.However the wording of Art 230 (4) indicates that individuals can challenge regulations which are in essence decisions. To do this the applicant will have to prove that the regulation is in fact a bundle of individual measures which are actually decisions with which he is directly and individually concerned. The Court has applied the closed category test and abstract terminology test in this regard e.g. in case International Fruit Company BV v. Commission14 where a group of importers of apples applied for an import license to the relevant national authorities and did the needful by informing the Commission who lay the rules for those applications. It was held that the regulation was applicable only to those who made import applications in the previous week.(and thus the measure was a bundle of individual decisions.) In the case of Calpak15 the court applied the abstract terminology test and held that , 'The nature of the measure as a regulation is not called in question by the mere fact that it is possible to determine the number or even identity of the producers to be granted the aid which is limited thereby'. 16 In the case of Codorniu17 regulation in dispute (which reserved the word "crmant" as a designation for certain sparkling wines produced in some regions of France and Luxembourg) was challenged by the applicant, who was a Spanish wine producer, had a trade mark including the word "crmant" for his products, registered since 1924. The Court held that in this case even though the measure was of a general legislative nature which concerned the traders in a general way, it did not prevent it from being of individual concern to the applicant .The court was of the opinion that Codorniu was affected because he had registered his trade mark and used it traditionally before and after the registration. Academic opinion has suggested that the willingness of the Court to allow private applicants to challenge true regulations (under the abstract approach) demonstrates a liberal trend by the court. 18Cases like Kik v. Counciland Commission 19 demonstrate a rather different approach where the applicant tried to challenge the language regime of the Council Regulation which established the(Community trademark and the Community trademark office) and excluded his Dutch language.He was refused locus standi and his application under Art 6 ECHR was also rejected.The court stated at this point that even the application of Article 6 does not preclude the rules for standing under Article 230 (4). However the case of Greenpeace20 followed the restrictive Plaumann approach and based on that it would seem that while Morgan Cheesemakers of Newport and Jenkins Dairies of Caerphilly who are listed in the appendix, would be able to bring an action ,it is unlikely that Llangloffan Plc., will be able to avail itself of this locus standi due to the restrictive nature of the Plaumann test. In my view then Morgan and Jenkins should both be able to use the approach of proving that the regulation is in fact a bundle of individual measures which are actually decisions with which they are directly and individually concerned. This is because on the face of it a regulation is not amenable to challenge per se as discussed above. Academics have argued for a long time that the time is definitely right for a change in the locus standi rules in an action for annulment of Community measures.21 This is because sometimes the application of the Plaumann test may make the whole procedure of gaining locus standi very restrictive and thus cause injustice to those affected.22 References 1. Steiner, EU Law, (OUP, 9th Ed, 2006) Ch 11. 2. Weatherill, Cases & Materials on EU Law, (OUP, 8th Ed. 2007) pp 211-228, 255-270. 3. Fairhurst, Law of the European Union, (Pearson/Longman, 2007) Ch 8. 4. Granger M. P., 'Towards a Liberalisation of Standing Conditions for Individuals Seeking Judicial Review of Community Acts: Jego et Cie SA v Commission and Union de Pequenos Agricultores v Council' [2003] 66 MLR 124 5. Arnull A., 'Private Applicants and the Action for Annulment since Codorniu' [2001] 38 CMLR 7. 6. Koch, 'Locus standi of private applicants under the EU Constitution: Preserving gaps in the protection of individuals' right to an effective remedy', [2005] 30 ELR 511. 7. Vogt, 'Indirect judicial protection in EC law - the case of the plea of illegality', [2006] 31 ELR 364 8. Jo Shaw, Law of the European Union, 3rd ed., Palgrave Law Masters, 2000, p.506, hereinafter Shaw 9. Paul Craig, 'Legality, Standing and Substantial Review in Community Law', 14 Oxford Journal of Legal Studies 1994, p.507. Read More