Judicial Review in the EU, has anything changed?

The doctrine of judicial review exists to challenge a piece of secondary legislation as being ultra vires or outside the power of the governing body to make that legislation and to ultimately annul that said piece of legislation. The introduction post-Lisbon Treaty of Article 234 amended the former Article governing judicial review in the EU (Article 230). The Lisbon Treaty introduced the new article to tackle widespread criticism of Article 230, specifically with regards to Article 230(4), which stated that in order for an individual to have standing (basically to be allowed) to bring a case challenging an EU act, the following conditions was to be met:

Any natural or legal persons may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former - Article 230(4).

As pointed out above, in order for an individual to challenge a regulation, they had to show that the regulation was "in substance a decision". Case-law demonstrates how the Courts of Justice of the European Union eventually removed this requirements. As such, the reformulated rule for locus standi is provided by Article 263(4) TFEU which states:

Any natural or legal persons may, under the conditions laid down in the first and second paragraphs, institute proceedings against a decision addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures - Article 263(4).

Standing

Article 263 TFEU establishes two categories of applicants who can bring judicial review proceedings in the EU, (semi)/privileged applicants and non-privileged applicants. In order for an individual of non-privileged standing to bring proceedings under Article 263, they must satisfy that the act impugned is of direct and individual concern.

Individual & Direct Concern

The establishment of this element of locus standi is arguably the most controversial due to its limited scope and significant restriction. The test for individual concern is demonstrated through the Plaumann test as set out in the case of Plaumann v Commission [1963]. Article 230 previously required an applicant to establish that a regulation (even though ostensibly of general application) was a decision of individual and direct concern to them. On the basis of this test, the applicant could never challenge a 'true' regulation as only decisions which were in substance decisions could be challenged. The development of case law in this area however showed that applicants began to be afforded this opportunity.

The case of Plaumann and the subsequent Plaumann test is of significant important as it remains in effect today. The case is important as it highlighted how in order to initiate proceedings challenging a piece of EU law or to show individual concern, one must show that one is part of a fixed close connection. The problem that was apparent here was that the CJEU gave a narrow definition of how we can interpret the concept of 'fixed close connection.' Taking the case in question, Plaumann was a clementine importer who sought to challenge a piece of EU legislation which affected clementine importers. Though this may seem obvious that such legislation would individually and directly concern Plaumann, the CJEU did not see it that way. The CJEU reasoned by saying that theoretically anyone could become a clementine importer, and as such, their did not exist a close fixed connection between Plaumann and the legislation. The decision and the subsequent test established by the case has been widely criticised due to its lack of practical interpretation and difficulties of bringing judicial review proceedings in these circumstances. The interpretation of the CJEU has thus been rendered as devoid from reality and in fact, does not reflect any economic theory on the economics of importation/exportation. The case and test also has been criticised for its lack of democratic transparency, stating that the test created the institutions of the EU non-democratic in sense, due to the apparently impossible ability for individuals to bring judicial review action against EU legislation. In the case, the Court set out the following restrictive test to be applied when assessing whether an individual has standing in such circumstances:

'Persons other than those to whom a decision is addressed may only claim to be individually concerned by that decision if it affects them by reason of certain attributes which are peculiar to them...'

Since Plaumann, The European Courts of Justice have both re-established the Plaumann test as well as other attempts to expand on it. In the case of Codorniu SA v Council, the ECJ found individual concern where the applicant had possessed a specific right that had been infringed. Further, in the case of Extramet Industrie SA v Council, the ECJ found that where the regulation had serious economic effects for the applicant, individual concern was established. Such attempts to expand the narrow definition of close fixed connection/individual concern however have been futile as seen in the case of Piraiki-Patraiki v Commission. The case involved proceedings challenging the EU decision to allow France to impose a quote upon Greek yarn. This amounted to a prohibition on Greek exports of yarn to France. The court refused standing by reason that the export of yarn was a commercial activity which could be carried out at any time by any undertaking. Thus, the fact that the applicants in the case were exporters of goods to France did not prove to be sufficient to establish that they were individually concerned by the contested decision and as such no close fixed connection existed.

In the case of Jego-Quere v Commission [2004], the applicant was a fishing company who wished to challenge a Commission regulation which introduced minimum fishing net mesh sizes. The CFI stated that it could not refuse standing unless it was satisfied that the applicant had an adequate alternative remedy. The CFI further noted that an applicant refused standing under Article 230 may look to Article 234 and 288 for an alternative remedy. However, as the measure in question being challenged was a regulation, there were no acts implementing for forming the basis of an action before the national courts.

The test of AG Jacobs in UPA - developments of the Plaumann test

What the CFI had done was to create a radically new test for individual concern which in turn pressurised the ECJ to reconsider the interpretation of the test as set out in Plaumann. In the case of UPA v Council, Advocate General Jacobs suggested allowing standing to any applicant who is individually concerned by a Community measure because the measure has a substantive adverse impact on the individual's interests. To do so would be to adopt a test for individual concern that is 'a true right of direct access to a court which can grant a remedy,' preventing the denial of justice in certain cases. The ECJ rejected the amendment on appeal. It is therefore evident that the EU are adamant that the interpretation of the case of close fixed connection and individual concern is a restrictive and strict one, denying access to individuals who may be affected by a decision while also denying public interests groups from litigation.

Regulatory Act & Individual Concern

With the changes brought about by Article 263 TFEU there is no longer a requirement for an individual to establish individual concern in a challenge to a 'regulatory act.' The Lisbon Treaty however, does not define what is meant by a 'regulatory act.' Chalmers points out how regulatory acts can be defined as, as were in the Constitutional Treaty as being 'non-legislative' but general in nature, which implemented the Treaties or EU legislation. In the case of Inuit, the court provided a limited definition and interpretation of the term 'regulatory act,' as not being promulgated by a legislative procedure as provided for in the Treaties. In the Inuit case, the EU had proceeded to adopt a regulation on trade in seal products which was subsequently challenged by a number of applications who were traders of seal products and who sought an annulment of the EU regulation. The court expressed how a few individuals were directly concerned as they were active in placing EU seal products on the market. The court applied the Plaumann test and concluded that the applicants were concerned by the contested regulation like any other seal trader. Their was nothing existing to distinguish the Inuit products from other seal traders and as such, the case was declared inadmissible and no action was taken. The applicants appealed to the Courts of Justice, one of the grounds being that the interpretation of the concept 'regulatory act' in Article 263 was erroneous. The CoJ dismissed the appeal, affirming the position of the General Court, reaffirming the definition of a regulatory act as one referring to acts of general application and not legislative acts.

Further, in the case of Microban International Ltd v Commission, the court affirmed its position in Inuit. The court in this case held that 'implementing measures' relate to any intervention whatsoever in the application of a non-legislative act of the Commission by either a Member State or the Commission itself.

Concluding thoughts

The courts of the European Union has faced widespread criticism with regards to the case law on individual standing for review of the legality of measures of general application, mainly for being too strict and too restrictive. The Plaumann test appears to be in full force today, which states that an act of genera applciation must affect the individual 'by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same was as the addressee of a decision.' Though attempts have been made through the introduction of the Lisbon Treaty and through various case law arguments, the test for individual concern has yet to be expanded in a meaningful way to enable individuals to take part in their democratic right of challenging EU law. If anything, the change in the wording of Article 230 to Article 263 is more confusing and restrictive.