PART 2: PARTIES ENFORCING EU LAW RIGHTS THROUGH

THE COURT OF JUSTICE OF THE EUROPEAN UNION

(CJEU)
A. Direct Enforcement Actions at the CJEU
To enforce EU law rights, there are two types of courts an individual can go:

1) National courts: the doctrine of direct effect states where provisions of

binding EU law which are sufficiently clear, precise and unconditional to be
considered justiciable can be invoked and relied on by individuals before
national court (see above Part 1)

2) The CJEU: under the system of dual vigilance, an individual may bring a
direct action before the CJEU itself (Part 2)

At the CJEU, a direct action/judicial proceedings can be brought against

1) MSs
2) The EU institutions

1) Judicial proceedings against a MS by the Commission

These proceedings are usually taken by the Commission, although a MS can
also bring proceedings against another MS
Molkerei-Zentrale [1968] --- proceedings brought by individuals are
intended to protect individual rights in a specific case. Proceedings
brought by the Commission are intended to ensure the general and
uniform observance of Community law.
Commission v Germany [1985] --- the direct effect doctrine gives
individuals the ability to enforce Community provisions before national
courts. However, this is not a defence to a Commission proceeding under
Art 258 for failure of implementation

The scope of infringement

To trigger Art 258, the Commission has to consider that a Member State has
failed to fulfil an obligation under the Treaties
Force majeure defences are generally unavailable for a MS to use against the
enforcement proceedings.
Commission v Belgium [1970] --- (Belgian Woodpulp case) Belgium passed a
law contrary to EU law. Defended themselves on the grounds that parliament
had been dissolved at that point and so it was not possible to put it right. ECJ
Held: Obligations arise whatever the agency of the state whose action or
inaction is the cause of the failure to fulfil its obligation even in the case of a
constitutionally independent institution. Commentary: in other words, a MS
cannot plead circumstances or practices existing it its internal legal system to
justify a failure to comply with its obligation. Pleas of force majeure are
rejected, save in the case where a bomb attack presented insurmountable
difficulties for compliance with the Treaty (Commission v Italy [1970])
 Commission v Belgium [1987] --- Powers dealing with pollution laws had been
devolved to regional bodies, and therefore the central government could not
do anything about it. ECJ Held: such arrangements could not be used to
avoid implementation. Commentary: Court always looks at the state in
totality, and does not seem to accept procedural defences

The ECJ also generally rejects arguments by MS that they were not deliberately
delaying or opposing EU law, or that the mistake was minor, or that other MSs
are also in breach, or that the EU measure is illegal

There are no cases yet as to whether a failure to make reference by a national

court would constitute infringement under Art 258

The Procedure
Art 258 TFEU:
If the Commission considers that a Member State has failed to fulfil an
obligation under the Treaties, it shall deliver a reasoned opinion on the matter
after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid
down by the Commission, the latter may bring the matter before the Court of
Justice of the European Union

The Commission is not intending to provide individuals with redress, but to

objectively ensure state compliance with EU law, and therefore individuals
have no say in determining whether or not the Commission actually initiates
proceedings against a MS. Note the word may in Art 258. This implies discretion
for the Commission whether or not to bring infringement proceedings against a
MS.
Commission v UK [1988] --- UK argued that there was a political motive
behind the Commissions action. ECJ Held: the argument cannot be
upheld. The bringing of an action against a MS is a matter for the
Commission in its entire discretion, which is objective in nature.
Star Fruit v Commission [1989] --- A company attempted to force the
Commission to commence infringement proceedings against France using
Art 265 TFEU. ECJ Held: actions for failure to act against the
Commission brought by non-privileged individuals will not be entertained.
The Commission is not bound to commence the proceedings.
Commentary: the lack of a role for individuals in the initiation of
enforcement proceedings has provoked adverse comment.

The infringement procedure above is divided into 4 distinct stages:

1) Pre-contentious stage: MS can explain its position and reach an
accommodation with the Commission. Elite cooperation.
 2) Formal notification: If the matter is not resolved informally, a letter will be
sent by the Commission to the MS to formally notify the MS about the specific
infringement. The state is usually given 2 months to reply.
3) Issuing a reasoned opinion: (Art 258) if the matter is not resolved, the
Commission will issue a reasoned opinion setting out clearly the grounds on
which the alleged infringement rests, and marks the beginning of the time
period within which the MS must comply if the MS is to avoid the final stage
4) Referral to the CJEU: the final stage is the referral of the matter by the
Commission to the CJEU

The breach of EU law in Art 258 includes omissions and actions by MSs, failure
to implement directives, breaches of Treaty provisions or legislations or rules

The Consequences
Before the Maastricht Treaty introduced Art 260, the weakness of the Art 258
procedure was that the only ruling the ECJ could make against a defaulting MS at
the referral stage was the finding of violation the ECJ could NOT order the MS
to adopt any specific measures nor dictate the consequences of its judgment.
This is the first declaratory ruling. So if the MS does not rectify the breach, the
Commission can sue the MS again for failing to fulfil an obligation under the
Treaty (i.e. failing to comply with the ECJ ruling), thus leading to the second
declaratory ruling. But there are no adverse consequences which the MS will
face. This brings about circular actions which are expensive and meaningless.
After the Maastricht Treaty introduced Art 260, there was a penalty payment to
be imposed against the MS which failed to comply with a previous judgment of
the Court. This replaced the procedure for a second declaratory ruling and gave
teeth to the Art 258 procedure. It also provided incentives for MSs to comply with
ECJ rulings.
Article 260 TFEU:

1. If the Court of Justice of the European Union finds that a Member State has
failed to fulfil an obligation under the Treaties, the State shall be required to take
the necessary measures to comply with the judgment of the Court.

2. If the Commission considers that the Member State concerned has not taken
the necessary measures to comply with the judgment of the Court, it may bring
the case before the Court after giving that State the opportunity to submit its
observations. It shall specify the amount of the lump sum or penalty payment to
be paid by the Member State concerned which it considers appropriate in the
circumstances. If the Court finds that the Member State concerned has not
complied with its judgment it may impose a lump sum or penalty payment on it.

This procedure shall be without prejudice to Article 259.

Penalty payment
 Commission v Greece [2000] --- In 1992, Greece was taken to court for failure
to implement a directive on the disposal of dangerous and toxic substances,
and found guilty. By 1995, it had not done anything about it. Commission
started a 260(2) procedure for the first time, and the court was forced to
create a fining system. The ECJ made its first ruling on the pecuniary penalty.
Held: the ECJ agreed with, but is NOT bound by the advice of the
Commission. The Commission suggested that that penalties should always be
a deterrent and never purely symbolic. The Commission guideline stated that
the daily penalty involves a uniform flat-rate per day of delay, multiplied (as
coefficients) by these factors:
1) The seriousness of the original infringement (in terms of effects and
symbolism)
2) Its duration
3) The need to ensure that the penalty itself is a deterrent to further
infringements.
4) The ability of the MS to pay and the number of votes the MS has in the
Council

Lump-sum payment

Commission v France [2005] --- France was subject to a lump sum penalty
payment for a longstanding violation. ECJ Held: the procedure has the
objective of inducing a default MS to comply with the judgment both the
lump sum and the penalty payment are intended to achieve this very
objective. While the imposition of penalty payment seems particularly suited to
induce the MS to end the breach, the imposition of the lump sum is based
more on assessment of the effects on public and private interests of the
failure of the MS to comply with its obligation. The absence of any Community
guidelines for the imposition of the lump sum penalty does NOT lead to legal
uncertainty here. No political legitimacy is required for the ECJ to impose a
financial penalty which is not suggested by the Commission. The lump sum
penalty is minimal! Commentary: the Art 260 mechanism clearly represents
the sharp end of the enforcement procedure which has a distinctly less
diplomatic favour. Yet, it is also evident that the burden remains on the
Commission to marshal the appropriate evidence against the MS before the
ECJ.

Interim measures

Under Art 279 TFEU, the CJEU has power to prescribe interim measures as it
sees necessary.
Under Art 278, actions before the CJEU shall NOT have suspensory effect.
The ECJ may, however, order that the application of the contested act be
suspended. (See Factortame v UK)
2) Judicial proceedings against a MS by a MS
A MS may also initiate an action against another MS which it considers to be in
breach of the Treaty
Art 259 TFEU:
A Member State which considers that another Member State has failed to fulfil an
obligation under the Treaties may bring the matter before the Court of Justice of the
European Union.

Before a member state brings an action against another member state for an alleged
infringement of an obligation under the Treaties, it shall bring the matter before the
Commission.

The Commission shall deliver a reasoned opinion after each of the States concerned
has been given the opportunity to submit its own case and its observations on the
other party's case both orally and in writing.

If the Commission has not delivered an opinion within three months of the date on
which the matter was brought before it, the absence of such opinion shall not
prevent the matter from being brought before the Court.

The procedure
The MS suing does NOT have to first contact the MS being sued, but it has to be
brought before the Commission!
Both states MUST be heard and given the opportunity to make oral and written
submissions before the reasoned opinion is given by the Commission
Art 259 has been rarely used because of the ill-will it could occasion between
MSs

The consequences
There is no penalty or lump sum payable
Therefore, the judgment is mere declaratory and opens up to indefinite circular
action

3) Judicial proceedings against an EU institution

There are mainly 3 types of actions against an EU institution/organ.

1) Actions for Judicial Review of legality
- Actions for annulment (Art 263)
- Actions for failure to act (Art 265)
2) Actions for Damages (Art 340)
 3) Staff cases

I. Actions for Judicial Review of legality

Community institutions are subject to the Rule of Law, and therefore their acts
must be subject to review

Parti Ecologiste Les Verts v Parliament [1986] --- Held: It must first be
emphasised in this regard that the European Economic Community is a
Community based on the rule of law, inasmuch as neither its member States
nor its institutions can avoid a review of the question whether the measures
adopted by them are in conformity with the basic constitutional charter, the
Treaty.

a) Action for annulment

- To directly challenge the legality of EU acts, see Article 263(1) TFEU:

The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the
Council, of the Commission and of the European Central Bank, other than recommendations and
opinions, and of acts of the European Parliament and of the European Council intended to
produce legal effects vis-a-vis third parties. It shall also review the legality of acts of bodies, offices
or agencies of the Union intended to produce legal effects vis--vis third parties.

It shall for this purpose have jurisdiction in actions brought by a Member State, the European
Parliament, the Council or the Commission on grounds of lack of competence, infringement of an
essential procedural requirement, infringement of the Treaties or of any rule of law relating to its
application, or misuse of powers.

The Court shall have jurisdiction under the same conditions, in actions brought by the Court of
Auditors and by the ECB and by the Committee of the Regions for the purpose of protecting their
prerogatives.

Any natural or legal person may, under the same conditions laid down in the first and second
paragraphs, institute proceedings against an act 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.

Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and
arrangements concerning actions brought by natural or legal persons against acts of these bodies,
offices and agencies intended to produce legal effects in relation to them.

The proceedings provided for in this Article shall be instituted within two months of the publication
of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which
it came to the knowledge of the latter, as the case may be.

1) Reviewable acts: what can be reviewed

Art.263 TFEU provides that only legally binding acts are reviewable. This covers
regulations, decisions and directives, but not recommendations and opinions. Any
measure the legal effects of which are binding on, and capable of affecting the
interests of, the applicant by bringing about a change in his legal position is an
act or decision which may be the subject of an action under Art 263
Commission v Council [1971] --- MSs acting through the Council adopted a
resolution which the Commission did not like. ECJ Held: An action for
annulment must therefore be available in the case of all measures adopted
by the institutions, whatever their nature or form, which are intended to have
legal effects. The objective of the negotiations as defined by the Council was
to lay down a course of action binding on both the institutions and the MSs.
The proceedings therefore had definite legal effects

IBM v Commission [1981] --- C sought annulment of a Commission

notification letter to determine whether it was in breach of Art 86. ECJ Held:
any measure the legal effects of which are binding on, and capable of
affecting the interests of , the applicant by bringing about a change in his
legal position is an act or decision which may be the subject of an action
under Art 263. The form in which such acts or decisions are cost is, in
principle, immaterial as regards the question whether they are open to
challenge under that article. C failed. The letter was merely the initiation of
the competition procedure and the statement did not in itself alter Cs legal
position by indicating that C was in danger of being fined later. Commentary:
the court clearly looks at substance, not form. For similar reasons a press
statement about an airline merger by the competition Commissioner (Air
France v Commission) and a declaration by the President of Parliament
about the disqualification of a member by France (Le Pen v Parliament) were
not reviewable.

Philip Morris International and others v Commission [2003] --- Although it is

true that the Court of Justice and the Court of First Instance have referred, in
relation to preparatory acts, to the possibility of examining whether `in
exceptional circumstances, where the measures concerned lack even the
appearance of legality, a judicial review at an early stage ... may be
considered compatible with the system of remedies provided for in the Treaty'
(IBM v Commission; see also Cimenteries CBR and Others v Commission),
the Community courts have never confirmed that it is possible, by way of
exception, to carry out such review of preparatory acts or other acts which
have no legal effects

Article 276 TFEU: ECJ cannot review the validity or proportionality of

operations by the police or law enforcement agencies, or the exercise of
responsibilities of MS with regard to the maintenance of law and order and
the safeguarding of internal security

Art 24 TEU; 275 TFEU: Eu has no jurisdiction over CFSP (common foreign
and security policy) acts, except over the compliance with Art 40 TEU and
 proceedings brought under Art 263(4). Kadi points out that review of such
measures are not precluded because they were adopted pursuant to the
UNSC Resolutions: the existence of the Resolutions could not preclude
review of the EU regulations giving effect to them within the EU.

2) Locus standi: who may sue?

Privileged applicants: MSs, the EP (Nice Treaty) the Council and the
Commission. They are always allowed to bring an action against any act even
where the decision is addressed to others

Quasi-privileged applicants: the Court of Auditors, the ECB, the Committee of

the Regions have limited right to bring actions in order to safeguard their
prerogatives

The European Council: not classified into the categories above

Non-privileged applicants: natural or legal persons can sue under Article 263(4)
provided that meet the rules of standing:

To bring an action directly before the European Court an individual or a company

must show, according to Article 263, that the act complained of is:

a) An act addressed to the applicant; or

b) An act not addressed to the applicant but of direct concern and individual
concern to the applicant; or

c) A regulatory act which is of direct concern to the applicant and does not entail
implementing measures. (no need to show individual concern here)

Direct Concern

A measure is generally of direct concern where it directly affects the legal

situation of the applicant and leaves no discretion to the addressees of the
measure who are entrusted with its implementation

International Fruit Company v Commission [1971] --- there was a

regulation which limited the import of apples from third world countries by
way of requiring import licences. Under this system, MSs were to notify the
Commission of the quantities for which import licences were requested,
and then the Commission could decide on the issue. The challenge was to
a regulation applying this scheme to a particular week. Was the applicant
 directly concerned? ECJ Held: the decision on the grant of the licences is
a matter for the Commission alone and national authorities (addressees)
do not enjoy any discretion in the matter. Cs legal position is directly
affected by the measures whereby the Commission decides on the issues
of the licences. There was direct concern.

Municipality of Differdange v Commission [1984] --- Commission

authorised Luxembourg to grant aid to steel firms on the condition that
they undertook reductions in capacity. C (municipality) argued that it was
directly concerned because the reduction in production capacity would
lead to a reduction in local taxes. ECJ Held: as the decision did not
identify the establishments in which the production must be reduced, the
decision left to the national authorities and undertakings concerned such a
margin of discretion with regard to the manner of its implementation and
the choice of factories to be closed. Hence, the decision did not have
direct concern to C.

Individual Concern

It is difficult for individuals to contend that the EU courts should look to the
substance of a measure across the categories of legal act. The test for legislative
act is formalistic, not substantive!

The test for individual concern is that C must be in some way differentiated from
all other persons, and by reason of these distinguishing features singled out in
the same way as the initial addressee. When commercial activity is concerned, it
is very difficult for C to distinguish himself from all other persons!
Plaumann v Commission [1963] --- German government requested the
Commission to authorise it to suspend the collection of duties on clementine
imported from other non-member states. The Commission rejected the
request. C was an importer of clementine and sought to challenge the
Commission's rejection of the suspension. ECJ Held: persons other than
those to whom a decision is addressed may only claim individual concern (IC)
if that decision affects them by reason of certain attributes which are peculiar
to them or by reasons of circumstances in which they are differentiated from
all other persons, and by virtue of these factors distinguishes them individually
(must differentiate themselves from everyone else who was affected) just as
in the case of the person addressed. In the present case, the C is affected by
the disputed Decision as an importer of clementines, that is to say, by reason
of a commercial activity which may at any time be practiced by any person
and is not therefore such to distinguish the applicant in relation to the
contested Decision as in the case of the addressee.

Commentary: it was impossible to distinguish Plaumann because commercial

activity is not unique (it could be carried out by any person at any time!). C has to
show that his is a member of a limited class, a class that is closed (may engage)
and identifiable, and the class must be one of distinguishable individuals this only
gives standing to bring a case against the EU bodies.

Craig: 1) the test is economically unrealistic: the argument that clementine import
can be done by any person is unconvincing. That the number may alter significantly
is a result of supply and demand! 2) Conceptually, it renders it literally impossible for
an applicant to succeed except in a very limited category of retrospective cases.
Currently C's standing is judged at the time the application is lodged, but the court is
now saying that C must fail because some other people might engage in the trade at
some junction in some future, ill-defined date! The consideration of future traders
notionally entering the picture will always render a category open (and not closed),
and this ignores the practical economical considerations that determine the number
of those who supply a product! The fact that I may wish to become striker for
England does not men I currently have the attributes associated with the role.
Union Deutsche Lebensmittelwerke v Commission [1987] --- (butter promotion
case). C argued that it was individually concerned as the number of suppliers
of margarine in West Berlin was known and was unlikely to change. ECJ
Held: C was affected because the Commission decision produced an effect
on the general market. It was of concern to C as much as it was of concerns
of the other margarine suppliers in West Berlin. Hence there is no individual
concern to C.

To explain the test in conceptual terms, an open category is one where

membership is NOT fixed at the time of the decision. A closed category is one
where it is thus fixed. C will fail for lack of individual concern if he is a member of
an open rather than closed category of applicants. There were initially the
abstract terminology test and the closed category test.
Calpak v Commission [1980] --- C were producers of William pears and
complained that the calculation of production aid (to avoid over-production)
granted to them was void. C argued that this calculation had been abandoned
by the Commission, and that they were a closed group identifiable by the
Commission. ECJ Held: the measure here applies (i.e. would be accepted as
a true regulation) to objectively determined situations and produces legal
effects with regard to categories of persons described in a generalised and
abstract manner. Community institutions should not be allowed to immunise
matters from attack by the form of their classification. If a regulation was
found to be a true regulation on the basis of this abstract terminology test
then courts would simply conclude that C was NOT individually concerned!
Commentary Craig: The court looked behind the form of the measure in
order to determine in substance whether it is a measure or not. The problem
is that it came perilously close to looking behind form to form. It is also always
possible to draft norms to comply with the generalised and abstracted
manner, and immunise them from attack from individuals (who will then not be
individually concerned)! However, this position has changed in Codorniu.

Codorniu v Council [1994] --- One of the many Spanish sparkling wine
producers, C, challenged a regulation stipulating that the term cremant should
be reserved for sparkling wines of a particular quality coming from France or
Luxembourg. Council sought to rely on the Calpak test to argue that C was
 not individually concerned. ECJ Held: although the contested provision is of a
legislative nature in that it applies to the traders concerned in general, that
does not prevent it from being of individual concern to some of them! Yet, C
still had to satisfy the Plaumann conditions. Commentary: Craig: the effect of
this decision is that the court was willing to accept there was individual
concern even though the legal act could be a true regulation as judged by the
abstract terminology test in Calpak. Yet Plaumann still has to be complied
with.
Buralux v Council [1996] --- ECJ Held: the mere fact that it was possible to
determine the number or identity of those affected did NOT mean that the
regulation was of IC to them, so long as the measure was abstractly
formulated. IC was determined by the Plaumann test!

In certain areas like anti-dumping, competition, and state aids though, courts
have been more liberal in according standing, as EU interest in these areas was
clear.
Metro v Commission [1977] --- (competition policy) Metro was a distributer of
electronic goods made by SABA. Metro was concerned that the contract was
illegal under EU competition law, breaching Art 85 of the Treaty. Metro sent a
letter to the commission asking them to investigate. They investigated and
issued a decision to SABA saying there is nothing wrong with the contracts.
Metro thus sought to annul this decision, and this involves Metro proving
whether it was individually concerned. ECJ Held: Metro was distinguisable
and identifiable because they had written a letter, and had become a member
of a closed and identifiable class people who had complained before the
decision was passed.
AE Piraiki-Patraiki v Commission [1985] --- (contracts already concluded)
Greek yarn exporters to France challenged a Commission decision that
allowed France to impose quotas on the amount of yarn being exported. C
brought an action for annulment against the commission on 3 grounds: 1) they
were the main exporter of yarn court 2) it would be impossible for anyone else
to form such an industrial and commercial organisation in the duration for
which the decision will apply 3) a group of them had already entered into
contracts and already had yarn in transit, which succeeded because it was a
fixed/identifiable/closed/distinguishable class ECJ Held:

Re 1) and 2): these propositions cannot be accepted. As for the exportation of

those products to France, that is clearly a commercial activity which can be
carried on at any time by any undertaking whatever. It follows that the
decision at issue concerns the applicants in the same way as any other trader
actually or potentially finding himself in the same position. The mere fact that
the applicants export goods to France is not therefore sufficient to establish
that they are individually concerned by the contested decision.

Re 3): in those circumstances it must be concluded that the Commission was

in a position to obtain sufficiently exact information on the contracts already
entered into which were to be performed during the period of application of
the decision at issue. It follows that the undertakings which were party to
contracts meeting that description must be considered as individually
concerned for the purpose of the admissibility of this action, as members of a
 limited class of traders identified or identifiable by the Commission and by
reason of those contracts particularly affected by the decision at issue.

Commentary: Individual concern is entirely out of touch with commercial

reality, founded on academics; there have been cases where the plaintiff is
the only one engaged in the business, but still failed the test as people
may/could do it in the future!! There have been many attempts to alter the
interpretation of individual concern may have made it so difficult to pass the
criteria that there is an illegal decision that will stand: made standing the main
criteria, rather than the legality of the decision. The rationale for the restrictive
test is to prevent the floodgates scenario, but it seems to have landed on the
other extreme end of the spectrum

Extramet v Council [1991] --- (anti-dumping: preventing those from outside the
EU from selling goods within the EU at too low a price to the detriment of
other EU traders). E imported calcium from outside the EC which it then
processed itself. There was only ONE Community producer of calcium, P, who
refused to supply the raw material to E, claiming that a dumping duty was
imposed because E's supplies were dumped in the EC. E sough to annul this
duty. ECJ Held: E satisfied the Plaumann test for individual concern. E was
the largest importer of the product (subject matter) and the end-user of the
product. Its business activities depend to a very large extent on those imports
and are seriously affected by the contested regulation. E therefore had
individual concern.

"Although... Regulations imposing anti-dumping duties are in fact, as regards

their nature and their scope, of a legislative character inasmuch as they apply
to all the traders concerned, taken as a whole, their provisions may none the
less be of individual concern to certain traders. That is the case, in general,
with regard to producers and exporters who are able to establish that they
were identified in the measures adopted by the Commission or the Council or
were concerned by the preliminary measures, and with regard to importers
whose retail prices for the goods in question have been used as a basis for
establishing the export price. A trader who is both the largest importer and the
end-user of the product forming the subject-matter of the anti-dumping
measure and who demonstrates that his business activities depend to a very
large extend on his imports and are seriously affected by the contested
Regulation in view of the limited number of manufacturers of the product
concerned and of the difficulties which he encounters in obtaining supplies
from the sole Community producer, his main competitor for the processed
product, must also be deemed to be individually concerned."

Commentary: Craig: there were three types of anti-dumping cases where the
ECJ found individual concern: 1) where a principal complainant firm initiated
the complaint about dumping (Timex) 2) where the producer of the product is
subject to the anti-dumping duty and were identified or involved in the
preliminary investigation (Allied Corporation) 3) where the importer of the
product against which anti-dumping duty had been imposed sought to contest
the legality of the anti-dumping regulation (Extramet)
 Thomas: Federolio v Commission [1997]: You cannot get around the rules of
standing by suing as a federation of all the industry concerned unless the
association is defending its own interests. Similarly see case C-321/95

Sofrimport v Commission [1990] --- (imported goods in transit) ECJ Held: It

should be observed first of all that the applicant is in the position referred to in
Article 3(3) of Council Regulation 2707/72 laying down the conditions for
applying protective measures for fruit and vegetables which requires the
Commission, in adopting such measures, to take account of the special
position of products in transit to the Community. Only importers of Chilean
apples whose goods were in transit when Regulation No 962/88 was adopted
are in that position. Those importers thus constitute a restricted group which is
sufficiently well defined in relation to any other importer of Chilean applies and
cannot be extended after the suspensory measures in question take effect.
Secondly, since Article 3 of Regulation No 2707/72 gives specific protection to
those importers, they must therefore be able to enforce observance of that
protection and bring proceedings for that purpose. Importers whose goods
were in transit when the contested regulations came into force must,
therefore, be considered to be individually concerned by those regulations in
so far as they concern those goods. The application for annulment is therefore
admissible only in so far as it challenges the application of protective
measures to products in transit.

Greenpeace [1998] --- (demonstrates the difficulties raised by individual

concern for interest groups).

Summary of the law on IC: In view of the above case laws it would appear that:

1. It is not sufficient that the applicant is carrying out an economic activity which
may at any time be practised by any person.

2. It is immaterial that it is possible to determine the number or even identity of the

persons affected, or even if for practical or economic reasons nobody could take
up the same activity in the foreseeable future (Piraiki-Patraiki).

3. The claimant may however be individually concerned if he is specifically

mentioned in the measure. -or belongs to a closed group where nobody else
could, at the coming into force of the contested act, find themselves for the first
time in the same situation as the group.

4. The class may be closed for legal reasons (eg. the holding of intellectual property
 rights in Codorniu) or factual reasons (eg. contracts already concluded as in
Piraiki-Patraiki or goods in transit as in Sofrimport).

5. One of the reasons for the more liberal caselaw re competition law, state aids and
anti-dumping is the existence of extensive provisions in relation to these three
areas for the participation of economic operators in the procedure leading to the
adoption of measures, typically by the Commission. Applicants who did not have
standing for a direct action under Art 263 could contest the legality of the
measure indirectly through Art 267 TFEU

6. But in the case of CAP decisions and Regulations, it is not the case that the
economic operators are required to participate in the procedure leading to the
adoption of the measure.

Shift to a more liberal test?

Plaumann remains the test for individual concern, despite criticisms as to its
strictness and the efforts of the CFI and Advocate-General to amend it.
Union Pequenos Agricultores (UPA) v Council [2002] --- UPA (association of
farmers) sought annulment of a regulation which amended the common
organisation of the olive oil market. The UPA was said to lack IC. UPA argued
that it was denied effective judicial protection because it could not readily
attack the measure via Art 234. AG Jacobs: [102]. The court's fundamental
assumption that the possibility for an individual applicant to trigger a reference
for a prelim ruling provides full and effective judicial protection against general
measures is open to criticism...the objections cannot be overcome by granting
standing by way of exception... nor can they be overcome by postulating an
obligation for the legal orders of the MS to ensure that references on the
validity of EU measures are available in their legal systems...the only
satisfactory solution is...to recognise that an applicant is individually
concerned by a Community measure where the measure has, or is liable to
have, a substantive adverse effect on his interest. This removes the problems
above, the anomaly under the current case-law that the greater the number of
persons affected the less likely it is that effective JR is available. It also uses a
much simpler test and removes complexity. The objections to enlarging
standing are unconvincing...there are a number of reasons why the time is
now ripe for change: the case-law is increasingly out of line with more liberal
developments in the laws of the MS; borderline cases are unstable etc.

[60] In my opinion, it should therefore be accepted that a person is to be regarded as

individually concerned by a Community measure where, by reason of his particular
circumstances, the measure has, or is liable to have, a substantial adverse
effect on his interests.

ECJ Held: did not follow AG Jacobs proposed new test. Plaumann remains to be
the test. It is not acceptable to adopt an interpretation to the effect that a direct action
for annulment will be available if it can be shown that those rules do not allow the
individual to bring JR proceedings. Such an interpretation would require the court to
go beyond its jurisdiction and examine national procedural law!
 Commission v Jego Quere [2004] --- ECJ Held: recognised the principle of
effective protection but insisted that the criteria for standing would not be
relaxed even where it is clear that the national rules did not allow C to contest
the validity of he measure without having contravened it. The right to effective
judicial protection could NOT, have the effect of setting aside a condition
expressly laid down by the Treaty!

Commentary: Thomas: The Court of First Instance seemed to have indicated

towards a dramatic relaxation of the locus standi rules, by allowing a measure to be
challenged by an individual 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
regard. However the upper Court overturned that decision and reiterated Plaumann
adding: [30] By Art.230 EC and 241 EC, on the one hand, and by Art 234 EC, on the
other, the Treaty has established a complete system of remedies and procedures
designed to ensure review of the legality of acts of the institutions, and has entrusted
such review to the Community courts.

Craig: the premise underlying both UPA and Jego is that the Treaty provided for a
complete regime of legal protection in terms of access to courts via Art 267 and 263
TFEU. The difficulties of this hypothesis are as follows:
1) The ECJ ignored AG Jacob's concern of the procedural and substantive difficulties
faced by individuals who seek to use Art 267
2) Exhorting national courts to interpret national procedural rules to allow individuals
to challenge EU norms cannot resolve the procedural difficulties adverted to above,
and difficulties flowing from the discretionary nature of Art 267.
3) Challenges via Art 267 increases the ECJ's workload and means that its scarce
resources are diverted to answering the insignificant prelim rulings
4) The ECJ reasoned that modification to the traditional case law on direct challenge
would go beyond the boundaries of legitimate Treaty interpretation. The ECJ said we
cannot set aside the condition of individual concern. But who says we are setting it
aside? It is just the meaning to be given to the phrase that is the question in issue! It
is also no apparent that AG Jacob's formulation would make for any transgression of
the bounds of Treaty interpretation.
5) However impressive the principles of JR are in a legal system, C has no use for
them because of the unduly narrow standing rules.
6) The ECJ in UPA did not mention the consequences of the liberal test under Art
263. It will not significantly increase the workload of the court - some cases would be
joined in a single action etc
7) There are good reasons why the ECJ is wary of going to far but they can influence
the number of actions that are brought through the standards of review that are
applied

Challenging a regulatory act - Changes made by Treaty of Lisbon solving the

problem?
Prior to the Treaty of Lisbon the then art. 230(4) provided:
Any natural or legal person may, under the same conditions, institute proceedings
against a decision addressed to that person or against which, although in the form of
a regulation or a decision addressed to another person, is of direct and individual
concern to the former.
From a reading of the above what are the changes introduced by the Treaty of
Lisbon with regards to a non-privileged applicants standing?

The meaning of regulatory act is uncertain, but the better view is that it applies
only to secondary norms and not to primary legislative acts
Inuit v Parliament and Council [2011] --- ECJ Held: the meaning of regulatory
act for the purposes of the fourth paragraph of Article 263 TFEU must be
understood as covering all acts of general application apart from legislative
acts. Consequently, a legislative act may form the subject-matter of an action
for annulment brought by a natural or legal person only if it is of direct and
individual concern to them. Commentary: so it seems that regulatory acts
include delegated (Article 290 TFEU) and implementing acts (Article 291
TFEU) as long as they are acts of general application

Individual concern is not required when there is a regulatory act that is of direct
concern and does not entail implementing measures.
Microban v Commission [2011] --- The measure challenged by the applicants
in Microban case was a Commission decision on non-inclusion of triclosan in
the positive list of authorised substances. The decision was adopted using
Commissions implementing powers. Therefore, according to the classification
of legal acts provided for in the Treaty, it was a decision falling within the
ambit of implementing acts. As, due to its scope, it was also an act of general
application, the Court concluded, referring to the Inuit Tapiriit Kanatami case,
that the contested decision should be considered to be a regulatory act.

As regards the concept of direct concern as re-introduced in the Article 263(4)

TFEU, the Court decided to continue to interpret it in the same way as it
appeared in Article 230(4) EC

Commentary: Craig: the most natural interpretation of 'not entailing implementing

measure' is that regulations are directly applicable (i.e. once they are made by the
EU they apply within the MS without the need for transformation or adoption into
national law). Directives will, under this sense, entail implementing measures while
some regulations do not.

Grounds for challenge (outline)

Article 263(2) provides 4 grounds for annulment:
1. Lack of competence Institutions may adopt measures only where they are
empowered to act by the EC Treaty or secondary legislation. A measure may be
challenged on the ground that the adopting institution lacked legal authority see
ERTA case above
2. Infringement of an essential procedural requirement A measure may be
challenged on the ground that the adopting institution did not follow the correct
 procedures as laid down in the EC Treaty or in secondary legislation, eg. the
Commission did not give reasons for its decisions (Germany v Commission Re
Tariff Quotas on Wine), measure did not state its legal basis (Commission v
Council Case 45/86), failure to consult the Parliament (Roquette Freres SA),
choice of incorrect legal basis resulting in failure to consult the Parliament
(Titanium Dioxide case).
3. Infringement of the Treaty or any rule relating to its application which
would include all the Treaties and secondary legislation adopted under them.
4. Misuse of powers not necessarily an illegal use, but rather an improper use of
powers for achieving an objective other than the one stated in the provision of
legal power.

Article 265: Failure to Act

An action for a wrongful failure to act is provided in Art 265 TFEU

Art 265: Should the European Parliament, the European Council, the Council,
the Commission or the European Central Bank, in infringement of the Treaties,
fail to act, the Member States and the other Institutions of the Union may bring an
action before the Court of Justice of the European Union to have the infringement
established. This Article shall apply, under the same conditions, to bodies, offices
and agencies of the Union which fail to act.

The action shall be admissible only if the institution, body, office or agency
concerned has first been called upon to act. If, within two months of being so
called upon, the institution, body, office or agency concerned has not defined its
position, the action may be brought within a further period of two months.

Any natural or legal person may, under the conditions laid down in the preceding
paragraphs, complain to the Court that an institution, body, office or agency of the
Union has failed to address to that person any act other than a recommendation
or an opinion.

Reviewable omissions
It has been accepted in Comitology that Parliament could bring an action for
failure to adopt a measure that was not itself a reviewable act
C has to show that there was an obligation to act
Eridania v Commission [1969] --- C sought the annulment of Commission
decisions granting aid to certain sugar refineries in Italy, claiming that their
competitive position would be deleteriously affected. C also argued that was a
failure to act ECJ Held: C was not individually concerned. Without stipulating
under which provision of Community law the Commission was required to
annul, C was effectively alleging that the decisions were infringing the Treaty.
To allow C to refer the failure to the court as an illegal omission to deal with
the matter would amount to providing C with a method of recourse parallel to
that of Art [263]. Hence, Art [265] was not satisfied.