Вы находитесь на странице: 1из 21

Maastricht Working Papers Faculty of Law

From Plaumann, through UPA and Jgo-Qur, to the Lisbon Treaty:

The Locus Standi of Private Applicants under Article 230(4) EC through a political lens

Mariolina Eliantonio & Nelly Stratieva


All rights reserved. No part of this paper may be reproduced in any form without the permission of the author(s).

This Working Paper series from the Faculty of Law, University of Maastricht, aims to further excellence in scholarship. It allows Maastricht-based authors to bring their work-in-progress to a wide audience, facilitating fruitful discussion and critical input on nascent ideas and projects to the benefit of both author and reader. To this end, readers are encouraged to treat the series as interactive and to contact authors with their comments. Those wishing to submit papers for consideration are invited to send work to yleen.simonis@maastrichtuniversity.nl. Our submission guidelines and further information are available at http://www.law.unimaas.nl/maastrichtworkingpapers

Mariolina Eliantonio & Nelly Stratieva Published in Maastricht, December 2009 Faculty of Law Universiteit Maastricht Postbox 616 6200 MD Maastricht The Netherlands Author email: m.eliantonio@maastrichtuniversity.nl & n.stratieva@alumni.maastrichtuniversity.nl This paper is to be cited as Maastricht Faculty of Law Working Paper 2009/13

From Plaumann, through UPA and Jgo-Qur, to the Lisbon Treaty: The Locus Standi of Private Applicants under Article 230(4) EC through a political lens Dr. Mariolina Eliantonio, LL.M. and Nelly Stratieva Abstract: The current rules of standing for non-privileged applicants under Article 230(4) EC are at the core of an ongoing debate because of the restrictive interpretation given to these rules by the European Court of Justice. This paper reviews the locus standi conditions for private applicants, the fundamental case law on this issue and the failed attempts to reform the current system. Furthermore, building upon the conceptual framework of rational-choice and historical institutionalism, the paper presents possible explanations for the reluctance of the ECJ to substantially reform its restrictive approach to locus standi. Keywords: action for annulment; locus standi; rational-choice institutionalism; historical institutionalism

1. Introduction
Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in later on. It is possible, says the gatekeeper, but not now.

(Franz Kafkas Before the Law quoted in: Johnston 2007) Much like Kafkas gatekeeper, the Community Courts stand as guards for individuals access to justice in the EU legal system and stop every man from the [Member] country who seeks annulment of a Community act. The Community Courts role in granting locus standi to private applicants has been at the core of a heated ongoing debate (e.g. Ward 2003; Arnull 2001; Corts Martin 2004; Ward 2001; Abaquesne de Parfouru 2007; Cygan 2003; Lewis 2006-2007) since the gatekeepers have developed a list of overly restrictive conditions for individuals to obtain standing under Article 230(4) of the EC Treaty. Many have thus argued that the current system does not guarantee the effective judicial protection of individuals rights and a sufficient access of citizens to the judicial processes (Usher 2005; Ragolle 2003; Albor-Llorens 2003). The limitations to gaining access to judicial review of EC measures acquire an even more problematic nature in light of the dubious democratic credentials of the European Union. In a Union where only one of the key institutions is directly elected (the European Parliament), it is even more crucial than in the case of nation states to develop a legal system that curbs misuses of power by the institutions. One of the mechanisms to ensure this result and to allocate a more active role to civil society and individual citizens is to allow for direct challenges of the legality of Community acts. This article claims that the European Court of Justice (ECJ) maintains excessively restrictive conditions for locus standi of private applicants and, by applying political science theories, it attempts to unveil the possible motivations for the Courts conservative stance. The first part will review the conditions for locus standi of private applicants and the fundamental case law on this issue. This analysis is necessary in order to show the restrictive nature of the rules on access to judicial review under Article 230 EC and elaborate on the possible reasons for its existence. Furthermore, the constraints in challenging Community measures will be considered in light of the democratic deficit in the EU. The first part also elaborates on several missed opportunities for reforming the locus standi requirements, namely the opinion of Advocate General Jacobs in Unin de Pequeos Agricultores, 1 the judgment by the Court of First Instance (CFI) in Jgo-Qur, 2 and the new wording of Article 230(4) in the Lisbon Treaty. Using the theoretical tools of political science, the second part will present possible explanations for the reluctance of the ECJ to substantially reform the conditions for locus standi. Building upon the conceptual framework of rational-choice and historical institutionalism, the position of the ECJ in the debate on standing is explained within the wider context of European integration and inter-institutional balance. The article will conclude with some cautionary remarks regarding the weaknesses of each theory in explaining the issue of standing.

Opinion of Advocate General Jacobs in case C-50/00 P, Unin de Pequeos Agricultores v. Council [2002] Case T-177/01, Jgo-Qur v. Commission [2002] ECR II-2365.

ECR I-6677.

2. The Restrictive Attributes of Article 230(4) EC: past, present and future 2.1 The locus standi requirements and their traditional interpretation The Community courts have fenced the Holy Grail of access to judicial review for non-privileged applicants behind several legal obstacles of varying height. A brief overview of the important case law will identify those hurdles and clarify their restrictive attributes. In particular, standing for private applicants is made excessively difficult by the conditions for direct and individual concern, as well as, to some extent, the type of Community measures that can be challenged. In particular, when challenging a decision addressed to someone else, or a regulation, non-privileged applicants are required by Article 230(4) EC to prove, among other things, that the contested measure concerns them directly and individually. As far as the first requirement is concerned, the ECJ has held that a measure will be of direct concern to the applicant when the latters legal position has been directly adversely affected. 3 In other words, there must be a direct link between the challenged measure and the loss or damage that the applicant has suffered. 4 Furthermore, the ECJ has found that there is direct concern when the challenged act constitutes a complete set of rules which are sufficient in themselves and require no implementing provisions. 5 Thus the Court will, with a high likelihood, deem a causation chain to be broken if the contested Community measure leaves any discretion to the addressees of the measure who are responsible for its implementation. 6 By far the most contested condition for locus standi is the test for individual concern. It was developed in the landmark Plaumann case 7 during the early 1960s and has continued, until present day, to be applied in assessing admissibility. What has been termed ever since as the Plaumann test was spelled out by the ECJ in the following formulation:
[p]ersons other than those to whom a decision is addressed may only claim to be individually concerned if that decision 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 just as in the case of the person addressed.

The test from Plaumann has been applied in many later cases and has proven to be very restrictive and very difficult to meet. The Courts subsequent rulings exhibit a restrictive interpretation of the Plaumann formula which was elaborated upon through the so-called

Albor-Llorens correctly notes that the lower profile of the test of direct concern is due to the fact that the ECJ

has been less rigid and more consistent in the interpretation of this concept. Furthermore, since the tests of individual and direct concern are cumulative, the Court has frequently denied standing to private applicant on grounds of lack of individual concern, without even consider the requirement of direct concern (Albor-Llorens 2003, p75).
4 5 6

Cases 41-44/70, International Fruit Company BV v. Commission [1971] ECR 411. Case 294/83, Parti Ecologiste Les Verts v. European Parliament [1986] ECR 1339, para. 31. See, for example, case 69/69, Alcan Aluminium Raeren v. Commission [1970] ECR 385; case 222/83, Case 25/62, Plaumann & Co v. Commission [1963] ECR 95.

Municipality of Differdange v. Commission [1984] ECR 2889.


closed class test. 8 In order to be awarded individual concern, the applicant must prove that he belongs to a group that could not be expanded after the Community act has entered into force. The market reality of supply and demand usually implies, however, that there is naturally a certain number of firms which does not change dramatically (Craig 2003, p494; Biernat 2003, p16). Therefore, an argument that a certain activity can be undertaken by any person and that for that reason the applicant is not individually concerned is not convincing (ibid.) and in effect shuts the door, or at best leaves a tiny crack, for admissibility (Arnull 1995). A further problem for non-privileged applicants throughout the years has been the difficulty to obtain standing to seek judicial review of regulations. In particular, challenges against a regulation could only be allowed if the party could prove that the Community measure is not in essence a regulation, but rather a decision of individual concern and thus merely in form a regulation. This strict requirement, also known as the Calpak test 9 or abstract terminology test, was allegedly created for the benefit of private applicants. The Court envisioned it as a safeguard against a de facto immunity of legislators against challenges by simply drafting the measure in the form of a regulation. The aim of the Calpak test was to look behind the form, in order to assess the substance of the act. However, the European Courts were so excessive in their formalist approach to the test that legislators could anticipate the ECJs limited interpretation and draft the regulation in such a manner as to escape claims by individuals (Craig 2003, pp494-5). The abstract terminology test was somewhat liberalised in the Codorniu case 10 when the Court stated that even when the regulation is in fact a true regulation, a non-privileged applicant can still challenge it if he proves the it concerns him individually. The significance of Codorniu is that the impact, rather than the form of the measure, is taken into account when assessing the locus standi. However, as exemplified by consequent case law, this relaxation was limited. Despite the mellowed problem of distinguishing between a decision and true regulation, the applicant would still be required to prove individual concern according to the pure Plaumann formula. Thus, in effect, in very few cases could judicial review of a true regulation be allowed, due to the almost impassably elevated hurdle of individual concern. 2.2. Signs for Possible Reforms by the Community Courts The locus standi of non-privileged applicants in annulment proceedings has received criticism not only from the academic circles but also from within the Community Courts. The need for reform has become so flagrant that internal division in the Community judiciary has manifested. In particular, two attempts for reform from within (both of which resulting in failure) will be discussed - the opinion of Advocate General (AG) Jacobs on the appeal of Unin de Pequeos Agricultores (UPA) and ruling of the CFI in Jgo-Qur. In his opinion in the UPA case, AG Jacobs outlined the objections to the current rules guiding standing, proposed a new test for standing, and brought forward several arguments alleviating the fears that such a reform could be problematic. Departing from the criticism of the current system, the Advocate General questioned the availability of effective judicial protection when replacing direct challenges for indirect challenges based on Article 234 EC. This line of criticism stems from the ECJs position according to which the restrictive approach to the standing of individuals is justifiable

Case 11/82, Piraiki-Patraiki v. Commission [1985] ECR 207.

Cases 789-790/79, Calpak SpA and Societa Emiliana Lavorazione Frutta SpA v. Commission [1980] ECR 1949. 10 Case C-309/89 Codorniu SA v. Commission [1994] ECR I-1853.

because of a complete system of remedies created by the EC Treaty. 11 In the ECJs view, this system is complete because an EC measure may be challenged either through a direct action under Article 230 EC or through the preliminary ruling procedure pursuant to Article 234 EC. 12 Hence, according to the ECJ, a restrictive interpretation of Article 230(4) EC does not create a gap in the judicial protection because individuals have the option to bring actions against the national implementation measures of EC measures before the national courts, which creates the obligation, pursuant to Article 234 EC and the ECJs ruling in Foto-Frost, 13 to refer the questions of validity of Community measures to the ECJ. The right to effective judicial protection is one of the cornerstones of societies governed by the rule of law and judicial access is a key aspect of that right (Delaney 2004, p3). However, in the AGs view, that right is compromised in the Community legal order. In particular, he highlighted that in some situations it is impossible to indirectly contest Community measures by means of the preliminary ruling procedure, namely in the case of lack of national implementing acts which could be challenged before a national court. In such situations, the absurd necessity would arise that the applicant would have to break the law in order to be able to start proceedings against the sanctions and consequently the measure. It has been considered that this option is theoretically possible but cannot be sustained in a Community based on the rule of law (Koch 2005, p515; Ragolle 2003, p91; Albor-Llorens 2003, p87). As AG Jacobs put it, individuals cannot be required to breach the law in order to gain access to justice. 14 Hence, in such situations, the ECJs reliance on the preliminary ruling proceedings would result in a complete lack of judicial protection. There are also situations in which applicants are able to gain access to a national court. However, even in such cases, the mechanism of preliminary ruling cannot be considered an adequate substitute for direct actions (Koch 2003, p515; Corts Martin 2004, p239). In particular, AG Jacobs discussed the procedural disadvantages for applicants when using the preliminary reference procedure to contest the validity of a Community measure. First of all, preliminary reference procedure is not available to applicants as a matter of right, since national courts (with the exclusion of courts of last instance) may refuse to refer a question of validity of an EC measure to the ECJ or might err in their assessment of the validity of a Community measure and decline to refer a question to the ECJ on that basis. In contrast, if the proceeding is started under Article 230 the private party could choose which Community measure, or parts of it, it wants to challenge. Secondly, preliminary reference is a more lengthy, and hence more costly, procedure than a direct challenge. Thirdly, in an action for annulment, the interim measures granted are effective in all Member States, unlike in the

Case 294/83, Parti Ecologiste Les Verts v. European Parliament [1986] ECR 1339.This approach was

confirmed by the ECJ in the UPA ruling where the Court confirmed that the right to effective judicial protection is guaranteed in the EC legal order by the complete system of remedies established in the EC Treaty. Case C50/00 P, Unin de Pequeos Agricultores v. Council [2002] ECR I-6677.

Pursuant to Article 234 EC, [T]he Court of Justice shall have jurisdiction to give preliminary rulings Case 314/85, Foto-Frost v. Hauptzollamt Lbeck-Ost [1987] ECR 4199. Opinion of the AG in UPA, para 43. The dilemma for individuals in such situations is explained by Corthaut:

concerning the validity and interpretation of acts of the institutions of the Community and of the ECB.
13 14

either [the individual] obeys the regulation in spite of her doubts as to its validity which may result in unnecessary losses or she may choose to violate the regulation and hope that her hunch about its invalidity proves correct if so, she walks free, otherwise little can save her from potentially severe punishment (Corthaut 2002-2003, p143).

preliminary ruling proceedings where interim measures are granted by the national courts and are thus effective only for the specific legal system in which they are issued. The solution that AG Jacobs proposed was to introduce a new interpretation of individual concern in which the applicant only has to prove that the [Community] measure has, or is liable to have, a substantial adverse effect on his interests. 15 The Advocate General proceeded with defending such a solution from a variety of possible attacks. Reform oppositionists could claim that the new test would stand in confrontation with decades-old case law. In reply to this argument, AG Jacobs considered that the case law is too complex and inconsistent with trends from Member States. The other big claim in defence of the traditional approach to individual concern the apprehension that relaxed conditions for standing will lead to an overload of cases was also refuted. The counterargument of AG Jacobs was that a potentially unmanageable flood of litigation will be prevented by the existence of the CFI, the remaining condition of direct concern and the time limit for commencing an action for annulment. The second spark of hope for relaxation of the rules of standing manifested itself in the judgment of the CFI in Jgo-Qur. In this case, a group of fishermen contested the validity of a Community Regulation that prohibited drift-net fishing. According to the traditional line of argumentation on individual concern, the fishermen should have been denied locus standi because the Regulation was a measure of general application that did not affect the applicants individually (Harlow 2002, p152). The CFI, however, granted standing to the applicants in Jgo-Qur. 16 It was a decision to focus on the merits of the case, rather than the formality of the individual concern requirement. With the ECJs ruling on UPA still pending, and in a dramatic departure from the traditional case law, the CFI formulated a new test for individual concern:
...in order to ensure effective judicial protection for individuals, a natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly 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. 17

Although this new interpretation of individual concern contradicts the long-standing case law on locus standi, it was not overstepping the boundaries set in Article 230(4) EC. The CFI ruling merely presented a new way of interpreting the Treaty-based condition for individual concern. The unfortunate outcome of the aforementioned attempts to revise the rules of standing was that neither of them brought real change. In UPA, the ECJ confirmed the initial traditional ruling of the CFI. In Jgo-Qur, the highest Community Court chose not to follow

Opinion of the AG in UPA, para 60. In this context, the AG also highlighted the perverse effects of the

Plaumann test, namely that the greater the number of persons affected by a measure, the less likely than an action under Article 230(4) would succeed.
16 17

Case T-177/01, Jgo-Qur v. Commission [2002] ECR II-2365. Para 51.

the innovative judgment of the Court of First Instance, reverted to an interpretation of individual concern according to the pure Plaumann formula and reinstated its opinion that a complete system of legal remedies is available to the citizens of the EU. Given this outcome, many scholars have considered these rulings by the ECJ as a missed opportunity to broaden the access to the Community courts by private litigants and regarded the ECJs reasoning as unconvincing (Koch 2004, p819; Chalmers and Monti 2006, pp432-433; Brown and Morijn 2004, p1654; Ragolle 2003, p101; Albor-Llorens 2003, p92; Corts Martin 2004, p245). An important sign for the future of the locus standi debate was the ECJs statement in UPA that a new system of judicial review could be possible. However, its introduction should be the result of a decision by the Member States in the form of explicit Treaty revision. Thus, the ECJ passed the proverbial ball to the Member States and refused to engage in judicial activism. This position has been criticised by many scholars who have argued that the notion of individual concern is not expressly defined in Article 230 EC nor in any other article of the EC Treaty. Nothing in Article 230, indeed, suggests that if an applicant is to prove individual concern vis--vis a measure of general application, he needs to prove that he is differentiated from all other persons in the same way as an addressee: the Plaumann formula, in other words, is not contained in the EC Treaty, but it is the Courts interpretation of the phrase individual concern. The phrase cannot be altered by the ECJ, but changing the interpretation given to it is not something that needs to be left to the Member States but it is the Courts responsibility (Chalmers and Monti 2006, p433; Ragolle 2003, p100; Tridimas and Poli 2008, p81; Albor-Llorens 2003, p90; Abaquesne de Parfouru 2007, p387). In analysing the Courts motivation for this position, the second part of this article will consider why the ECJ is withdrawing from a pro-active role, while it has not shied away from assuming it in a number of previous groundbreaking cases. 2.3 Implication of Conditions for Standing for the Democratic Deficit of the EU The debate on the democratic legitimacy of the EU has revolved mostly around the fact that the quasi legislative and executive institutions of the Union - the Council and the Commission - are not directly elected. Only the Members of the European Parliament can claim popular legitimacy; however, even the elections for the EP are not truly European as they are often dominated by national issues and have very low turnouts. Decisions about the approval of new Treaties are also taken out of the hands of European citizens, as most Member States do not hold referenda on such occasions. The public often sees decisionmaking in Brussels, and the EU in general, as an impermeable black box. Unfortunately, the current rules of standing for legal and natural persons hardly improve the sense of inclusion in the policy making of the EU and the accountability of its institutions. According to Christopher Lord, there are two elements that constitute legal accountability - the law must be enforceable by an independent judicial authority and allow any citizen on a basis of equality to bring before court a complaint that power-holders are seeking to evade or distort the rules by which they are themselves brought to account (1998, p96). The second aspect of this definition is relevant to the subject of study in this article. Typically, the judicial system is utilized to start public interest actions because it is a direct way to challenge public authorities for their use of power (Harlow 2002, p150). In most cases, public interest actions are initiated by interest or pressure groups rather than individuals (ibid). However, interest groups are denied standing due to the Courts interpretation of individual concern (e.g. the ECJs ruling in Greenpeace). 18 Hence, a vital tool for the expression of public interest is made unavailable.

Case C-321/95 P, Stichting Greenpeace Council (Greenpeace International) and Others v. Commission [1998]

ECR I-01651.

As it was argued in the previous sections, the limiting conditions for standing and the occasional unavailability of remedies before the national courts tarnishes the ability of the Community legal system to provide effective and complete legal protection for European citizens. In that sense, the rules on locus standi as they are today exemplify a failure of European law to: (1) protect the rights of Europeans, and (2) include the citizens of the EU in the review of Community measures. The latter point frustrates the process of European integration and even the legitimacy of the Community legal system. Current attempts to forge a feeling of Europeanness and to make the EU a more transparent and accessible entity would be boosted in efficiency if EU citizens had more available access to judicial review of Community measures. The ability to directly challenge an act creates a powerful sense that the individual has a say in the decision-making process and that the institutions that create the laws can be held accountable. The status quo of locus standi seem thus to give the impression that the EU has an intergovernmental, rather than supranational, federal nature (Abaquesne de Parfouru 2007, p365). As a citizen of a nation state, the individual has better opportunities to challenge domestic administrative acts, which fosters a sense of well-functioning democracy and a perception that the national institutions represent the interests of the citizens. On the European level, the same conclusions cannot be drawn as the chain of accountability is severed at the point of access to judicial review. A decision either by the ECJ, or by the Member States, to reform the rules for locus standi would diminish the democratic deficit. This paper will explore whether the conditions are purposefully maintained so rigid with the aim to isolate the Community legal order from citizens challenges. 2.4 The Reformed Locus Standi in the Lisbon Treaty In its ruling in UPA, the Court of Justice passed to the Member States the burden of deciding the fate of locus standi of private parties in annulment proceedings. The response to that shifting of responsibility took a concrete form in the drafting of the Constitutional Treaty (CT) and the Lisbon Treaty. Article 230 EC was replaced by Article III-270 CT. However, following the failed ratification of the Constitutional Treaty, the latest version of the provisions for actions for annulment can be found in the version of Article 230(4) which incorporated the changes brought by the Lisbon Treaty (i.e. Article 263(4) of the Treaty on the Functioning of the European Union - TFEU). The wording of latter coincides exactly with the corresponding article of the Constitutional Treaty. The wording of Article 263(4) TFEU (and also the text of Article III-270 CT) reads:
Any natural or legal person may 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.

The changes that are introduced in the new article on the action for annulment fail to address the real issue of reforming the conditions for direct and individual concern. Rather, they reflect the new distinction that is made between legislative and regulatory acts (Kombos 2005, p14). Analysis of that dichotomy reveals that some relaxation has manifested, albeit not to the degree needed. In particular, the relaxation of the standing rules will only apply to situations in which two requirements are met: first, when the measure under challenge is a regulatory act, and, second, when the measure in question does not entail implementing measures. The novel formulation of the article has been criticised on two grounds - that it leads to terminological confusion and that it is still incompatible with the principle of effective judicial protection.

On the first issue, Toth points out that the concept of regulatory acts is not clearly defined in the Treaty which mentions terms such as legislative, non-legislative, and nonbinding acts, but not the specific term regulatory acts (2004, pp2-3). Koch regards this omission as regrettable, especially because it concerns a provision which directly impacts on private parties procedural rights. (2005, p520) The second problem with the new article concerns the fact that it does not provide remedy for the gaps in the right for effective judicial protection, since the locus standi of individual applicants is broadened only with regard to regulatory acts which do not require implementing measures that is, when the applicant can only obtain access to justice by breaching the provisions of the contested measure and invoking its invalidity as a defence in criminal or administrative proceedings against him. For all other situations, the Lisbon Treaty does not reform the test for individual concern, thus keeping the possibilities for direct action by non-privileged applicants limited. Hence, their only avenue to challenge Union measures will often still only be the preliminary reference procedure. The question whether the alternative route of challenge of Union measures via the preliminary reference procedure effectively guarantees the right of access to justice of individuals will thus continue to be posed also with the new formulation of Article 230(4), since the problems of the use of the preliminary reference procedure highlighted by AG Jacobs still remain unresolved (Abaquesne de Parfouru 2007, pp401-402; Brown and Morijn 2004, p1659). To conclude, it can be argued that the Member States did not pick up the gauntlet that was thrown in their direction by the ECJ in the UPA ruling. At present, it appears that they are satisfied to keep the conditions for standing restrictive. 3. A Political Science Analysis of the Motivations for Resisting Changes 3.1 The political theories applied and their theoretical underpinning In the first part, the paper has presented some of the key controversies in the debate on locus standi of natural and legal persons. Often, academic studies concerning the problems connected to Article 230(4) EC do not further investigate the motivations of the Court of Justice to maintain the conservative interpretation on standing. Even if some explanations are mentioned, they tend to run along the lines of purely legal reasoning. However, the ECJ is not functioning in a hermetically sealed environment. Despite the presumption of judicial independence, the Court is nevertheless one of the main institutions in the highly political organization that is the European Union. In light of this political side of the EU judicial institutions, there is merit in applying theories from the realm of political science to the analysis of the ECJs stance on locus standi. This article will employ the theories of rational choice institutionalism (RCI) and historical institutionalism (HI) in order to explain the motivation for the Courts position. Both belong to the new institutionalist body of literature one of the main contemporary approaches in the political theories of European integration. The choice of those two theories is conscious and based on several considerations. First, new institutionalism is a refinement, hence also an improvement, of the classical grand theories of neofunctionalism and intergovernmentalism. Second, RCI and HI state that institutions matter, albeit in different ways (Rosamond 2007, p123). Taking into account the active role of the Community Courts in the issue of standing, this article builds upon the premise that institutions have a certain importance. Therefore, a conscious decision was made to focus on theories that acknowledge a substantial role of institutions in the European Union. It must be acknowledged, however, that according to other theories (e.g. intergovernmentalism), institutions have a negligible impact on policy making. Third, as was just indicated, this article does not attempt to present all possible theoretical angles to explaining the locus standi developments. It merely aims to

demonstrate that political theories can be applied to this legal debate and some new insights can be gained by doing so. Finally, it will be shown that, even with a limited number of theories, different policy actors can be identified as the leading ones in the locus standi debate. The two theories applied in this article will produce a different answer to the question of who is ultimately in control of reforms - the Community Courts or the Member States. 3.1 Rational Choice Approach to Explaining the Status Quo One way of interpreting the long-standing traditional interpretation of the standing requirements by the Court of Justice is through the theory of rational choice institutionalism. The facts on which the explanation is based are, on the one hand, the active role of the ECJ in upgrading the standing of the European Parliament to a fully fledged privileged applicant and, on the other hand, the subsequent choice to leave the decision regarding the locus standi of private parties in the hands of the Member States. RCI, much like liberal intergovernmentalism, views states as the leading actors. They set up institutions in order to reduce transaction costs and, in general terms, because states benefit from the functions performed by them (Eilstrup-Sangiovanni 2006, p195). It is crucial to note that, according to RCI, preference formation is external to the institutions, thus the institutions do not pursue their own interests simply because those interests are not something originating from the institution itself. Instead, institutions are both modifiers of the pursuit of self-interest and a medium through which actors may conduct their transactions with greater efficiency (Rosamond 2007, p123). This would explain why the ECJ took an active role in awarding privileged standing to the EP it was merely fulfilling its function as re-distributor of power. According to Garrett, the Member States still have the authority to reverse a decision by the ECJ through Treaty revision; however, if they choose not to, it is because the Courts activism has provided an efficient solution to problems (2006, p. 196). Apparently, the Member States did see an efficient solution in the Courts initiative to elevate the standing of the EP because the Treaty was altered to accommodate that change. Garrett goes on by arguing that the Court of Justice can be perceived as a strategic actor that anticipates when states will not be in approval of its decisions and therefore does not even make them (ibid.). This means that the Court only engages in judicial activism when it foresees that the Member States would endorse its decisions. The fact that, in UPA and Jgo-Qur, the ECJ refrained from initiating reforms could thus be regarded as a reflection of the Courts expectations that the Member States would disapprove of it. One could deduce that, in fact, the Court was correct in its estimation because, at the next Treaty revision, the Member States made their position clear by not substantially revising the conditions for standing (see supra 2.4). 3.2 Locus Standi and Previous Judicial Activism from the perspective of Historical Institutionalism A different explanation of the ECJs reluctance to initiate a reform of the conditions for standing takes the theoretical angle of historical institutionalism. HI also allocates an important role to Member States at the initial stage of creating the institutions as an instrument to serve their interests (Pierson 1998, p298). In other words, according to this theory, when the ECJ was set up, the Member States designed it to their liking. However, from the perspective of HI, after an original moment of full control, a new institution becomes entrenched and more difficult to change. Examples for the growing relative independence of the ECJ would be the doctrines of direct effect and state liability which defied the wishes of Member States. As Rosamond elaborates, once created, institutions tend to pursue their own interests and may contradict the intentions of their

initial makers (Rosamond 2003, p116). In that respect, HI differs from RCI, because, according to the former theory, the preference of the institution can be internally formulated. This would mean that the ECJ generates its own interests and seeks to achieve them and can thus not be regarded as a mere distributor of inter-institutional power that receives its preference from the outside actors. According to HI, the Court can have an influence that its creators had not anticipated or desired because the levers to control the institution have become more limited with the passing of time. The independence that the Member States have delegated to the ECJ can, indeed, only be revoked through a unanimous Treaty revision. The same is also valid when the Court engages in judicial activism. The joint-decision trap, a term coined by Fritz Scharpf, points precisely to the fact that Member States are constrained by unanimity voting when they want to block changes desired by other actors (Eilstrup-Sangiovanni 2006, p195). One could therefore argue that this is precisely the way in which the Courts doctrine of state liability was permitted to be established. If this theory is applied to the debate on locus standi, it would seem that the ECJs reluctance to reform the rules of standing for non-privileged applicants is not grounded in the Courts fear of being sanctioned by its creators, the Member States: in the past the Court has, on multiple occasions, managed to push through legal changes in the backdrop of national resistance (with, for example, the doctrines of direct effect and state liability). On the basis of HI, it can thus be claimed that the ECJ is resisting reforms on the grounds of its own selfinterest. One possible self-interest could be the protection against an overload of litigation as a result of the expected increased number of applicants that would be granted standing. That argument was put forward by Jacobs AG in his opinion in UPA. It is even more intriguing, though, to analyze another type of self-interest one that is more politically, rather than practically motivated. One could, indeed, argue that, with its restrictive case law on standing for private applicants, the ECJ is assuming the role of quasi guardian of the Treaty and is defending the very nature of the Community legal order (Delaney 2004, p3). This claim can be illustrated with a comparison between the instances in which the Court has engaged in judicial activism and the issue of locus standi, where the ECJ refuses to take the lead. The question then arises as to what distinguishes the reform of locus standi from the establishment of direct effect and state liability. There seems, indeed, to be a reason that induces the ECJ to be innovative and daring in the case of the latter and conservative and cautious in the case of the former. The previous instances in which the Court exhibited pioneering activism concerned the promotion of Community law over national law (direct effect and supremacy of EU law), improving the accountability of the Member States (state liability) or forwarding the interests of another supranational institution (elevating the standing of the EP in annulment proceedings). What all these examples have in common is that they advance the prominent status of the EU as a supranational structure. That preference of the ECJ is not random. The Court has an inclination towards a supranational type of EU because it serves its interests better and strengthens its own position vis--vis the Member States (Abaquesne de Parfouru 2007, p365). On the other hand, a liberal interpretation of standing makes Community measures more vulnerable to external attacks. Consequently, by refusing to reform the conditions for locus standi, the ECJ could be regarded as acting as a guardian of the Community, giving it immunity to challenges. The concept of path dependency, one of the main premises of HI, explains the Courts position from a slightly different angle. From this perspective, the rigidity of the conditions for standing could be attributed to the constraints of long-standing case law which cannot be easily discarded. As Levi remarks, regarding path dependency, after an initial choice that starts down a track, the costs of reversal may be high and will tend to increase over time. There will be other choice points, but the entrenchments of certain institutional arrangements


obstruct an easy reversal of the initial choice (Levi 2006, p198). In the case of locus standi, the initial choice of interpretation of the Treaty conditions was made with the ruling in Plaumann. Since then, the ECJ has had multiple opportunities to reverse the test for individual concern. Instead, as predicted by the path dependency tenet of historical institutionalism, the Court found itself entrenched by the long-standing case law and is adhering to the path of a strict locus standi doctrine. The costs of reversing it would include not only a higher case load, but also loss of legal certainty. However, this leads to path inefficiency, manifesting itself in an incomplete system of legal protection and sub-optimal accountability of the EU through judicial means. Eilstrup-Sangiovanni describes the problem of path inefficiency in the following manner: when an institution (the ECJ, in this case) is first created, it offers efficient solutions to given social problems (Levi 2006, p199). Indeed, it can be observed that in its early days the interpretation of standing by the Court of Justice was in line with the national doctrines at the time. However, in the long run, the outcome that becomes locked in may generate lower payoffs than a foregone alternative would have (ibid). The lower payoffs concerning the locus standi requirements for non-privileged applicants are demonstrated by the increasing dissatisfaction with the status quo, as shown by the criticisms expressed not only by the doctrine, but also by AG Jacobs and the CFI. 4. Conclusion Scholars of EC law have, not surprisingly, predominantly a legal academic background. Hence, most of the literature on locus standi begins and ends with law and proposes legalist explanations to the problem (Burley & Mattli 1998, p.245). On the other hand, political scientists mainly focus on the instances in which the Court engages in judicial activism and acts as a proponent of a supranational European Union. Issues in which the ECJ restrains itself, such as in upholding restrictive conditions for standing, are overlooked in the studies of political science. This article is a step in filling the existing gap. The application of theories of political science to a legal subject has revealed several motivations for the Courts position on locus standi. If one assumes that the ECJ is only an externally influenced distributor of power among the EU institutions, then its reluctance to reform standing for individuals would be due to anticipating negative reception of substantial changes on behalf of the Member States. According to the reasoning of rational-choice institutionalism, the Court only engages in activism when it is given the impetus by external actors and expects the changes to be approved by the majority of the Member States. Therefore, one can deduce that a reform of the locus standi conditions will be conducted only when the EP, Commission, and most importantly, the Member States push for it. As is clear from the new formulation of the provisions on the action for annulment contained in the Constitutional and Lisbon Treaties, the Member States are still unwilling to change the test of direct and individual concern. An alternative approach to the question of what motivates the Courts lack of initiative is rooted in the theory of historical institutionalism, according to which the ECJ would be acting on the basis of self-interest. The Courts willingness to perform profound legal changes was evident in the cases of the establishment of the doctrines of direct effect, supremacy and state liability for breaches of EC law. However, that judicial activism was undertaken to enhance the Courts influence in the EU legal order and promote a top hierarchical position of Community law vis--vis the national legal systems. In contrast, in the case of the locus standi requirements, the judicial restraint can be justified by the ECJs desire to keep the EU immune to challenges. Finally, path dependency suggests that the policy choices made in the early days of the life of the institution (i.e. the interpretation of individual concern in Plaumann during the 1960s) have become entrenched and too high costs would have to be


incurred in order to change them. Therefore, despite the path inefficiencies that are sustained due to the incompleteness of the system for judicial remedies, the initial choice is maintained. The qualitative analysis presented in this paper is not meant as a conclusive answer to the ongoing debate on locus standi of non-privileged applicants under Art. 230(4) EC. Rather, it should be perceived as an attempt to approach the discussion from a different academic perspective. A broader research can be carried out to show how other theoretical approaches apply to the issues at hand. For example, liberal intergovernmental or constructivist theories would display the Court-Member States interaction in very different light. This will diversify the debate on standing which has so far been overwhelmingly explained through legal reasoning.


References Abaquense de Parfouru, A. (2007) Locus standi of Private Applicants Under the Article 230 EC Action for Annulment : Any Lessons to be Learnt From France?, Maastricht Journal of European and Comparative Law, 14(4), pp. 361-402. Albor-Llorens, A. (2003) The standing of private parties to challenge community measures: has the European Court missed the boat?, Cambridge Law Journal, 62(1), pp. 72-92. Arnull, A. (1995) Private applicants and the action for annulment under Article 173 of the EC Treaty, Common Market Law Review, 32(1), pp 7-50. Arnull, A. (2001) Private Applicants and the Action for Annulment since Codorniu. Common Market Law Review, 38(1), pp. 7-52. Biernat, E. (2003) The Locus standi of Private Applicants under article 230 (4) EC and the Principle of Judicial Protection in the European Community, Jean Monnet Working Paper, 12(3). Retrieved March 19, 2009, from http://www.jeanmonnetprogram.org/papers/03/031201.html Brown, C. & Morijn, J. (2004) Comment on Jgo-Qur, Common Market Law Review, 41(6), pp. 1639-1659. Burley, A-M. & Mattli, W. (1998) Europe Before the Court: A Political Theory of Legal Integration, in: B. Nelsen, & A. Stubb, A. (eds.) The European Union: Readings on the Theory and Practice of European Integration, pp. 241-273 (NewYork: Palgrave Macmillans). Chalmers, D. and Monti, G. (4th Ed.) (2006) European Union Law (Cambridge: Cambridge University Press). Craig, P. (2003) Standing, Rights, and the Structure of Legal Arguments, European Public Law, 9(4), pp. 493-508. Corts Martin, J.M. (2004) Ubi ius, Ibi Remedium? Locus standi of Private Applicants under Article 230(4) EC at a European Constitutional Crossroads, Maastricht Journal of European and Comparative Law, 11(3), pp. 233-261. Corthaut, T. (2002-2003) Comment on Jgo-Qur, Columbia Journal of European Law, 9(1), pp. 141-166. Cygan, A. (2003) Protecting the interests of civil society in Community decision-making the limits of article 230 EC, International and Comparative Law Quarterly, 52(4), pp. 9951012. Delaney, E. (2004) Right to an Effective Remedy: Judicial Protection and European Citizenship, Federal Trust Constitutional Online Paper Series No. 17/04. Retrieved March 19, 2009 from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=580783 Eilstrup-Sangiovanni, M. (ed.) (2006) Debates on European Integration (New York: Palgrave Macmillans).


Harlow, C. (2002) Accountability in the European Union (Oxford: Oxford University Press). Johnston, I. (2007) Franz Kafka Selected Works - Before the Law. Retrieved March 19, 2009, from http://kafkafiles.blogspot.com/2007/10/franz-kafka-before-law.html . Koch, C. (2004) European Community Challenge of Community Fisheries Regulation Admissibility of Individual Applications under Article 230(4), American Journal of International Law, 98(4), pp. 814-819. Koch, C. (2005) Locus Standi of private applicants under the EU constitution: Preserving gaps in the protection of individuals right to an effective remedy, European Law Review, 30(4), pp. 511-527. Kombos, C. (2005) The Recent Case Law on Locus standi of Private Applicants under Art. 230 (4) EC: A Missed Opportunity or A Velvet Revolution?, European Integration Online Papers, 9(17). Retrieved March 19, 2009 from http://www.eiop.or.at/eiop/texte/2005-017.htm#e107 Lewis, X. (2006-2007) Standing of Private Plaintiffs to Annul Generally Applicable European Community Measures: if the System is Broken, where Should it be Fixed?, Fordham International Law Journal, 30(5), pp. 1496-1544. Lord, C. (1998) Democracy in the European Union (Sheffield: Academic Press). Ragolle, F. (2003) Access to justice for private applicants in the Community legal order: recent (r)evolutions, European Law Review, 28(1), pp. 90-101. Rosamond, B. (2003) New Theories of European Integration, in M. Cini (ed.) European Union Politics, pp. 109-27 (Oxford: Oxford University Press). Pierson, P. (1998) The Path to European Integration, in B. Nelsen, B. & A. Stubb (eds.) The European Union: Readings on the Theory and Practice of European Integration, pp. 295-322 (New York: Palgrave Macmillans). Toth, A.G. (2004) The Future Role of the European Court of Justice: Report with Evidence. Memorandum in European Union Committee, House of Lords. Retrieved March 19, 2009 from http://www.publications.parliament.uk/pa/ld200304/ldselect/ldeucom/47/47we01.htm Tridimas, T. & Poli, S. (2008) Locus Standi of Individuals under Article 230(4): the Return of Euridice?, in: T. Tridimas & S. Poli (eds.) Making European Community law: the legacy of Advocate General Francis Jacobs at the European Court of Justice, pp. 77-99 (Celtenham: Edward Elgar Publishing). Usher, J. (2005) Direct and individual concern an effective remedy or a conventional solution?, European Law Review, 28(5), pp. 575-600. Ward, A. (2001) Amsterdam and amendment to article 230: an opportunity lost or simply deferred?, in A. Dashwood & A. Johnston (eds.) The future of the judicial system of the European Union, pp. 37-40 (Cambridge: Hart Publishing).


Ward, A. (2003) Locus standi under Article 230(4) of the EC Treaty: Crafting a Coherent Test for a Wobbly Polity, Yearbook of European Law, 22, pp. 45-77.


The Maastricht Faculty of Law Working Paper series

2009/12 Felix David, The Role of Precedent in the WTO New Horizons? 2009/11 Taru Spronken & Gert Vermeulen, Study on Procedural Rights in Criminal Proceedings: Existing Level of Safeguards in the European Union 2008 Update. Draft Chapter 1 Four Fundamental Procedural Rights in Criminal Proceedings throughout the European Union, February 2009 2009/10 Anne Pieter van der Mei, National Human Rights Institutions in Africa: The Investigative Powers of the Ghanaian Commission on Human Rights and Administrative Justice 2009/9 2009/8 2009/7 Nadia Gaydarska & Stephan Rammeloo, The legality of the golden share under EC Law Philipp Kiiver, Legal Accountability to a Political Forum? The European Commission, the Dutch Parliament and the Early Warning System for the Principle of Subsidiarity Anne Pieter van der Mei, The East African Community: the Bumpy Road to Supranationalism. Some Reflections on the Jugdments of the Court of Justice of the East African Community in Anyang Nyongo and others and East African Law Society and others Anke Dahrendorf, Global proliferation of bilateral and regional trade agreements: A threat for the World Trade Organization Anne Pieter van der Mei, The Ordeal of African Unity Past, Present and Future of the African Union Andrea Ott, EU Constitutional Boundaries to Differentiation: How to reconcile Differentiation with Integration? Ellen Vos, 50 Years of European Integration, 45 Years of Comitology Franziska Weber, Towards an Effective Environmental Law for Developing Countries. Illustrated with the recent legislative proposal for the establishment of regional and municipal protected areas in Peru Peter Van den Bossche, Non-Governmental Organisations and the WTO. Limits to Involvement? Martine Boersma, Catching the Big Fish? A Critical Analysis of the Current International and Regional Anti-Corruption Treaties Mariolina Eliantonio, The Future of National Procedural Law in Europe: Harmonisation vs. Judge-Made Standards in the Field of Administrative Justice Michael Faure, Designing Incentives Regulation for the Environment Gerard-Ren de Groot & Conrad J.P. van Laer, The Quality of Legal Dictionaries: an assessment Sjef van Erp, Security interests: A secure start for the development of European property law

2009/6 2009/5 2009/4 2009/3 2009/2

2009/1 2008/9 2008/8 2008/7 2008/6 2008/5

2008/4 2008/3 2008/2 2008/1 2007/7 2007/6 2007/5 2007/4

Govin Permanand & Ellen Vos, Between Health and the Market: The Roles of the European Medicines Agency and European Food Safety Authority Lisa Waddington, The Internal Market and Disability Accessibility: Using EC Law to Establish an Internal Market in Disability Accessible Goods and Services Lars van Vliet, Mortgages on immovables in Dutch law Chris Backes, Marjan Peeters & Marijke Schurmans, A legal view on ex post interventions in an emissions trading scheme Lorin Van Nuland, Translating Anti-Corruption Rhetoric into Action. Levelling the Field of Enforcement Michael Faure & Hui Wang, Financial Caps for Oil Pollution Damage: A Historical Mistake? Jaakko Husa, About the Methodology of Comparative Law Some Comments Concerning the Wonderland Lisa Waddington, A New Era in Human Rights Protection in the European Community: The Implications the United Nations Convention on the Rights of Persons with Disabilities for the European Community Peter Van den Bossche, Free Trade and Culture. A Study of Relevant WTO Rules and Constraints on National Cultural Policy Measures Jan M. Smits, Legal Culture as Mental Software, or: How to Overcome National Legal Culture? Caroline Forder & Kees Saarloos, The establishment of parenthood: A Story of Successful Convergence?

2007/3 2007/2 2007/1

2006/11 Anke Dahrendorf, Trade meets Culture. The Legal Relationship between WTO rules and the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2006/10 Peter Van den Bossche, NGO Involvement in the WTO. A lawyers perspective on a glass half-full or half-empty 2006/9 2006/8 2006/7 2006/6 2006/5 2006/4 Maria Zettel, The GATS, Privatization and Water Services. An Overview of Legal Aspects Jan M. Smits, Private law and fundamental rights: a sceptical view Bob Brouwer & Jaap Hage, Basic Concepts of European Private Law Conrad J.P. Van Laer, Is the employed scholar free not to publish? Limitations of disclosure rights in a comparative perspective Peter Van den Bossche, Confusion and Concern with regard to SACU Dispute Settlement. Some observations on Article 13 of the SACU Agreement Mariolina Eliantonio, The enforcement of EC rights against national authorities and the influence of Kbler and Khne & Heitz on Italian administrative law: opening Pandoras box?

2006/3 2006/2 2006/1

Jan Smits, European Private Law: A Plea for a Spontaneous Legal Order Geerte Hesen, A comparative perspective of the liberalisation of the gas market and the effects on welfare: Belgium, Germany and the Netherlands Peter Van den Bossche, Radical Overhaul or Pragmatic Change? The Need and Scope for Reform of Decision-Making in the World Trade Organization

2005/10 Peter Van den Bossche, Rules on NGO Accreditation. Do Existing Legal Arrangements Facilitate the Legitimization of the Role of NGOs in International Organizations? 2005/9 2005/8 2005/7 2005/6 2005/5 Jan Smits, Diversity of Contract Law and the European Internal Market Stefaan Van den Bogaert & An Vermeersch, Sport and the European Treaty: A Tale of Uneasy Bedfellows? Ellen Vos, Regional Integration through Dispute Settlement: The European Union Experience Peter Van den Bossche, Denise Prvost & Marille Matthee, WTO Rules on Technical Barriers to Trade John Hagedoorn & Geerte Hesen, The Governance of Inter-Firm Technology Partnerships and Contract Law An Analysis of Different Modes of Partnering and their Contractual Setting Michael Faure, Economic Criteria for Compulsory Insurance Iveta Alexoviov & Peter Van den Bossche, Effective Global Economic Governance by the World Trade Organization Michael Faure & Wang Hui, Economic Analysis of Compensation for Oil Pollution Damage Peter Van den Bossche, From Afterthought to Centerpiece: The WTO Appellate Body and its Rise to Prominence in the World Trading System

2005/4 2005/3 2005/2 2005/1

All papers are available for download at http://www.rechten.unimaas.nl/maastrichtworkingpapers