5 - Non-Privileged Plaintiffs

Question 1

What will be explored in this lecture? (7)

Answer 1

1/ the difficulties faced by non-privileged applicants in direct proceedings before the CJEU (Art. 263(4) TFEU)

2/ individual concern

3/ direct concern

4/ regulatory acts

5/ decentralised gvts and 3rd States

6/ action for damages against EU (Arts. 268, 340 TFEU)

7/ plea of illegality (Art. 277)

Question 2

General considerations on non-privileged applicants in actions for annulment and damages? (4)

Answer 2

1/ standing is automatic only if act is addressed to them (mostly in competition law)

2/ in all other challenges, must show direct concern and, in most situations, direct + individual concern

3/ same assessment for standing applies to Art. 265 TFEU (failure to act)

4/ very limited right to contest EU acts for ind. bc gvts do not like to get sued

Question 3

Who are non-privileged applicants? (5)

Answer 3

1/ citizens

2/ companies

3/ NGOs

4/ public law entities, local gvts (e.g. Regione Toscana v Commission, 1997)

5/ 3rd party countries (e.g. Venezuela v Council, 2021)

Question 4

What are the 3 situations in which non-privileged applicants have standing before the GC?

Answer 4

1/ act of EU institution addressed to the private party

2/ act of EU institution not addressed to private party but still of direct + individual concern to him

3/ regulatory act of direct concern to private party and no implementation required

Question 5

What acts can be contested under Art. 263(4)? (3)

Answer 5

1/ legislative acts

2/ general acts (regulatory acts)

3/ individual acts

Question 6

Contribution of Plaumann v Commission case (1963)?

Answer 6

Private ind. may institute proceedings for annulment against decision which, although addressed to another person, is of direct + ind. concern to them

Question 7

Considerations of ‘direct concern’ as per Plaumann (1963)? (5)

Answer 7

1/ if applicant not individually concerned by decision, unnecessary to enquire whether he is directly concerned

2/ direct + ind. concern = cumulative requirements for admissibility

3/ direct concern = contested act would have a direct impact/affect the legal position of the applicant

4/ if implementing measures necessary, presumed that the applicant is not directly affected by the EU act itself (more likely by the implementing measures)

5/ if no discretion in contested act with respect to implementing measures, then impact of contested parent act can be presumed to be direct

Question 8

Considerations on ‘individual concern’ as per Plaumann (1963)? (4)

Answer 8

1/ individual concern if EU act affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons

2/ applicant must be part of closed group that cannot be changed in the future (vs open group)

3/ applicant must show he will be directly affected differently compared to all other persons directly affected by the act

4/ ‘peculiar’ = as if applicant were being specifically addressed by the act with special treatment intended only for him (so very difficult to prove)

Question 9

What did ECJ find in Codorniu v Council (1994)? (5)

Answer 9

1/ question: whether Regulation can be of direct and ind. concern to a private party

2/ possible if provisions of Regulation constitute in reality a decision of direct and ind. concern to applicant

3/ fact that provision applied to traders concerned in gnl did not prevent it from being of ind. concern to some of them (application of ind. concern criteria)

4/ action by Codorniu admissible bc provision differentiated it from all other traders

5/ ECJ found that different treatment was not objectively justified => provision declared void

Question 10

In which cases was Plaumann test criticised and why? (3)

Answer 10

1/ Plaumann test heavily criticised as too restrictive + resulting in harsh consequences

2/ e.g. Danielsson v Commission (1995): testing of nuclear weapons by FR in Polynesian Islands

3/ e.g. Kadi v Council (2008)

Question 11

What did GC attempt in Jégo-Quéré v Commission (2002)? (3)

Answer 11

1/ attempt by GC to use effective judicial protection (Art. 47 CFR) to loosen Plaumann test

2/ objective of GC: avoid situations in which there is no implementing act required which would deny applicant opportunity for judicial review

3/ see para 51 for novel finding of GC

Question 12

What was reaction of ECJ to GC’s attempt in Jégo-Quéré v Commission (2002)? (3)

Answer 12

1/ ECJ did not accept GC’s effective judicial protection reasoning with respect to ind. concern

2/ in UPA (2002), ECJ impliclty overturned GC’s ruling

3/ in Jégo-Quéré appeal proceeding (2004), ECJ expressly overturned GC ruling

Question 13

What did ECJ rule in UPA (2002)? (4)

Answer 13

1/ restated Plaumann test + ind. concern

2/ reasoning: there is already a complete system of judicial review in EU to ensure legality of EU acts (mentioning Arts. 263, 277, 267 TFEU)

3/ it is for the MS, if necessary, to reform system currently in force

4/ MS did reform Art. 263 TFEU procedure with Lisbon Treaty, adding a new branch in para 4

Question 14

What was added Lisbon Treaty language to Art. 263(4) TFEU? (2)

Answer 14

1/ codification of Codorniu which concerned a Decision in the guise of a Regulation

2/ now, also possible to file application against a regulatory act which is of direct concern and does not entail implementing measures

Question 15

What is a regulatory act per Art. 263(4)? (3)

Answer 15

1/ see Inuit (appeal, 2013)

2/ non-legislative acts of gnl application

3/ therefore, legislative acts are excluded

Question 16

What did ECJ rule in Inuit with respect to question: How should the “complete system” work to challenge a legislative act if cannot directly challenge under Art. 263(4) TFEU?

Answer 16

Then, indirectly under Art. 277 TFEU

Question 17

Considerations on Art. 277 plea of illegality? (4)

Answer 17

1/ collateral review of illegality of EU acts of gnl application (i.e. all EU acts, legislative and non-legislative)

2/ can only be invoked in connection with Art. 263 application

3/ targeted objective is the ‘parent act’

4/ if Art. 263 application is dismissed, Art. 277 application is also dismissed (e.g. Donateb v Commission)

Question 18

What did ECJ hold with respect to the definition of an ‘implementing act’ in Telefonica v Commission (2013)? (2)

Answer 18

1/ Spain’s future acts of rejecting requests for application of incompatible tax advantages in itself an implementing measure necessary to give effect to EC Decision

2/ therefore, bc implementing measures were required, Telefonica had to show both direct + ind. concern

Question 19

What was a surprising finding in Nord Stream 2 AG v Parliament and Council (2022)? (3)

Answer 19

1/ here, a Dir. was successfully contested by a non-privileged applicant

2/ ECJ held Nord Stream 2 AG was individually concerned by the Amending Dir. into the Gas Dir.

3/ => action for annulment admissible + Amending Dir. annulled

Question 20

What does Art. 268 TFEU cover?

Answer 20

Jurisdiction of CJEU in disputes related to compensation for damage provided for in Art. 340(2)(3)

Question 21

What does Art. 340(2) cover? (2)

Answer 21

1/ non-contractual liability of the EU

2/ obligation to make good any damage caused by EU institutions or its servants in performance of their duties

Question 22

How can damages be incurred under Arts. 268/340? (2)

Answer 22

1/ acts of the EU institutions

2/ acts of the officials of EU institutions performing their duties

Question 23

Considerations on actions for damages? (5)

Answer 23

1/ independent from Arts. 263, 267 actions

2/ no need to establish illegality or invalidity to bring non-contractual liability claim against an EU institution

3/ purpose is not to set aside a specific measure but to repair the damage caused by an institution (Krohn v Commission, 1986, para 32)

4/ lack of standing to bring Art. 263 application does not affect standing to bring non-contractual liability claim (Ledra Advertising v Commission and ECB, 2016, para 55)

5/ 5 years limitation period (after occurrence of damages)

Question 24

What are the conditions for finding EU non-contractual liability? (4)

Answer 24

1/ same conditions as established in ECJ rulings for MS liability (Bergaderm v Commission, 2000)

2/ rule infringed must be intended to confer rights on ind.

3/ breach sufficiently serious

4/ direct causal link btwn breach of obligation on EU institution and damage sustained

Question 25

What is the decisive test for a sufficiently serious breach? (2)

Answer 25

1/ manifestly and gravely disregards limits of its discretion (Bergaderm v Commission, 2000)

2/ such findings are rare

Question 26

What are issues with EU non-contractual liability? (2)

Answer 26

1/ who is responsible for which damages?

2/ if little discretion left to MS, liability for alleged damage can flow upwards to EU act (e.g. Krohn v Commission, 1986)

Question 27

What distinction is necessary for non-contractual liability? (2)

Answer 27

1/ MS violating valid EU law => Francovich situation

2/ MS applying invalid EU law => Krohn situation