Judicial Review

Question 1

The European Ombudsman: Art. 288 TFEU

Answer 1

sets up a European Ombudsen to hear complaints from any individual or company residing in the EU concerning maladministration by the EU institutions. When the ombudsman establishes maladministration, he refers the case to the relevant EU body, which has three months to respond. The ombudsman then forwards a report to the EP and the institution concerned.

Question 2

GROUNDS FOR JUDICIAL REVIEW OF EU ACTS

Art. 263 TFEU

1. Bodies subject to review
2. Which acts can it review?
3. grounds of review?

Answer 2

ECJ’s jurisdiction to review legality of acts:

1. Bodies subject to review: ECJ can review: “legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions.”
2. ECJ can review acts of the European Parliament, European Council, and acts of “bodies, offices, or agencies of the Union” which are “intended to produce legal effects vis-à-vis third parties.”
3. Grounds of review: “lack of competence, infringement of an essential procedural requirement, infringement of the Treaties, or of any rule of law relating to their application, or misuse of powers.”

Question 3

Lack of competence

Answer 3

breach of the principle of conferral —e.g. Tobacco Advertising I —review on this ground has generally been unsuccessful; ECJ mostly will not strike down acts for lack of competence.

Question 4

Infringement of an essential procedural requirement

1. right to be heard
2. consultation
3. duty to give reasons

Answer 4

these include:
• Right to be heard: if an EU act (e.g. a decision) has an adverse/significant impact on C’s interests.
• Consultation and participationa duty to consult provided for in Treaties / legislation will be enforced.
• Duty to give reasons: set out in Art. 296 TFEU; reasons must be given for all legal acts. For legislation, EU must disclose the essential object, but no need to go into every point of fact / law. ECJ may demand greater particularity of reasons when a measure is of an individual nature (e.g. decision).

Question 5

‘Infringement of the Treaties or any rule of law relating to their application’

• repercussions of the ambiguous phrase?
• specific grounds of review here

Answer 5

the ambiguity of the phrase “any rule of law relating to their application” has given the ECJ scope to justify the imposition of GPs of EU law (and now Charter rights) as grounds of review. Specific grounds of review here:
• Infringement of any provisions of the Treaties or other EU legislation.
• Fundamental rights (now under the Charter) e.g. Kadi and Al Barakaat, Digital Rights Ireland.
• General principle: (i) proportionality in Atlanta, Bela Mühle; (ii) legal certainty and legitimate expectations in Mulder; (iii) equality and non-discrimination in Ruckdeschel, Mangold; (iv) transparency. Mangold and Seda show the ECJ’s creativity in developing GPs as grounds of review.

Question 6

Misuse of Power

Answer 6

covers adoption by an EU institution of a measure with the main / exclusive purpose of achieving an end other than that stated, or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of a given case.

Question 7

Outline of JR procedure

1. Art. 263
2. A 264
3. A 266
4. A 265

Answer 7

1. in addition to giving the ECJ authority to conduct JR, it also establishes standing rules (below) and the time limit for bringing an Art. 263 claim (two months from the publication of the measure, its notification to C, or the day on which it came to C’s knowledge).
2. Art 264: if an action for JR is well founded, the ECJ shall declare the challenged act void.
3. Art. 266: EU institution whose act is declared void must take steps to comply with ECJ’s judgment.
4. Art. 265: gives the ECJ power to review a failure to act by the EU institutions.

Question 8

STANDING

Art.263(2)-(3):

Answer 8

Standing for privileged and quasi-privileged applicants:
• Privileged applicants: automatically hold standing, even where act is addressed to another body / person —these include: Member States, European Parliament, the Council, and the Commission.
• Quasi-privileged applicants: automatic standing “for the purpose of protecting their own prerogatives.” Include: European Central Bank, the Court of Auditor, and Committee of Regions.

Question 9

STANDING

Art. 263(4):

Answer 9

Standing for non-privileged applicants: natural/legal persons can bring an action where:
• An act is addressed to him (rarely happens)
• An act is of direct and individual concern to him
• A regulatory act which is of direct concern and does not entail implementing measures

DIRECT CONCERN:

Question 10

DIRECT CONCERN

Two requirements to establish direct concern:

Example case of second requirement?

Why might directives never be of direct concern to individuals?

Answer 10

1. Act must directly concern C’s legal situation (requires a causal link);
2. Act must leave no discretion to the addressee of the act (i.e. body entrusted with its implementation):

o International Fruit [1972]: MS had no discretion in implementing Commission decisions giving licences to apple importers. ECJ: lack of discretion meant Cs were directly concerned.

o Directives always require implementation by MS, so can never be of direct concern to individuals

Question 11

INDIVIDUAL CONCERN:

Answer 11

Plaumann test: Plaumann is still the leading case for individual concern
• Plaumann [1963]: Commission addressed a Decision to Germany (on import duties for clementines from non-MS). C was an importer of clementines who contested the legality of the decision. ECJ:
o “Persons 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.”
o C did not have standing —he is distinguished as an importer of clementines i.e. “by reason of a commercial activity which may at any time be practiced by any person.” No factor to distinguish C in the same way as the addressee (i.e. Germany).

Question 12

Problems with the Plaumann test:

Craig:

1. it can be criticised on pragmatic grounds
2. conceptual grounds

Answer 12

1. it is economically unrealistic in that, while in theory anyone can enter a market and practice a trade, in reality it is very difficult
2. conceptual grounds —if C cannot be considered individually concerned since the activity could be carried out by anyone at any time, it is impossible for an application to succeed, since it could always be argued that others might engage in the trade in the future (unless decision was retrospective).

Question 13

Problems with the Plaumann test:

Hartley’s (1) explanation and (2) criticism of the test

Answer 13

1. C in Plaumann was a member of an open category of applicant (membership not fixed at the time of the decision) so there was no individual concern. If C had been in a closed category (membership fixed at time of decision) he may have succeeded.
2. The practical problem with this test is that it ignores structural conditioning of the market which prevents any notional future traders just entering. To regard any category (even a very limited one) as open just because others might undertake the trade in future means that any decision with future impact becomes unchallengeable.

Question 14

1. How was the test in Plaumann adapted in Calpak?
2. facts of Calpak?
3. ECJ on whether they had standing?
4. Why is the test problematic?
5. Can an act of general application be of individual concern? (e.g. case?)

Answer 14

1. The Plaumann test was adapted in Calpak to apply to legislative acts (Plaumann concerned a decision of the Commission):
2. Calpak [1980]: Regulation ended financial aid for producers of preserved fruit.
3. ECJ: they lacked standing for JR. Although EU acts can generate the necessary individual concern, the court must look to “whether the measure is of general application,” i.e. whether it applies to “objectively determined situations and produces legal effects with regard to categories of persons described in a generalised and abstract manner.” Individuals must show a challenged act is, in substance, a decision addressed to them and not an act of general application. If it is of general application, it makes no difference that “it is possible to determine the number or even the identity of producers.”
4. The test is problematic as it is always possible for the EU institutions to draft an act in language which indicates general application, so denying standing to individuals altogether. In effect Calpak still looked at the form and not substance of the act.
5. The ECJ has since accepted than an act of general application can have individual concern.
   - Codorniu [1994]: C challenged a regulation stipulating the word ‘cremant’ could only be applied to sparkling wines made in France. C (Spanish producer) owned a trademark including the word. ECJ: C was individually concerned. Although it is a legislative measure of general application to wine traders “that does not prevent it from being of individual concern to some of them” under Plaumann C is individually concerned if “it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from others.”

Question 15

1. Arnull’s view re Cordoniu?
2. Did ECJ fulfil Arnull’s hope?
3. Why was Cordoniu an exceptional case?

Answer 15

1. Although Cordorniu was seen by Arnull as a hopeful indicator that the ECJ was moving towards “a test for standing based on adverse impact, judged on the facts of the case” this was not, in fact, realised
2. the ECJ in practice applied the Plaumann test to acts as well as decisions in a restrictive fashion;
3. Cordorniu was an exceptional case in that C was not differentiated by practicing a trade (not enough under Plaumann) but by owning a trademark. Enchelmaier: Cordoniu shows C will only have individual concern where an EU act impairs a proprietary right (e.g. C’s trademark).

Question 16

Greenpeace shows that the Plaumann test also applies to NGOs

How can the case be criticized?

Answer 16

• Greenpeace [1995]: Greenpeace challenged a Commission decision providing funds for the construction of a coal-fired power plant on the Canary Islands. G argued its special interest in the protection of the environment gave it individual concern Court of First Instance: rejected G’s argument that the Plaumann test should be replaced with a test of whether C had suffered, or would potentially suffer, loss or detriment. This was rejected. Plaumann applies to NGOs as well as individuals and G cannot satisfy the test —an association will only have standing where its individual members have standing; not satisfied here. Grand Chamber: confirmed CFI’s judgment.

Case can be criticised in that it makes it extremely hard for NGOs, representing interests of others in a broad fashion (e.g. ‘diffuse’ interests like environmental protection) to have standing.

Question 17

Faculty reading list: C is only “individually concerned” …

Answer 17

when the act in question individualises that person in the same way as an addressee of a decision. What characterises a decision addressed to an individual is that it takes account of the characteristics of that person. It follows that an individual is individually concerned where law-maker took the applicant into account when adopting the act, or ought to have done so.

Question 18

CRITICISM IN THE EU COURTS

AG Jacob’s reform attempt

Answer 18

AG Jacobs opinion in UPA; CFI seem to follow this in Jego-Quere; ECJ dismiss AG Jacobs in UPA; ECJ dismissed CFI decision in Jego Quere .

Question 19

Plaumann was challenged by AG Jacobs in UPA [2002]:

1. Facts/CFI
2. AG Jacobs on ECJ’s ‘effective judicial protection under the Treaties’
3. on Art. 267
4. denial of justice
5. National courts can’t grant a remedy
6. procedural disadvantages
7. would the difficulties be overcome by granting standing as an exception in cases where C has no way of triggering 267?
8. Would the difficulties be resolved by requiring national legal systems to ensure the Art. 267 procedure is always available for challenges to validity of EU act?
9. What is the only satisfactory solution?
10. What advantages are there to an enlarged test?
11. objections to an enlarged test?
12. why the time is right for reform?

Answer 19

1. C (farmers) sought to annul a Regulation which amended the common organisation of the olive oil market. CFI: dismissed the application because Cs were not individually concerned under Plaumann. AG Jacobs:
2. ECJ argues Cs have effective judicial protection under the Treaties because they provide a comprehensive mechanism for legal protection —i.e. Cs will can use Art. 267 (preliminary ref.) to challenge the validity of EU acts, as well as Art. 263. However, this is flawed because:
3. Art. 267 does not confer a right to make a reference: rather it is for national courts to decide (both in terms of making the reference and in framing the question).
4. Can deny justice: in cases where it is difficult / impossible for C to challenge an act before a national court —i.e. for EU acts without national implementing measures, there is no measure that can form the basis for an action in a national court, thus C’s only recourse is to violate the EU law provision and wait for proceedings to be brought against him.
5. National courts themselves can’t grant a remedy: following Foto Frost they can assess validity and then make a reference to the ECJ.
6. Procedural disadvantages: Art. 263 cases must be brought within two months (Art. 267 don’t have a time limit) and so have advantages for legal certainty. Further, Art. 267 involves greater costs/delays and C is not a party to such proceedings.
7. Difficulties cannot be overcome by granting standing as an exception in cases where C has no way of triggering Art. 267: (i) this has no basis in the treaty; (ii) would require the ECJ to interpret / apply rules of national law, which they are not competent to do; (iii) would lead to inequality between applicants from different MS and further uncertainty.
8. Difficulties cannot be resolved by requiring national legal systems to ensure the Art. 267 procedure is always available for challenges to validity of EU acts (rather than interpretation): (i) this would leave unresolved many of the problems with the current standing law, e.g. absence of a remedy as a matter of right / unnecessary delays and costs; (ii) difficult to monitor / enforce; (iii) would require far reaching interferences with national procedural autonomy.
9. “The only satisfactory solution is to recognise that C is individually concerned by an EU measure where the measure has, or is liable to have, a substantial adverse effect on his interests.”

o There are several advantages to an enlarged test: (i) resolves all problems with current system; (ii) removes the anomaly that the greater the number of people affected, the less likely JR is available; (iii) is “in line with the general tendency of the case law to extend the scope of judicial protection in response to the growth of [EU] powers.”

11. Objections to an enlarged test are not convincing: (i) wording of the Treaty does not preclude it; (ii) “to insulate potentially unlawful measures from judicial scrutiny cannot be justified on grounds of administrative or legislative efficiency”; (iii) fears of overloading the CFI seem exaggerated, given the time-limit for claims and the requirement of direct concern. So, there won’t be a huge increase in cases
12. Time is right for reform: EU rules on standing are increasingly out of line with more liberal standing rules in MS, the establishment of the CFI to deal with greater volumes of cases, and the ECJ’s case law on effective judicial protection in the national courts makes it difficult to justify restrictive standing rules before EU courts.

Question 20

1. facts of Jego-Quere?
2. CFI held?
   - why was Plaumann test not satisfied?
3. what was their reasoning?
4. what was held re A. 267 + A 340?
5. Proposed test?

Answer 20

1. case involved C (fishermen) seeking annulment of Reg. prohibiting drift-net fishing. Because the Reg. did not have national implementing measures, Cs would have to breach it to bring a challenge.
2. CFI: Cs have standing even though they do not satisfy the Plaumann test (they are only distinguished by their occupation as fishermen):
3. Cs would been denied effective judicial protection if they did not have standing and access to the courts / right to an effective remedy are essential elements of a community based on the rule of law and guaranteed under Art. 47 of the Charter.
4. Art. 267 is insufficient as “individuals cannot be required to break the law in order to gain access to justice” and Art. 340 (non-contractual liability of the EU) is insufficient because only “sufficiently serious breaches” result in damages and it doesn’t allow challenged act to be removed from EU law.
5. Proposed test: C should have standing where an act of general application “affects his legal position, in a manner which is both definite and immediate, by restricting his rights or 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”.

Question 21

However, the ECJ in UPA reject AG Jacob’s proposals and deny standing under Plaumann:

1. re effective judicial protection?
2. what did they emphasise re the role of MSs?
3. why couldn’t they allow standing where the national procedural rules do not allow A. 267?
4. Could A 263 have the effect of setting aside the requirement of individual concern?

Answer 21

1. Arts. 263, 267 and 340 establish a complete system of legal remedies to ensure effective judicial protection.
2. They emphasise that “it is for MS to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection” —i.e. it is for MS to ensure that individuals are about the challenge EU acts before national courts to enable an Art. 267 reference to be made.
3. Can’t allow standing wherever national procedural rules do not allow an Art. 267 reference; this would require the ECJ to examine / interpret national procedural rules, which they are not equipped to do.
4. Further, the interpretation of Art. 263 cannot have the effect of setting aside the requirement of individual concern —it is for MS to reform Art. 263 standing rules through Treaty amendment.

Question 22

The ECJ take the same approach in Jego-Quere:

1. facts
2. What did the ECJ suggest?
3. criticisms?
4. why might the rejection of the CFI’s test for individual concern have some force?
5. why is EU’s suggestion that MS governments bring a challenge to an EU act flawed?

Answer 22

1. Cs were denied standing even though the only way they could challenge the validity of the EU Regulation before the national courts was to breach the Reg.
2. Suggest that C could request their national authorities to implement a measure relating to the Reg. which could then be challenged before national courts, allowing Cs to challenge it via Art. 267.
3. Criticism:
   o Court’s argument is: (i) it’s up to national courts to insure access to judicial protection; (ii) the Court isn’t empowered to change the interpretation of Art.263(4) because to do so would require them to rewrite the provision and the Court doesn’t have the power to do so.

Not really convincing because (i) is inconsistent with their approach to effective judicial protection in Unibet and (ii) clashes with the fact that in other contexts they have been happy to stretch Treaty provisions to develop EU law in startling ways (e.g. direct effect, Mangold for FRs).

4. Although the argument that CFI’s test for individual concern deprives it of content may have some force; it is hardly different from the test for direct concern in International Fruit.
5. The proposed solution (asking MS governments to pass implementing measures under Regs.) is also flawed in that it is a highly artificial route to bring a challenge to an EU act and may only be available to companies with enough commercial / political resources to influence the government.

Question 23

The concern over inability to get a preliminary reference where there are no national implementing measures to be challenged before the national courts was slightly assuaged by…

1. facts
2. held?
3. what is the limitation of this aforementioned case in assuaging concerns?

Answer 23

1. BAT [2002]: an EU Directive on cigarette marketing had not been implemented by the EU (implementation period had not expired). C (tobacco company) brought JR in the UK of the governments obligation to transpose the directive on the basis it was invalid as a matter of EU law. National court was able to make an Art. 267 reference to the ECJ even though there were no implementing measures.

ECJ: preliminary ref was admissible:

2. Although ECJ cannot hear hypothetical PRs, “the opportunity open to individuals to plead the invalidity of [an EU act] before the national courts is not conditional on that act’s having been subject to implementing measures adopted pursuant to national law. In that respect, it is sufficient if the national court is called upon to hear a genuine dispute in which the question of the validity of such an act is raised indirectly.”

It may be that the ECJ in UPA was suggesting that national courts should be willing to accept this type of judicial review action where there are no national implementing measures, but this solution will only apply to directives —for regs. there is no obligation to implement, so no obligation to be reviewed. BAT does not really illustrate the issue, as implementing measures would have been passed eventually.

Question 24

Plaumann has been retained post-Lisbon

1. How did Inuit interpret post-Lisbon rules on standing?
2. What did they reiterate re national courts making provisions for challenging EU law indirectly via 267?
3. re the Charter?

Answer 24

ECJ: there is nothing to suggest that Lisbon intended to alter the meaning of Art. 263.

Reiterate that it is for national law to make provision for challenging the validity of EU law indirectly via Art. 267.

Further, the Charter right to effective judicial protection does not require change in standing rules post-Lisbon.

Question 25

Against AG Jacobs opinion in UPA:

His arguments about the procedural disadvantages of Art. 267 compared to Art. 263 are valid, but do not take into account the practical reality of the prevalence of national courts compared to the limited CJEU system.

Answer 25

• There are now 28 MS, each of which has a system of national courts, so it is practical for the majority of cases to start in the national courts and be filtered out by the Art. 267 system — only the most important / valid cases should progress to the ECJ.

Question 26

Against AG Jacobs opinion in UPA:

What does Harlow note re AG Jacob’s wide test?

Answer 26

• As Harlow notes, given the current climate of Euroscepticism, more liberal ECJ standing rules could raise the risk of the ECJ being turned into a forum for parties to bring politically motivated challenges. Could be used by commercial parties to delay the application of unfavourable rules—particularly if the ECJ case backlog is a matter of years.

Question 27

Against AG Jacobs opinion in UPA:

AG’s comparison with liberal national standing rules is flawed

1. re ECJ is too small
2. why liberal national standing rules provide standing to indirectly challenging EU acts - why might this justify narrow EU standing rules?
3. What does Enchelmaier note re national rules and standing?

Answer 27

1. Purpose of all standing rules is to prevent an overload of cases, but this necessitates stricter standing requirements for the EU given the much larger population and small dedicated court system.
2. Further, direct effect, principle of effectiveness and supremacy mean national courts are part of the EU court system — liberal national standing rules therefore provide standing to challenge EU acts (albeit indirectly) and justify narrow EU standing rules.
3. Enchelmaier: access to the ECJ can be seen as access to national constitutional / supreme courts, which is often very restricted. Further, Plaumann covers challenges to legislative acts —many legal systems have no possibility to seek legislative review of judicial acts (e.g. UK).

Question 28

Against AG Jacobs opinion in UPA:

The AG argues that administrative efficiency should not justify restrictions on standing, but this is naïve —

1. backlog of cases?
2. threat of interested parties lobbying government to bring 263 as in Tobacco advertising 1
3. ombudsman model?
4. criticism of current 263 proceedings and how might an Ombudsman model address that?

Answer 28

1. if the backlog of cases means it takes cases years to reach the ECJ, rights will not be meaningfully protected, or could only be protected in MS willing to grant long-term interim relief which could lead to undermining the effectiveness and uniformity of EU law.
2. Further, if an EU act causes serious commercial / political concerns, interested parties can lobby to have their government bring an Art. 263 action with unrestricted standing (e.g. Tobacco Advertising I).
3. My thoughts: indeed, a good model might be for national governments to set up ombudsmen to hear complaints about the validity of EU law —if the concerns are valid / it is an important issue / it is economically worthwhile, then the national government could bring claims on behalf of citizens.
4. One criticism of Art. 263 proceedings is that the more people effected by an EU law, the less likely individuals have standing, but on this model, the more complaints a government receives, the more incentive it would have to bring a case before the ECJ. Arguably MS should be the ones to bear costs of keeping EU accountable, rather than private citizens.

Question 29

1. What does Craig say to defend AG Jacob’s opinion in UPA

2. But, what is the logical consequence of AG Jacob’s approach?

Answer 29

1. AG Jacobs’ test would not greatly increase the number of claims as actions challenging the same aspect of an EU act could be joined and once the validity of an EU act had been determined by the ECJ, no further challenges could be brought.
2. But this overlooks the fact that every EU act could be challenged, since every act will have actual or potential adverse impact on someone in the EU.

Question 30

Against AG Jacobs opinion in UPA:

1. Best solution i.e. modifying Plaumann test
2. why is this solution effective?
3. what is the response to the ECJ’s concern re being unable to interpret national laws?

Answer 30

1. best solution is perhaps Plaumann but with a modest extension to allow standing to those who have no recourse because there are no national implementing measures for the challenged Act (so Art. 267 is not available).
2. This way, they are not denied effective judicial protection and are not forced to break EU law.
3. Jacob’s primary objection is that this would require the ECJ to interpret / apply national procedural rules, which the ECJ is not competent to do (i.e. to see if it truly is the case that C cannot bring a case before national courts). However, this will normally be obvious and the ECJ has shown itself capable of adjudicating on national procedural rules compliance with effectiveness (e.g. Unibet).

Question 31

REGULATORY ACT OF DIRECT CONCERN AND NO IMPLEMENTING MEASURES

Answer 31

Lisbon added a new provision on standing to Art. 263(4): individual concern is not required in relation to a regulatory act that does not entail implementing measures.

Significance will depend on how broadly “regulatory act” and “implementing measure” are construed. If ‘regulatory act’ were defined broadly, to include all legislative / delegated / implementing acts (the three types of act in the Treaties) which do not require implementing measures (i.e. all acts excluding Directives, which always require implementing measures) then the provision would reform the law of standing —any individual who can show direct concern, but cannot satisfy the Plaumann test would be able to bring judicial review under Art. 263 (e.g. Cs in Jego).

NB: a legislative act is per Art. 289 an act adopted under either the special / ordinary legislative procedure.

Question 32

REGULATORY ACT OF DIRECT CONCERN AND NO IMPLEMENTING MEASURES

But this broad interpretation of “regulatory act” has not been adopted.

Answer 32

• Microban v Commission [2011]: Commission decision, enacted as a Regulation, prevented an additive being used in the manufacture of plastic. C (plastic manufacturer) challenged the Reg. ECJ: C had standing.
o A ‘regulatory act’ is one which covers “all acts of general application apart from legislative acts.” Thus, a Decision adopted pursuant to a Directive is an implementing act and not a legislative act. An EU act is of general application if it “applies to objectively determined situations and it produces legal effects with respect to categories of person envisaged in general and in the abstract.” This act applies to all plastic manufacturers so is of general application.
o Regulatory act must be of ‘direct concern’: shouldn’t be interpreted more restrictively than in International Fruit.
• Inuit Tapiriit [2013]: concerned a legislative Regulation on trade seal products. ECJ: not within the definition of ‘regulatory act’ given in Microban. Regulatory acts cannot refer to all acts of general application or its distinction with “acts of direct and individual concern” would be nullified. The definition as ‘non-legislative acts’ is supported by the definition given in the Constitutional Treaty.

Question 33

REGULATORY ACT OF DIRECT CONCERN AND NO IMPLEMENTING MEASURES

Analysis

Answer 33

Against narrow interpretation of ‘regulatory acts’: Although it fits with the text of Art. 263(4) and the Constitutional Treaty, but means that Lisbon did not resolve the real problem with the Plaumann test (i.e. allowing standing to Cs such as those in Jego). The restrictive definition is particularly problematic given the ECJ’s formulistic approach to defining legislative acts (any act passed under the ordinary / special legislative procedure) —i.e. even if the act applies to a narrow class (who can’t satisfy Plaumann because it is not closed). The words “do not entail implementing measures” suggests Art. 263(4) was intended to tackle the Jego type case and should support a broader reading of ‘regulatory act’ by the ECJ.

In favour of narrow interpretation: The restriction of ‘regulatory acts’ to non-legislative acts may make sense in terms of the discretion and policy choices involved in legislative acts compared to non-legislative acts —particularly because EU legislative acts require painstaking political negotiation. Indeed, many MS (e.g. UK) don’t allow JR of legislative acts, but allow extensive JR of delegated / executive acts.

Lisbon did nothing to resolve the difficulties with Art 267 identified by AG Jacobs in UPA.

Question 34

Tridimas & Poli:

• what approach is taken under Plaumann?
• is the test in Jego or Jacobs’ more restrictive?
• what is said re Jego’s comment about the proposed test in CFI?
• re suggestion in Jego that national governments enact implementing legislation for regulations?

Answer 34

• Under Plaumann, the ECJ adopts as “alternative forum” approach to standing: the national courts are seen as the appropriate forum for challenges by individuals of the validity of EU acts, promotes a decentralised justice system.
• The test in Jego is more restrictive that AG Jacob’s test in UPA —the former would deny standing to the applicants in Plaumann and Greenpeace, the latter would not (because both cases involved implementing acts which could be challenged before national courts).
• ECJ’s comment in Jego that CFI’s proposed test effectively removed the requirement of individual concern is flawed, since there is nothing in the Treaty that requires such a restrictive interpretation as Plaumann [Note: but the test proposed is very similar to International Fruit, so argument has force].
• The suggestion in Jego that national governments should enact implementing measures for regulations is flawed, since in practice it would be very difficult to convince MS to do so. Further, the ECJ’s contention that it is for national courts to provide a remedy in situations such as Jego is an intrusion into national procedural autonomy and finds much less basis in the Treaty than the liberalised tests in Jego and UPA.
• Although there are good reasons for a restricted standing test —(i) prevent overburdening EU court system; (ii) prevent delaying strategies by large corps. adversely affected by legislation; (iii) EU legislation takes a long time to pass and is the result of painstaking negotiations —it does not seem persuasive to deny standing to a person adversely affected by an EU measure on the grounds that others may be affected in the future as Plaumann does.

Question 35

Enchelmaier:

Answer 35

• AG Jacobs argues that participation of national courts in controlling the validity of EU acts under Art. 267 is a weakness of the system —this must be rejected:
o Involvement of national courts is rooted in subsidiarity: brings decisions as close as possible to citizens, gives EU law a local presence, decisions are given in familiar languages.
o Involvement of national courts acknowledges their central role in EU judicial system
• Two situations are not catered for by Arts 267 and 263: (i) where the challenged EU act requires no implementing measures; (ii) a national court refuses to make an Art. 267 reference.
o CFI’s decision in Jego was based on FRs, understanding there is no point in having rights if they cannot be enforced. The EU’s increased competence requires the corresponding extension of adequate legal protection to individuals. CFI in Jego resolved the (i) problem —it should not have been overruled on appeal.
o The (ii) problem can be resolved by putting all national courts under an obligation to refer all questions of validity of EU acts which are not obviously spurious / settled by the ECJ. Such an obligation is essential to securing justice and flows from the need for effective legal protection / coherence of the legal system established by the treaties. Effective legal protection cannot be assured if there is no guarantee the ECJ will become involved in validity proceedings as they are the only body with the authority to annul EU acts under Foto Frost.

Question 36

ACTION FOR DAMAGES AGAINST THE EU

Art. 340 TFEU

Answer 36

: “In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.” EU can be liable in damages for breach of EU law.

An Art. 340 action can be brought even though C has not obtained annulment of an act under Art. 263—i.e. it is a free-standing action, but unlike Art. 263 it does not result in annulment of the act

Question 37

Art. 340 TFEU Test is restrictive, e.g. Schöppenstedt

Answer 37

—i.e. a “flagrant violation of a superior rule of law for the protection of the individual”:
• Schöppenstedt [1971]: C brought an Art. 340 claim against the Council in respect of damage caused to C by a Regulation which lowed the price of sugar. C argued the Regulation breached the Treaty because it was discriminatory in the way sugar was priced. ECJ: rejected C’s claim for damages—no ‘flagrant violation of a superior rule of law’.

Question 38

ACTION FOR DAMAGES AGAINST THE EU

Successful application brought in:
Mulder [1992]:

Answer 38

• C agreed not to produce milk, under EU Regs., but on expiry of the deal, was prevented from resuming production. ECJ: approved the Schöppenstedt test —the principle of legitimate expectations, as a general principle, is a “superior rule of EU law aimed at the protection of individuals.” In fields where the EU has wide discretion (as in agricultural policy) the EU cannot be liable under Art. 340 unless the institution “manifestly and gravely disregarded the limits on the exercise of its powers” which it had done here (breaching C’s fundamental right without justification).

Mulder involved a large no. of Cs; shows that a large class will not prevent Art. 340 from biting.

Question 39

ACTION FOR DAMAGES AGAINST THE EU

Factortame No. 3

Answer 39

ECJ held the test for state liability under Francovich and EU liability under Art. 340 should be the same: (i) breach of a superior rule of law intended to confer rights on individuals; (ii) a sufficiently serious breach; (iii) breach cased loss to C.

Question 40

ACTION FOR DAMAGES AGAINST THE EU

Factortame approach has been followed: key factor under the test is level of discretion involved:

Laboratoires Pharmaceutiques Bergaderm [2000]

Answer 40

key factor in determining whether there is a sufficiently serious breach is the measure of discretion held by the EU institution: “
o “where the MS or the [EU] institution in question has only considerably reduced, or even no, discretion, the mere infringement of [EU] law may be sufficient to establish a sufficiently serious breach.” The same test applies for legislative and administrative measures, and acts of general / individual application, key test is how much discretion was enjoyed

Breach of a superior rule of law: three main types: (i) a hierarchically superior EU act (e.g. a Regulation under which a delegated regulation is enacted; (ii) GPs of EU law; (iii) Treaty provisions.

No standing requirements for Art. 340: not needed because the requirements to establish a successful claim are sufficiently high (e.g. sufficiently serious breach and proof of loss and causation) and because claims result in damages and not annulment (doesn’t upset political balance of passing EU legislation).

Question 41

IMPORTANCE OF JUDICIAL REVIEW AND BREADTH OF STANDING

Functions of judicial review:

Answer 41

1. Protecting the rule of law and protecting individuals from arbitrary power, checks and balances.
2. Ensuring accountability of EU institutions, particularly given the EU’s democratic deficit. The threat of sanction or annulment should motivate the EU institutions to ensure that their acts are lawful.
3. Protection of fundamental rights, as required by Art 47 of the Charter.
4. Justifying the supremacy of EU law: Internationale Handelsgesellshaft, Solange II, the possibility of comprehensive review of the legality of EU acts by the ECJ justifies those acts being supreme over national law and the national courts’ inability to review EU acts under Foto-Frost.
5. Practical points: the fact that only the ECJ has the necessary panoramic understanding of EU law, language skills etc. to undertake review of EU acts means that access to the ECJ is essential as the only way of accurately assessing the validity of EU acts (Foto-Frost, CILFIT)

Question 42

IMPORTANCE OF JUDICIAL REVIEW AND BREADTH OF STANDING

reasons for limiting standing of individuals:

Answer 42

1. Efficiency of the judicial process (hearing cases promptly, ensuring timely resolution to costly disputes, remedying rights violations as soon as possible) requires limits on access to the ECJ, particularly given that there are now 28 EU Member States and the ECJ is suffering from a huge backlog of cases. Although this could be resolved by improving efficiency / size of the ECJ rather than limiting standing.
2. Harlow: avoid the courts becoming a political forum for individuals to air their political grievances outside of the political process.
3. To prevent speculative claims: e.g. by companies who will do it just to get an interim injunction delaying the application of a law they don’t like.
4. Ability of indirect challenge to EU acts through Art 267 decreases the need for Art. 263 standing: Further, Art. 267 allows hundreds of national courts to filter out claims with minimal chance of success before ECJ becomes involved, and helps to develop cooperation between the national courts and the ECJ, integrates national courts and national legal systems in the EU law process.
5. MS have unrestricted standing, decreasing the need for individual standing: MS will challenge acts which will have a major impact on national commercial interests, and individuals/companies can petition the government to challenge an EU act.
6. Enchelmaeir: Most states allow no / very limited review of legislative acts: the EU does allow some such challenges under Art. 263, but such challenges should be limited due to the discretion and political policy judgements involved in legislation. Limits are less justifiable in relation to delegated / implementing / administrative actions (which are much more likely to be of individual concern).

Question 43

IMPORTANCE OF JUDICIAL REVIEW AND BREADTH OF STANDING

Note: Remedying deficiencies with the Art. 267 procedure

Answer 43

Note: Remedying deficiencies with the Art. 267 procedure —e.g. via an obligation to refer where C’s arguments are not obviously unfounded and where there is no previous jurisprudence by the ECJ —would be in line with Kobler which already strengthens the position of an individual where a court of final instance refuses to refer. Further, the development of precedent in this area would prevent an unmanageable workload.

Question 44

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

Intro

Answer 44

The desirability of Arnull’s test depends on broader notions of the role of standing. Miles draws attention to the spectrum in the available scope of standing, from an ‘individualistic model’ to a more ‘communitarian model’. This range corresponds to what Schiemann terms ‘closed’ and ‘open’ requirements (relating to the strictness of the rules).

Arnull’s test, at first glance, falls on the ‘open’ end of the spectrum. This contrasts with the ‘almost insurmountable barrier’ of the current test.

Arnull’s wider test is desirable for two seminal reasons:

(1) it would be more compatible with the assertion that the EU ‘is a community based on the
rule of law’ 2 and Article 47 of the Charter of Fundamental Rights, which guarantees ‘the right to an effective remedy before a tribunal’, than the current means of direct challenge, and

(2) the indirect means of challenging the validity of an EU act are inadequate.

On the other hand, Arnull’s test does not go far enough. The ‘adversely affected’ criterion would continue to afford primacy to the victim’s
autonomy. Restricting who can bring a claim to those who have been adversely affected overlooks the fact that vindicating the rule of law is vitally important to EU citizens and Member States (MSs) at large (note
that Member States are privileged applicants and would not need to prove standing)

Therefore, a two-tier track system is most desirable. First, standing would be enjoyed by those ‘adversely affected by the contested act’. Secondly, a discretionary track would cover public interest
challenges whilst protecting the ECJ from ill-motived litigants. An interesting dichotomy

Question 45

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

1. Upholding the rule of law and protecting fundamental rights
   a. Supplanting the current test for directly challenging the validity of an EU act
   (i) Current law

Answer 45

Currently, individuals are only granted standing in one of three scenarios, laid out in Article 263(4)
TFEU: (a) where they are the specific addressee of an act; (b) the contested act ‘directly and
individually concerns’ the applicant; and (c) a regulatory act, which does not entail further
implementation measures, ‘directly concerns’ the applicant.
Arnull’s test would catch the majority of cases which currently fall under situation (a). An applicant (A) will be a specific addressee when they are identified, typically in a decision. A will be ‘adversely affected’ when the decision goes against them. In practice, it is doubtful whether A would
seek standing to challenge a claim where they have not been adversely affected.

Question 46

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

1. Upholding the rule of law and protecting fundamental rights
   a. Supplanting the current test for directly challenging the validity of an EU act
   (i) Arnull’s test is wider than the current law

Answer 46

However, Arnull’s test is much wider than the current interpretation of the second scenario in
Article 263(4). ‘Direct concern’ can be proved by showing that the measure ‘directly affect[s] the legal situation of that individual and, secondly, there [is] no discretion left to the addressees of that
measure who are responsible for its implementation’ 3 If A has been ‘adversely affected’, then the
contested act will have affected their legal situation. It would, however, allow A to bring a claim
where a MS had discretion. This would have granted A in Municipality of Differdange v Commission
standing. 4 In that case, the Court held that the contested act left the MS with ‘such a margin of
discretion with regard to its implementation’ that the necessary causal link between the effect and the
act was broken. Given that Arnull’s approach sets out the ‘basic test for standing’, it could be
modified to incorporate this requirement for a direct link which serves a useful purpose of challenging the body responsible for the
invalid act. Such a modification would be similar to the Court of First Instance’s (CFI) test in Jego-Quere. 5 Although the CFI’s test was drawn in narrower terms than Arnull’s, by requiring ‘definite and
immediate effect’ on the ‘legal position’ of A, it required there to be no implementing measures.
However, eradicating the requirement altogether would be more desirable ok, because it would
unambiguously hold the EU responsible for how its acts are implemented. This would avoid
unnecessary litigation to determine where the lines should be drawn in determining who is responsible
when discretion is afforded to a MS but Member States would therefore avoid responsibility, even for
the consequences of acts they had some discretion to implement? Wouldn’t it amount to vicarious
liability of the EU? . Moreover, the EU would be forced to either reiterate its position, fostering a
culture of justification, or to amend its position in light of the fact that it cannot avoid review.

Question 47

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

1. Upholding the rule of law and protecting fundamental rights
   a. Supplanting the current test for directly challenging the validity of an EU act
   (ii) Arnull’s test would also eradicate the requirement for ‘individual concern’.

Answer 47

Plaumann v Commission held that to be individually concerned, the decision must affect ‘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’. 6 In practice, this denies standing to (most?) applicants who
have been directly adversely affected. In Plaumann, A could be regarded as having been prejudiced by
the act due to ‘certain attributes’ peculiar to him and ‘by reason of circumstances’, in his capacity as a
clementine importer. Yet, the action was deemed to be inadmissible on the basis that he was affected ‘by reason of a commercial activity which may at any time be practiced by any person’. This is a
serious infringement of the application of the rule of law and Article 47 because it can be criticised as
unrealistic commercially note that being ‘unrealistic commercially’ does not necessarily constitute a
violation of the right to an effective remedy and, in practice, virtually impossible to satisfy. Craig and
De Burca, on assessing the reasonableness of the aforementioned problem, state that ‘the fact that I
may wish to become a striker for England, a great pianist, or a Clementine importer does not mean
that I currently have the attributes associated with any of those roles in life.’ 7 Arnull’s test would
avoid this difficulty, much like the approach advocated by AG Jacobs in his opinion of UPA, 8 by
doing away with the closed category test which rests on a fallacy. Currently, the greater the number of
persons affected by a measure, the less likely that an action under Article 263(4) would succeed
Good. However, the fact that a measure adversely affected a large number of individuals provides ‘a
positive reason for accepting a direct challenge by one or more of those individuals.’ 9 Arnull’s test
would similarly encourage the use of direct actions, which would bring clarity and simplicity to a
compounded body of case law. It would also remove anomalies between the restrictive interpretation
of the notion of individual concern and the generous interpretation of aspects of Article 230(4) (now
263(4)) in Les Verts. 10

Question 48

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

1. Upholding the rule of law and protecting fundamental rights
   a. Supplanting the current test for directly challenging the validity of an EU act
   (iii) Furthermore, adopting Arnull’s test would supplant the third scenario in Article 263(4).

Answer 48

The
restrictive interpretation of ‘regulatory act’ has limited the potential success of alleviating the
problems with standing. In Inuit, the Court defined ‘regulatory act’ as ‘an act of general application
which is not a legislative act’. It rejected arguments for a wider definition based on the right to
effective judicial protection in Article 47 of the EU Charter. However, the court erred in its
conclusion. Peers and Costa argue that if the drafters of the ToL had intended the provision to refer to
non-legislative acts, they would have used ‘express and unambiguous’ wording to that effect yet, the
Court reached this conclusion by referring to the preparatory works of the former Constitutional
Treaty . 11 Balthasar further observes that other Articles, such as 290(1), refer to non-legislative acts
but the term was not used in Article 263(4). 12 Consequently, the courts have put greater emphasis on
the form, rather than the substance, of a measure. Arnull’s test would put greater emphasis on the
substance, and is comparable to AG Jacob’s proposal before the ToL that standing be based on
whether a measure ‘has, or is liable to have, a substantial adverse effect on [an applicant’s] interests’
Note that Jacob’s test seems to be dealing only with individual concern, while Arnull’s deals with
both individual and direct concerns. 13 The General Court in Jego-Quere 14 approved this suggestion on the grounds that it improved judicial protection. Arnull’s test provides a lower bar, as it merely
requires an adverse effect, rather than a substantial adverse effect although this would largely depend
on the interpretation of the word ‘substantial’…. This lower bar would give the courts less room to
preclude standing than the current approach and that of AG Jacob’s, and therefore provides even
greater judicial protection.

Question 49

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

1. Upholding the rule of law and protecting fundamental rights
   b. The inadequacies of indirect challenges to the validity of an EU act
   (i) justification for restrictive rules

Answer 49

One justification for the restrictive rules on standing is that there is a ‘complete system of legal
remedies and procedures’, which permits an applicant, where they cannot directly challenge
Community measures, to ‘plead the invalidity of such acts… before the national courts and ask them,
since they have no jurisdiction themselves to declare those measures invalid, to make a reference to
the Court of Justice for a preliminary ruling on validity.’

Question 50

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

1. Upholding the rule of law and protecting fundamental rights
   b. The inadequacies of indirect challenges to the validity of an EU act
   (ii) justification for restrictive rules

Answer 50

These indirect measures provide an inadequate protection for the rule of law and Article 47 of
the Charter. First, national courts ‘do not have the power to declare acts of the Community institutions
invalid’. 16 A preliminary reference procedure is required, under Article 267 TFEU. Such a procedure
can only be used if the national court has jurisdiction, which may not be the case where there are no
national implementing acts to challenge. Secondly [therefore?], A may need to breach EU law before
challenging the legality of the act on which the illegal behaviour rests. Thirdly, A has no right to
demand an indirect challenge. Where the national court has no doubts about the validity of Union act,
A can only appeal to a higher national court, incurring additional costs and legal uncertainty. 17 The
ECJ did not provide a satisfactory answer to these concerns in UPA. They also rejected the argument
that locus standi should be automatically granted where no alternative remedies apply Indeed, but you
would need to further explain why. Ultimately, it is concerning that the ECJ would rather [let?]
citizens use the deficient preliminary ruling procedure as a means of judicial review when a more
direct route to the courts exists in the Treaty indeed but could there be an argument for judicial
subsidiarity, reinforcing ‘sincere cooperation’ between national and European courts, taking decisions
closer to the citizens, etc?.

Question 51

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

2. Why Arnull’s test does not go far enough
   (i) material/legal exclusions to JR

Answer 51

Arnull’s test fails to take into consideration what I will label ‘material exclusions’ from judicial review, and is therefore inadequately closed. ‘Material exclusions’ to judicial review can be distinguished from ‘legal exclusions’. The lack of money, education or time are material exclusions (can a test truly take into consideration the lack of money of a potential applicant?); ouster clauses, or in this case the requirements found in Article 263(4), are legal exclusions.

Question 52

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

2. Why Arnull’s test does not go far enough
   (ii) issues will not be considered

Answer 52

The social reality is that many cases of abuse of power may not be brought before the ECJ.
Unless the ECJ uncharacteristically imbues Arnull’s criterion with a generous interpretation, it would
fail to grant standing to groups in cases such as Greenpeace v Commission. 18 In that case, the CFI and
ECJ did not see how the interests of the local residents, environmental pressure groups or Greenpeace
differed from those of any other members of the public affected by the decision. It also rejected the
argument that a more liberal approach should be developed in an environmental context (a view
which AG Cosmas concurred with). This leads to what Lord Diplock would have described as a
‘grave lacuna’ in the law. 19 A UN report noted that ‘the consequences of applying the Plaumann test to
environmental and health issues is that in effect no member of the public is ever able to challenge a
decision or a regulation in such case before the ECJ.’ 20 This is because rights involving health and the
environment can be described as collective in the sense that they do not belong to any individual in
particular, belonging at one and the same time, to everyone and to no one. The issue, however, is that
the ECJ could restrictively interpret the phrase. After all, as Albors-Llorens notes, ‘the letter of Article
230(4) EC does not bind the Court to a particular interpretation of that test’. Therefore, there is
nothing to guarantee a generous interpretation to Arnull’s criterion.

Question 53

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

2. Why Arnull’s test does not go far enough
   (iii) solution - 2 tier tracked system

Answer 53

An alternative approach would be to adopt a two-tier track, which would replace the
‘alternative forum’ 21 approach with not solely an injury-based approach, but a communitarian, public
interest approach. First, standing would be enjoyed by those ‘adversely affected by the contested act’.
This would include the applicant who was economically adversely affected, such as Plaumann.
Secondly, a discretionary track would cover public interest challenges, whilst protecting the ECJ from
ill-motived litigants How would this protection work in practice? By giving increased discretion to
judges?. This would allow applicants such as Greenpeace to represent collective interests. Additional
qualifications, such as a materiality threshold (such as that found in section 84 Criminal Justice and
Courts Act 2015) could be incorporated. Such a qualification would grant the ECJ the discretion to
strike down applications in which it appears highly likely that the outcome for A would not have been
substantially different if the contested act had not occurred, unless there is an exceptional public
interest to draw attention to the EU act. Such a tool might empower the court to prioritise the most
important case, potentially quelling concerns that the ECJ would be flooded by inconsequential cases

As discussed during the tutorial, isn’t your solution giving too much discretion to the judiciary, at the
expense of a real ‘objective’ criterion for standing?.
In addition, could one possibly consider that a ‘violation’ of public interest already entails an adverse
effect on associations, thereby bypassing the need for the two-tier track system you propose?

Question 54

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

2. Why Arnull’s test does not go far enough
   (iv) judge over the shoulders

Answer 54

Finally, an open model of standing is advantageous because it ensures that the EU’s
institutions have a judge over their shoulders. This could ensure that good decision making happens.
In addition, sometimes illegal acts may not affect an individual sufficiently to give him or her
standing Isn’t it precisely the rationale of requiring a ‘substantial’ adverse effect?. An open model
would establish greater EU accountability in such sectors such as health and the environment.
Rebuttals that judicial oversight might impede efficient governing or open the floodgates of cases
unduly put efficient government and case management before the rule of law and the need to bolster
the Union’s legitimacy.

Question 55

‘The basic test for standing under Article 263(4) should be whether the applicant has been
adversely affected by the contested act. A test of such evident liberality would make a decisive break
with the early case law on direct and individual concern.’ (ARNULL). Discuss the desirability of
such a test.

3. Conclusion

Answer 55

Arnull’s test represents a more desirable approach than the current means of directly and indirectly
challenging the validity of an EU act. However, in the present context where social inequality exists,
and vulnerable and marginalised citizens are incapable of bringing a claim, a two-tier track would
guarantee adherence to fairness, good administration and respect for the dignity of the citizens, whilst
retaining judicial discretion to prioritise cases which adversely affect A or raise an important point of
public interest.