Judicial Review (Standing) Flashcards
What is judicial review?
A procedure which enables a court to consider whether a legally binding measure violates procedural or substantive rules of law and so should be rendered inapplicable.
Who/ what are privileged applicants?
article 263(2) TFEU
- Commision, Council, Parliament and Member States have an automatic right to challenge legislative acts/ bring action under article 263
- where a measure is expressly addressed to a private party they have an automatic entitlement to take an action
What are non privileged applicants?
- A natural person has no automatic entitlement to bring an action under art. 263.
- Under article 263(4) a natural person can bring an action
- where a decision is specifically addressed to them
- where they can prove they have a ‘direct and individual concern’ in the matter or
- in the case of a regulatory act which does not involve implementing measures, the applicant must prove only ‘direct concern’
How does an applicant prove ‘direct concern’?
Front National
- The community measure complained of must directly affect the legal situation of the individual and leaves no discretion to the addresses of that measure
- there must be a direct link
Municipality of Differdange
- Held that at the contested Decision left the national authorities with a margin of discretion as to its implementation, particularly which factories would be shut down, the decision was not of direct concern to the applicant.
When does the applicant have ‘individual concern’?
Plaumann
- Persons other than whom a decision is addressed may only claim to be individually concerned;
1. If the decision affects them by reason of certain attributes which are peculiar to them or by reasons of circumstances in which they are differentiated from all other persons and;
2) by virtue of these factors distinguishes them individually just as in the case of the person addressed.
- In this case a clementine trader was not held to be individually concerned as the importation of clementines was an economic activity in which anyone could engage, membership of this category was not fixed at the time of the decision.
- This meant the applicant was part of an open category of trader and was not individually concerned by the decision.
In sum; an applicant can only be individually concerned if they are in some way differentiated from all other persons and therefore singled out in the same way as the initial addressee.
What is a closed category, in contrast to the ‘open category’ discussed in Plaumann?
Piraiki-Patraiki
- Similarly to Plaumann the applicants were cotton traders, this would have them fall into the open category as it is an economic activity which can be engaged in by any undertaking.
- However, those traders who had entered into contracts before the restriction was imposed which were due to be performed during the restriction period were distinguishable from other parties.
-Thus they had individual concern.
- a closed category can be described as one where membership is fixed at the time of the decision.
What were some of the problems which arose with ‘individual concern’ pre Lisbon?
Calpak
- decisive issue was whether the regulation concerning the production of William pears was genuinely of general application
- just because it is possible to determine the number or even the identity of the producers to be granted aid does not mean the regulation is not of general application
- key point was that the legal effects were for a category of person described in a general and abstract manner
Codurniu SA
- Measure was a genuine regulation prohibiting the use of the term cremant in the marketing of wine not produced in France or Luxembourg
- Applicant demonstrated direct and individual concern as he held the registered name for cremant in Spain and so was differentiated from other producers
Greenpeace
- just because the applicants might suffer harm was not sufficient to prove individual concern, similar harm might affect a large number of persons
- special interest groups are not individually concerned on the sole basis that a decision is related to their interests.
When was an alternative test to ‘individual concern’ proposed for standing?
UPA case
- Advocate General Jacobs suggested that standing should be satisfied where a Community act has, or is liable to have a SUBSTANTIAL ADVERSE AFFECT ON A PERSON’S INTERESTS.
- Only such a test would give true access to a court that could give a remedy (principle of effectiveness) as the alternative route of going before a national court and hoping for a preliminary ruling under art 267 was not as satisfactory or definite a protection of the individual’s interests.
- ECJ rejected this saying the principle of effective judicial protection could not have the effect of setting aside the directly and individually concerned requirement for judicial review as this was a requirement ‘expressly laid down in the treaty’.
Did Advocate General Jacobs alternative test receive any support?
Jego-Quere
- The court of first instance assessed the alternatives to judicial review open to the company concerned, namely the preliminary reference procedure and non contractual liability of the Community, to determine whether the litigant had an adequate alternative remedy to enforce their rights under Community law.
- Found that neither provided an effective remedy.
- Advocated for the following test:
- individually concerned if the measure in question affects his legal position in a manner which is both definite and immediate
- 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.
- On appeal to the ECJ the decision was overturned, held that if the test for individual concern was to be altered this could only be done by amendment to the Treaty.
How did the amendment of article 263(4) in Lisbon affect the standing test for natural persons?
- Removed the requirement to prove individual concern in relation to regulatory acts which did not entail implementing measures.
- No definition of the phrases ‘regulatory act’ or ‘implementing measures’
How has the court defined ‘regulatory acts’ within the context of article 263(4)?
Inuit
- As para. 4 makes a clear distinction between the (pre Lisbon) ‘acts’ referred to in paras. 1-3 and (post Lisbon) ‘regulatory acts’ on the otherside, the concept of regulatory acts cannot ‘refer to all acts of general application but rather a more restricted category of such acts’
- Article 289 defines ‘acts’ as legislative acts when adopted by a legislative procedure
- It was clear from the Constitution of Europe and the working papers that no alteration to actions for annulment of legislative acts was intended, so the new ‘direct concern’ tests can only apply to non-legislative acts
- this ties in with the concept of democratic legitimacy and respect one institution could show for two institutions with the highest democratic legitimacy.
Carvalho
- claim that an act that infringes a fundamental right is not sufficient in itself to satisfy individual concern
- difference between a loss of a specific acquired right and and infringement of a universal fundamental right.
How has the court defined ‘implementing measures’?
Telefonica
- If a party seeks only a partial annulment of an act it is solely any implementing measures which this part of the act entails that should be taken into account
- Decision in questing required supporting administrative documents by the Spanish authorities and so necessitated implementing measures
Sugars
- Court held that any type of implementing measure, no matter how mechanistic, how minor, or how little discretion it requires from a MS is enough to deny standing.
- This narrows the scope and therefore the usefulness of the new test
