Article 47 of the EU Charter of Fundamental Rights and Its Impact on Judicial Cooperation in Civil and Commercial Matters
The Standing of Private Applicants in the EU and the Effective Access to Justice: A Second Round Forthcoming?
The judicial protection of private parties in the EU today often falls short of the standard set by the legal orders of the Member States. The locus standi conditions required under Art. 230 (4) TEC – which represented, at least in theory, the main legal avenue for individuals to obtain judicial review – required that when challenging EU acts with ageneral scope of application natural and legal persons demonstrate direct and individual concern. Such conditions have been tangled within the restrictive interpretation given by ECJ in the landmark case Plaumann,15 where the requirement was deemed to be met only if the applicant could demonstrate that despite the general scope of application of the provision in question he/she was individually concerned because of certain features or characteristics capable of distinguishing his/her position with respect to all other potential addressees.
For the past 50 years the Plaumann test has limited access to justice on the part of individuals and has long been criticized.16 The debate on the annulment procedure reached its peak in 200217 when the CFI tried to reinterpret the condition laid down in Art. 230 (4) TEC with a view to enhance the judicial protection of individuals within the EC legal order. In Jégo-Quéré,18 it was held that only a new interpretation of “individual concern” could ensure adequate access to justice for private applicants, expressly referring to Art. 47 CFR.19 The judgment was indeed propitiated by the revolutionary approach taken by Advocate General Jacobs in his opinionin Unión de Pequeños Agricultores pending at that time before the ECJ.20
The opinion is of great importance, as it argues for a wider interpretation of the requirement of individual concern, making for the first time specific reference to Art. 47 CFR. This could have resulted in an extension of the standing in actions brought before the courts against secondary EC legislation.
After focusing on whether Art. 234 TEC offered a valid alternative to Art. 230 (4) TEC, the Advocate general suggested a milder interpretation of the requirement, which will obtain when the measure has, or is able to have, a substantial adverse effect on a person concerned.21
These efforts were nonetheless vain since in Unión de Pequeños Agricultores (UPA)22 the ECJ reaffirmed the traditional Plaumann test. The Court claimed that the Treaty provided for an exhaustive system of legal remedies designed to ensure judicial review of the legality of the acts adopted by the EC institutions through the existence of alternative avenues enabling effective protection, as the preliminary reference procedure laid down in Art. 234 TEC or the plea of illegality under Art. 241 TEC. Although it was accepted that the requirement of individual concern did limit the right to an effective judicial protection, the Court went on to say that it could not simply disregard the wording of Art. 230 (4) TEC making it clear that any change in its case law would have to be preceded by an amendment to the Treaty in accordance with Art. 48 TEU.23 Subsequently, on theappeal against the CFI ruling in Jégo-Quéré24 the ECJ confirmed again its position notwithstanding the arguments put forward by AG Jacobs.25
And yet, as the Romans would have put it, Roma locuta, causa soluta?
In the light of the modifications envisaged by the Constitutional Treaty26 and more recently introduced by the Lisbon Treaty, access to justice seems to have a new shiny vest given the legal force attributed the Charter. A twofold level of reasoning, both political and legal, strongly suggests that a newly binding Charter would significantly alter the interpretation of the notion of standing by the EUCJ.
In a political and perhaps symbolic sense, the incorporation of the Charter into the EU legal order demonstrates that the “Masters of the Treaties” (i.e the Member States) have taken into greater consideration the need to protect the rights of individuals and more in general the effective access to justice. Thus, it is argued that in the new scenario, the modus operandi of the EU courts will change. In this regard, it should not go unnoticed that when the Court of Justice intervenes to promote integration, it acts, from a functional perspective, not only as a judicial body, but also as a political one.
The legal force attributed to the Charter could be understood as the Member States’ response to the critical analysis conducted by the ECJ in Unión de Pequeños Agricultores. Nonetheless, it is suggested that in this instance the judges were questioning the suitability of the individual requirement test rather than the wording of Art. 230 (4) TEC. In this respect, it is well know that the Lisbon Treaty has removed the “individual concern” requirement only when individuals seek to challenge the validity of “a regulatory act which is of direct concern to them and does not entail implementing measures”.27 This leaves open to speculation the issueof whether and how a binding Charter would affect the Plaumann formula when acts of a general scope of application are contested by private applicants. Ultimately, it is an interpretative problem to be solved by the EUCJ under Art. 19 TEU but it is respectfully submitted that the possibility of a revirement jurisprudentiel on the matter can not be excluded a priori. Of course, the answer to the question mainly depends on the reading the EU judges will give to the amendment agreed upon by the Member States during the 2007 IGC.
On the one hand, in fact, the EUCJ could consider the changes to be a confirmation of the will to prevent private parties from bringing an action against legislative measures (as is the case in certain Member States) and consequently deny locus standing on grounds of general (constitutional) policy. On the other hand, it can be argued that as any other Treaty provision, Art. 47 CFR will be subject to the traditional teleological, dynamic and functional rules of interpretation used by the EUCJ when applying EU law. The scope of Art. 47 CFR should therefore be appraised keeping in due consideration the effet utile doctrine, whereby norms must be interpreted according to their wording but in a way that ensures full effectiveness of EU law and, in particular, the protection of individual rights.28 It follows that, since the Charter acquired legal force, the EU courts might change their approach in assessing the individual concern requirement focusing more on the need to respect the principle of effective judicial protection (via the principle of effet utile) than on the wording of Art. 263 (4) TFEU, read in light of the Plaumann precedent.
Despite the circumstance that the relationship between Art. 47 CFR and Art. 263 TFEU is yet to be clarified, the legal force attributed to the Chartercould possibly result in a new judicial approach towards individual standing. Given that under the Lisbon Treaty both norms have a primary law status, and having in mind the suggested parallelism between the EUCJ and the highest courts of the Member States, the former could assign a prevailing force to the Charter provision enabling effective access to justice (at least in cases where the denial of judicial review could hinder individual rights). By contrast, wearing a ‘constitutional vest’, the Court of Justice could be tempted to recognize and stigmatise the ‘constitutional limit’ set out by Art. 263 TFEU and declare the action inadmissible.
15. Case 25/62 Plaumann  ECR 95.
16. Cf., amongst others, A. Arnull, ‘Private Applicants and the action for annulment under Art. 173 of the EC Treaty’, (1995) 32 Common Market Law Review 7; P. Craig, ‘Legality, standing and substantial review in Community law’, (1994) 14 Oxford Journal of Legal Studies 507; R. Greaves, ‘Locus Standi under Art. 173 EEC when seeking annulment of a regulation’, (1986) 11 European Law Review 119; C. Harding, ‘The private interest in challenging Community action’, (1980) 5 European Law Review 345; C. Harlow, ‘Towards a theory of access for the European Court of Justice’, (1992) 12 Yearbook of European Law 213; N. Neuwahl, ‘Article 173 Paragraph 4 EC: Past, present and possible future’, (1996) 21 European Law Review 112; H. Rasmussen, ‘Why is Article 173 interpreted against private plaintiffs?’, (1980) 5 European Law Review 112. It should also be noted that some Authors (P. Craig and G. De Búrca, EU law: Text, cases and materials (Oxford University Press, 2003) at 489) have described the Plaumann test as “a mirage in the desert, ever receding and never capable of being grasped”.
17. See A. Albors-Llorens, ‘The standing of private parties to challenge community measures: has the European court missed the boat?’, (2003) 62 Cambridge Law Journal 72; E. Biernat, ‘The locus standi of private applicants under Article 230 (4) EC and the principle of judicial protection in the European Community’ (2003) Harvard Jean Monnet Working Paper no. 12/03; C. Kombos, ‘The recent case law on locus standi of private applicants under Art. 230 (4) EC: A missed opportunity or a velvet revolution?’, (2005) European Integration Online Paper; V. Kronenberger and P. Dejmek, ‘Locus standi of individuals before community courts under Article 230 (4) EC: Illusions and disillusions after the Jégo-Quéré (T-177/01) and Unión de Pequeños Agricultores (C-50/00) judgments’, (2002) 5 European Legal Forum 257; F. Ragolle, ‘Access to justice for private applicants in the community legal order: Recent (r)evolutions’, (2003) 28 European Law Review 90.
18. Case T-177/01 Jégo-Quéré  ECR II-2365.
19. Ibid., para 47
20. Case C-50/00 Unión de Pequeños Agricultores v. Council  ECR I-6677, AG Jacobs.
21. See F.G. Jacobs, ‘Effective judicial protection of individuals in the European Union, now and in the future’, (2002) Il Diritto dell’Unione europea 203. In his opinion in UPA AG Jacobs found that Art. 234 TEC is not an effective alternative to Art. 230 (4) TEC. In particular, while pursuant to the latter provision the institution responsible for adopting the relevant act will be a party to the proceedings, under the former norm that would not necessarily be the case. Moreover, the national court: (a) may lack the expertise that the ECJ has in specific areas covered by the contested measure; (b) is prevented from declaring the measure as invalid (cf. Case 314/87 Foto-Frost  ECR 4199) and (c) may encounter more difficulties in granting the interim relief available to the ECJ pursuant to Arts. 242 and 243 TEC. As to the latter aspect, it should be recalled that: (i) not always domestic legislation provides for the necessary remedies; (ii) the substantial delays and increased costs related to preliminary references are not present to the same extent in direct actions for annulment; (iii) the action for annulment allows for a more intense scrutiny of the contested measure since the applicants autonomously put forward their pleas and invoke the relevant grounds of invalidity whereas under Art. 234 TEC they can (only) intervene submitting written observations and presenting oral arguments before the ECJ and (iv) Art. 234 TEC is subject to the CILFIT jurisprudence (Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health  ECR 3415) on the doctrine of ‘acte claire et eclairé’ and, in any case, always depends on the willingness of the national Court to make the reference.
22. C-50/00 Unión de Pequeños Agricultores  ECR I-6677.
23. Ibid., para 45. In doing so the Court appears to acknowledge that, although complete”, the system of protection is not perfect
24. Case C-263/02 P Jégo-Quèrè  ECR I-3425.
25. In particular, in his opinion concerning the Jégo-Quéré case, Jacobs argued that the CFI erred in law when it departed from the traditional interpretation of individual concern, in breach of the fourth paragraph of Art. 230. He found the strict standing test highly problematic because capable of jeopardizing the individual’s right to challenge the validity of secondary legislation. Moreover, the only way to bring a case before a national court and obtain judicial review through a preliminary reference might be to infringe the law, which is not admissible. In addition, the alternative remedy of Arts. 235 and 288 (2) TEC are inadequate, but the situation is an unavoidable consequence of the limitations stemming from the wording of Art. 230 (4) TEC. Interestingly, unlike the Opinion in UPA and perhaps as a consequence of the ECJ’s decision in that case, there is no express reference to the right to effective judicial protection nor reference to the inadequacy of Art. 234 TEC as an alternative remedy.
26. Treaty Establishing a Constitution for Europe,  OJ C 130/1.
27. Cf. Art. 263 TFEU. The provision removes the “individual concern” requirement only when individuals seek to challenge the validity of “a regulatory act which is of direct concern to them and does not entail implementing measures”. However, it should be noted that no definition of “regulatory act” has been provided leaving the question open tospeculation. On the possible notion of “regulatory act”, see J. Usher, ‘Direct and individual concern – An effective remedy or a conventional solution’, (2003) 28 European Law Review 575; A. Dashwood and A. Johnston, ‘The institutions of the enlarged EU under the regime of the Constitutional Treaty’, (2005) 42 Common Market Law Review 1481; J. Rideau, ‘Présentation des actes juridiques dans la Constitution’, in E. Álvarez Conde and V. Garrido Mayol (eds.), Comentarios a la Constitución Europea, Vol. I (Tirant lo Blanch, 2004) at 333; R. Bray (ed.), Procedural law of the European Union (Sweet & Maxwell, 2006) at 327. Now that the Lisbon Treaty has entered into force, the ECJ will be soon called upon to clarify this point.
28. Cf. Case 187/87 Land de Sarre  ECR 5013, para 19; Case C-223/98 Adidas  ECR I-7081, para 21; Case C-440/00 Kühne & Nagel  ECR I-787, para 59. On the principle of ‘effet utile’ see M. Cartabia, Princìpi inviolabili e integrazione europea (Giuffré, 1995); R. Monaco, ‘Les principes d’interprétation suivis par la Cour de Justice des Communautés Européennes’, in author? Mélanges offerts à Henri Rolin (Pedone, 1964); M. Pechstein and C. Drechler, in K. Reisenhuber (eds.), Europäische Methodenlehre. Handbuch für Ausbildung und Praxis (De Gruyter Recht, 2006) 172; P. Pescatore, ‘Monisme, dualisme et effet utile» dans la jurisprudence de la Cour de Justice de la Communauté européenne’, in N. von Colneric, D. Edward, J. Puissochet and D. R. Colomer (eds.), Une communauté de droit. Festschrift für Gil Carlos Rodríguez Iglesias (Berliner Wissenschafts-Verlag, 2003) 329.