Standing under Article 263 TFEU

Privileged and semi-privileged aplicants
1. Privileged: MS rep indiv national interests, Council collective national interests, EP a pan-European democratic voice and Commission a pan-European non-governmental public interest
2. Semi-privileged: ECB, Court of Auditors, Committee of the Regions. to protect their institutional prerogatives rather than police. defensive power to ensure other institutions do not trespass on their legal entitlements
Non-privileged applicants
1. Regulatory acts and legislative acts
  1. Art 263(4): any natural person may institute proceedings against an act which is either addressed to them or of direct and individual concern to them
  2. Regulatory act: direct concern. other acts: direct and indiv concern, Distinction is axiomatic
  3. Legislative Act
    1. Art 289(3): a legal act is anything adopted by one of the EU legislative procedures. All delegated and implementing acts as regulatory acts.
2. Direct Concern
  1. 1. Causation: direct link b/w the act of the EU institution and damage inflicted. 2. Nature of interest affected by Union measure
    1. on 2., Must be a legal entitlement; and measure must adversely affect applicant's legal position
  2. Piraiki-Pitraiki: Greek cotton exporters challenged a restriction on exporting to other parts of Union that was applied to them after Greek accession. French govt applied a pre-existing regime restricting cotton imports from Greece.
    1. ECJ held that pre-existing French regime would not change, with no more than a theoretical possibility that French would not continue it
    2. Test for direct concern is that actions should be brought against EU institutions only if they have exclusive responsibility for the measure as the national authorities had no discretion over it. High threshold.
  3. Inuit: 'for an indiv to be directly concerned by a EU measure, 1. that measure must directly affect the legal situation of that indiv; and 2. there must be no discretion left to the addressees of that measure who are responsible for its implementation
3. Individual concern and the Plaumann formula
  1. German authorities wished to suspend customs cuty on importation of clementines. they needed authorisation from the Commission which refused them. The applicant an importer of clementines sought judicial review of the Commission decision but he had to show individual concern since Decision had been addressed to German authorities and not to him.
    1. Test was whether any of us could in theory become clementine importers. Hence Plaumann was a group that anybody could join.
    2. If people affected by measure belong to a closed class, it may be sufficient to establish indiv concern. It is now clear that being a member of closed class is insufficient, UNLESS defendant institution was obliged to take it into account.
  2. Closed Class
    1. Piraiki-Patraiki v Commission (1985): Closed class + obligation of adopting institution to consider members of class since comm had been acting under greek act of accession
    2. Buralux and others v council (1996): court dismissed as inadmissible a challenge to council regulation on movement of waste. Held, applicants affected in same way as anyone involved in waste trf b/w states. Distinguished from P-P as council not obliged to take into acct -ve effects
    3. Commission v Nederlandse Antillen (2003) : tightening of test. Applicant must show that they were affected by the act in a way that differentiated them from everyone else affected
    4. Codorniu v Council (1994): Applicant was individually concerned since the word "cremant" had been used and trademarked since 1924 but new regulation would have prevented it from doing so.
  3. Criticisms
    1. Highly restrictive; preventing applicants adversely affected by Union measures from effective judicial redress.
      1. Greenpeace and others v commission
4. Standing and Interest groups
  1. Plaumann benefits trading interests over groups representing public interests such as the environment, or the consumer
  2. Greenpeace: 3 env campaigning groups and several indivs resident on the Canary Islands challenged the legality of a series of Commission decisions granting aid to assist the construction of 2 power stations. Held, neither the associations or indivs had standing.
5. Regulatory acts of direct concern which do not entail implementing measures
  1. UPA (2002): Spanish trade association representing the interests of Spanish farmers, sought Judicial Review of a 1998 Council regulation which abolished many forms of financial aid to olive oil farmers and producers. Impossible to challenge before Spanish courts. Held, Dismissed, UPA lacked standing.
    1. Court of justice did not follow advice of AG, insisted on force of Plaumann formula. Opinion of AG Jacobs therefore only seen as a critique of the existing law
    2. Court acknowledged that indivs were entitled to effective judicial protection of rights under union law but emphasised that treaty provided various means by which validity of union acts could be challenged. Action for annulment not only way, but prelim rulings could too
      1. Specific duty on national courts. national courts were required 'so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action' in a way that enabled claimants to challenge national measures applying Union acts of general application.
  2. Jégo-Quéré (2002): fishing and size of mesh in trawler nets. Strict existing test should be reconsidered and set out a new more relaxed test, bold move by general court. clearly inconsistent with case law.

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Standing under Article 263 TFEU

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