UK LLB EUROPEAN UNION LAW

Article 230 (4 ) empowers a natural or legal person to initiate proceedings against decisions that entail direct and individual concern however , such proceedings have to be started within a prescribed time limit . The European Court of Justice has adopted an extremely narrow perspective whilst interpreting Article 230 . This attitude of the ECJ has attracted the disparagement of scholars and Advocates General However , the ECJ has permitted some individuals , who do not satisfy the exacting standards , to dispute directives in the national courts by resorting to the preliminary reference system , if such cases

depend on the national implementing measures . Despite the ECJ 's attempt to curb the difficulties faced by individuals , by widening the scope of Article 234 and empowering national courts to grant suitable remedies , there has been a persistence of several drawbacks in the European legal system

In to make the dispensation of justice more effective in the European Union , individuals should be enabled to bring infringements of their rights before the European Court of Justice . The present situation obtaining is inadequate in providing remedies to the grievances of individuals . The existing representation system provided for individuals should be extended so as to enable them to fight against measures that affect their fundamental rights or interests . The essence of Article 230 EC is limited in scope when challenging measures . It proposes that the contest by individuals should be direct . This Article maintains that the legal effectiveness of any regulation that affects the rights and interests of individuals cannot be challenged by individuals on the basis of a general measure

The various state legislations are based under the supposition that individuals can invoke a reference to the European Court of Justice from the national courts on the basis of a general measure . This entails an elaborate process and in some instances justice can be denied if there is no national measure to be challenged in the national courts . Further the national court would reject such a reference to the ECJ

Most democratic nations consider judicial review as an important and fundamental constitutional right of individuals . The norm to determine the efficiency of the modern legal system is the extent of the scope of judicial review and its effective implementation . The spirit of judicial review espouses the provision of basic protection to individuals and prohibits arbitrary measures by state institutions . Accordingly , most legal systems regard judicial review as a fundamental right , which is guaranteed by the constitution of that country

It is essential to note that this fundamental right should not be infringed or inhibited in a democratic society and particularly in the European Union , which has several institutions that function in a highly undemocratic fashion when it comes to formulating policy . Consequently in such an environment , the lack of the right of individuals to challenge the actions of the European Community institutions would further escalate the issue of democratic deficiency . Under the provisions of the EC Treaty , only Member States and Community agencies are empowered to challenge any measure , while individuals have no such rights . The limited scope of right to judicial review by individuals , as per the provisions of the EC Treaty is in adequate to ensure accountability and transparency , which constitute the fundamental building blocks of any democracy

Article 230 EC pertains to the judicial review of the actions of Community agencies . This Article imposes a wide range of measures that challenge the actions of the institutions but there are a number of restrictions on those who challenge these acts . In addition , the Community agencies and the Member States are given supremacy with unrestricted locus standi . While the European Central Bank and the Court of Auditors are bestowed with inexhaustible locus standi to ensure their interests , private parties have to comply with the extant legislation From this it becomes clear that the underlying idea behind Article 230 is to permit decision - making agencies to have unlimited freedom to challenge the activities of other fellow agencies , while denying individuals and private parties an opportunity to seek annulment of such actions that are detrimental to their rights and interests

According to Article 230 (4 ) a person can initiate action for annulment under three circumstances . These conditions are first , when a decision is addressed to the claimant second , when a decision of a court is addressed to third parties and the claimant pleads that the decision is of direct and individual concern to him and third , where a decision is in the form of a regulation and its application has a direct bearing and concern on the applicant

Thus individuals can resort to legal remedy for annulment of a decision or measure made by the Community , only when it directly concerns them Direct concern has been interpreted by the Courts to imply that the Community 's action , which was challenged , can be directly applied without any deviation . The basic requirement of a direct concern is that the challenged Community act should be directly detrimental to the individual 's legal rights and that it does not involve the granting of any discretion to the addressees . The implementation of such act should be automatic and consequent to Community regulations without the intermediate application of any rules . The basis for establishing the direct effect of the Community act is that the Member States should have a role in implementing the Community act . Subsequently , such implementation should be capable of being disputed in the national courts . The reality is that this restrictive phrasing of Article 230 was made in to reduce the number of cases and stress to the ECJ

However , the concept of individual concern though more complicated remains the subject matter of many cases that are referred to the European Court of Justice . The main objective of individual concern is to restrict access to judicial review in the ECJ and a judicial review can be sought only in the event of measures that are individual and not general . The implication of this is that the applicants should have a personal interest , in to have their challenges entertained

In to determine whether a decision has an individual concern to the individual , the ECJ has set out a number of interpretations . One such important interpretation was inherent in the decision given in the case of Plaumann v . Commission . In that particular case Germany attempted to reduce the import duty on clementines , however , the Commission did not authorize such an endeavour . The applicant a German importer of clementines d a suit challenging the Commission 's decision before the ECJ . However , the Court turned down the suit on the grounds that applicant had to be individually affected

Moreover , the ECJ held that the applicant had to establish the Commission 's decision adversely affected his interests by reason of certain attributes possessed by him , which were specific to him and which served to distinguish him from other individuals . Further , the ECJ opined that the claimant , although directly affected by the decision was ineligible to initiate legal action because he had become one of the importers of clementines

Therefore , the claimant could not be differentiated from other importers and accordingly he was not individually concerned . This interpretation of the ECJ hinders the members of an injured group in challenging detrimental decisions . The crux of the issue is that individuals can only dispute decisions of the Community institutions and individuals cannot challenge s or regulations even if they are directly affected . Hence the Plaumann test is very stringent in determining the eligibility of claimants who constitute a group or class

The reasoning of Plaumann was taken as a precedent in subsequent cases However , there was a gradual transformation in the European Court of Justice , which began to drift from this dictum and in the Codornui case the ECJ held that the claimant had a trademark which would get affected by a regulation and that such injury would be tantamount to being individually concerned . Subsequent anti - dumping cases have also seen the departure of the Court from the Plaumann effect as the ECJ delivered judgments that favoured the individual concern of the applicants instead of a general policy

Moreover , self executing acts in respect of general application have direct legal effect and these acts do not seek to adopt national legislation or Community legal interests . Thus a legal vacuum exists in the case of self executing acts , which concern individuals directly . If the individual challenges the legality of such acts there would result a restriction of direct access to the Court . This compels individuals to violate the Community legislation and such infringements attract sanctions from the national courts , subsequently , the individual can challenge the legality of such measure in the European Court

The Court of First Instance analysed the self - executing Community act of general application in the case of Jygo-Quyry . In this case it held that there should not be any binding reason to follow the Plaumann test while dealing with potential judicial protection to the individuals Paradoxically , the ECJ had refused to consider the interpretation of the Court of First Instance in the case of Jygo-Quyry and adopted the test of Plaumann case in Uniun de Pequesos Agricultores v Council

Further , the ECJ relied on the decision in Uniun de Pequesos Agricultores case and awarded an appeal to Jygo-Quyry . Thus the ECJ overruled the decision of the CFI with regard to individual concern . The ECJ has contended that the notion of judicial protection cannot be rescinded merely on the basis of a restricted interpretation of Article 230 (4 . Thus the ECJ recognised the legal vacuum and deficiency of Article 230 (4 ) in the context of affording protection to the rights of individuals . The ECJ did not acclaim the teleological stance of CFI since such an attempt would be equivalent to circumventing the legislative spirit . As such the decisions of the ECJ have clearly established the fact that the interpretation of individual concern is insufficient . This had substantiated the fact that there is limited judicial protection to individuals at the Community level

The ECJ has been consistent in its decisions with regard to individuals and it has always displayed a restrictive approach towards individuals The ECJ also refers to the complete system of remedies established by the EC Treaty and upholds the intricate process of seeking redressal under the Community legislation as is evident from its decision in the case of Les Verts . In brief , Community measures are subject to judicial control in conformity with the Treaty and such a measure can be controlled through a direct action in accordance with Article 230 (4 ) or through a preliminary ruling in accordance with Article 234

Furthermore , it has been alleged that the EC is democratically deficient in its functioning . This is due to the inconsequential control of the European Parliament over the policy - making agencies Individuals and enterprises find it difficult to protect their legal interests and the Community 's political divisions such as the Council Commission and Parliament ignore the representations of individuals . At the present juncture the national governments are the sole means of obtaining protection for the interests of individuals

Moreover , the ECJ continuously argues that the restrictive interpretation of Article 230 (4 ) cannot reduce the vacuum in judicial protection . This is because the individuals can initiate legal action before the national courts in respect of the national application or implementation measures of the Community . Further , the national courts are obliged as per the provisions of Article 234 and the case law since Foto-Frost to refer challenges against the legality of EC laws and acts to the ECJ Bibliography

Article 230 (4 , Treaty establishing the European Community

Article 230 (2 , EC Treaty

Article 230 (3 , EC Treaty

Article 230 (4 , EC Treaty

Bock v . Commission , Case 62 /70 , [1971] ECR 897

Case 25 /62 . Plaumann v . Commission

Case 314 /85 , Foto-Frost v . Hauptzollamt L 'beck-Ost [1987] ECR-4199

Case 294 /83 , Les Verts v . Parliament [1986] ECR-1339

Codornui SA v . Commission , Case C-309 /89 , [1994] ECR I - 1853 . Anthony Arnull , Private Applicants and the Action for Annulment since Codorniu , 38 CMLR 2001 ,

.51

De Smith and Woolf , Judicial Review of Administrative Action , 1995 pp .8-11

Domink Hanf , `Facilitating Private Applicants ' Access to the European Courts ? On the Possible Impact of the CFI 's Ruling in Jygo - Quyry , GLJ vol .3 No .7 1 July 2002

Ewa Biernat , The Locus Standi of Private Applicants under Article 230 (4 ) EC And the Principle of Judicial Protection in the European Community , Jean Monnet Working 12 /03

James Hanlon , European Community Law , 2003 , Sweet Maxwell ,

. 152

Jygo-Quyry Cie v . Commission , Case T-177 /01 , [2002] ECR II-2365

Jurgen Schwarze , Judicial Review in EC law - Some reflections on the origins and the actual legal situation , 2002 ICLQ 17 - 34

Jose Manuel Cortes Martin , At The European Constitutional Crossroads Easing The Conditions For Standing Of Individuals Seeking Judicial Review Of Community Acts , 12 Mich . St . J . Int 'l L 121

Jo Shaw , Law of the European Union , 3rd ed , Palgrave Law Masters , 2000 br

.506 cited from Ewa Biernat , The Locus Standi of Private Applicants under Article 230 (4 ) EC And the Principle of Judicial Protection in the European Community , Jean Monnet Working 12 /03

Luigi Malferrari , The functional representation of the individual 's interests before the EC Courts : The evolution of the remedies system and the pluralistic deficit in the EC , 12 Ind . J . Global Legal Stud . 667 .`Right to an Effective Remedy : Judicial Protection and European Citizenship http /www .fedtrust .co .uk /uploads /constitution /17_04 .pdf

Spijker Kwasten v . Commission , Case 231 /82 , [1983] ECR 2559

T .C . Hartley , The Foundations of European Community law , 3rd edition 1994 , Clarendon Press ,

. 366

Uniun de Pequesos Agricultores v Council , Case 50 /00

. unreported March 2002 , cited from , Paul Craig et al , EU Law : Text , Cases and Materials , 3rd Ed , OUP , 2003 ,

. 500

`Right to an Effective Remedy : Judicial Protection and European Citizenship http /www .fedtrust .co .uk /uploads /constitution /17_04 .pdf

Jurgen Schwarze , Judicial Review in EC law - Some reflections on the origins and the actual legal situation , 2002 ICLQ 17 - 34

There was a significant increase in the power of the UK 's Judiciary to intervene in unlawful administrative actions during the last twenty - years of the twentieth century . De Smith and Woolf , Judicial Review of Administrative Action , 1995 , pp .8-11

The only exception is the European Parliament , which however , has the disadvantage of low electoral turnouts

Article 230 (4 , Treaty establishing the European Community

Article 230 (2 , EC Treaty

Article 230 (3 , EC Treaty

Article 230 (4 , EC Treaty as a result of its restrictive judicial interpretation

Ewa Biernat , The Locus Standi of Private Applicants under Article 230 (4 ) EC And the Principle of Judicial Protection in the European Community , Jean Monnet Working 12 /03

A regulation lays down general rules , and a decision is concerned with individual cases . Regulations are considered to be `legislative ' while decisions are essentially `administrative ' acts . T .C . Hartley , The Foundations of European Community law , 3rd edition , 1994 , Clarendon Press ,

. 366

Jose Manuel Cortes Martin , At The European Constitutional Crossroads Easing The Conditions For Standing Of Individuals Seeking Judicial Review Of Community Acts , 12 Mich . St . J . Int 'l L 121

Case 25 /62

Jo Shaw , Law of the European Union , 3rd ed , Palgrave Law Masters 2000 ,

.506 cited from Ewa Biernat , The Locus Standi of Private Applicants under Article 230 (4 ) EC And the Principle of Judicial Protection in the European Community , Jean Monnet Working 12 /03 . Bock v . Commission , Case 62 /70 , [1971] ECR 897 , Spijker Kwasten v Commission , Case 231 /82 , [1983] ECR 2559

Codornui SA v . Commission , Case C-309 /89 , [1994] ECR I - 1853 . Anthony Arnull , Private Applicants and the Action for Annulment since Codorniu , 38 CMLR 2001 ,

.51

James Hanlon , European Community Law , 2003 , Sweet Maxwell ,

. 152

Jygo-Quyry Cie v . Commission , Case T-177 /01 , [2002] ECR II-2365

Uniun de Pequesos Agricultores v Council , Case 50 /00

. unreported March 2002 , cited from , Paul Craig et al , EU Law : Text , Cases and Materials , 3rd Ed , OUP , 2003 ,

. 500

Case 294 /83 , Les Verts v . Parliament [1986] ECR-1339

Domink Hanf , `Facilitating Private Applicants ' Access to the European Courts ? On the Possible Impact of the CFI 's Ruling in Jygo - Quyry , GLJ vol .3 No .7 1 July 2002

Luigi Malferrari , The functional representation of the individual 's interests before the EC Courts : The evolution of the remedies system and the pluralistic deficit in the EC , 12 Ind . J . Global Legal Stud . 667

Case 314 /85 , Foto-Frost v . Hauptzollamt L 'beck-Ost [1987] ECR-4199

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