Law

For a legal system to be fully developed, it must have its own procedural testing mechanism as well as the legalities of measures that are adopted by any of its institutions.  When the European community was faced with the duty of designing such a self checking mechanism, it came up with the rule defined in the article 230(4) of the constitution for annulment that is central to the act of regulation.  This law originates from the legal systems of the member states, that counters illegal acts of administration.

The European Union Judicial protection system is designed to act under three stratified levels which include the institutional, member state and the individual level. The provision of judicial protection of a certain level means that every particular level is enabled towards the protection of its rights against any other level and that each particular sub section of the level must be able to provide for its rights against any other subsection of the level which is all within the same law (Lenearts, 2004, p.319).  However, the law does not apply without the provision for remedy in the European Court law.
 
The article 230 of the European Court treaty is defined as the action for annulment which stipulates the acts against the exiting  and the binding acts of law in which case it is mandatory for the applicant to identify the act and also mention it. This section also gives quotations on the annulment reasons valid for the law. These are mentioned as the power misuse, incompetence at the level of practice, treaty infringement, and if an essential procedure is infringed in. The law in this particular act dictates on which type of applicants to the annulment act for example, the individuals who can only object to the decisions directly affecting them and addressed to them directly and are of individual concern.

The other kind of applicant is the member state, the council and the commission, while the third level of applicants are the Auditors court, the European parliament, and the Central Bank of Europe. The law stipulates the defendants, who in this case are the community bodies and the institutions. The institutions include the member state and the individuals.

The controversial issue in this act originates from the restriction mentioned and imposed on the individual applicant who is only restricted in laying claims to judicial injustices that are only direct to himherself and not that are of different concerns. If a relative or another person wishes to ask for justice in annulment article 230 (4), it is further stated that this applicant must prove beyond any reasonable doubts that he is a directly linked to the group in which he wants the annulment effected (Dougan, 2007, p.942).

The forth section of article 230 EC, is worth a challenge from the non privileged applicant. This locks out the freedom of an individual to participate in the judicial review process without first meeting the preset conditions.  The access to the open judicial review process is limited to the legal persons while the same upholds the privilege to the member states and institutions of the community.  This is highly criticized by the scholars and people of sound mind in the European Unions.

The law in this article contradicts the already existing clauses on the community based constitution, the human rights conventions and the fundamental right charter of the European Union.  One of the most contradicting features of the Article 230 (4) is that it does not define the possibility of an individual challenging its directives while this doesnt give the reasons as to why this could not be done. The law however defines further that an individual can challenge any decision directed to other parties, if he is directly linked to the party or is individually affected by the decision.  This only allows the community rules to be more applicable in decision making rather than a persons own identity.

There is no uniformity of judgment under this Article. For example, Plaumann, a Germany who took part in import market, came up with the idea that was discussed by Germany commission, denying the reduction of the import duty to clementines. Also,   The closed category approach of defining the individual concerned parties is used in areas of the past for instance. The approach was applied in solving the case of group of fruit importers called the International Fruit Company as reviewed by the BV commission, who applied for an fruit import license in which he considered a group of individual decisions because it was said to have been effected the previous week by the relevant authorities of the Union that were then concerned with the license processing.

On the other hand, the court used the abstract terminology test whenever an organization stated that it was under closed category and that it could be defined so for a certain duration of time, for example one year. For instance, the Williams pears producers wished to annul a production regulation to be applicable in the new form for a years duration unlike the former that was used for three years (Craig, De Burca, 2002, p.274).

The restrictions of the locus standi of private applicant as elaborated in the European act the article 230 (4) EC as pertains individual applicants is criticized for compromising the protection judicial rights to the citizens and attributed to the failure of the state to offer effective justice (Alter, 1998, p.138). The judicial review access to community courts of the Europeans has been denied through a number of limiting factors that have been put in place. This is applicable to the applicants who are denied the access, standing for individual applicants found to be extremely difficult due to the preset conditions for both individuals and those that need direct access.
 
For one to gain access to the judicial services under restriction, the individual applicant must clearly show that the measure under question is directly linked to them as stated under the article 230 (4) EC. The court stipulation in the article 230 (4) EC is that direct concern can only exist if a complete set of rules which are sufficient in themselves and require no implementing provisions, while in reality, this restriction needs the establishment of direct casual connection between the applicants legal position.  The required conditions for locus standi which was developed in the 1960s continues to be applied even up to date to asses admissibility of individual applicants, while this is just the most dreaded condition by the community (Wecicke, 2007, p.389). For one to gain the accesses to individual concerns, then heshe must pass the Plaumann closed class test, that is proving that heshe was a member of a group which cant swell after the enforcement of the community act.

The nature of the European Union economy is such that the operation is on the free market style that is guarded by the supply and demand rules instead of the sector regulations.  This therefore affects the groups operation s in terms of expansion thus limiting admission to such groups for an individual. Secondly, the applicants that are non-privileged can seek the review of the judicial regulations.  It would only be allowed in the cases where the community measure proven by the party that it wasnt a regulation but more of the individual concerns regulation (Shapiro, 1999, p.326).  The Calpak test or the abstract terminology test which is a strict requirement is said to have been created for the good of the individual applicant. The court is said to have foreseen it to safeguard the legislators resistance against confrontation through the draft form of regulation which was drafted under pressure from the court foreshadowing the claims posed by the individuals that would befall the commission on a later date.
 
The regulation form could not only be disputed before its enactment, but more to it when it was passed as a law. It was found to have some weakness in the way it described the admission of restricted applicants. The structure of measure was not only a problem but rather the implications of the regulation to the individual applicants on locus standi assessment.  The loophole was that one could not easily distinguish between the true regulation and decision made in it  for there was further requirement for the applicant to further issue a prove statement  to testify the personal concern which was as per the stipulations of the Plaumann formula in its pure state (Craig, De Burca, 2007, p.3410

In other occasions for example, some applicants were subjected to a standing, when they wanted to dispute the court decision in allowing France restriction to importation of cotton yarn.  The importation restriction was to affect Greece, the exporter of the cotton yarn to the France.  Nonetheless, the standing served under the capacity of Accession Act of Greece that was to be put into account before the application of the restriction (Harlow, 1999, p.268).  This was due to the protection of the Greece by the act that worked on matters of contract and such related multinational agreements.  Although this was applied to this particular group, the act was not covered under the accession act of the EU. So, there is a weakness in the way these different cases are manipulated to suit the current situation rather than having a rigid law that is not subject to the relationships of the participants. The law should be impersonal.

This particular case has been put into practice in solving several other claims to annulment just because the importation of any commodity is an issue of concern to any person of group that may practice any sort of importation or exportation in the country. So the import duty was dropped from 13 to 10. The problem with this kind of rule is that it defines that each individual should belong to a closed cluster of parties that have very limited access to entry and exit (Haffernan, 2003, p.907).  This is not easy to attain though.
 In other occasion, The French Green Party was subjected to a standing when although the applicants were sure to have had a valid case that deserved some merits and with no apparent substitute route to the imposition of the equality principle according to the organizations of the parliamentary business (Timmermanns, 2004, p.399).  The political party was searching for the annulment of parliamentary act on the expenses compensation consequential from political parties that took part in the elections of 1984.

The parties argument towards this was that the court jurisdiction to this was an unfair treatment as far as justice is concerned.  In return, the parliament pressed for a different idea altogether stating that, there was a need for the court to appraise several other acts of different institutions.  The court only made up by agreeing with the political parties to amend the nature of the existing system defining the judicial review and treatys importance.  The emphasis was lain on the definition of economic community of the European Union as bound by the law that clearly established that there is no one of the member state of the European Union may ignore a review of a question regardless of the mode of adoption and its conformity to the basic constitution (Davis, 2006, p.71).
 
Further interpretation from the different individuals is keen to challenge not only the implication of the statement but even the wording (Lenearts, Corthaut, 2006, p.302). For example, one may think that these kinds of limitations are only affecting the regulations that are decisions already.  This in effect means that the individual applicant will need to initially prove that the general measure is as a result of a group of measures that are of individual origin.

The law according to the treaty article 230 did not allow the parliament to adopt any measures that would be used for any legal proceedings and this in effect paralyzed the annulment measures by the European parliament.

Generally, from a scholars point of view, there is a likely indicator that the courts decision has been greatly influenced by the treaty authors attitude and intentions, the perception of the article among the people, hence the impact of its disapproval in the community which is expected of a superior system of monitoring or testing the legalities of procedures in the article (Allot, 2000, p.538).  The communitys perception to this system has already set an alarm to the signatories thus arising numerous debate sessions in both public and the private sector.

There is also another overriding feeling that the treaty authors were probably destined for a crucial goal of the supremacy of the appellate court which then resulted in the strict rules and regulations covered in the article 230 of the law.  Even though, this was the likely intention of the court to generate a well formed and elaborated system of the communitys judiciary, it can not be easily accepted and not convincing to the individuals that this is the likely reason.  It was however unlikely that the court would have only liked to limit the number of individual applicants hence the state members would like to know for whatever reason this could be so, thus the conflict.

The overall question to the treaty is the need for a community based judicial system in which case the citizens are fighting for the integrity of decision making as a community.  The State members need to be allowed to freely and fairly participate in the decision making process (Tridimas, 2001, p.326).  There is need for a review of this particular article in order to favor both individuals and groups.

The general feeling is that the system doesnt encompass the individualistic nature that the citizens would require. The court has tried to make numerous claims on the interpretation of the law such like negating the notion and the perception of the law as it appears in the eyes of the public.  This further protects the court other than the individuals thought. The European community is said to realize a double judicial protection by the law through the member states and institutions (Hartley, 1996, p.347).  There has been a continual promise on reformations to this article but all has been in vein. Therefore, the restrictive approach of the European Court of Justice to locus standi under Article 230 (4) EC is unjustified in many occasions regardless the courts continued emphasis on the superiority and the interpretational nature of the law in question.

Therefore, the restrictive nature of the art.230 (4) is rather disputable especially if we are to approach this section from the point of view of any affected individual in the community.  Its interpretation has made many citizens criticize the restriction or conditions imposed to the on the annulment act. The treaty is criticized for challenging the community for the restrictions that are said to be a sign of denial to justice for the individual parties especially because ii is against the effective judicial principle of protection. The best set of regulations would have to be more flexible after all.