Under Article 230(4), there must be an individual concern in order for the individual to have locus standi. This has been stated as being a thought against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. It is this interpretation of individual concern that has been criticised as being too restrictive and it is here that the main analysis will be undertaken. In some cases, it has been argued that the European Court of Justice takes such a restrictive approach to when an individual may have their case heard, that the person had been entirely denied any legal remedy and that this is against the principles of judicial protection.
This proposition will be considered in the light of recent cases from the courts.
The actual theory behind this type of mechanism is clear. Whenever there are any rules that allow an organisation to make decisions, it is also necessary that these decisions can be tested in some clear and fair way. Based on this, it is necessary to have provisions such as those seen in Article 230 allowing individuals to question community decisions and to place controls over the actions of the Commission and the Council and also to a lesser extent the Parliament.
In reality, this burden rests with the European Court of Justice in the court of first instance, because it is seen as the independent body which has been trusted to uphold the rules on community in a fair and reasonable way. Under the treaty, the European Community offers a system whereby there can be judicial review of the decisions that are made. It covers both the administrative and legislative acts of the institutions giving it a potentially very wide remit.
Where an action for annulment is sought, Article 230 becomes central. Article 230(4) allows a non-privileged applicant, i.e. every legal or natural person, to challenge an alleged illegal act by the community. This is necessary due to the fact that community law has a direct effect on individuals as well as on member states and therefore these individuals deserve the right, potentially, to bring an action for annulment where they feel there has been an illegal act. It is possible for individuals to request a review of actions from the Council, the Commission, the European Central Bank and the European Parliament. The difficulty arises due to the fact that proving locus standi for such action is particularly arduous and this has a direct impact on the effectiveness of judicial protection.
In order to consider whether or not these positions are too restrictive, the operation of Article 230(4) will be considered in more detail. Broadly speaking, Article 230(4) allows any natural or legal person to bring proceedings against a decision that has been addressed to them or they have a direct individual concern with the decision. Therefore, in order to be able to bring an action for annulment and to initiate review proceedings against a decision, that decision must have been addressed to the applicant, be addressed to a third party with which the applicant has a direct and individual concern, or be a decision that is in the form of a regulation and this can be directly of concern to the applicant. Interestingly, Article 230 does not deal with the possibility of challenging directives by individual people, but as it is a legal instrument of the community, there is no reason why directors could not be challenged in this way. In fact, case law suggests that the legal instrument in question does not prevent individuals from bringing an action.
In order to show that the individual has a direct or individual concern, it is necessary that the legal decision is more than a mere interest. Both criteria need to be fulfilled, i.e. the decision must be both direct and individual. It could be argued that the direct concern is one that affects the legal situation of the individual applicant and allows little or no discretion in terms of how the measure should be implemented. Therefore, where there are rules brought into place and their implementation is not discretionary, parole is capable of having direct legal effect on an applicant. Based on this fact, it is necessary to consider whether or not the member state has a discretion regarding the way in which it implements the community rule. If the members had discretion, then it will be much harder to prove that the individual could bring an action against the community, as the communitys action did not directly restrict their legal rights.
The matter of individual concern was considered in detail in the case of Plaumann v Commission not only did the case discussed the issue individual concern in detail, but it also lays down the general approach that the courts would take when dealing with matters of judicial review. In this case, Plaumann but they dont individual who imported clementines try to bring an action against the Commission, due to the fact that the Commission had talked to me that it was unable to lower the duty on imports of clementines from 13 to 10. As the decision was actually addressed to the German government and not to Plaumann himself, he had to show that he had individual concern in the decision. The court stated that this meant it had to be a decision that affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually.
The court held that Plaumann was affected by the decision due to the fact that he was an importer of clementines, but that this did not wish him from other imported clementines or anyone else that chose to undertake this commercial activity from time to time. Based on this, he is not individually concerned as he was only considered due to his status as being commercially involved with clementines. This exceptionally restrictive test has been applied in subsequent cases and has also been the subject of much criticism from a wide range of sources.
In the case of Toepfer v Commission, the alternative decision was reached as the applicant who was an importer of cereals was held to have individual concern due to the fact that the rules only apply to those who attempted to gain an import licence and were refused such a licence on a specific date due to the Commissions decision. It was held, in this case, that he did have individual concern, as the decision applied to a very limited number of individuals and could not be extended at any point. A similar point was made in the case of Bock v Commission where it was stated that A decision is of individual concern to a person when the factual situation created by the decision differentiates him from all other persons and distinguishes him individually just as in the case of the person addressed. A trader is therefore individually concerned by a decision authorizing a Member State to reject the application for an import license made by the said trader prior to the adoption of the decision if the State makes use of that authorization.
Pulling these cases together, it can be concluded that, where the contested measures can have a general application, an individual could never be seen to be individually concerned, no matter how directly the decision may be seen to affect them. It is likely that this could result in some individuals being very badly affected by a Commission decision of not being able to bring an action, due to the fact that they are not considered to be individually concerned.
The restrictions are seen when it comes to challenges that are made against regulations which appear more like fact decisions. The reading of Article 230(4) suggests that regulations can only be challenged when they are, in fact, decisions and if a regulation were to be the subject matter of a challenge, it would have to be viewed as a series of decisions making up that regulation and the same restrictions in relation to individual concern would apply. In reality, however, the court has taken a different approach. Case law indicates that the courts have taken two approaches by looking at the closed category test and also the abstract terminology test.
The application of the closed category test could be seen in the case of International Fruit Company BV v. Commission, where a group of importers had applied for a licence to their own national authorities. The Commission was notified of the application and was responsible for the rules regulating whether or not these licences would be granted. The regulation would only apply to those who are applying for an import licence. It was held by the court that the regulations were, in fact, a series of individual decisions and therefore potentially caught by the provisions of Article 230.
When it comes to the abstract terminology test, the leading case is that of Calpak. In this case, the applicant produced William pears and they looked to another regulation which had advocated the amount of production aid they would receive, based on one marketing year, where previously the amount of aid had been based on the previous three years. The applicant argued that they were a close group and could be easily defined and therefore should have locus standi to bring an action. The court held The nature of the measure as a regulation is not called in question by the mere fact that it is possible to determine the number or even identity of the producers to be granted the aid which is limited thereby.
It can be seen, therefore, that when determining whether or not an individual has standing to bring an action for annulment the court, on the whole, has taken a very restrictive approach, but they have been slightly more lenient in certain areas such as anti-dumping and competition.
Some cases have attempted to justify the restrictive approach taken. In some cases, it has been found that an applicant would be able to bring an action where it was their only way of ensuring equality. Where not allowing an action for annulment would result in a denial of justice, the court will be more inclined to hold that there is standing. As stated in the case of Les Verts the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the treaty.
Less restrictive approaches have also been seen in competition law cases, although this could be arguably due to the fact that the applicants are often directly involved in the case and therefore establishing direct and individual concern is much easier, rather than it being a policy decision, to be more relaxed in competition cases.
Pulling this together and looking more closely at the actual wording in Article 230(4), it can be seen that, overall, the ethos behind these restrictions is to prevent individuals bringing actions in which they have merely a passing interest. If these were not interpreted very restrictively, the courts could find themselves inundated with mildly interested applicants and this would not be in the best interests of justice. This is a perfectly logical and sensible but it can be argued that the restrictions have gone too far and are now preventing legitimate claims from being brought.
Despite this strong argument for the restrictions, it has left individuals concerned by community action as case law has resulted in establishing standing being very difficult and justice not being achieved in many cases. Controlling actions against the European Community had been something that has been dealt with in other aspects of European law very successfully and it is hard to see how similar equality cannot be achieved in the area of Article 230(4).
One possible explanation could be that the courts goal is ultimately to operate as a form of appellate courts or community decisions and being restrictive in terms of interpreting Article 230(4) is a way of modifying the way in which the judicial system works within the European Community. It would seem that by being restrictive in relation to Article 230 claims of a forced to follow the process is under Article 234, where individuals can bring an action to question whether its member states have acted in light of the community law.
In conclusion, the way in which Article 230 is being interpreted has resulted in an unduly restrictive approach and has at times resulted in individuals failing to bring a claim for annulment. In these cases, a common interpretation of the situation would have been likely to suggest that they did have individual interest, but the courts decided differently. There may be good reasons for this such as the need to restrict access to the courts and to ensure that the court takes a more appellate type role however, as it stands currently, the restriction are such that they prevent justice in many cases and require applicants to look for different means of questioning illegal actions. Currently, the restrictions placed on the application of Article 230 cannot be fully justified, without an alternative being offered.
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