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Chapter 7 Question
“In contrast to Art 263….TFEU, there is not a restrictive locus standi imposed on individuals by either Art 268 or 340 (2) TFEU.” (Foster on EU Law, Chapter 7, Section 7.6.1.1)
Please discuss, with reference to relevant case law, whether you consider this makes it easier for applicants to succeed under Art 340, and whether the Lisbon changes have made it easier to succeed under Art 263.
Attempt this question before reading the answer guidance below.
Answer guide
This a slightly complex and involved question but gets to the heart of the debate on these articles, whether they are restrictive, and why.
Outline the two actions and the admissibility and merits requirements of both Arts 263 and 340 TFEU.
Discuss the difficulties with both, which part of the articles have caused them and why, and in particular the “restrictive locus standi” of individuals under Art 263 and why there is not one with Art 340.
Take a view on whether this makes it easier to succeed.The very restrictive locus standi requirements for actions under Art 264 TFEU is by far the main reason making such actions exceedingly difficult to pursue.
The Lisbon Treaty changes to Art 263 involved especially the introduction of the category of Regulatory Acts which proved in case law not to change the issues of locus standi (See Foster on EU Law, Chapter 7, Section 7.4.5. There was no revision of Art 340 and the problem with Art 340 remains that of proving the breach was sufficiently serious under the Schöppenstedt Formula. Explain why, and suggest reasons for this (policy, legal certainty, etc.). See Foster on EU Chapter 7, Section 7.6.4.6 for help.