Chapter 9 Suggested approaches to end-of-chapter questions

1. Is it true that admissibility is the major hurdle to a successful action under Article 263 TFEU? If so, then why?

Yes, but only for the non-privileged applicants because the test laid down in Article 230 previously (now 263 TFEU) and as interpreted by the CJEU is very strict and arguably remains so even after the changes introduced by the Lisbon Treaty.

2. What must an individual show if they are to be recognised as having 'individual concern' for the purposes of Article 263 TFEU?

An applicant must show some factors that distinguish themselves uniquely. This was the position taken in the leading and still very much valid judgment of Case 25/62 Plaumann v Commission. A decision was addressed to the German Government refusing permission to reduce duties on clementines, which was challenged by Plaumann. The test decided for individual concern was whether the decision affects the applicant by virtue of the fact that he is member of the abstractly defined class addressed by the rule, for example, because he is a importer of clementines, or does it affect him because of attributes peculiar to him which differentiate him from all other persons? Plaumann was held to be one of a class of importers and not therefore individually concerned. The reasoning is that any one could become an importer.

3. Is the test the CJEU operates in Article 263 TFEU actions too strict?

Various reasons have been put forward for this strict test including a floodgate policy argument whereby locus standi requirements have been interpreted particularly restrictively by the Court of Justice to reduce the number of cases coming before it and the CFI (now the General Court). Litigants face lengthening delays to justice, thus keeping the number of cases down will help reduce delay. Another argument is the suggestion that there is a desire to promote the Court of Justice more as a supreme court of the member states and not one directly accessible as a first instance court for individuals. Other arguments revolve around discussions about balancing the interests of the EU and individuals. The decision making procedure in the EU is a much more complex procedure and often the result of compromise which makes legislation more difficult to enact. The inevitable economic choices of the EU are bound to affect individuals and sometimes in an adverse way but they must be allowed to be made otherwise the ability of the EU and Commission to operate would be undermined. An individual’s actions should not hinder the institutions ability to operate. The changes introduced to Art 263 by the Lisbon Treaty have eased the position of individuals in challenging Regulatory Acts which have been defined by the Court of Justice as non-legislative acts in Case C-583/11P Inuit v EP & Council.

4. Consider the contrasting approach of the CoJ to Article 340 TFEU and the test for Francovich liability. Are the same standards of liability imposed on both the EU institutions and member states?

It was argued that the standard for establishing liability on the part of the member states was easier than for the EU institutions. However, Case C-352/98P Bergaderm indicates an approach of the Court of Justice to align the rules on liability for member states and the EU institutions so that it may be easier in future for individuals to obtain compensation from EU institutions for mere infringements which have not involved a great deal of discretion on the part of the institution. Infringements where there is discretion must though be manifest and grave.

5. What use is the plea of illegality action under Article 277 TFEU?

It is a very limited use action to indirectly challenge the legality of an EU act in the course of other ongoing legal proceedings and not a cause of action in its own right, hence then it features only rarely.