**Reform of test of individual concern?

If not, no standing, since non-members could still enter economic activity, even if at present, all those possibly concerned are your members – Greenpeace v Comm, 1998 featuring Dentist Airdrie

 

  • ECJ’s approach often criticised as being too restrictive, but ECJ defends it on grounds of Treaty giving comprehensive mechanism for legal protection, cos of availability of indirect route under art 267 TFEU.
          • Much struggle by private companies to overcome this strict standard – still prefer direct action rather than prelim ref route, since no need to convince national court; faster and cheaper.

 

  • Most notable criticism is [AG Jacobs’] scrutiny in UPA v Council, 2002: –
  • Dentist Airdrie Is the new short fall within this seagment.

 

 

  • Current shortfalls
  • ± indirect route (preliminary ruling) is not sufficient, since A can’t control whether ref is made, what measures are referred, nor what grounds of invalidity of raised = no true right of access. Hence, there might be denial of justice.
  • ± legal certainty militates in favour of a general measure being subject to review ASAP, not only after implementing measures have been adopted
  • ± indirect challenges are subject to procedural disadvantages (eg. Delay, costs)

 

 

  • Critique of proposed solutions
  • ± these deficiencies cannot be overcome just by allowing exceptional standing to A who has no way of triggering reference for prelim ruling under national law – no basis in the Treaty and would lead to inequality across MSs. Would require EC courts to interpret and apply national rules!
  • ± also insufficient to oblige MSs’ legal systems to ensure that prelim refs are generally available – doesn’t address procedural issues, difficulties of monitoring/enforcement, interference with national procedural autonomy

 

 

  • Proposed solution
  • ± hence, only way is to reform the test for indiv concern itself, so that A is deemed individual concerned where the Community measure has, or is liable to have, a substantial adverse effect on his interests.
  • -resolves all the above problems
  • -removes current anomaly that the more the number of persons affected, the less likely that effective JR will be available
  • -replaces increasingly complex and unpredictable rules on standing.

 

 

        • BUT ECJ in UPA then declined to follow AG Jacobs’ approach. Instead:
            • Reiterated that Treaty established complete system of legal remedies and procedures
            • ***it is for MSs to establish system of legal remedies and procedures which ensure respect for right to effective judicial protection
              • National courts should interpret and apply national procedural rules on exercise of rights of action compatibly with allowing challenges to validity of Community acts
              • ECJ cannot examine and interpret national law – beyond its jurisdiction
            • While condition of direct and individual concern must be interpreted in light of principle of effective judicial protection, can’t be too liberal and effectively set aside the condition which is expressly stated in the Treaties, since this would go beyond jurisdiction conferred by Treaties.
          • So today, Plaumann is still good law!

 

  • Criticism of ECJ’s reasoning

 

          • ECJ mostly ignored AG Jacobs’ analysis of the difficulties indivs face in using art 267 (indirect route) – procedural, and its nature as a reference system. Also substantive – indiv might not be able to challenge illegality of the measure in national courts without first acting in contravention of it.