Article 230: a critical analysis of the general standing rules for non-priveleged applicants
Bookmark this page

Review can only be brought in three types of cases:

1/the addressee of a decisn may challenge it before the ECJ;

2/ where the decisn is addressed to another person yet the applicant claims that it is of direct and individual concern to him;

3/where there is a decisn in the form of a regulation and the applicant claims that it is of direct and individual concern to him.

(a)    challenges to decisions addressed to another person-

Plaumann v Commn:

Germany requested that the Commn authorised it to suspend the collectn of duties from clementines from non EU members. commn refused and addressed the answer directly to the German govt. applicant was an importer of clementines and sought to contest the legality of the Commn’s decisn.

Held: “ persons other than those to whom a decisn is addressed may only claim to be individually concerens if that decin 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 virute of these factors distinguishes them individually just as in the case of the person addressed.”

Because the distinguishing factor in this case was a commercial activity which could be practised by anyone at anytime, the clementine importer did not have sufficient locus standi.

According to the test, if an applicant is to be successful then they must prove to have distinguishing factors that set them aside from everyone else. The test does allow for more than 1 person to have direct and individual concern.

The reasons for why the court rejected the applicatn can be criticised on 2 grounds:

1/ pragmatic terms: economically unrealistic reasons for making the ruling. There are only a few clementine importers and were the demand to suddenly rise, all that would happen is that the few firms would simply bring in more. Unlikely that many new importers would come into existence.

2/ conceptual basis: on applying the courts reasonings, it would be almost imposible for one to have direct and individual concern. The applicant would have failed evenif he was the only importer in Germany because it would be equally possible for someone else to set up business as an importer. This is true for almost all types of businesses.

However the decisn may be defended on ground that the importer was part of an open and not closed class of applicants & therefore didn’t have ‘d & i.c.’

Nonetheless the decisn had a direct effect on the clementine importers even though it was addressed to the german govt.

(b)   challenges to regulations: the traditional approach-

in some cases the individual asserts that although the measure is in the form of a regulation is in fact a decisn which is of ‘d & i.c.’ to him. This type of applicatn is not often successful. Until recently there were 2 types of tests:

1/ the closed category test

2/ the abstract terminology test.

An example of the latter test is the Calpak case.  The abstract terminology test places those who wish to challenge the act which is in the form of a regulation in a difficult position.

Purpose of allowing challenges to any regulations is to prevent the institutns from immunising a measure by putting it into regulation format thereby preventing it from being annulled by private actn. Requires the court looking at the substance rather than the form of the measure in order to determine whether it is a regulation or not.

Problem is that a regulatn will be deemed as a regulatn according to Calpak, providing that it is ‘objectivly determined situatns and produces legaleffects  with regards to a

Catagories of persoins descirbed in a general and abstarct manner.’ Problem lies in the fact that the institutns msy still word the act I such terms so as to make it immune to private litigatn yet the effect of the measure may still only apply to a tiny class of people.

Court has held that it doesn’t matter that the institutn has prior knowledge as to exactly who the regulatn will effect.

However the court has taken a closedcatagory approach to cases involving a completed set of past events and where the reggulation relates to a fixed and closed category of traders. In such cases the regulatn will only have effect as re the past events and cannot have  a future impact.

e.g. International fruit case.

Therefore, the abstarct terminology test is a genera criterion applied by the courts. The closed category test is applied when there is a completed set of past events.

(c)    Challenges to regulatns and decisns: the emerging jurisprudence.

In the past, where the applicatn of the abstract terminology test concluded that the measure used was indeed a  regulatn, the court would then stop proceedings at that point. However in the recent emerging jurisprudence, it seems that the ECJ is willing to recognise the fact that even a regulatn may have direct and individual concern thereby giving the plaintiff sufficient locus standi to litigate.

e.g. Codorniu case  in this case the applicant appealed against a regulatn that stipulated that a certain term could only be given to wines of a certain quality coming out of France and Luxembourg. The applicant used this term for his own wines even though they were produced in Spain. The fact is that many other wine producers in Spain also used this term. The council argued that the regulatn was the same ilk as that in the Capak case.

Held: the applicant has direct and individual concern because the regulatn infringed their trade mark right to have the term.

NB this doesn’t mean that Art 230 is revolutionised, it just signals a different aproach from earlier cases. Howver, note that in order to establish direct and individ concern one must apply the Plaumann test. the Plaumann test has its own inherrent difficulties so inorder for the courts to take a significantly more liberal approach, they must also take a liberal reading of the Plaumann test.

There are three different interpretations:

1/the ‘infringement of rights or breach of duty approach.’

Exemplified by Cordorniu case.

2/ the ‘degree of factual injury’ approach:

existence of individ concern will be found on the basis of the degree of  significance the regulation has on the applicant. The approach is exemplified by Extramet case.  Anti-dumping regulatn. ECJ held that the applicant had d & i. c. because they were the largest importer of the good on which the anti-dumping regulatn had been imposed and that it would be very difficult for them to find an alternative source.

3/ pure Plaumann approach:

applicants will be denied standing by applying the Plaumann test as it was applied in Plaumann itself. i.e. that the company will be denied d & i. c. because others could set up business in the same field.

e.g. Buralux case

evident from the case law that unless the individ can successfully place himself in either of the first two approaches, the courts will adopt the third approach by default.

Other Notes in this Category

1. Art 230(173): Direct Concern
2. Art 230: Policy Arguments Concerning Standing Of Non-privileged Applicants
3. Art 230: Standing For Non-privileged Applicants In Particular Areas
4. Article 230: a critical analysis of the general standing rules for non-priveleged applicants

Didn't find this useful?

• Visit Coursework.Info for over 14,000 GCSE, A-Level and University Essays