Locus Standi of Private Applicants under the Article 230 EC Action for Annulment: Any Lessons to Be Learnt from France?
| Author | Anatole Abaquesne De Parfouru |
| Published date | 01 December 2007 |
| Date | 01 December 2007 |
| DOI | http://doi.org/10.1177/1023263X0701400403 |
14 MJ 4 (2007) 361
LOCUS STANDI OF PRIVATE APPLICANTS
UNDER THE ARTICLE 230 EC ACTION
FOR ANNULMENT: ANY LESSONS
TO BE LEARNT FROM FRANCE?
A A P*
ABSTRACT
is article ex amines the rules on locus sta ndi of private applicants under the Articl e 230
action for annulment of the EC Treaty. It adopts a comparative approach to the question of
standing of private parties to challenge a piece of secondary EC legislation under the action
for annulment, by contrasting the standing rules in Article 230(4) EC, as interpreted by the
ECJ and the CFI, with those, elaborated by the Con seil d’Etat, on locus standi of private
applicants to challenge French admini strative acts in a Recours pour Excès de Pouvoir
(REP). Four major aspects will be considered: the type s of acts amenable to review by non-
privileged applicants, the t wo requirements of direct and individual concern and their
equivalent in French administrative law (in particul ar the dierences between the notions
of ‘cercle d’intérêt’ and of ‘closed cl ass’), as well as the locus standi of associat ions.
e premise of this paper lies in the suggestion that ‘a revision of the Treaty which would
borrow from the Member States’ system s of judicial review should be considered ’.
Due consideration wil l be taken of the limits of compar ing a supranational legal order
to a national one. is comparison should be considered as a pretext to analyse the
standing rules for pr ivate applicants under the action for annulment, and sug gest possible
improvements to these con ditions in the light of the constitutiona l reection on the role
of citizens and of the c ivil society underlying the liberal standing requirements in French
administrative law.
e objective of this paper is therefore to demonstrate the inappropriateness of the strict
locus standi rules for private applicants under Article 230(4) EC, and the refusal to abandon
* LL.B. (Bi rmingham), LL .M. (Notting ham), Ph.D. student a t the University of Birmingha m, School of
Law. e research for this art icle was carr ied out at the Scho ol of Law, University of Not tingham, a nd
I am gratefu l for their supp ort. a nks go to Soph ie Boyron for her valuable comments. e view s
expressed are , however, personal and the usu al disclaimer appl ies.
Anatole Abaquesne de Pa rfouru
362 14 MJ 4 (2007)
the ‘closed class test’ and the Plaumann formula, eve n where the a pplicants constitute a
‘small and easily identi able group’, as the ECJ made clear in UPA and Jégo-Quéré.
e need for reform of standing rule s for non-privileged applicants is particul arly pressing
in light of the inadequacy of alternative mechanisms of judicial review and of the principle
of eective judici al protection. In this respect , the modications of the unratied 2004
Constitutional Treaty were clearly insucie nt, and the 2007 Treaty of Lisbon, signed in
December, reiterates this mistake by adopting an ident ical formulation of th e standing
rules for private applicant s to that in the 2004 Constitutional Treaty.
Keywords: L ocus Standi; St anding; Non-Privileged Applicants; P rivate Applicants;
Action for Annulment; Article 230 EC; Recours pour Excè s de Pouvoir ; Intérêt à Agir;
Judicial Review; Ee ctive Judicial Protection
§1. INRODUCTION: THE DILEMMA OF JUDICIAL REVIEW:
EFFECTIVE JUDICIAL PROTECTION VS. MANAGING
THE WORKLOAD OF THE COURTS
e action for annulment, in Article 230 of the EC Treaty, is the main mechanism for
judicial review in the Community lega l order. It enables Member States, Com munity
institutions a nd ‘natural or legal persons’ to challenge the legality of Commu nity
measures. An action for annulment will be successful and resu lt in t he annulment of
the contested ac t if four major conditions are full led. First, the contested act must
be reviewable, Article 230(1) ind icating the range of reviewable acts .1 Secondly, the
Community measure must be illegal. Art icle 230(2) establishes four grounds of review
under which the legality of an act c an be challenged . irdly, the procee dings must be
instituted within the required time-l imit, as provided in Article 230(5). Finally, and most
importantly, the applicant must have sta nding to challenge the Community measu re.
Article 230 EC distinguishes between three types of applicants. e second paragraph
of the Ar ticle provides that the Member States, the European Parliament,2 the Council
1 See the rather libe ral readi ng of Ar ticle 230(1) EC in Case 22/70, Commi ssion v. Cou ncil [1971] ECR
263 (the ERTA case). For r ecent developments a nd a stricter approach to the range of revie wable acts,
see Joined Cases T-377/00, T-379/00, T-380/00, T-260/01, and T-272/01, Philip Mor ris Interna tional v.
Commission [2003] ECR II-1; Case T-353/00, Le Pen v. Europea n Parliament [20 03] ECR II-125; Ca se
T-193/04, Tillack v. Commission [2006] ECR II-3995; and Case C-131/03P, RJ Reynolds Tobacco Holdings
Inc v. Co mmission [2006] ECR I-7795. S ee also, A. Arnul l et al ., Wyatt & Dashwood’s E uropean Law
(Sweet & Maxwell, 2006), 4 43; A. Arnull, e European Union and its Cou rt of Justice (OUP, 20 06),
56–62; J. Stein er et al., EU Law (OUP, 2006), 246–8; and A. Ar null, ‘When is an act not a n act?’, 32 E.L.
Rev. 1 (20 07).
2 Initially, in t he origin al EC Treaty a greed i n Rome, the Eu ropean Pa rliament w as not a ‘priv ileged
applicant’, a s conrmed by the ‘Comitology’ judgme nt (Case 302/87, E uropean Parliame nt v. Council
[1988] ECR 5615). It gained a ‘qua si-privileged’ status followin g the ‘Chernobyl’ ruling (Case C-70/88,
European Parliame nt v. Council [1990] ECR I-2041) and the Maast richt amendments to t he EC Treaty.
Locus Standi of P rivate Applicants unde r the Article 230 EC Act ion for Annulment
14 MJ 4 (2007) 363
and t he Commission, oen referred to as ‘privi leged applicants’, ca n always c hallenge
the legal ity of reviewable C ommunity acts, if the general conditions above are present.
e third paragraph of Article 230 a llows t he Cour t of Auditors and the Eu ropean
Central Bank, usua lly referred to as ‘quasi-privileged applicants’, to bring actions ‘for the
purpose of protec ting their prerogatives’. Lastly, the fourth paragraph of Article 230EC
concerns ‘natura l or legal persons’, or ‘non-privileged applicants’. As we wil l see below,
such private applicants must full strict conditions before being g ranted stand ing to
challenge Communit y acts.
Locus standi of non-privileged applicants is an issue of signicance in the Community
legal order. It relates directly to the principle of eect ive judicia l protection, which,
although absent from the original EC Treaty signed in Rome, has been a rmed and
rearmed by the Communit y Courts.3 In its Johnston r uling, the Court held that this
‘requirement of judicial control … reects a general pri nciple of law which underlies the
constitutional traditions common to the Member States’. It further noted that this general
principle of law was ‘also laid down in Art icles 6 and 13 of the European Convention for
the Protec tion of Human Rights a nd Fundamental Freedoms’, the principles of which
‘must be taken into consideration in Commu nity law’.4 is judgment has been referred
to in recent cases concerning the standing of private applicants. ese cases rearmed
that ‘i ndividuals are … entitled to eect ive judicial protection of the rights t hey derive
from the Community legal order’, referring once again to the constitutional t raditions
of the Member States and Art icles 6 a nd 13 of the ECHR.5 Moreover, the ‘rig ht to an
eective remedy’ is ensh rined in Article 47 of the Char ter of Fundamental Rights of t he
European Union, which, a lthough currently not legally bind ing, is of importance in t he
legal order of the European Union.6
In its 2005 Bosphorus judgment, t he Gra nd Chamber of the European Court of
Human Rights considered the question of eective judicial protec tion in the EC lega l
e EP nal ly beca me a ‘privileged applicant’ following the Treaty of Nice amendments to the EC
Treaty.
3 See E. Delaney, ‘ “Right to an E ective Rem edy’: Judicial Protection and Eu ropean Cit izenship’, e
Federal Trust for Edu cation and Research, on line paper 17/2004, 4.
4 Case 222/84, Margue rite Johnston v. Chief Con stable of the RUC [1986] ECR 1651, para. 18.
5 Case C-50/00P, UPA v. Council [2002] ECR I-6677, para. 39, and Case C-263/02P, Commis sion v. Jégo-
Quéré & Cie SA [2004] ECR I-3425, para. 29. See also, Case T-177/01, Jégo-Quéré & Cie SA v. Commission
[2002] ECR II-2365, pa ra. 41, noting a lso that ‘acces s to the Cour t is one of the e ssential elements of a
community b ased on the ru le of law and is g uaranteed in the legal order ba sed on the EC Treaty ’, and
para. 47.
6 Article 47 of the Ch arter stipulates that ‘everyone whose rig hts and freedoms gu aranteed by the law of
the Union are violated has t he right to an eective remedy before a tribuna l’. It was referred to by AG
Jacobs in h is Opinion in U PA, Case C-50/00P, para. 39, and by the CF I in its judgment in Jégo-Quéré,
Case T-177/01, para. 47. e Charter was enshri ned in Part II of the 2004 Constitut ional Treaty (Article
47 of the Charter would have become A rticle II-107 of the Constitutional Treaty) and wou ld have
become bindin g, had the latter been ratied. A lthough not integ rated in the rev ised TEU, the Char ter
will be come binding if t he 2007 Treaty of Li sbon, signed in D ecember, is ratied . See new Arti cle 6(1)
TEU.
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