EU Law Blog

Caroline Bradley Spring 2006
EUROPEAN COMMUNITY LAW

Direct and individual concern: Union de Pequeños Agricultores (Olive Oil Case) and Jego-Quéré (Fishing Nets Case)

Measures Challenged:
Olive Oil Case: 1998 Council Regulation which changed entitlements to financial aid for olive oil producers
Fishing Nets Case: 2001 Commission Regulation establishing requirements for the increase of mesh size of fishing nets used to catch hake, with an exclusion for any vessel of less than 12m which returns to port less than 24 hours after departure
These are both measures which , given the ECJ’s traditional interpretation of “direct and individual concern” would not give rise to standing on the part of olive oil producers or fishing vessel operators or any organisations representing their interests. Cf Plaumann pp 12-13.
Both measures changed the rights or obligations of natural/legal persons and affect them directly (no need for Member State implementation).

Arguments for standing
1. Community law recognises a principle of effective judicial protection

see p 25 para 97 “It is now clear from the judgments in Factortame and Verholen that the principle of effective judicial protection may require national courts to review all national legislative measures, to grant interim relief and to grant individuals standing to bring proceedings, even where they would be unable to do so under national law”

2. Requiring natural/legal persons to challenge these measures in national court does not comply with the principle of effective judicial protection, because:
✦ national courts cannot rule on the validity of Community measures
✦ prelim. refs are not available as of right (discretion, error, timing, definition of questions)
✦ what if no action to challenge in national court? (e.g. Fishing Nets, CFI para 39 (argument of applicant)
✦ “Individuals clearly cannot be required to breach the law in order to gain access to justice” (Adv. Gen. Jacobs, Olive Oil p 15, para 43, CFI, Fishing Nets, p 30 para 45)
3. Challenges before the CFI would be more appropriate because:
✦ the institution which adopted the measure is involved (better airing of issues)
✦ transparency
✦ legal certainty
4. ECJ’s flexible, dynamic approach to interpretation of other aspects of Art. 230
5. Contrast with national rules on standing which are broader (nb. statutes (legislation) v regulations (administrative measures); relevance of democratic processes)

cf. Abbott Laboratories v Gardner (US SCT 1967) (plaintiff had standing to challenge regulations imposing labelling requirements for drugs before the regulations were enforced against it because they had to decide between making costly changes in their promotional materials and risking criminal and civil penalties and reputational damage for non-compliance.)

Reasons for Denying Standing
1. Floodgates

2. Treaty specifies “direct and individual concern” see Olive Oil, ECJ pp 28-29 para 44, Fishing Nets, ECJ p 36 para 36 (referring to what is “expressly laid down in the Treaty”).

Question: does the meaning of the Treaty change over time - cf. Jacobs, p. 21, para 77: “Inferences drawn from the historical background of a provision of that age cannot be allowed to freeze the interpretation of the notion of individual concern.”

3. Although Community law recognises a principle of effective judicial protection “it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.” (Olive Oil ECJ, para 41, p 28; see also Fishing Nets, ECJ p 35, para 31). And: “in accordance with the principle of sincere cooperation laid down in Article [10] of the Treaty, national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act.”( Olive Oil ECJ, para 42 and cf. Fishing Nets, ECJ, p 35 para 32).
NB. Fishing Nets, ECJ, p 36, para 35: “It is possible for domestic law to permit an individual directly concerned by a general legislative measure of national law which cannot be directly contested before the courts to seek from the national authorities under that legislation a measure which may itself be contested before the national courts, so that the individual may challenge the legislation indirectly. It is likewise possible that under national law an operator directly concerned by Regulation No 1162/2001 may seek from the national authorities a measure under that regulation which may be contested before the national court, enabling the operator to challenge the regulation indirectly.” The ECJ says it is possible for domestic law to allow this. Is the possibility enough? Does supremacy mean that domestic law must do this?
4. “Complete system of remedies” e.g. Fishing Nets, ECJ, p 35, para 30 (what does this mean?)
5. Availability of action for damages (Fishing Nets, CFI p 29, para 40 (argument of Commission)
BUT
does not result in invalidity of the measure, no comprehensive judicial review (CFI, Fishing Nets p 30 para 46)

Advocate General Jacobs’ Suggested Rule for Standing:
Olive Oil, Page 18, para 60: “In my opinion, it should therefore be accepted that a person is to be regarded as individually concerned by a Community measure where, by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests.”

CFI Suggested Formula:
Fishing Nets p 31, para 51: “a natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him. The number and position of other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard.”