Chapter 9

1. Is it true that admissibility is the major hurdle to a successful action under Article 230? If so, why?

Yes, but only for the non-privileged applicants because the test laid down in Article 230 and as interpreted by the ECJ is very strict.

2. What must an individual show if they are to be recognised as having 'individual concern' for the purposes of Article 230?

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 ECJ operates in Article 230 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. 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 Community and individuals. The decision making procedure in the Community 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 Community are bound to affect individuals and sometimes in an adverse way but they must be allowed to be made otherwise the ability of the Community and Commission to operate would be undermined. Individuals actions should not hinder the institutions ability to operate.

4. Consider the contrasting approach of the ECJ to Article 288 and the test for Francovich liability. Are the same standards of liability imposed on both the Community 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 Community 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 Community institutions so that it may be easier in future for individuals to obtain compensation from Community institutions for mere infringements which have not involved a great deal of discretion on the part of the institution.

5. What use is the plea of illegality action under Article 241?

It is a very limited use action to indirectly challenge the legality of a Community 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.

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