KATHOLIEKE UNIVERSITEIT LEUVEN

FACULTY OF LAW

Academic year 2013

THE COMPLETE SYSTEM OF JUDICIAL PROTECTION

Supervisor: M. POLIMAC

Seminar’s paper submitted by

Kristine ZAICEVA

as part of the final examination for the

course International and European Law, Seminar

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PREFACE

The European Court of Justice (ECJ) plays a significant role in European Union (EU).It

has several duties, which are established under article 19 of the Treaty on European Union

(TEU)1 and also a wide jurisdiction in the Treaty on the Functioning of the European Union

(TFEU) starting from preliminary rulings and finishing with actions for annulment, infrigment

and damages etc.2 However, in this work the main stress will be put on article 263 of TFEU3-

question of standing.

During its work the court established several principles and views. It has been putting

stress on a fact, that in the Treaties has been established a complete system of judicial remedies.

Moreover, the ECJ claims that they have an effective judicial protection and they work in the

conception of the rule of law.4 By saying so, the court strongly believes that that the system is

complete, however, the author thinks, that there are several problems, which are very serious in

their nature.

Before the Lisbon Treaty, the action for annulment was provided under article 230 of the

Treaty Establishing the European Community (ECT)5, where non-privileged applicants could

directly ask for help against illegal Community acts. However, the problem arose because

applicants needed to fulfill very strict requirements, which made the action under this article very

limited and sometimes even impossible. The main example in this field is Plaumann.6 It

established requirements for individual concern of an act, which was fulfilled very rarely. This

means that access to justice or so called locus standi was limited. The author feels that due to

that, the rule of law and the effective judicial protection were also violated and ECJ statements

about their work were wrong.

Another aspect of the question of whether there is a complete system of judicial

protection is the ECJ’s possibility to review European Security and Defense Policy acts (CSFP).

Actually there are no such powers.7 According to article 275 of TFEU the ECJ shall not have any

provisions relating to CSFP or its adopted acts.8 Here, the author wants to state clearly, that even

if ECJ can review CSFP acts indirectly the problem with individuals was not solved until the

Lisbon Treaty. There was no possibility to get any remedies for individuals, whose rights were

1 Consolidated Version of the Treaty on European Union, 2010 O.J. C 83/01 2 Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/47 art. 256, 258, 267, 263, 340 3 Ibit 4 Case C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677, para 38,40. 5 Consolidated Version of the Treaty on European Union, 2006 O.J. C 321 E/146 6 Case 5/62 Plaumann v. Commission [1963] ECR-95, para 107. 7 Consolidated Version of the Treaty on European Union, 2006 O.J. C 321 E/146 Art. 24 8 Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/47

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violated with CSFP decisions. And again, this leads to a problem to fulfil conditions of the rule

of law and effective judicial remedies by impossibility of locus standi.

The aim of this work is to analyze ECJ judicial protection both in the light of the Court’s

own standards and in the conception of the rule of law, by putting stress on article 263 (4) of

TFEU9.This will be done to see whether the system of judicial remedies is really ‘complete’.

There also will be analyzed changes brought by the Lisbon Treaty, to check if there were any

gap in the law and whether the problem was solved or not.

Work is divided in several parts. At the beginning the meaning of the rule of law will be

analyzed together with the effective judicial protection. It is important to understand the meaning

of those concepts to see if the Court really fulfills them and how far. Afterwards, the author will

analyze article 234 TFEU putting stress on non-privileged applicants. At the end of the work the

Lisbon Treaty will be analyzed and changes in the judicial system it brought in the light of the

previous chapter.

9 Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/47

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TABLE OF CONTENTS

Preface ............................................................................................................................................. 2

Table of contents ............................................................................................................................. 4

I THE RULE OF LAW AND A COMPLETE SYSTEM OF JUDICIAL REMEDIES ................. 5

1.1. The rule of law ...................................................................................................................... 5

1.2. Effective judicial protection and a complete system of remedies ........................................ 7

II POSSIBILITY TO ACCES ECJ BEFORE THE LISBON TREATY ...................................... 10

2.1. Division of applicants in article 230 TEC .......................................................................... 10

2.2. Direct concern of an act ...................................................................................................... 11

2.3. Individual concern of an act ............................................................................................... 12

2.4. ECJ jurisdiction over Common Foreign and Security Policy issues .................................. 14

III CHANGES AFTER THE LISBON TREATY ......................................................................... 17

3.1. Regulatory act ..................................................................................................................... 18

3.2. Changes in the field of CFSP ............................................................................................. 21

Summary ........................................................................................................................................ 23

Bibliography .................................................................................................................................. 24

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I THE RULE OF LAW AND A COMPLETE SYSTEM OF JUDICIAL REMEDIES

Article 2 of the Treaty on European Union (TEU) states,- that the Union is based on the

rule of law, by saying that it is founded on this value, together with the human dignity, freedom,

democracy and human rights.10 Also, ECJ has often claimed in the case law, that the system is

based on the rule of law and that treaties have established a complete system of remedies, by

meaning that the court is available to review all measures adopted by institutions, application of

direct effect.11 To varify, we first need to understand those principles.

1.1. The rule of law Nowadays, the term “rule of law” is used very widely and not only in laws or political

talks, but also in newspapers and legal literature. This term has a very important and deep

meaning and a long history.

It is believed that the first meaning of that concept appeared in the times when first great

monarchies were established. It was the time when a lot of questions arose about division of

powers and law. By the time, the concept of „the rule of law” started to create such an important

points as individuals, the state, the law and relationships between the state and the law.12

Examination of law is not only the examination of legal norms. It also includes behavior

and activities of those who are living in accordance to those laws. The law actually is the product

for human behavior and activities.13 With that is meant, that humans are reacting on the basis of

rules and laws. However, behavior can be rational or irrational. It is important to note, that states

started to develop and it was more difficult to understand the limit between: powers and law,

where the government legitime to work, and where they are beyond their powers and

possibilities.

Nowadays, the rule of law is some kind of an ideal of a liberal government in a

democratic country, where strict separation of powers is most important. There exist values of

law in the one hand and politics in another. The content of the rules lies in a balance between law

and politics.14 It states that it is important to draw strict lines, where, how and when government

can act. The way of governing public behavior in the country lays in the idea, that everybody is

10 Consolidated Version of the Treaty on European Union, 2006 O.J. C 321 E/146 11 Case C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677, para 38,40. 12 P.Costa, D. Zolo „The Rule of Law. History, Theory and Criticism.” 2007., Springer, p. 74.,75. 13 F. Neuman „The Rule of Law”, 1986., Berg Publishers. p. 27.,28. 14 R. L. West. „Re-Imagining Justice”, 2003., Ashgate Publishing Limited, p. 18., 19.

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equal in front of the law and nobody is higher than the law. The government also needs to work

according to the law, and not beyond it.

The rule of law, as a structure of modern state, gives a task for the legal system to protect

and respect individuals’ rights. This tends to limit state powers by enlarging the scope of

individual freedoms.15 This obliges the state to respect individual rights.

It is important to note that the rule of law gives powers to individuals as well. Together

with institutions and associations they are holding a wide range of legitime claims and micro

powers. This means that legitime power is actually also controlled. Every moment, when an

individual thinks that his rights were violated or an action against him was unlawful, he can

complain about that. This is the possibility to review decisions, acts and actions. This makes

political power more visible and in the same time non- interference, to protect individuals’

fundamental rights.16 Due to that, there exist a balance between law and politics. However, by

acting against an unlawful action, the individual shows that he doesn’t agree with it. It is not up

to individual or state to check the truth. This is the job of another power; the judicial power. In

EU this is the ECJ. It is easy to understand that this is a clear situation about the possibility to

bring the case before ECJ from every individual who feels, that his rights are violated.

In order to keep the distance between politics and law, the rule of law requires that

adjudicating law cannot become a political work. Politics, they differ from judges, they are

acting in order to represent the needs of a society and to make legislation. Legislation develops

law. Judges play a totally different role, they need to apply rules lied down by the legislator.

They are only the administrating and interpretative part.17 Of course, it is apparent, that if judges

would be able to modify or change law it would be a big violation of the system. Also, it is

important to remember, that court is not dependant on legislative of executive powers. They

work in respect of the law, and it is very important that they are standing far away from the

politics and political decisions.

To conclude, it appears that, when the ECJ states that treaties are based on the rule of law

they mean:

1. Government, private entities, agencies, individuals are accountable under the law. Nobody is

higher that the law;

2. The laws are clear, legally developed and in the same time respect human freedoms and

fundamental rights. Citizens can understand the law and they are able to participate in it, if they

feel being treated unlawfully, they are able to complain;

15 P.Costa, D. Zolo „The Rule of Law. History, Theory and Criticism.” 2007., Springer, p 21. 16 Ibt. p. 22. 17 R. L. West. „Re-Imagining Justice”, 2003., Ashgate Publishing Limited, p. 18., 19.

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3. Justice is independent and reasonable. It is represented by competent representatives (judges)

and works on the basis of law, providing the correct solutions for problems. They do not change

any law; however they are able to annul unlawfully acts or to give the sign to a responsible body

to change it.

If with the first and third point the author does not see any problems, then the second

point is quite problematic from the point of view that individuals can complain by bringing the

case before the ECJ. If requirements are so strict, that a person cannot fulfill them and due to that

can not reach the decision it is difficult to say that the rule of law principle is working well in the

community.

1.2. Effective judicial protection and a complete system of remedies EU recognizes the right for an effective judicial protection as a fundamental right in

accordance with the article 46 of the Charter of fundamental rights of the European Union

(CFREU), which states, that everybody has right for a fair hearing within the reasonable time18

and article 6 of the TEU, which states one more time that EU respects all rights in CFREU19.

This is a principle with several elements, such as- right to the access of the court, right to an

effective remedy and a right to a fair trial.20

Effective judicial protection can be seen as a principle which includes two important

parts: what acts can the court review and who has standing to bring the action. Those points are

standing close together, because if the court has no jurisdiction over an act it cannot give any

decision, while if a person, who has no rights, brings the case it will be inadmissible. The first

part is problematic from the point that ECJ has no rights to review CFSP acts, which will be

more discussed in the next chapters.21 The author feels that it is controversial with the principle

of effective judicial protection, because even if person will have rights to bring the case, there

will be no possibility to reach a decision and a remedy. There are no doubts that the rule of law is

also violated. That means effectiveness is under question.

The principle of effectiveness gives expression to the right to effective judicial

protection. This is an aspect of effectiveness which focuses on access to the court, effective

judicial review and the need for judicial supervision. Where Member States are implementing

EU law, the rights that EU law confers on individuals must be accompanied by effective judicial

18 Charter of Fundamental Rights of the European Union, 2010 O.J. C 83/02 19Consolidated Version of the Treaty on European Union, 2006 O.J. C 321 E/146 20 L.M.Ravo, „The role of the principle of effective judicial protection and its impact on national legislation.” http://www.openstarts.units.it/dspace/bitstream/10077/8192/1/ravo.pdf Accessed 04.12. 2013. 21 Ibt. Art 47

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remedies (ubi ius ibi remedium). Where an EU right is violated, national court must grant

injunctive and monetary relief.22

ECJ used effective judicial protection principle a long time before the CFREU, which

was established only in 2004.23 At the beginning, effective judicial protection together with the

rule of law were concepts through which, the court stressed the right of the individuals to have

sufficient remedies and rights to review their cases. The court stated that this is one of the

constitutive elements. This approach was established by the case law in 1986, where court

discussed the courts possibility to review the acts adopted by institutions. National courts were

mentioned as well, and the most important, the court told, that individuals may be able to bring

the action before the court and this is how they can protect and use their rights. It was the

moment when the court actually established effective judicial protection principle as a

fundamental right, which can be used by every individual.24

In the Peterbroek case, the court stated the view that national courts need to do

everything, to ensure that individuals can exercise their rights, what they have according to the

community law. The court stresses, that effective judicial protection needs to be something more

than just a formal word, in needs to be a strong, practical issue. Moreover, national courts need

to do their best to ensure that there is a good contact with EU courts.25 It shows that there is a big

cooperation between national courts and ECJ. This is the way how ECJ broaden the meaning of

effective judicial protection. However, it is not evident, that this cooperation is effective enough,

since national courts can be not so competent in EU law.

A good example of cooperation between national courts and ECJ is the possibility of

national courts to ask questions to ECJ by preliminary ruling.26 Preliminary ruling procedures

provided a possibility to ECJ to deliver constitutional decisions that defines relationships

between the EU and Member States. This is the way for legal integration and cooperation.27This

is the way how individuals can reach ECJ indirectly, through their national court, who can stop

the case and ask an interpretation or an advice. However, is it a good way to ensure effective

judicial protection? As the article states, the national court may ask for the preliminary ruling.

22 K. Lenaerts, „Effective judicial protection in the EU” http://ec.europa.eu/justice/events/assises-justice-2013/files/interventions/koenlenarts.pdf Accessed 04.12.2013. 23Case 294/83 Les Verts [1986], ECR 1339. An application lodged at the Court Registry on 28 December 1983, ‘Les Verts - Parti écologiste’, a non-profit-making association whose headquarters are in Paris and whose formation was declared to the préfecture de police on 3 March 1980, brought an action under the second paragraph of Article 173 of the EEC Treaty requesting the Court to declare void the decision of the Bureau of the European Parliament. 24Case 294/83 Les Verts [1986], ECR 1339 para 23 25Case C–312/93 Peterbroeck, [1995], ECR I-4599 An applicant- Belgiun partnership with limited liability brought an action against Belgium court concerning the applicable rate of non-resident tax. Preliminary ruling about question of interpritation of Community law concerning the power of national court to cinsider on their own wheather the national law is compatible with Community law. 26 Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/47 art. 267 27 P. Craig, G. De Burca, „The evolution of EU law” 2011, Oxford University Press, p. 363.

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That means, that it is not always an obligation and it is the court itself that decides. Mainly, in

first instance courts check if there was any preliminary ruling on a question they want to refer- if

yes, than they will not do it again.28 This shows that an individual has no any rights there and in

some cases there will be no possibility to reach ECJ even indirectly. It was also criticized by

Advocate General Jacobs in UPA29 due to reasons such as- national courts are not competent,

the applicant cannot decide whether reference will be made and sometimes it is necessary to

breach implementing measures to challenge the resulting sanctions.30 Due to that, we cannot

consider preliminary ruling as a good way to reach ECJ indirectly, especially because of an

individual impossibility to make any impact on national court decision about preliminary ruling.

Although it is not expressly mentioned in the Treaty, that EU has an effective judicial

protection, however, the court found a way how to interpret it through the case law. The court is

sure, that Treaties have established effective judicial protection, by showing that individuals are

able to exercise their rights. By showing that individuals are able to bring an action before the

court even indirectly, through a national court, by asking preliminary ruling. This makes a link

between the rule of law and a complete system of judicial remedies. However, it is important to

check whether that system really works. Theoretically, it does since treaties tried to establish an

effective system, which works on the basis of the rule of law. However, it is important to see the

practical side, which can be totally different.

28 M. Broberg, N. Fenger „Preliminary references to the European Court of Justice” 2010, Oxford University Press p. 262., 263. 29 Case C 50/00 Unión de Pequeños Agricultores [2002] ECR I-6677 opinion of AG Jacobs point 41. 30 P. Craig, G. De Búrca, „The evolution of EU law. Second edition”, 2011, Oxford University Press Inc., p. 385

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II POSSIBILITY TO ACCES ECJ BEFORE THE LISBON TREATY

2.1. Division of applicants in article 230 TEC The ability to reach ECJ was directly expressed in article 230 of TEC or so called action

for annulment article31. It was also the main article under which ECJ could review the legality of

acts made by community institutions. The article itself divided all the applicants in several

groups, where each of them had a different basis of bringing the case before the court.

The first group are so called privileged applicants. According to the article, under this

group were the Council, the Commission, European Parliament and the Member states. As

privileged applicants they could bring the case before the court for the annulment of any binding

act (general or individual) without proving any interest32. This gave quite a big simplicity to

those applicants. Also, as the court stated, the main reason here was to check the legality of the

act, that’s why it is not important whether there was an interest or not.33

The second group were so-called semi-privileged applicants. This included the Court of

Auditors, the European Central Bank and Committee of the Regions. There were no strict

requirements in respect of those applications. However, applicants needed to prove,- that they

were seeking the protection of their prerogatives. They needed to prove in what way the

prerogative should be respected and in what way it was in danger.34

The third and the last group were non-privileged applicants or individual applicants. The

Treaty defined them as any natural or legal person. In compearance with other groups here the

problem was with the admissability. In fact, this group was very restricted. A person could bring

the case before the court only under special conditions, which needed to be fulfilled. In case, if

an act was addressed to that person, there were no problems. However, if the question was about

the regulatory act, than the person needed to fulfill conditions of a direct and individual concern,

which sometimes was almost impossible.35

If the first and the second group of applicants did not raise any specific questions or

doubts about the possibility to reach the court, the third group was placed under a big question.

The requirements were very specific and problematic to reach. Because of that the question arose

about individuals’ possibilities to reach the court and to exercise their rights under a complete

system of judicial remedies which is based on the rule of law. It makes it necessary to analyze

the fourth paragraph of article 230 of TEC to see if there existed any gap.

31 Consolidated Version of the Treaty Establishing the European Community, 2006 O.J. C 321 E/37 32 Case 45/86 Commission v. Council [1987], ECR 1493, para 3. 33 Ibit para 3 34 K. Lenaerts, D. Arts, R. Bray „Procedural Law of the European Union”, 1999, Sweet & Maxwell, p. 157 35 Consolidated Version of the Treaty Establishing the European Community, 2006 O.J. C 321 E/37

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2.2. Direct concern of an act If the decision is not addressed to the natural person, then he is obliged to show the direct

concern of that decision to him to be able to bring the case before the court. If a person is not

able to show this link, then case will be inadmissible. As the court stated in the case law, this

requirement was established in order to be sure, that the person is having the real legal effect,

and that the person might be in uncomfortable position due to that decision.36 In other words, the

direct link between a measure and loss needs to be established. The idea of that measure is very

logical, since mainly in all Member States Civil law systems the link between action and

personal damages needs to be proved. This gives the court the possibility to see that person

brought the case under the correct circumstances and is really seeking for the improvement of his

situation against the correct defendant. Since the consequences can be very serious, it is

important to see that real link.

Another important fact is that the implementation of the measure needs to be automatic,37

without any further rules for implementation from the national legislator. However, if legislator

has some kind of a freedom about the implementation- usually it happens with directives, when

the legislator just needs to reach the result, but can choose their own procedures how to reach

this result, then measure cannot be with the direct concern to the unprivileged applicant.38 This

shows that the direct concern can be reached without any problems in the situations when

questions arise about a regulation, which always has an automatic implementation in the

Member States.

If we need to think about decisions, by which the Commission gives a freedom to the

Member State in some areas of Community law, then the result can be both positive and negative

to the applicant. In some cases it will give a direct concern, however it may also be without. In

situations when the Member State gives the information beforehand, that they are going to

implement the authorizing decision, that decision will be of direct concern to the individual. In

the same time, if the Member State does not do that, then there will be no direct concern.39

The interpretation of “direct concern” did not give rise to many problems and was

consistent40, while what amounted to “individual concern” was more problematic and difficult to

define. However, even if an individual proved direct concern, it did not mean that this case

would be admissible. The requirement, - required by the article 230 of ECT41 itself, needs to be

36Case 294/83 Les Verts [1986], ECR 1339 para. 31 37 Chalmers, D. & Monti, G. „European Union Law. (4th ed.)”, 2007, Cambridge University Press p. 419 38 Ibid p. 419 39 K. Lenaerts, D. Arts, R. Bray „Procedural Law of the European Union”, 1999, Sweet & Maxwell, p. 165 40A.A.Llorens "Remedies Against the EU Institutions After Lisbon: an era of opportunity?" p. 513 http://journals.cambridge.org/action/displayFulltext?type=1&fid=8759322&jid=CLJ&volumeId=71&issueId=03&aid=8759319 Accessed 18.12.2013. 41 Consolidated Version of the Treaty on European Union, 2006 O.J. C 321 E/146

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fulfilled fully, without any possibility to show only direct concern. This means, that it is very

important to show direct concern and individual concern in the same time.

2.3. Individual concern of an act Individual concern of an act is the second necessary point to be met before the case can

be admissible. However, its meaning gives rise to a lot of questions and even problems. The

court stated their opinion about this situation a long time ago, and they did not want to change

their view.

In particular, individual concern, also known as Plaumann formula, was established in

1963, during the case Plaumann v. Commission. The court stated criteria for the individual

concern. An act will be of individual concern if it „affects individual 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 virtue of these factors distinguishes them

individually just as in the case of the person addressed”.42 However, those criteria were so strict,

that it was almost impossible for individuals to challenge EU legal acts directly.

In Plaumann the applicant was a German importer of clementines. He brought the case

before the court for the annulment of the decision to suspend in part customs for mandarins and

clemetines imported from third countries. He was directly affected by the decision; however,

there was nothing that would distinguish him from other importers. He was in the same situation

as other importers, as domestic and foreign producers. Moreover, about individual concern, the

court told that it affects not only importers but Federal Republic of Germany as well. Due to that,

the court decided that he had no any individual concern.43

Even after a long time court did not want to make requirements for admissibility less

strict. In 2002 in Unión de Pequeños Agricultores case the court continued to hold their positions

in respect to this question. An applicant, a trade association, which acted in the interests of a

small Spanish agricultural business, asked for the annulment of regulation, with the exception of

the aid scheme for table olives. The action was brought under article 230 of EC, and the court

started to examine the individual concern of regulation. In paragraph 47 the court stated, that

actions brought by associations may be held admissible where association is distinguished

individually because of the impact of the contested measure on its own interests. In paragraph 50

the court told that in this case applicant cannot be differentiate from all others, since they are in a

comparable situation of any other trader who may enter market now or in the future.44

42 Case 5/62 Plaumann v. Commission [1963] ECR-95 para 107. 43 Ibit, Background. 44 Case C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-667

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As we can see from the case law, the court asked to prove that the person is in some kind

of private, closed class, where he is individually affected by the Community law. It also shows

that individual concern cannot be established in situations, when somebody else except the

applicant could be involved in the situation. This would automatically exclude the possibility of

an individual concern. Consequently, the court officially made it possible to bring the case

before the court for the individuals, but practically, that system did not work very well.

Nevertheless, there exist some situations when the court made different judgments in

respect of the individual concern. In Codorniu case applicant- sparkling wine producer brought

an action because of unlawful provisions in accordance to description and presentation of

sparkling wines. The court decided that there is an individual concern because an „...undertaking,

established in a third Member State, manufacturing and marketing sparkling quality wines

produced in a specified region, which, well before the adoption of the regulation, registered in

that Member State a graphic mark containing that same term and used it both before and after

registration, is in a position which differentiates it, from the point of view of the said provision,

from all other persons in that the provision prevents it from using its graphic trade mark.”45

Another interesting example is Jégo-Quéré case. In that case the applicant was a fishing

company which operated on a regular basis in the waters south of Ireland. After the

establishment of provisions in accordance to conditions for the control of activities of fishing

vessels, the company significantly felt a negative effect on its business. They greatly reduced

their cathes. The applicant brought the case before the Court of First Instance (CFI) by asking the

annulment of some articles of the regulation. In accordance to the complete system of legal

remedies CFI decided that it is necessary to reconsider the notion of individual concern under

article 230 EC. The court stated in paragraph 51 „…a person is 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.” 46 We

can see that the most difficult criteria is out of the requirement- individually distinguished from

others, which can mean that the court indeed saw a gap in the law and a problem with effective

judicial protection to individuals.

Brealy and Hoskins have commented that it can be conclude that individual concern will

be fulfilled in situations when individual is affected as a party, which is absolutely fixed and

45 Case C-309/89 Codorniu [1994] ECR I-1853 46 Case T-177/01 Jégo-Quéré [2002] ECR II-2365

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incapable of alteration at the time of adoption of the measure or in the situation when person is

specifically named in a measure.47

However, it is necessary to note,- that variety of opinions still existed in the court. For

example, on the one hand in Jégo-Quéré case CFI was inspired by Advocate General Jacobs,

who stated in his opinion for Unión de Pequeños Agricultores case, that there is no any

compelling reason to read the fourth paragraph of Article 230 EC with the requirement to be

differentiated from all others affected by it in the same way as an addressee.48 On the other hand,

in Unión de Pequeños Agricultores case ECJ put aside the opinion of the Advocate General

Jacobs and still continued to use the old style, or Plaumann Test requirements.

All those cases show that something needed to be changed, since opinions differed. Of

course, the court needs to follow the established case law, however, it is important to act in the

way the rule of law and the complete system of legal remedies regulate it. Even if ECJ says, that

individuals are still able to have indirect review through the preliminary rulings in their national

courts, it can be problematic to explain a big amount of inadmissible cases under paragraph four

of article 230 EC. In those situations it would be strange to say that the Treaties established a

complete system of judicial remedies. It is obvious that there exist several problems which need

to be solved. This gap in Article 230 EC rises doubts about ECJ stated believing in the case law.

The only possible way to solve this kind of problem is to change expressly the Treaty.

2.4. ECJ jurisdiction over Common Foreign and Security Policy issues The ECJ can perform its rights to review and the possibility to annul any act which is

unlawful only in situations if it has the jurisdiction over that question. Jurisdiction is the only

possible way for official power to make decisions and judgments with the binding effect. With

this in mind, that means where there is no the court jurisdiction there is no possibility for any

decisions even if the act is indeed unlawful. On the other hand, are there any possibilities, where

ECJ has no jurisdiction? It seems normal, that the court needs to review all the acts made in the

EU. However, some problematic points can occur in respect to the Common Foreign and

Security Policy (CSFP).

The jurisdiction of ECJ over issues related to CSFP was very restricted. Already in the

Treaty on Maastricht ECJ did not have any powers to review CSFP work.49 After the Amsterdam

Treaty the matter was governed by article 46 of TEU.50 Consequently, if the court had no

47 M. Brealey, M. Hoskins, „Remedies in EC Law” 1994, Longman Law, Tax and Finance, p. 183-185 48 Case C 50/00 Unión de Pequeños Agricultores [2002] ECR I-6677 opinion of AG Jacobs point 59. 49 Treaty on European Union (Maastricht text), [1992] O.J. C 191/1 art. L 50 Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 1997 O.J. C 340/1, art 46. The article espresses the posible fields of ECJ jurisdiction by explicitly mentioning all situtation when ECJ can act. However, CSFP is not mentioned, which shows, that ECJ have no jurisdiction in tha field.

15

jurisdiction over claims against CSFP, such acts, therefore, could not be reviewed and if adopted

under article 230 TEU. This leads to the question, how the right to a judicial remedy can be

exercised and how the system can be based on the rule of law?

However, article 46 was subjected to an article 47. It was mentioned, that „the

implementation of the CFSP shall not affect the application of the procedures and to extend the

powers of institutions laid down by the Treaties.”51 That gave ECJ powers to review adopted

measures under Title V which concerned provisions on a common foreign and security policy.

From one side, this means that ECJ still had indirect powers to review CSFP decisions and is not

totally lacking jurisdiction. The Court favored this approach in Svenska Journalistforbundet.52 It

held that the fact that it had, by virtue of Article 46, no jurisdiction to review the legality of Title

VI documents did not curtail its powers of judicial review over matters concerning public access

to those documents. The assessment of the legality of the Council decision refusing access was

based upon the jurisdiction of the Court on the basis of Article 230 EC to review the legality of

Council measures taken under the relevant legislation on public access to Council documents.

However, these provisions are opened only to check the legality of decisions which were

adopted.

Individuals were excluded from possibility of bringing the case before the court to get

remedies. The difficulties of private parties can be easily seen in cases Segi and Gestoras pro

Amnistia53. The applicants have brought the case before the court because of their names being

included in the list of terorist names, adopted on basis of Titles V and VI of the EU Treaty.

Because of the lack of implementing measures, they could not challenge the legality of their

rights both in national courts or ECJ. Both applicant were dismissed. Those examples show that

even if ECJ indirectly could review CSFP measure there still was a big gap in respect of

individual applicants.

The exclusion of ECJ jurisdiction was explained by the commission in the next way-

actions, which are taken in respect with the CSFP in more political question, and political

question is not a matter for ECJ.54 From the view of the rule of law, this comment sounds

reasonable enough, since political and judicial powers need to be separated for the balance and

task performance. However, does it make sense if person cannot perform his rights to seek an

decision, when his rights have been violated? The possibility to complain is one of points of the

rule of law. As a result, by excluding ECJ jurisdiction- on a basis of separation of judicial and

political powers, the possibility to complain is excluded as well. This leads to a problem of 51 Consolidated Version of the Treaty on European Union, 2006 O.J. C 321 E/146 art. 47 52 Case T-174/95, Svenska Journalistforbundet [1998] ECR II-2289, art. 85 53 Case C-355/04, Segi [2007] ECR I-01657 and Case C-354/04, Gestoras pro Amnistía [2007] ECR I-01579 54 Initial Contribution by the Commission to the Intergovernmental Conference on Political Union. Composite Working Paper. SEC (91) 500 final http://aei.pitt.edu/4679/ accessed 15.11.2013.

16

effective judicial protection and an incomplete system of judicial remedies, which is not

compatible with the rule of law. Indeed, it is difficult to disagree with Maria-Gisella Garbagnati

Ketvel that there is no logical balance between the needs of certainty and the rule of law and the

discretionary powers and political interests.55

55 Garbagnati Ketvel, M. „The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy.” International & Comparative Law Quarterly. 2006, p. 120

17

III CHANGES AFTER THE LISBON TREATY

The Lisbon Treaty came in force in December of 2009 (sign in December of 2007);

however the origins of it are a lot of years ago. Already at the end of 2001 Treaty started as a

constitutional project. During its road there were a lot of meetings and discussions, negotiations,

which involved a lot of participants. The process leading to the Lisbon Treaty is a result of the

negative outcome of negotiations on Constitutional Treaty in 2005.56

The Lisbon Treaty brought a lot of changes for EU in different fields, however, for this

topic it is necessary to point out changes in accordance with the access to justice by individual

applicants. The Treaty made modifications in annulment procedures. After the Lisbon Treaty

came in force, actions for the annulment of EU legal acts are regulated under Article 263 of

TFEU, which replaced the old Article 230 EC. Requirements for private applicants are

significantly changed. The present wording of fourth paragraph of Article 263 states any natural

or legal person <…> [to] institute proceedings against an act addressed to that person or which is

of direct and individual concern to them, and against a regulatory act which is of direct concern

to them and does not entail implementing measures” 57

The most important changes can be seen in the last part of the article. The Lisbon Treaty

increased the scope of protection of individuals, who are affected by EU acts. If before the

Lisbon Treaty individuals were able to bring the case before the court only if they could prove a

direct and individual concern, than after the Lisbon Treaty that condition was changed. It is true,

that in general we still can see the old requirements; however, the regulatory act dismisses the

requirement to prove individual concern. It needs to be of direct concern and should not entail

implementing measures.

The decision to make the article wider, to allow individuals to have bigger possibilities

for the case admissibility came from the sustained criticism of the Court’s case law on the

limited standing of individuals. As it was mentioned before in the Unión de Pequeños

Agricultores case ECJ declined any changes in requirements of individual concern. That issue

became alive in negotiations on the Constitutional Treaty. It was the moment to decide for a

change, which will significantly improve the situation.58

Another considerable change was establishment of a Charter of Fundamental Rights

(CFR). It is now an integral part of the Treaty. The Charter does not increase the competence of

the EU, however it underlines the importance of respecting fundamental rights and of being

56 The Treaty of Lisbon. http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.1.5.pdf Accessed 04.12.2013. 57 Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/4 58 A. Biondi, P. Eeckhout, S. Ripley. EU Law After Lisbon 2012, Oxford University Press p. 200.

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based on the rule of law. 59 Here the important article to note is Article 47 (right to an effective

remedy), which makes a stronger principle of effective judicial protection. Institutions need to

respect the Charter every time when EU Law is involved. This was a good way to make a

stronger statement that EU has an effective judicial protection.

The Lisbon Treaty established a new definition in the treaty, which actually is not

explained there expressly. Regulatory act- an important definition for every individual, who is

seeking to bring a case before the court. Due to that, the meaning of this term needs to be

investigated deeper.

3.1. Regulatory act Since there was no definition what amounts to a “regulatory act” it was a big question- as

to how that phrase would be interpreted by the Court. The important notion is that the more

broadly we can explain the meaning of the regulatory act, the bigger the possibility for the

individual to bring a case before the Court. The Treaty talks about legislative acts and those are

acts which are enacted by legislative procedure, so they can be regulation, directive or decision.

The regulatory act does not fit so easily with legal act classification. The wider interpretation

would be to interpret it as any biding act rather than a legislative act. The narrower interpretation

would be to interpret it as a legislative act,- which does not entail implementing measures.60

The explanation was found in 2011, when ECJ finally made a first case law on the notion

of regulatory act. Since those cases may be an important basis for definition of regulatory act it is

necessary to take a closer look at them.

In 6 September of 2011 the General Court for the first time gave the explanation about

the regulatory act in the case Inuit Tapiriit Kanatami. In that case the aplicants (a group of

associations, companies and natural persons) brought a case before the court for the annulment

of Regulation on trade and seal products. Applicants stated their application under Article 263

TFEU. To be more correct, they stated, that application needs to be examined in the light of

regulatory act. Like that, applicants wanted to reach the easiest way for admissibility. The

Parliament and the Council contested that regulation is not a regulatory act, which dismisses

application as inadmissible. The court analyzed Article 263 by literal, historical and teleological

interpretation:

1. From the ordinary meaning of the word regulatory, the acts covert by that part are also of a

general application. Regulatory acts do not include legislative acts;

59 J.C. Piris, „The Lisbon Treaty. A Legal and Political Analysis” 2010., Cambridge University Press, p.151., 158. 60P. Craig. „The Lisbon Treaty: Law, Politics and Treaty reform.” 2010, Oxford University Press p. 130, 131.

19

2. Interpretation of the fourth paragraph is born in the process, when the draft for the Treaty

establishing a Constitution for Europe was proposed. In spite of proposal to mention in fourth

paragraph an act of general application, the Presidium adopted another measure- regulatory act;

3. The purpose of that provision is to allow a natural or legal person to institute proceedings

against an act of general application which is not a legislative act, which is of direct concern to

them and does not entail implementing measures, thereby avoiding the situation in which such a

person would have to infringe the law to have access to the court.

After examination, the court stated that the meaning of ‘regulatory act’ for the purposes of the

fourth paragraph of Article 263 TFEU must be understood as covering all acts of general

application apart from legislative acts. Consequently, a legislative act may form the subject-

matter of an action for annulment brought by a natural or legal person only if it is of a direct and

individual concern (Para. 56)61 In the latest decision- 3. October of 2013 the ECJ stayed with the

same opinion by stating that “…the purpose of the alteration to the right of natural and legal

persons to institute legal proceedings, laid down in the fourth paragraph of Article 230 EC, was

to enable those persons to bring, under less stringent conditions, actions for annulment of acts of

general application other than legislative acts.”62

In the next case- Microban International and Microban (Europe) v Commission

(Microban) the court directly used the meaning of the regulatory act established in the Inuit

Tapiriit Kanatami case. The measure challenged by the applicants (companies, which were

engaged in the manufacture) was a contested decision adopted by the Commission. It included a

list of additives which may be used in the manufacture of plastic materials. The court decided

that measures adopted by the Commission were in the exercise of implementing measures and

not in the exercise of legislative powers. Due to that the act was falling in the scope of an act of

general application. This means that it can be considered as a regulatory act.

Nevertheless, it was still necessary to explain the meaning of a direct concern since it was

mentioned twice in the Article 263- in referring to an „act” which is of direct concern or in the

concept of a „regulatory act” which is of direct concern. In order to answer this question the

court reminded, that changes in Article 263 TFEU were made to open up the conditions for

bringing direct actions. That means, that recently introduced provisions cannot, in any event, be

subject to a more restrictive interpretation than the notion of direct concern in Article 230 EC.

The court decided to interpret the newly established direct concern in the same way as it was

61 Case T-18/10 Inuit Tapiriit Kanatami and Others v Parliament and Council [2011] ECR II-0000 An action was dismissed as inadmissible, since the act the applicant wanted to annul did not fall under the meaning of regulatory act and an applicant did not have an individual concern. 62Case C-583/11 P InuitTapiriit Kanatami and Others [2013] ECR II-0000 para 60

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before. Consequently, non-inclusion of an additive in the list of additives, which can be used in

the manufacture make it prohibited, as well as all the materials and articled containing this

additive. It must be considered as directly affecting the legal position of applicant, because they

used that prohibited additive in their production.

Still, to be considered as admissible, the regulatory act should not require any

implementing measures. In the present case, measures entitled an action from the member state.

Until the appropriate date Member States needed to remove the additive from the provisional list

of additives if it was not included in the positive list. It cannot be considered that the prohibition

on the market several additives and their exclusion from the provisional list required the

adoption of implementing measured from states.63

Inuit and Microban shows that the term will need to be defined further. The scope of the

wording, regarding judicial protection of the individual actually needs to be interpreted in

consistence with Article 47 of CFREU, while here the court takes as a main point TFEU.64

However, as stated Advocate General Kokott, Charter cannot be seen as a method to interpret

legal acts as regulatory acts or relaxing the requirements governing whether legislative acts are

of direct and individual concern to individuals.65

Keeping in mind that in the case-law discussed above it seems like „regulatory acts”

include such terms as delegated act or implementing act, which are expressly included in the

Treaties.66

If we look from one side, it seems like changes made a good possibility for individuals to

exercise their rights under Article 263 TFEU. However, the situation is still problematic in

several fields. The court, to decide wather the act in the case is regulatory act or not is looking in

the basis of its establishment. Since „regulatory acts” are acts which are apart from legislative

acts, all the cases where legislative acts will be involved will check old Plaumann Test67 system

with direct concern and individual concern. As stated in the TFEU legal acts adopted by

legislative procedure shall be a legislative acts, moreover, the ordinary legislative procedure

shall consist in the joint adoption by the European Parliament and the Council.68 That shows that

even after changes with the Lisbon Treaty there are still a lot of questions, where applicants will

63 Case T-262/10 Microban International and Microban (Europe) v Commission [2011] ECR II-0000. An action was considered as admissible, since an applicant asked the annulment of regulatory act, and had a direct concern because of that act. Also, act did not asked any implementing measures, which made it possible to be admissible. 64 A. Rosas, E. Levits, Y. Bot, „The Court of Justice and the Constitution of Europe: Analyses and Perspectives on Sixty Years of Case-law” 2013, T.M.C. Asser Press p. 387 65 Case C-583/11 P InuitTapiriit Kanatami and Others [2013] ECR II-0000 opinion of AG Kokott point 112. 66 Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/4 Art. 290.- A legislative act can delegate to the Commisssion the power to adopt non-legisltative acts of general application, Art.291- where uniform conditions for implementing legally binding acts are needed, those acts shall confer implementing powers on the Commission. 67 Discussed in Chapter II in accordance to the case 5/62 Plaumann v. Commission [1963] ECR-95 68 Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/4 Art. 289

21

need to prove individual concern, which seems more impossible than possible. In the same view

is Mariolina Eliantonio by saying that the Lisbon Treaty did not close the gap but just broadens

requirements in respect to regulatory act, which requires no implementing measures and does not

solve the problem itself.69

3.2. Changes in the field of CFSP The Lisbon Treaty made a progress towards CFSP and especially regarding to the limited

powers of the ECJ. With the Lisbon Treaty powers of ECJ were slightly enlarged, notably in the

interest of ensuring better protection of individuals and their rights. The general rule however

remained the same- ECJ shall have no jurisdiction with respect to provisions related to CFSP and

relating all acts adopted on a basis of those provisions.70 It is still true that ECJ enjoys the

possibility to review acts in respect of EU measures. Piet Eeckhout believes that the lack of

jurisdiction of ECJ constituted a substantial breach of the rule of law, especially in situations

when adopted measures restricted individuals’ rights.71 It indeed was a difficult situation, since

individuals were not able to do anything, but since the Lisbon Treaty came in force that problem

is solved.

The biggest change is introduced with individuals’ possibility to bring the annulment

action before the court if CFSP decisions made restrictive measures which affected them. This is

expressly mentioned in the article 275 TFEU, which reads: ‘the Court shall have jurisdiction...to

rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph

of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive

measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of

Title V of the Treaty on European Union’..72 The problematic point there is the meaning of

restrictive measures and the actual scope of this term. Is it to be understood as economic

measures or can it also cover other measures? It is submitted, therefore, that individuals may

challenge the legality of restrictive measures affecting their rights, irrespective of the object

against which such measures are directed.73

69 M. Eliantonio, B.Kas „Private Parties and the Annulment Procedure: Can the Gap in the European System of Judicial Protection Be Closed?” p. 128. http://www.ccsenet.org/journal/index.php/jpl/article/view/7194/0 Accessed 03.12.2013. 70 J.C. Piris, „The Lisbon Treaty. A Legal and Political Analysis” 2010., Cambridge University Press, p. 257. 71 P. Eeckhout „Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations” 2005, Europa Law Publishing. p.27. 72 Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/4 Consolidated Version of the Treaty on European Union, 2010 O.J. C 83/01 73 M. Garbagnati Ketvel, „The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy.” International & Comparative Law Quarterly. 2006 https://stuiterproxy.kuleuven.be/action/,DanaInfo=journals.cambridge.org+displayFulltext?type=1&fid=1539644&jid=ILQ&volumeId=55&issueId=01&aid=1539636&bodyId=&membershipNumber=&societyETOCSession= Accessed 05.12.2013.

22

Although, there are no provisions about the possibility to ask for a preliminary ruling

about the validity of CFSP acts, however, there is no any prohibition either.74 This shows that the

question was not solved properly and in the future there can arise questions. Nevertheless, a

preliminary ruling should be allowed, since the court always stated that it is an indirect way to

reach ECJ and to develop effective judicial protection.

There also would not appear any questions about the case admissibility. First of all,

according to the article 24 TEU75 CFSP cannot adopt any legal acts, which means there would

not be any long consideration wether an annulment procedure act is a legislative act or a

regulatory act. That makes it easier, since individuals will not need to prove an individual

concern at all and will be admissible faster.

It is worth to mention that ECJ jurisdiction has been expanded not only in CFSP field but

also in the Area of Fredom, Security and Justice (AFSJ). The transitional period expired on 30

November 2014, the jurisdiction of the ECJ and EGC in matters pertaining to this field is no

longer a subject to limitations. Therefore, from the standpoint of individual rights, no measure

falling within the scope of application of the Treaties is immune from judicial review. 76

Keeping in mind all changes after the Lisbon Treaty, it is obvious that the gap in the field

of CFSP and also AFSJ is closed. There is no reason to think that there can be any breach of the

rule of law or effective judicial protection any more, since individuals are able to exercise their

rights.

74 L. Šaltinytė „Jurisdiction of the European Court of Justice over Issues Relating to the Common Foreign and Security Policy under the Lisbon Treaty” p. 267 https://www.mruni.eu/lt/mokslo_darbai/st/archyvas/dwn.php?id=241907 Accessed 05.12.2013. 75 Consolidated Version of the Treaty on European Union, 2010 O.J. C 83/01 76 K. Lenaerts „Effective judicial protection in the EU” p. 8. http://ec.europa.eu/justice/events/assises-justice-2013/files/interventions/koenlenarts.pdf Accessed 05.12.2013.

23

SUMMARY This research work shows that there were several problems with the effective judicial

protection and the rule of law in accordance to EU work. The most problematic point was the

locus standi question reffering to ECJ jurisdiction over CFSP acts and an individual possibilities

to bring the case before the court because of difficult requirements.

It is obvious that the Lisbon Treaty paid attention to all the difficult questions and tried to

close the gap in the law, however it still left some problematic points without any solution or it

was just not good enough. Koen Lenaerts is sure, that the Lisbon Treaty made EU system

coherent and complete, since the article 263 TFEU was changed and individuals are able now to

bring the case againt CFSP measures.77 However, the author can’t agree with that argument fully

for several reasons.

First of all, there were big changes in article 263 of TFEU, by adding extra possibility for

individuals to bring a case about regulatory acts, where no individual concern is needed.

However, since „regulatory acts” are acts which are apart from legislative acts, all the cases

where legislative acts will be involved will check old Plaumann Test78 system with the direct

concern and individual concern. That means, that the problem is not solved, but there was just a

solution to make it less restrictive and sometimes there still will be problems for individuals with

locus standi.

Secondly, considerable changes were indeed made in respect of the ECJ’s jurisdiction in

the area of CFSP. In this field, the problem with effective judicial protection for individuals was

solved. If in the past individuals could not search for a remedy at all, what violated the rule of

law and the principle of effective judicial protection, than today it is possible. Here the problem

was solved and changes are indeed huge. From this side the author does not see a violation of the

rule of law any more.

Overall, before the Lisbon Treaty, the rule of law and the effective judicial protection

were violated and the court statement by saying that Treaties have established a complete system

of judicial remedies was wrong. After the Lisbon Treaty the situation considerably improved.

Nevertheless, it is still not perfect and the legislator together with the court has several points to

work on and to improve situation.

77 K. Lenaerts „Effective judicial protection in the EU” p.14. http://ec.europa.eu/justice/events/assises-justice-2013/files/interventions/koenlenarts.pdf Accessed 05.12.2013. 78 Discussed in Chapter II in accordance to the case 5/62 Plaumann v. Commission [1963] ECR-95

24

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