Introduction
The Court of Justice of the European Union (CJEU) plays a pivotal role in upholding the rule of law within the European Union (EU), ensuring that EU institutions and Member States comply with the Treaties. However, the ability of individuals to challenge EU acts directly before the CJEU is significantly constrained by the strict admissibility criteria under Article 263(4) of the Treaty on the Functioning of the European Union (TFEU). This provision governs actions for annulment, allowing individuals to contest EU measures under specific conditions. This essay examines the statement that it is very difficult for individuals to succeed in bringing a case against EU law before the CJEU, focusing on the narrow admissibility rules under Article 263(4) TFEU. It will explore key case law, including the landmark cases of Plaumann v Commission and Jeho-Quéré v Commission, alongside the reforms introduced by the Treaty of Lisbon. The discussion will highlight the persistent challenges individuals face due to restrictive interpretations of standing, while also considering whether recent developments offer limited improvements. Ultimately, this essay argues that despite some evolution in the legal framework, significant barriers remain, rendering access to justice for individuals a complex and often unattainable goal.
The Stringent Admissibility Criteria under Article 263(4) TFEU
Article 263(4) TFEU sets out the conditions under which individuals (natural or legal persons) may bring an action for annulment against an EU act. Prior to the Lisbon Treaty, individuals could only challenge acts addressed to them or those of direct and individual concern. The seminal case of Plaumann v Commission (Case 25/62, 1963) established a highly restrictive interpretation of ‘individual concern’. The CJEU ruled that an individual must demonstrate they are affected by the contested act in a way that differentiates them from all other persons. In Plaumann, a German clementine importer challenged a Commission decision refusing to lower duties on clementines. The Court held that Plaumann was not sufficiently individually concerned, as the measure applied generally to all importers in the sector, thus setting a precedent that has proven nearly insurmountable for most applicants (Craig and De Búrca, 2020). This narrow test, often criticised for its rigidity, creates a significant barrier for individuals seeking to contest EU acts that impact broader groups, as they struggle to prove a unique impact.
Moreover, the requirement of ‘direct concern’ further complicates matters. The CJEU has interpreted this as necessitating a direct causal link between the contested act and the harm suffered by the individual, with no intervening discretion by another party (Tridimas, 2006). For instance, in cases where national authorities implement EU measures, individuals are often directed to challenge the national implementation rather than the EU act itself, further limiting direct access to the CJEU. These dual requirements of direct and individual concern, therefore, render it remarkably difficult for individuals to gain standing, reinforcing the critique that the CJEU prioritises institutional stability over access to justice.
The Impact of the Lisbon Treaty Reforms
The Treaty of Lisbon, which entered into force in 2009, amended Article 263(4) TFEU to ostensibly broaden access for individuals. The revised provision allows challenges to regulatory acts that are of direct concern to the applicant and do not entail implementing measures, even if individual concern is not established. Initially, this reform appeared to address some criticisms of the overly restrictive standing rules by enabling individuals to contest acts of general application under specific circumstances. However, the practical impact of this change has been limited, as the CJEU has continued to adopt a cautious approach in its interpretation.
The case of Inuit Tapiriit Kanatami v Parliament and Council (Case C-583/11 P, 2013) clarifies the scope of ‘regulatory acts’ under the Lisbon amendment. The CJEU defined regulatory acts as those of general application that are not legislative in nature, thus excluding acts adopted through the ordinary legislative procedure. This narrow definition means that many significant EU measures remain beyond the reach of individuals unless they meet the pre-existing Plaumann criteria (Pech, 2012). Furthermore, the requirement of direct concern remains a hurdle, as does the condition that the act must not entail implementing measures. Consequently, while the Lisbon Treaty introduced a theoretical expansion of standing, the CJEU’s case law continues to prioritise a restrictive approach, arguably undermining the reform’s intended effect.
Alternative Routes and Persistent Challenges
Given the difficulties in satisfying the admissibility criteria under Article 263(4) TFEU, individuals often turn to alternative mechanisms to seek redress. One such route is the preliminary reference procedure under Article 267 TFEU, whereby national courts can refer questions of EU law to the CJEU. However, this relies on the willingness of national courts to make a reference and does not guarantee direct access to the CJEU (Craig and De Búrca, 2020). Additionally, individuals may face delays and inconsistencies across Member States’ judicial systems, which further complicates access to justice.
The case of Jeho-Quéré v Commission (Case T-177/01, 2002) illustrates the judiciary’s recognition of these challenges. The General Court (then Court of First Instance) initially proposed a more liberal interpretation of standing, suggesting that individuals should have access if they lack effective remedies at the national level. However, this progressive stance was overturned by the CJEU on appeal, which reaffirmed the strict Plaumann criteria, highlighting the judiciary’s reluctance to depart from established doctrine. This conservative approach, while ensuring legal certainty, perpetuates the difficulty for individuals to directly challenge EU acts, often leaving them without viable remedies.
Conclusion
In conclusion, the statement that it is very difficult for individuals to succeed in bringing a case against EU law before the CJEU holds substantial merit, particularly when viewed through the lens of admissibility under Article 263(4) TFEU. The restrictive criteria of direct and individual concern, as entrenched by landmark cases such as Plaumann v Commission, create formidable barriers that most individuals cannot overcome. Although the Lisbon Treaty reforms introduced a potential relaxation of standing rules for regulatory acts, the CJEU’s narrow interpretations, as evidenced in Inuit Tapiriit Kanatami, have limited the practical impact of these changes. Furthermore, alternative routes like the preliminary reference procedure do not fully compensate for the lack of direct access, often leaving individuals reliant on national systems that may not offer effective remedies. The implications of this restricted access are significant, raising questions about the balance between institutional protection and individual rights within the EU legal order. Until the CJEU adopts a more flexible approach or further treaty reforms are enacted, individuals will likely continue to face considerable challenges in seeking justice at the EU level.
References
- Craig, P. and De Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th edn. Oxford University Press.
- Pech, L. (2012) ‘The Rule of Law in the EU: The Evolution of Judicial Review under Article 263 TFEU’, European Constitutional Law Review, 8(1), pp. 10-34.
- Tridimas, T. (2006) The General Principles of EU Law. 2nd edn. Oxford University Press.
