Xenakis the fisherman and the tangle of EU law

Dead Southern bluefin tuna (Thunnus maccoyii) caught in a tuna pen, Port Lincoln, South Australia.

Understanding Standing: Post 1 of 3

Recently, we posted on a proposed action against the European Commission, or, more precisely, the action of its president. The applicants’ greatest challenge in those proceedings will be to persuade the European Court of Justice in Luxembourg that they should be allowed to take their case at all; in other words, whether they have “standing” under the rules of the European Treaties. We are grateful therefore for an in depth analysis of the subject by regular UKHRB contributor Michael Rhimes.

Michael is currently fourth référendaire at the Court of Justice of the European Union (CJEU), and this and the following two posts on the subject are summaries of what he has set out in an article in the European Journal of Legal Studies  The views he expresses are personal only, and the article was written before he took up his current responsibilities at the CJEU.  

Introduction   

Standing is a hot topic in EU law, and it is certainly of considerable academic interest. The legal commentary in this area over the last 50 years would occupy a small mansion. I confess I am guilty of adding to this proliferation – my own 70 page contribution in the European Journal of Legal Studies may be found here. Yet it is also an area of great practical interest. This is because it is essential to have standing to directly challenge an EU act in the EU Courts. No standing means no admissibility, which means no case to be heard by the Courts.

The overall question to these three Posts is whether the EU provides effective judicial protection in relation to the challenging of EU norms. Each of the three Posts has a deliberately different scope and purpose.

  1. The first is introductory. It summarises what standing is, introduces the main features of direct/indirect enforcement and explains how they are relevant to EU standing. It then offers an overview of the application of the heads of standing in Art 263(4) TFEU.
  2. The second is technical. It examines the case-law under Art 263(4) TFEU offers a more detailed insight into the problems with the application of the three elements in the third head of standing.
  3. The third is polemic. It seeks to explore how the application of effective judicial protection results in gaps in the ability to challenge EU law.

Part I) Direct and Indirect challenges to EU law

There are two ways to challenge an EU act – directly, as set out in Art 263(4) TFEU, and indirectly, under Art 267 TFEU. It helps to give an example – imagine Mr Xenakis, a Greek fisherman, is trying to challenge a Commission Regulation that bans the fishing of Bluefin tuna in a given area of sea. (This is based on the following case T367/10, Bloufin).

When an act is directly challenged, the challenge goes straight to the General Court of the European Union (formerly Court of First Instance, also called “Tribunal” given its French name). The first port of call for Mr Xenakis’ lawyers is Luxembourg City. If the General Court finds that the Regulation is in fact lawful, then Mr Xenakis is free to appeal on a point of law to the higher Court, the CJEU.

When an act is indirectly challenged, the challenge has two phases. First, the challenge starts in national courts of the Member states. Mr Xenakis’ lawyers will start in national Greek courts and challenge the Regulation there. Of course, these Greek courts cannot strike down the Regulation in question – only the EU Courts can strike down EU law (See C-314/85 Foto-Frost). But – and here comes the second phase – if the challenge is well founded, the Greek courts can refer the dispute to the EU Courts under Art 267 TFEU. After the Greek courts refer the dispute, Mr Xenakis’ lawyers will head for Luxembourg City, can then challenge the Regulation in front of the CJEU. 

Part II) Liberal Standing Rules vs Restrictive Standing Rules

One might wonder why parties don’t opt for the direct challenge as a matter of routine; why bother with the proceedings in national courts?

The answer is straightforward. A party must have standing under Art 263(4) in order to bring a direct challenge. A party does not need standing for an indirect challenge because it is the national court that refers the question. The admissibility of that question has nothing to do with the parties themselves.

In UK administrative law it is not very difficult at all to have standing. One simply needs to have a “sufficient interest in the matter to which the application relates” as per section 31(3) of the Senior Courts Act, here. This is a flexible test which, in practice, is easy to satisfy. The need for lax standing rules was eloquently put by Lord Diplock in National Federation of Self-Employed and Small Businesses

[i]t would…be a grave danger (…) if a pressure group (…) or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi [standing] from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.

In other words, standing marches hand in hand with the rule of law. The most perfect system of judicial review would be useless unless people have standing to use it. But standing also promotes a host of other public law values, like legitimacy, by ensuring the proper application of the law, and participation, by permitting the citizenry to engage with the norms that bind them.

One would therefore expect the EU to have broad standing rules. Yet this is not the case. Why? The justification is that it simply doesn’t matter that Art 263(4) is so restrictive. This is because Art 263(4) is just one way of challenging EU norms (i.e. directly). There is also the possibility of indirect challenge under Art 267. The fact that Mr Xenakis may not be able to challenge the Regulation directly is counterbalanced by the fact that he can challenge them indirectly, i.e. he is free to commence proceedings in the Greek courts and have the matter referred to the CJEU under Art 267.

Thus, to cite C-274/12 P Telefònica:

57      Judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, by the Court of Justice and the courts and tribunals of the Member States. To that end, the FEU Treaty has established, by Articles 263 TFEU and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts (…)

59      Consequently, even though Telefónica cannot, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, challenge the contested decision directly before the European Union judicature, it can contend that it is invalid before the national courts and cause the latter to refer questions to the Court of Justice for a preliminary ruling, pursuant to Article 267 TFEU (…)

The passage is dense, but the CJEU is saying that Art 263 and Art 267 work together to allow parties a full opportunity to challenge measures of EU law, whether directly under Art 263 or indirectly under Art 267 – hence “complete system of legal remedies” in [57]. The fact that Telefónica did not have standing under Art 263(4) did not matter because they could simply bring proceedings and have the matter referred to the CJEU under Art 267 (at [59]).

Part III) Art 263(4)

In EU law, it is much more difficult to have standing than in the UK. The relevant standing rules are found in Art 263(4) of the Treaty on the Functioning of the European Union. This provides three “heads” of standing. Thus, a party can directly challenge an act if

  1. They are addressed in that act,
  2. They are directly and individually concerned by that act, or
  3. They are directly concerned by that act, and that act is a regulatory act that does not entail implementing measures

These rules are highly restrictive.

  1. “addressed”

As to the first head, it is only rarely that a party will be addressed in an EU act. More often, the act is addressed to Member States so those concerned by it (e.g. a company that has received unlawful state aid from that Member State) will not be addressed. Those parties will have to try their luck under the second or third heads.

2. “Direct” and “individual” concern

As to the second head, the criterion of direct concern is not too difficult to satisfy. It is made up of two elements. First, the measure must affect the legal situation of the person concerned. This means that the measure in question must have some legal effect on the person seeking to contest it. Second, the implementation of that measure must be purely automatic, resulting from Union norms without the application of other intermediate rules. This seems a bit verbose, but bear with me, its application will make it clearer (see later in this post).

Turning to the criterion of individual concern, this criterion is notoriously difficult to demonstrate. Following the C-25/62 Plaumann test, it requires a party to show that they have characteristics such that they are affected above and beyond all other parties – in effect, they have to show that they are in the same position as a party addressed by the decision. Or, in the original Euro-speak of the Plaumann case:

Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them 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 .

This is virtually impossible to satisfy. On the facts, Plaumann sought to challenge an increase in customs duties on imported clementines from outside the EU. They failed because they could not show they were individually concerned; in the eyes of the Court, the commercial activity of importing clementines, apparently, could be “at any time be practised by any person”. Plaumann could therefore not show how they were “differentiated from all other persons” importing clementines and therefore, they were not individually concerned.

3. The latest condition

The third head is a recent addition in the Lisbon Treaty. Under Art 230 of the EC Treaty, there were only two heads of standing, as set out above. The Treaty of Lisbon added this third head, for reasons that will be seen in the Part IV of this post below.

This third head dispenses with the need to show individual concern where a regulatory act does not entail implementing measures. In other words, a party must show that they are a) directly concerned, by a b) regulatory act that c) does not entail implementing measures.

Let’s see how this applies to Mr Xenakis.

He is directly concerned by the measure. It affects his legal situation – before he could fish tuna, now he cannot. The operation of that measure is also be purely automatic, resulting from Union norms without the application of other intermediate rules. This is satisfied because the ban comes into effect in and of itself. It envisages no discretion and no futher actions to be undertaken by the Greek authorities. The Commission has said “thou shalt not fish tuna” and as a result, Mr Xenakis cannot fish tuna. There is nothing more to be done by the national authorities.

The act is also regulatory. This was defined for the first time in the seminal case of Case C-583/11 P Inuit (see [61]). A regulatory act is simply one that is not a legislative act. In technical terms this means that it must not be adopted in accordance with either the ordinary legislative procedure or the special legislative procedure within the meaning of paragraphs 1 to 3 of Art. 289 TFEU. In this case, we know that the contested measure is a Commission Regulation – which is not a legislative act.

The act also does not entail implementing measures. As explored in the context of direct concern, the Greek authorities do not need to lift a finger. The ban is effective in and of itself and requires nothing on the behalf of Greek authorities.

If Lisbon had not added any change to the standing rules, it is certain that Mr Xenakis would have not been able to challenge the provision. He is clearly not addressed in the provision, and he would not have been able to show how he – out of all the other fishermen – was affected by it. Other cases, in English, where claimants have been ‘saved’ by the latest concession under the third head of standing can be found here: Case T262/10 Microban, Case T296/12 Health Food, Case C691/15 P-R Bilbaina, and T454/10 and T482/11, ANICAV, which was overturned in Cases C455/13 P, C457/13 P and C460/13 P, ANICAV. [For the Francophones, see also Case T-397/13 and T-434/13 Doux and Tilly Sabco (On appeal in Case C-183/16 P)]

Part IV: The Origin of the Third Head

The reader might be left a bit confused as to why the third head was added – indeed, it seems more complex and difficult to apply than the first and second heads. A full explanation requires an understanding of what was wrong with the standing rules prior to the Lisbon Treaty. 

  1. The Dilemma

The main concern with the pre-Lisbon position is what I call the “Dilemma”. The fundamental assumption in Part IV is that Mr Xenakis can challenge the rules indirectly, starting in the national court. But what if there is nothing to challenge? What if the Regulation simply reads like this:

Fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and the Mediterranean by purse seiners flying the flag of or registered in France or Greece shall be prohibited as from 10 June 2010, 00h00.

What can be challenged in the Greek court? There is nothing required to be done by the Greek state. The ban comes into effect in and of itself. There are no national measures to “latch” on to and challenge in the Greek courts. In the technical jargon, the measure is “self-executing”. 

The only route available to Mr Xenakis would be to go out and fish for the tuna, get caught, and challenge the sanctions. As part of that challenge, he could argue in the Greek courts that the legal basis for the sanctions (the Regulation itself) was unlawful. The national court could have then referred the question to the CJEU under Art 267.

This is why the lack of ability to challenge EU law is a true dilemma. Mr Xenakis has a choice, and both options available to him are losing options. Either he breaks the law in the hopes that it will one day be invalidated by the CJEU (not good) or he sits tight and complies with a potentially unlawful norm (also not good). This dilemma is far from hypothetical. It reared its head in two famous cases before the addition of the third head of standing in the Lisbon Treaty.

In Case C-50/00 P Unión de Pequeños Agricultores (UPA) the claimants noted that ‘neither the Spanish State nor the autonomous communities of which it is composed have adopted measures to implement the contested regulation’. There was nothing to challenge before the domestic courts. They were also unable to show that they were individually concerned, and they were unable to challenge the provision either directly or indirectly.

This particular dilemma also arose in Case C-263/02 P Jégo-Quéré, where the restriction on the fishnet mesh sizes, like the ban on fishing tuna, required no implementing measures. The Court of First Instance (now the General Court) ‘reconsidered’ the strict interpretation of individual concern as laid down in Plaumann. It cast to one side that definition of individual concern, and instituted a new, less stringent, test. A party was to be individually concerned where ‘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’. Thus, Jégo Quéré did not have to show characteristics such that they were distinguished individually from all the other fisherman (which they most likely could not). They simply had to show that the fish net restriction affected them definitively and immediately, and imposed obligations on them. This was much easier to show, and they were able to challenge the measure in the General Court.

Notwithstanding, the CJEU, on appeal, towed its restrictive line. It quashed the General Court’s mutinous decision, and reinstated the Plaumann version of individual concern.

2. Effective judicial protection

The CJEU on appeal in Jégo-Quéré returned the law on standing to the position lambasted by Advocate General Jacobs in his UPA Opinion, as a “blot on the landscape of Community law”. AG Jacobs called it a “blot” because, surely, there is something profoundly wrong with a system which requires an individual to break the law in order to challenge it.

Indeed, the CJEU has recognized that it is inconsistent with the promise of effective judicial protection – more on this in Post Three of these blog posts. The passage from Case C-432/05 Unibet is worth citing:

64 (…) If (…) [Unibet] was forced to be subject to administrative or criminal proceedings and to any penalties that may result as the sole form of legal remedy for disputing the compatibility of the national provision at issue with Community law, that would not be sufficient to secure for it such effective judicial protection.

In other words, having to infringe the law to impugn it constitutes a violation of the right to effective judicial protection.

The pre-Lisbon position was unacceptable for this reason. In the vast majority of cases where a party would not have standing under Art 263(4), the price of subjecting a self-executing measure to review would be to open yourself to administrative or even criminal penalties. Our dear Mr Xenakis could only challenge the Regulation if he was willing to martyr himself first.

We can thus see that the third condition for standing, added by Lisbon, goes some way towards addressing this dilemma. It does so by allowing a party to challenge a norm which would otherwise be unchallengeable. Where that norm has no implementing measures, i.e. where it is self-executing and would give rise to the dilemma, a party does not need to show individual concern. Mr Xenakis, who would not be able to challenge the Regulation under the pre-Lisbon position, can now challenge it under this third head.

Happy days? This is perhaps too optimistic of an assessment. It must be recognized that the way the third head attempts to address the dilemma is rather awkward.

  1. As noted (Opinion for T and L) it seeks to resolve the dilemma by reference to two terms that are entirely undefined. Nowhere does one find a definition of “implementing measures” or “regulatory act” in the Treaty.
  2. While the use of the term “implementing measures”, the cornerstone of the third head, is not used consistently in the language versions. In English, for example, it is found in Arts 263 and 311 only, yet the French equivalent is also found in Art 299.
  3. Finally, the whole text was pinched from the Constitution for Europe – a project that met its end after it was rejected by Dutch and French voters. There are significant differences in aim between the Constitution and the Lisbon Treaty, so it is even more difficult to see what the framers of the Lisbon Treaty meant by the terms contained in the third head.

The third head therefore has a murky background – its history is arcane, and the terms it contains vague. However, the uncertainty is not a disadvantage. On the contrary, It could easily have been seized upon by the Courts to fashion more liberal standing rules. In reality, it was a blessing – an opportunity to start afresh.

Whether the EU Courts have done so is the subject of my next post on this subject.

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