C-50/00

UNIÓN DE PEQUEÑOS AGRICULTORES v COUNCIL

OPINION OF ADVOCATE GENERAL JACOBS delivered on 21 March 2002 1

Introduction another person, is of direct and individual concern to the former'. While the focus of that provision is on review of decisions, the Court of Justice has acknowledged, rightly in my view, that regulations can also be challenged in proceedings instigated by 1. In this case an association of farmers individual applicants where they are of appeals against an order of the Court of individual concern to the applicant, and First Instance 2 dismissing as manifestly that the test for establishing individual inadmissible its application for the annul- concern is in substance the same in the ment of Regulation No 1638/98, 3which case of decisions and regulations. The amended substantially the common organi- notion of individual concern has, however, sation of the olive oil market, on the been interpreted strictly in the case-law. ground that the members of the association Applicants will be regarded as individually were not individually concerned by the provisions of the Regulation within the concerned by a measure only if it affects meaning of the fourth paragraph of their legal position by reason of certain Article 230 EC. attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distin- guishes them individually in the same way as the addressee. 4It may be noted that this aspect of the case-law has been much

2. The fourth paragraph of Article 230 EC provides that '[a]ny natural or legal person may... institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to

5 — For critical commentary on the case-law by members of the Court of Justice and the Court of First Instance, see F. Schockweiler, 'L'accès à la justice dans l'ordre juridique communautaire', Journal des tribunaux, Droit européen, no. 25, 1996, p. 1, at pp. 6 to 8; J. Mortinho de Almeida, 3. The present appeal, which the Court has 'Le recours en annulation des particuliers (article 173, deuxième alinéa, du traité CE): nouvelles réflexions sur decided to hear in plenary session with a l'expression "la concernent.

II, (1998), provisions of a regulation within the mean- p. 591, at p. 617; A. Saggio, 'Appunti sulla ricevibilità dei ing of the fourth paragraph of Article 230 ricorsi d'annullamento proposti da persone fisiche o giuri- diche in base all'Art. 173, quarto comma, del Trattato CE', EC as interpreted in the case-law should Scritti in onore di Giuseppe Federico Mancini, Voi.

conditions de recevabilité des recours en annulation des p articuliers contre les actes normatifs communautaires: à la lmière du droit comparé et de la Convention des droits de l'homme', Cahiers de droit européen 1995, p. 399; G. Van- dersanden, 'Pour un élargissement du droit des particuliers d'agir en annulation contre des actes autres que les décisions qui leur sont adressées', Cahiers de droit européen 1995, p. 535; L. Allkemper, Der Rechtsschutz des einzelnen nach dem EG-Vertrag: Möglichkeiten seiner Verbesserung

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The contested regulation planted after 1 May 1998 were excluded, subject to certain exceptions, from any future aid scheme. The contested regulation also provided that the Commission was to present, in the course of the year 2000, a 5. The legal background is set out in the proposal for a regulation to implement a order under appeal, 7and a short summary complete reform of the common organi- will therefore suffice for present purposes. sation of the market in oils and fats.

6. The common organisation of the market in oils and fats, which was established by Regulation No 136/66, 8laid down, for the The facts and the order under appeal market in olive oil, schemes in respect of intervention prices, production aid, con- sumption aid and storage, as well as imports and exports.

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(now Article 253 EC), that it did not lation. It concluded, after an examination contribute to the goals of the common of its provisions and the detailed arguments agricultural policy set out in Article 39 of put forward by UPA, that it was legislative the Treaty (now Article 33 EC), and that it in nature in so far as it applied in a general violated the principle of equal treatment of and abstract manner to objectively deter- producers and consumers set out in the mined factual and legal situations. 10 How- third paragraph of Article 40 of the Treaty ever, acknowledging that 'in certain cir- (now the third paragraph of Article 34 EC) cumstances, a legislative measure which as well as the principle of proportionality, applies to the operators concerned in the right to exercise a profession and the general may also be of individual concern right to property. to some of them'11where they are 'able to show that they are affected by the measure in question by reason of certain attributes which are peculiar to them or by reason of factual circumstances in which they are differentiated from all other persons', 12 the Court of First Instance proceeded to exam- 10. By reasoned order of 23 November ine whether UPA should be granted locus 1999 ('the contested order'), the Court of standi to challenge the contested regu- First Instance dismissed that application as lation. manifestly inadmissible.

13. In that regard, it noted that actions 11. The Court of First Instance recalled, brought by associations may be admissible first, that '[a]ccording to settled case-law... in at least three kinds of circumstances: [the fourth paragraph of Article 230 EC] allows individuals to challenge any decision which, although in the form of a regu- lation, is of direct and individual concern to them. The objective of that provision is in particular to prevent the Community insti- — when a legal provision expressly grants tutions from being able, merely by choosing a series of procedural powers to trade the form of a regulation, to preclude an associations; individual from bringing an action against a decision which concerns him directly and individually'. 9

16. The Court was not convinced by those arguments. It held, in response to the first argument, that '[t]he plea alleging possible misuse of powers relates in reality to the substance of the case. To consider that plea at the same time as the admissibility of the 14. However, UPA could not 'rely on any action would render the admissibility of an of these three situations in order to estab- action for annulment brought against a lish the admissibility of its action'. 13 UPA measure of general application dependent had no rights of a procedural nature under solely on the nature of the grounds invoked the common organisation of the market in in relation to the substance of the case in oils and fats; 14 it had not established that order to challenge the legality of the its members were affected by the contested measure; this would amount to derogating regulation by reason of certain attributes from the conditions for admissibility laid which were peculiar to them or by reason down in [the fourth paragraph of of factual circumstances in which they were Article 230 EC], as interpreted by the case- differentiated from all other persons; 15and law.' 18 the contested regulation did not affect any specific interests or special protections enjoyed by UPA as an association distinct from the interests of its members. 16

17. In reply to the second argument, the Court of First Instance held as follows:

15. Finally, the Court of First Instance noted that UPA had put 'forward two further arguments to prove that it is, none '61 The argument that no effective legal the less, individually concerned by the protection is afforded consists of the provisions of the contested regulation, complaint that there are no legal namely that the review of the legality of remedies under national law which the contested regulation which it seeks in make it possible, if necessary, to review its action is a matter of Community public the legality of the contested regulation by means of a reference for a prelimi- nary ruling under [Article 234 EC]. 13 — Paragraph 48. 14 — Paragraph 49. 15 — Paragraph 50. 17 — Paragraph 59. 16 — Paragraphs 52 to 57. 18 — Paragraph 60.

64 Moreover, the applicant cannot validly base any argument on the possible l e n g t h of p r o c e e d i n g s u n d e r [Article 234 EC]. That circumstance — annul the order of the Court of First cannot justify a change in the system of Instance; remedies and procedures established by Articles [230, 234 and 235 EC] which is designed to give the Court of Justice 19 — Paragraphs 65 and 66.

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— declare the action lodged with the 22. UPA puts forward four pleas in law. Court of First Instance on 20 October The first three pleas allege that the reason- 1998 admissible and refer the sub- ing set out in paragraphs 61 to 64 of the stance of the case back to the Court contested order is insufficient and contra- of First Instance for determination. dictory, and that it rests on a misunder- standing of UPA's arguments.

20. The Commission, which has intervened in support of the Council, asks the Court of Justice to:

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24. The Council and the Commission resist with that preliminary argument on admissi- those submissions. bility separately. The Commission's argu- ment goes to the substance of the appeal and must be considered together with the other arguments.

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29. Moreover, where rules of national law, Spanish administration in damages for loss exceptionally, prevent an individual from ensuing from the violation of that right. challenging a measure of general appli- cation before the national courts, or from obtaining a preliminary ruling from the Court of Justice on the alleged illegality of that measure, the solution is not to modify the system of remedies laid down in the Treaty, or to adopt a contra legem inter- pretation of Article 230 EC, but to change Delimitation of the issues those rules of national law in order to ensure that the principle of effective judicial protection is respected and that the Member State in question complies with 31. It is the fourth plea invoked by UPA its duty of cooperation laid down in which raises the important question of Article 10 EC. The Commission accord- principle which I have set out in paragraph ingly concludes that the Court should reaf- 3 above. At the hearing the parties and the firm its case-law to the effect that the Commission focused on that issue and I standing of individuals is to be decided consider that it is therefore appropriate to exclusively by reference to the conditions of start by examining the fourth plea. direct and individual concern laid down in Article 230 EC.

32. In order to determine whether that plea is well founded, it falls to be considered, first, whether there is support in the case- law for the approach suggested by UPA and if so, secondly, whether that approach should be confirmed by the Court of Justice in the present case.

the present case. In that case a number of subject-matter of those proceedings and of individuals and environmental organi- the action brought before the Court of First sations sought to challenge the validity of Instance is different, both actions are based a Commission decision granting Commu- on the same rights afforded to individuals nity funding for the construction of two by Directive 85/337, so that in the circum- power plants in the Canary Islands. The stances of the present case those rights are Court of First Instance had dismissed that fully protected by the national courts which application on the grounds that the appli- may, if need be, refer a question to this cants were not individually concerned by Court for a preliminary ruling under Article the impugned decision. On appeal, the [234 EC]... The Court of First Instance did Court of Justice held, first, that '[t]he not therefore err in law in determining the interpretation of [the fourth paragraph of question of the appellants' locus standi in Article 230 EC] that the Court of First the light of the criteria developed by the Instance applied in concluding that the Court of Justice in the case-law set out at appellants did not have locus standi [was] paragraph 7 of this judgment'. consonant with the settled case-law of the Court of Justice'. 22 It then rejected argu- ments to the effect that that case-law should not be applied to challenges based essentially on environmental grounds. 23 Finally, it considered an argument — put forward by the applicants — to the effect 34. It is, as UPA stresses, possible to read that the impugned decision could not be those paragraphs as suggesting that an challenged in national courts, and that they individual must be granted locus standi to should therefore be granted standing under challenge a Community measure where an the fourth paragraph of Article 230 EC. application of the traditional case-law of The Court rejected that argument as fol- the Court of Justice would lead to a denial lows: 24 of effective judicial protection owing to the impossibility of challenging the measure in proceedings before national courts. That is however, as the Commission points out, not the only possible reading of the Green- peace judgment. In that context, the Com- mission draws attention to Federación de Cofradías de Pescadores de Guipúzcoa and others, 25where the President of the Court 'As regards the appellants' argument that of Justice held: application of the Court's case-law would mean that, in the present case, the rights which they derive from Directive 85/337 would have no effective judicial protection at all, it must be noted that, as is clear from the file, Greenpeace brought proceedings before the national courts... Although the 'In the present case, first of all, as regards the applicants' argument that the validity

Is the assumption correct that the prelimi- nary ruling procedure provides full and effective judicial protection against general Community measures? 35. While it is, in my view, clear that the Greenpeace judgment does not exclude the possibility that standing might be granted, in a particular instance, where the appli- cation of the fourth paragraph of Article 230 EC as interpreted in the case- 36. At the hearing, UPA stated that it does law would entail a denial of effective not ask the Court of Justice to change its judicial protection, I do not propose to case-law on the interpretation of the fourth pursue the question whether the Court paragraph of Article 230 EC. However, intended to endorse that possibility. Suffice implicit in its arguments is a strong criti- it to note that the Court's judgment is cism of the case-law, since it is alleged that based on the view that Community meas- it may lead to a denial of justice unless ures of general application should in prin-

27 — See, to the same effect, Case C-209/94 P Buralux v Council 26 — See also the Order of the Court of Justice in Case Į1996) ECR 1-615, paragraphs 35 and 36 of the judgment. C-301/99 P Area Com and Others v Coimai and Com- 28 — See, to the same effect. Case 294/83 Les Verls [1986| ECR mission (20011 ECR 1-1005, at paragraph 47. 1339, paragraph 23 of the ļudgmcnt.

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exceptions are made to it in specific Proceedings before national courts may not instances. provide effective judicial protection of individual applicants

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UNIÓN DE PEQUEÑOS AGRICULTORES v COUNCIL

40. In my view, proceedings before national courts do not have power to national courts are not, however, capable decide what is at issue. of guaranteeing that individuals seeking to challenge the validity of Community meas- ures are granted fully effective judicial protection.

33 — Moreover, in relation to Title IV of Part Three of the EC Treaty, only courts of last instance are entitled to refer: see 32 — Case 314/85 Fato-Frost [1987] ECR 4199. Article 68(1).

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44. Finally, compared to a direct action before the Court of First Instance, proceed- ings before the national courts present serious disadvantages for individual appli- cants. Proceedings in the national courts, 45. I consider, moreover, that proceedings with the additional stage of a reference before the Court of First Instance under under Article 234 EC, are likely to involve substantial extra delays and costs. The potential for delay inherent in proceedings 34 — See Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen [1991] ECR 1-415; Case C-465/93 brought before domestic courts, with the Atlanta Fruchthandelsgesellschaft [1995] ECR 1-3761.

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UNIÓN DE PEQUENOS AGRICULTORES v COUNCIL

47. Moreover, where a direct action is brought, the public is informed of the existence of the action by means of a notice 49. I consider, for all of those reasons, that published in the Official Journal and third the case-law on the locus standi of individ- parties may, if they are able to establish a ual applicants as re-considered in the judg- sufficient interest, intervene in accordance ment in Greenpeace, whichever way that with Article 37 of the Statute of the Court. judgment is understood, is incompatible In reference proceedings interested individ- with the principle of effective judicial uals cannot submit observations under protection. While review of Community Article 20 of the Statute unless they have measures through proceedings before intervened in the action before the national national courts may be appropriate where court. That may be difficult, for although information about reference proceedings is published in the Official Journal, individ- 35 — Tile only exception beine where there is no doubt that the uals may not be aware of actions in the individual applicant had standing under the fourth para- graph of Article 230 EC to challenge the measure in national courts at a sufficiently early stage question but omitted to do so. see T\VD, cited in note 5; Case C-178/95 lVi/;o |1997| LCR 1-585; Case C-239/99 to intervene. Nad» Europe ¡20011 ECR 1-1197.

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51. First, there is — as the Commission points out — no support for that sugges- tion in the wording of the fourth paragraph 53. Third, to accept that locus standi under of Article 230 EC. The conditions for locus the fourth paragraph of Article 230 EC standi laid down by that provision are may depend on national law — which is objectively defined ('direct and individual likely to differ as between Member States

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UNIÓN DE PEQUEÑOS AGRICULTORES v COUNCIL

54. The question, then, is how to ensure — within the limitations imposed by the wording and structure of the Treaty — that individual applicants are granted effec- 57. The suggestion that effective judicial tive judicial protection. The Council and protection would be secured by a ruling to the Commission have suggested, essen- the effect that national laws which render it tially, that the solution is to change rules difficult or impossible to challenge Com- of national law which render it difficult, or munity measures are contrary to Commu- impossible, to challenge Community meas- nity law might also underestimate the ures in the national courts. difficulties of changing the operation of

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national legal systems. It would, as UPA number of persons affected by a measure points out, be very difficult — both for the less likely it is that judicial review under individuals and for the Commission acting the fourth paragraph of Article 230 EC will pursuant to Article 226 EC — to monitor be made available. The fact that a measure and to enforce an obligation to grant adversely affects a large number of individ- individuals the possibility of challenging uals, causing wide-spread rather than general Community acts before national limited harm, provides however to my courts. mind a positive reason for accepting a direct challenge by one or more of those individuals.

58. In addition to those points, it may be noted that to secure access to justice for 60. In my opinion, it should therefore be individual applicants in all of the Member accepted that a person is to be regarded as States, the Court of Justice would have to individually concerned by a Community rule, perhaps repeatedly, on issues which measure where, by reason of his particular are inherently sensitive and which have circumstances, the measure has, or is liable hitherto been considered to fall squarely to have, a substantial adverse effect on his within the realm of national procedural interests. autonomy.

63. Second, the suggested interpretation of the notion of individual concern would considerably improve judicial protection. 65. Fourth, by ruling that individual appli­ By laying down a more generous test for cants are individually concerned by general standing for individual applicants than that measures which affect them adversely, the adopted by the Court in the existing case- Court of Justice would encourage the use of law, it would not only ensure that individ­ direct actions to resolve issues of validity, ual applicants who are directly and thus limiting the number of challenges adversely affected by Community measures raised via Article 234 EC. That would, as are never left without a judicial remedy; it explained above, be beneficial for legal would also allow issues of validity of certainty and the uniform application of general measures to be addressed in the Community law. It may be noted in that context of the procedure which is best regard that the TWD case-law 3 7 — suited to resolving them, and in which according to which an individual cannot effective interim relief is available. challenge a measure via Article 234 EC where, although there was no doubt about his standing under the fourth paragraph of Article 230 EC, he omitted to take action within the time-limit laid down in the fifth paragraph of that Article — would, in my view, not normally extend to general measures. Individuals who were adversely affected by general measures would there­ fore not be precluded by that case-law from challenging such measures before national 64. Third, it would also have the great courts. None the less, if the notion of advantage of providing clarity to a body of individual concern were interpreted in the case-law which has often, and rightly in my way I have suggested, and standing for view, been criticised for its complexity and individuals accordingly liberalised, it may lack of coherence, 36 and which may make be expected that many challenges would be it difficult for practitioners to advise in brought by way of direct action before the Court of First Instance.

66. A point of equal, or even greater, tible to review. Under the first paragraph of importance is that the interpretation of Article 173 of the EEC Treaty, the Court Article 230 EC which I propose would shift was originally competent to review 'acts of the emphasis of judicial review from ques- the Council and the Commission other than tions of admissibility to questions of sub- r e c o m m e n d a t i o n s and o p i n i o n s ' . stance. While it may be accepted that the Article 189 of the EEC Treaty (now Community legislative process should be Article 249 EC) defined binding Commu- protected against undue judicial interven- nity acts as regulations, directives and tion, such protection can be more properly decisions. It might have been thought, on achieved by the application of substantive the basis of those provisions, that the Court standards of judicial review which allow was only competent to review regulations, the institutions an appropriate 'margin of directives and decisions adopted by the appreciation' in the exercise of their Council or the Commission. However, in powers 38 than by the application of strict ERTA39 the Court was willing to review rules on admissibility which have the effect the legality of Council proceedings regard- of 'blindly' excluding applicants without ing the negotiation and conclusion by the consideration of the merits of the argu- Member States of an agreement on the ments they put forward. working conditions of the crews of vehicles engaged in international road transport 40 on the ground, essentially, that the purpose of the procedure for judicial review laid down in Article 173 of the EEC Treaty — which is to ensure observance of the law in the interpretation and application of the Treaty — would not be fulfilled unless it 61. Finally, the suggested interpretation of was possible to challenge all measures, the notion of individual concern would whatever their nature or form, which are remove a number of anomalies in the intended to have legal effects.41 In Les Court's case-law on judicial review. The Verts 42 the Court was asked to review two most important anomalies arise from the measures, adopted by the European Parlia- fact that the Court has adopted different ment, on the reimbursement of expenses approaches to the notion of individual incurred by parties taking part in the 1984 concern and to other provisions of elections. In declaring that action admiss- Article 173 of the EEC Treaty (now, after ible, it held that while 'Article 173 refers amendment, Article 230 EC). only to acts of the Council and the Com- mission... an interpretation of [that provi- sion] which excluded measures adopted by the European Parliament from those which could be contested would lead to a result contrary to both the spirit of the Treaty as

expressed in Article 164 [now Article 220 70. Similarly, when considering on what EC] and to its system'.43 grounds the validity of Community meas- ures adopted may be challenged, the Court held that although Article 173 of the EEC Treaty provided that the Court had juris- diction in actions brought on grounds of 'infringement of this Treaty or of any rule of law relating to its application', 'the need for a complete and consistent review of legality require[d] that provision to be construed as not depriving the Court of jurisdiction to consider, in proceedings for the annulment of a measure based on a provision of the EEC Treaty, a submission concerning the infringement of a rule of the EAEC or ECSC Treaties'. 47 69. When deciding which institutions are entitled to bring proceedings for annulment under the Treaty, the Court has not adopted a strict reading of the Treaty text either. Prior to the entry into force of the 71. The restrictive attitude towards indi- Treaty on European Union, the first para- vidual applicants which the Court has graph of Article 173 of the EEC Treaty adopted in the context of the fourth para- provided that the Court had jurisdiction 'in graph of Article 230 EC — and which it actions brought by a Member State, the has, despite the extension of the powers of Council or the Commission'. The absence the Community by successive Treaty of any reference to the European Parlia- amendments, declined to reconsider — ment in that provision did not, however, appears difficult to justify in the light of prevent the Court from holding in Cherno- the cases decided under the other para- byl44 that 'an action for annulment graphs of Article 173 of the EEC Treaty, brought by the Parliament against an act where the Court has adopted a generous of the Council or the Commission is and dynamic interpretation of the Treaty, admissible provided that the action seeks or even a position contrary to the text, to only to safeguard its prerogatives',45 for ensure that the evolution in the powers of while '[t]he absence in the Treaties of any the Community institutions does not provision giving the Parliament the right to undermine the rule of law and the institu- bring an action for annulment may con- tional balance. stitute a procedural gap,... it cannot prevail over the fundamental interest in the main- tenance and observance of the institutional balance laid down in the Treaties'.46

75. First, it may be acknowledged that the wording of Article 230 EC sets certain limits which must be respected. All indi- vidual applicants do not have standing to challenge all Community acts. However, I do not accept the proposition that the wording of the fourth paragraph of Article 230 EC excludes the Court from re-considering its case-law on individual Objections to the suggested interpretation concern. It is clear, and cannot be stressed of the notion of individual concern too strongly, that the notion of individual concern is capable of carrying a number of different interpretations, and that when choosing between those interpretations the Court may take account of the purpose of Article 230 EC and the principle of effec- tive judicial protection for individual appli- cants. 48 In any event, the Court's case-law 73. What, then, are the objections to the in other areas 49 acknowledges that an suggestion that an individual applicant is to evolutionary interpretation of Article 230 be regarded as individually concerned by a EC is needed in order to fill procedural Community measure where, by reason of gaps in the system of remedies laid down by his particular circumstances, the measure the Treaty and ensure that the scope of has, or is liable to have, a substantial judicial protection is extended in response adverse effect on his interests? According to the growth in the powers of the Com- to the Council and the Commission a broader interpretation of the notion of individual concern than that adopted in 48 — See F. Schockweiler, 'L'accès à la justice dans l'ordre the Court's existing case-law would be juridique communautaire', Journal aes tribunaux, Droit européen, No 25, 1996, p. 1, at p. 7. contrary to the fourth paragraph of 49 — See above paragraphs 68 to 70.

munity institutions. While that case-law 77. There was, in my view, never much acknowledges that it may even be necessary force in that argument. 53 To insulate to depart from the wording of the Treaty to potentially unlawful measures from judicial provide effective judicial protection, the scrutiny can rarely, if ever, be justified on Court is not required to take such a step in grounds of administrative or legislative the present case, since the interpretation I efficiency. That is true in particular where propose is wholly compatible with the limitations on standing may lead to a wording of the Treaty. complete denial of justice for particular individuals. Arguments drawn from a comparison of the ECSC and the EEC Treaties are, moreover, much less persua- sive today than when the Court was first called upon to determine the meaning of individual concern. 54 The second para- graph of Article 173 of the EEC Treaty has been renumbered but never amended substantively since the Treaty came into force on 1 January 1958. Inferences drawn from the historical background of a provi- sion of that age cannot be allowed to freeze the interpretation of the notion of individ- 76. Second, the wording of the second ual concern. That point is underlined by the paragraph of Article 173 of the EEC Treaty fact that the reasons which, allegedly, (now the fourth paragraph of Article 230 motivated the Treaty draftsmen to limit EC) differs from, and is more restrictive individual standing under the EEC Treaty than, the wording of Article 33 of the are, in any event, of limited relevance ECSC Treaty. It has been argued that that today. On the one hand, the European difference reflects the Treaty draftsmen's Community is now firmly established and intention to break away from the liberal its legislative process, to a large extent case-law on standing which had developed based on the adoption of measures by under the ECSC Treaty since its entry into majority voting in the Council of Ministers force in 1952, 50 and to impose strict limits and the European Parliament, is sufficiently on the scope of locus standi under the EEC robust to withstand judicial scrutiny at the Treaty, 51 in order to prevent numerous instigation of individuals. On the other challenges by individual applicants from hand, Community law now affects the undermining legislation laboriously adopted by unanimity in the Council of Ministers. 52

interests of individuals directly, frequently which have in recent years progressively and deeply; there is therefore a correspond- relaxed their requirements for standing.55 ingly greater need for effective judicial The instigation of proceedings by an indi- protection against unlawful action. vidual pursuant to Article 230 EC is more- over subject to a number of conditions. In addition to individual concern, applicants are required to show direct concern, and actions must be brought within a time-limit of two months. While those conditions have played only a limited role in the case-law in the past, their importance would almost certainly increase in response to a relaxation of the requirement of individual concern. It may be thought that 78. It may also be noted that although the a relaxation of the requirements for stand- European Communities originate in a set of ing would therefore result in an increase in Treaties concluded by the Member States in the number of applications under the the context of public international law, the fourth paragraph of Article 230 EC which, Community legal order has developed in though appreciable, would not be insuper- such a way that it would no longer be able. accurate to describe it as a system of intergovernmental cooperation, nor would it be appropriate to describe the Court of Justice as an international tribunal. The fact that individual applicants have tradi- tionally not, or only exceptionally, been given standing to appear before inter- national judicial bodies is therefore of no relevance for the interpretation to be given to the fourth paragraph of Article 230 EC in the present day. 80. An increase in the case-load need not undermine the Community judicature's ability to carry out its task arid deliver speedy justice. A large proportion of the increase would presumably consist of chal- lenges by different individuals and associ- ations to the same Community measures. Such cases could be dealt with, without any significant additional drain on the resources of the Court of First Instance, 79. Third, I am not convinced that a by joinder of cases or by selecting test cases. relaxation of the requirements for individ- Where challenges were manifestly ual concern would result in a deluge of unfounded in substance, the Court of First cases which would overwhelm the judicial Instance could, under Article 111 of its machinery. There is no record of that having happened in those legal systems, inside and outside the European Union, 55 — See below paragraph 85.

82. At the hearing, the Council stressed that the case-law on individual concern was 81. Furthermore, the efficiency of the settled and that it would therefore be Courts' case-handling could, if necessary, inappropriate to depart from it in the be increased by procedural and jurisdic- present case. It is true that the Court tional reforms. Certain amendments to the should, for reasons of legal certainty, Rules of Procedure of the Court of First depart from settled case-law only where Instance, aimed at expediting proceedings, there are compelling arguments in favour have already been introduced. 56 The of, and the time is ripe for, such a step. In Treaty of Nice 57 lays down a more flexible the preceding sections, I have argued that procedure for amendment of the Rules of the case for reconsidering the case-law on Procedure of the Court of First Instance individual concern is indeed compelling. and the Court of Justice. 58 More import- There are four developments which, in my antly, the amendments to the Treaty pro- view, show that the time has come for the posed by the Treaty of Nice also envisage Court to respond to those arguments. the creation of judicial panels to determine proceedings brought in specific areas 59 — such as staff complaints and, perhaps, trade

56 — Those amendments, which look effect on 1 February 2001, were published in OJ 2000 L 322, p. 1. 57 —OJ2Ö01 C 80, p. 1. 58 — Under Article 245 EC amendments proposed by the Court of Justice and the Court of First Instance required the 83. First, the Council's assertion that the unanimous approval of the Council. The proposed new Articles 224 and 225 EC provide for approval by the case-law on individual concern is entirely Council acting by a qualified majority. consistent and settled is not correct. The 59 — Proposed new Article 225a EC. Court has, in a number of important judg-

ments decided over the past 10 years, Luxembourg producers, the contested relaxed the requirements for standing to provision prevents Codorniu from using some extent. In Extramet 60 and Codor- its graphic trade mark', M and it concluded niu 61 the Court accepted that general that Codorniu had therefore 'established measures in the form of regulations may the existence of a situation which from the be challenged by individual applicants, point of view of the contested provision since '[t]he fact that an act is of general differentiate[d] it from all other traders'. 65 application does not prevent it from being of direct and individual concern to some of the traders concerned'. 62 Moreover, the Court has held that an individual will be granted standing to challenge a general measure not only where the measure affects only a closed class of individuals to which the applicant belongs, but also where by reason of a factual situation which differ­ entiates the applicant from all other per­ sons he may be regarded as individually concerned. 63 Thus in Codorniu a Spanish producer of sparkling wines sought to challenge a provision of a regulation which reserved the use of the designation 'cram­ 84. The gradual movement towards wider ant' for wines produced in certain areas of access for individuals under the fourth France and Luxembourg. That provision paragraph of Article 230 EC suggests a was capable of affecting the position of all growing acceptance of the view that strict producers of sparkling wines in the Com­ standing requirements for individual appli­ munity using, or desiring to use, the cants are no longer acceptable. The fact designation 'crémanť. The Court found that, in Greenpeace, the Court apparently none the less that 'Codorniu registered the left open the possibility that standing might graphic trade mark "Gran Cremant de be granted in particular situations where Codorniu" in Spain in 1924 and tradi­ the case-law would otherwise entail a tionally used that mark both before and denial of justice 66 may also be seen as a after registration. By reserving the right to recognition of the problematic character of use the term "crémant" to French and that case-law. A more explicit endorsement of that view is to be found in the con­ tribution of the Court of Justice to the intergovernmental conference which led to the adoption of the Treaty of Amster­ 67 dam, where it stated that '[i]t may be asked, however, whether the right to bring an action for annulment under Article 173

of the EC Treaty (and the corresponding 86. In other areas, the basic principles of provisions of the other Treaties), which judicial review have been modelled on the individuals-enjoy only in regard to acts of laws of the Member States. Thus Commu- direct and individual concern to them, is nity law effectively protects fundamental sufficient to guarantee for them effective principles derived from the national judicial protection against possible laws — principles such as proportionality, infringements of their fundamental rights equality, legitimate expectations, legal cer- arising from the legislative activity of the tainty and fundamental human rights. In institutions'. 68 relation to standing, however, the position of the individual is far more restricted than in many, if not all, national legal systems. This is a paradoxical situation, especially given the continuing concern about the lack of full democratic legitimacy of Commu- nity legislation, which exposes the Com- munity to a risk of resistance by national courts which, it should not be forgotten, have repeatedly emphasised their resolve to ensure that developments in Community law do not undermine the judicial protec- tion of individuals. 72 85. Second, the case-law on standing for individual applicants is, as several com- mentators have pointed out, increasingly out of line with the administrative laws of the Member States. 69 Thus French law, and systems based on it, have used the notion of an 'acte faisant grief', so that practically any person adversely affected by a measure has standing to challenge it; and the notion of 'intérêt pour agir' has been construed broadly. 70 In English law, the jurisdictional requirement of a 'sufficient interest' for an applicant to apply for judicial review will rarely be an obstacle to access to the court. 71 87. It might be objected that some systems 68 — Paragraph 20. of national law draw a distinction between 69 — See, in particular, A. Armili, 'Private applicants and the legislation and administrative measures and action for annulment under Article 173 or the EC Treaty', cited in note 6, at pp. 7 to 9; D. Waelbroeck and A.-M.' allow only for judicial review of adminis- Vcrheyden, 'Les conditions de recevabilité des recours en trative measures at the initiative of individ- annulation des particuliers contre les actes normatifs communautaires: à la lumière du droit comparé et de la Convention des droits de l'homme', cited in note 6, at pp. 403 to 425; A. Alhors-Llorens, Private Parties m EC Law (1996), pp. 30 to 40; C. Harlow, 'Access to justice as 72 — Sec, m particular, the judgments of the Danish Hojesteret a human right', in The EU and Hitman Rights, P. Alston in Hanne Norup Carlsen v Statsminister Poul Nyrup (ed.) (1999), p. 187, at p. 193. Rasmussen (UfR 1999 H 800); the German Bundesverf- assungsgericht in Brunner v The European Union Treaty 70 — See R. Chapus, Droit du contentieux administratif (9th (2 BvR 2134/92 and 2 BvR 2159/92, BVerfGE 89, p. 155) ed., 2001), pp. 419 to 457. and the Italian Corte Constituzionalc in Fraud SpA v 71 — See Dc Smith, Woolf and Jowell, Judicial Review of Amministrazione delle Finanze (decision 232 oí 21 April Administrative Action (1995), pp. 106 to 127. 1989, (1989) 72 RDI).

90. The restrictions on access to judicial review of legislation which exist in the Member States are, moreover, based on two essential premisses: national laws gen- erally establish a clear distinction between legislation and administrative measures and legislation is systematically adopted by more democratically legitimate procedures 89. While it may be true that access to than administrative measures. By contrast, judicial review of legislation is generally the Community treaties do not establish a subject to stricter conditions than review of clear 'hierarchy of norms', 76 and while the administrative measures, the laws of the EC Treaty draws a distinction between Member States do not in general exclude basic Community measures and imple- individuals from challenging legislation menting measures, 77 the former are not which violates constitutionally enshrined systematically adopted by more democrati- rights or fundamental principles of law. 73 cally legitimate procedures than the latter. In certain Member States such as Austria, For example, a basic regulation adopted by Belgium, Germany and Spain (and some of the Council and the European Parliament the States currently applying for member- may confer the task of adopting imple- ship of the European Union 74) legislation may be challenged by individuals directly before constitutional courts. In other 75 — Under Article 34 of the Irish Constitution, the jurisdiction to review the constitutionality of legislation is vested in the High Court, with an appeal to the Supreme Court. 76 — The absence of a hierarchy of norms in Community law 73 — See L. Favoreu and J. Jolowicz (eds.), Le contrôle juridic- was noted, when the Treaty on European Union was tionnel des lois (1986); A. Brewer-Carias, Judicial Review adopted, in a declaration annexed to the Final Act. in Comparative Law (1989). Declaration No 16 on the hierarchy of Community Acts states that '... the Intergovernmental Conference to be 74 — G. Brunner, 'Development of a constitutional judiciary in convened in 1996 will examine to what extent it might be Eastern Europe', Review of Central and East European possible to review the classification of Community acts Law 1992, p. 535; H. Schwartz, 'The new East European with a view to establishing an appropriate hierarchy constitutional courts', Michigan Journal of International between the different categories of act'. Law 1992, p. 741; M. Verdussen (ed.), La justice con- stitutionnelle en Europe centrale (1997). 77 — Article 202 EC.

93. While the Court of Justice may have felt that the Decision establishing the Court of First Instance did not provide the means necessary to implement that vision fully, since it originally gave that Court jurisdic- 92. Moreover, in the preamble to the tion in actions brought by individuals Decision establishing the Court of First pursuant to the fourth paragraph of Instance, 78 the Community legislature Article 230 EC only in matters related to stated that 'it is necessary, in order to competition law, the Community legis- maintain the quality and effectiveness of lature has since then transferred compet- judicial review in the Community legal ence from the Court of Justice to the Court

78 — Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities, 01 1988 79 — Fifth recital of the preamble. L 319, p. I. 80 — Fourth recital of the preamble.

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94. The Treaty of Nice envisages, in the new Article 225 EC, that the Court of First Instance shall have jurisdiction to hear and determine at first instance all cases referred to in Articles 230, 232, 235, 236 and 238, with the exception of those assigned to a judicial panel and those reserved in the Statute for the Court of Justice. Thus in principle the Court of First Instance will have jurisdiction for all actions for annul- ment, whether introduced by individuals, Member States or Community institutions. The role of the Court of First Instance as the primary court for review of legality, 96. In my view, whatever arrangements are subject to the appellate jurisdiction of the made for the allocation between the Court Court of Justice, will thereby be signifi- of Justice and the Court of First Instance of cantly enhanced. actions brought by a Member State, a Community institution, or the European Central Bank, those arrangements cannot 81 — See Council Decision 93/350 Euratom, ECSC, EEC of be allowed to affect the separate and 8 June 1993 amending Council Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the overriding requirement that the individual European Communities, OJ 1993 L 144, p. 21; Council should have the right to challenge all Decision of 7 March 1994 amending Decision 93/350/Eu- ratom, ECSC, EEC amending Decision 88/591/ECSC, Community measures by which he is preju- EEC, Euratom establishing a Court of First Instance of diced. If, as seems to me appropriate, such the European Communities, OJ 1994 L 66, p. 29. 82 — Cited in note 57. challenges should be brought in the Court

99. Thus, the time is now ripe to reconsider 97. A final development which, in my view, the strict interpretation of the fourth para- suggests the need to reconsider the case-law graph of Article 230 EC which — by on individual concern is the Court's evol- encouraging individual applicants to bring ving case-law on the principle of effective issues of validity before the Court of Justice protection of rights derived from Commu- via Article 234 EC — has the effect of nity law in national courts. While that removing cases from the court which was principle was enunciated in 1986, in the created for the purpose of dealing with case of Johnston, 83 its implications have them, and to improve the judicial protec- only gradually been spelt out in the Court's tion of individual interests. case-law in the subsequent period. 84 It is now clear from the judgments in Factor- tame 85and Verholen 86 that the principle of effective judicial protection may require national courts to review all national legis- lative measures, to grant interim relief and to grant individuals standing to bring proceedings, even where they would be unable to do so under national law. 87 — See R. Caranta, 'Judicial protection against Member States: a new jus commune takes shape', Commun Market Law Review 1995, p. 703, at pp. 724 to 725. See similarly C. Harlow, 'Towards a theory of access for the European Court of Justice', Yearbook of European Law 1992, 83 — Case 222/84, cited in note 30. p. 213, at pp. 228 to 229; C. Kilpatrick, 'The future of remedies in Europe', The future of Remedies m Europe, 84 — Sec, in particular. Case 222/86 UNECTEF v Hcylcm C. Klipatrick, T. Novitz and P. Skidmore (eds.) (2000), [1987] LCR 4097; Case C-97/91 Barelli [1992] ECR p. 9; A. Ward, Judicial Review and the Rights of Private I-6313; Case C-1/99 Kofisa haliti [20011 ECR I-207; and Parties m EC Law (2000), p. 242; A. Arnulli, article cited Case C-226/99 Siples[2001] ECR 1-277. in note 54. 85 — Case C-213/89 [1990] ECR 1-2433, paragraphs 19 to 22 of the judgment. 88 — In that regard, it may he noted that the Court of Justice explicitly rejected the possibility of double standards in the 86 —Joined Cases C-87/90, C-88/90 and C-89/90 [1991] ECR context of interim measures: see Zuckerfabrik Süderdith- I-3757, paragraphs 23 to 24 of the judgment. marschen, cited in nore 34, paragraph 20 of the judgment.

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102. It may be helpful to summarise the reasons for that view, as follows:

(1) The Court's fundamental assumption that the possibility for an individual applicant to trigger a reference for a preliminary ruling provides full and effective judicial protection against general measures is open to serious objections:

— under the preliminary ruling procedure the applicant has no right to decide whether a reference is made, which measures are referred for review or what grounds of invalidity are raised and thus no right of access to the Court of Justice; on the other hand, the national court cannot itself grant the desired remedy to declare the general measure in issue invalid;

— there may be a denial of justice in cases where it is difficult or impossible for an applicant to challenge a general measure indirectly (e.g. where there are no challengeable implementing measures or where the applicant would have to break the law in order to be able to challenge ensuing sanctions);

— would inevitably oblige the Community Courts to interpret and apply rules of national law, a task for which they are neither well prepared nor even competent;

— would lead to inequality between operators from different Member States and to a further loss of legal certainty. I - 6714

UNIÓN DE PEQUENOS AGRICULTORES v COUNCIL

(3) Nor can those objections be overcome by postulating an obligation for the legal orders of the Member States to ensure that references on the validity of general Community measures are available in their legal systems. Such an approach would

— leave unresolved most of the problems of the current situation such as the absence of remedy as a matter of right, unnecessary delays and costs for the applicant or the award of interim measures;

— be difficult to monitor and enforce; and

— the increasingly complex and unpredictable rules on standing are replaced by a much simpler test which would shift the emphasis in cases before the Community Courts from purely formal questions of admissibility to questions of substance;

— such a re-interpretation is in line with the general tendency of the case-law to extend the scope of judicial protection in response to the growth of powers of the Community institutions (ERTA, Les Verts, Chernobyl);

(5) The objections to enlarging standing are unconvincing. In particular:

— the wording of Article 230 EC does not preclude it;

— to insulate potentially unlawful measures from judicial scrutiny cannot be justified on grounds of administrative or legislative efficiency: protection of the legislative process must be achieved through appropriate sub- stantive standards of review; I - 6716

UNIÓN DE PEQUEÑOS AGRICULTORES v COUNCIL

I-6717

OPINION OF MR JACOBS — CASE C-50/00 P

103. For all of those reasons I conclude that an individual should be regarded as individually concerned within the meaning of the fourth paragraph of Article 230 EC by a Community measure where, by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests.

104. Since the contested order of the Court of First Instance is based on a more restrictive interpretation of the notion of individual concern, I consider that it should be annulled. Whether UPA's action is admissible falls, however, to be decided — in accordance with the Court's judgment in the present case — by the Court of First Instance.

105. In the light of that conclusion, it is not necessary to examine UPA's other pleas alleging that the reasoning set out in paragraphs 61 to 64 of the contested order is insufficient and contradictory, and rests on a misunderstanding of UPA's arguments.

106. UPA states that it does not ask for costs, and I am thus of the opinion that the Court of Justice should: