EU Law: Right to Challenge European Parliament Measures

Case C-294/83 Parti Ecologiste ‘Les Verts’

• The CJEU ruled that an action for annulment may be brought against measures adopted by the European Parliament which intend to have legal effects vis-à-vis third parties.
• The CJEU 'created' a right to challenge measures adopted by the European Parliament.

Admissibility - Acts of Which Institutions are Reviewable?

• Article 263 TFEU states that the CJEU shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties.
• Acts of the European Council are reviewable if they are intended to produce legal effects vis-à-vis third parties.
• Acts of COREPER are not reviewable, as COREPER is not an EU decision-making body, and any agreement it reaches can be pushed aside by the Council.

Admissibility - When is an Act Intended to Produce Legal Effects vis-à-vis Third Parties?

• According to the CJEU, an act is intended to produce legal effects vis-à-vis third parties whenever the act is intended to have binding legal effects that definitely and specifically determine obligations for third parties and bring about a distinct change in their legal position.

Admissibility - Which Acts are Reviewable?

• Prior to the Lisbon Treaty, "reviewable acts" only included legally binding acts of the institutions, such as regulations, directives, and decisions.
• The CJEU has interpreted the concept of "act" widely, extending "reviewable acts" to other forms of acts.
• The CJEU decides whether an act is reviewable or not by applying the test: "Is the act intended to produce legal effects vis-à-vis third parties, meaning, is the act intended to have binding legal effects that definitely and specifically determine obligations for third parties and bring about a distinct change in their legal position?"

Admissibility - Which Acts are Non-Reviewable?

• Refusal by the European Commission to start an infringement procedure against a Member State is not reviewable, as it is not a legally binding act.
• A reasoned opinion delivered by the European Commission under Art. 258 TFEU is not reviewable, as it is an administrative stage intended to give the Member State concerned the opportunity of conforming with the Treaty, and has no binding force.

Locus Standi for Non-Privileged Applicants

• Art. 263 TFEU states that any natural or legal person may 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.
• Non-privileged applicants for the purposes of Article 263 TFEU include "natural or legal persons", which include individuals, for-profit and not-for-profit entities, and non-member states.
• Non-privileged applicants face considerable restrictions on locus standi.

Locus Standi for Non-Privileged Applicants - 4 Possible Scenarios

• The act is addressed to the applicant.
• The act is addressed to "another person", not to the applicant.
• The act is of general application, other than a regulatory act.
• The act is a regulatory act that does not entail any implementing measures.

Scenario No 1: The Act is Addressed to the Applicant

• An act is considered "addressed to the applicant" if and only if the applicant is directly addressed by that act.
• When an act is directly addressed to an applicant, the only restriction on locus standi faced by the applicant addressed is the time limit.
• However, the applicant directly addressed can only challenge final decisions intended to have a binding effect.

Individual Concern: The Plaumann Test

• In Case C-25/62 Plaumann & Co. v Commission, the CJEU ruled that individual concern requires that the applicant is affected by the disputed decision by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons.
• The Plaumann test is still valid and applied by the CJEU 58 years after the delivery of the judgment.