A direct action is the ability for an individual, company or member state to take an institution of the EU to court for violation of EU law. This does not require national courts to be involved.
‘The European Union is a union based on the rule of law, its institutions being subject to review of the conformity of their acts, inter alia, with the Treaty and the general principles of law’
Success under direct actions is very rare, which raises questions about access to justice.
Art 263 TFEU:
‘The Court of Justice (…) shall review the legality of legislative acts (…) intended to produce effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
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’
To succeed on judicial review of EU Acts, a party must be a suitable applicant and have a relevant ground to claim under.
Types of Applicants:
‘Privileged applicants’ can always challenge.
Member states, the European Parliament and the Commission.
‘Semi-privileged applicants’ may challenge to ‘protect their prerogatives’.
other EU institutions, such as the ECB, Court of Auditors etc.
‘Non-privileged applicants’ can challenge any Act addressed to them, or they must show an individual concern and a direct concern.
Individuals, NGOs, companies etc.
Very restrictive requirements.
‘Individual concern’ = ‘if the 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 factors distinguishing them individually just as in the case of the person addressed’. (PLAUMANN)
This includes prospective applicants.
Requires a closed group of applicants. (CODORNIU)
‘Direct concern’ = the Act must lead to a direct change in the legal situation of the applicant and leave no discretion to the addressee.
Grounds:
Lack of competency of the EU to legislate. (GERMANY v EP & C)
Infringement of procedural requirements.
EG: Disputes over the legal basis of the legislation.
Infringement of the Treaty provisions.
EG: breaching a substantive EU norm, such as non-discrimination or fundamental rights. (DE CAPITANI)
Misuse of power.
EG: a manifest error in reasoning (making a decision on the wrong information). (C v TETRA)
EG: acting in bad faith.
Narrowness:
The applicant and grounds requirements make direct action very narrow.
Criticism: [1]
The narrowness of direct action has been heavily criticised.
‘the individual must be granted locus standi to challenge a Community measure where an application of the traditional case-law of the Court would lead to a denial of effective judicial protection owing to the impossibility of challenging the measure in proceedings before national courts’
Since national courts cannot review the legality of EU Acts, (FOTOFROST) and national courts ultimately have no obligation to refer to the CJEU (and, where they do, there are exceptions) on matters of legality, indirect review (through PRP) is more costly. It would make more sense to allow it to go straight to the CJEU.
In the case of ‘non-privileged applicants’, the more individuals that are affected by an EU Act, the less likely they are to be able to bring a claim. This undermines access to justice in the CJEU. This stance is ironic and counterintuitive.
Some EU measures do not require implementing measures to make them binding domestically. This means there is no way for a claim to arise in national courts.
Court’s View:
General Court: ‘The strict interpretation, applied until now, of the notion of a person individually concerned according to the fourth paragraph of Article [263 TFEU] must be reconsidered’. (JÉGO-QUÉRÉ)
CJEU: ‘While it is, admittedly, possible to envisage a system of judicial review of the legality of Community measures of general application different from that established by the founding Treaty and never amended as to its principles, it is for the Member States, if necessary, in accordance with Article 48 EU, to reform the system currently in force’. (UPA)
Treaty Amendment:
Subsequently, the Treaty was amended to give effect to the criticism raised and views of the Court by removing the requirement for individual concern.
Addition of ‘…and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
‘regulatory act’ = ‘It must be held that the purpose of the alteration [see above] to the right of natural and legal persons to institute legal proceedings, laid down in the fourth paragraph of Article [263] was to enable those persons to bring, under less stringent conditions, actions for annulment of acts of general application other than legislative acts’. (INUIT)
In TATE & LYLE, the court remained quite restrictive, holding that T&L could’ve gone through national courts (despite the member state having no discretion in implementation).
References:
[1] Case C-50/00, UPA (AG Jacobs)
Cases Mentioned:
Case 25/62 Plaumann
Case C-309/89 Codorniu
Case C-376/98 Germany v EP and Council
Case T-540/15 De Capitani
Case C-12/03 Commission v TETRA
Case C-314/85 FotoFrost
Case T-177/01 Jégo-Quéré
Case C-50/00 UPA
Case C-583/11 Inuit
Case C-456/13 Tate & Lyle Sugars
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