Judicial review has the peculiar quality that it is exemplary in illustrating the history and nature of a state, and in doing so it equally offers an insight into the relation between citizens and state. It is the one point in any judicial order in which all elements comprising the state, meet each other and the balance between them is made clear. Although foreseen in certain constitutional orders, in post-autocratic states such as France and the USA, the importance of judicial review has taken a leap in importance with the rise of the modern bureaucratic state. Where in earlier days there was a logic to limiting judicial review due to the fact that acts by government where often laden with at least some democratic gravitas, the bureaucratic state is filled with a plethors of agencies, each with different legal means, through which it interacts with citizens. Judicial review is, in short, an important indication of the nature of the State. It is the changing nature of the European Union that is giving the Court of Justice (CJEU) headaches.
States have evolved in their take on judicial review. In France the review of legislative acts has always been impossible due to the historically strong role of parliament.1 Administrative law was even held to be explicitly different, a lesser beast so to speak, compared to Private and Criminal law. Acts of a lower nature though, were never free from scrutiny and the administrative courts have slowly but surely taken a more progressive stance against the evolving state. Possibilities for review have expanded both in scope of applicants and in quality of the act. Perhaps the most striking example is the enormous development that the English legal system has gone through since WWII, in part due to for instance the judiciary reaction to the Crichel Down affair.2 At the start of the twentieth century, it would be unheard of for a private applicant to successfully challenge the State. It was the State who embodied the notion of “The Public Good”. Yet through the judicial application of concepts as fairness, unreasonableness and the un-English concept of proportionality, England and Wales now poses a robust system of judicial review of administrative acts. Judicial review and all its aspects are therefore a legalised representation of the society in which it takes place; a sketch of the societal and democratic relations between institutions and citizens and the changes therein.
Now consider the system of judicial review as it is set up in European Law. Since the early days of the European Economic Community in 1962, the Court has held that private individuals are only permitted to request the review of an act of the (then) EEC or one of its institutions that is not addressed to that individual, when the individual is affected by that act due to specific circumstances that mark him in a manner as to being similar to an addressee.3 This stems from the Courts interpretation of the term “individual concern” as it is mentioned in the article on the review of acts the (now) European Union: “Any natural or legal person may, under the conditions laid down in the first and second paragraphs, 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.”4
The hurdle of individual concern has been very difficult to overcome. The very nature of EU law makes it virtually impossible for any party to claim that he or she is affected in such a specific manner as most acts will have a very wide and far reaching effect. Where it may seem logical in Member States to exclude legislative acts from judicial review in order to separate the powers, this separation can have a perverse effect in the European legal order. Commentary over the years has focussed its anger on the Court who, in the system of the European Union, is the ultimate interpreter and thus has the power to easily interpret the clause in any other way. Yet in 60 years since Plaumann, it has to much amazement never seen fit to do so. In discussions on the enforcement of environmental rights within the EU's legal order,5 an especially difficult discussion given the fact that these rights are by their nature not individualisable, it became clear that after 50 years of critique from both Academia6 and the Court's own Advocates – General,7 the Court does not merely see this as a strict interpretation of the Treaty text, but that this text reflects the nature of the legal instruments of the Union which are by and large of a legislative nature given the manner in which they are adopted. This has shed some light on the stance of the Court. As with the nature of the regimes in the Member States, the Court is of opinion that the high threshold for review is a reflection of the nature of the relationship between the Union and citizens. Since most of the acts undertaken are endowed with at least a modicum of democratic deliberation, they are not meant for the individual complainant to take issue with. This approach clarifies the constant reiteration by the CJEU that it is for Member States to provide full remedies,8 even when the complaint is addressed against a European act. The CJEU sees the national legal orders as the first step in a federal appeal system in which matters can be resolved through referral, not through direct appeal.9 Given the above, the advent of the Lisbon Treaty inadvertently triggered an existential question for the Court. Although the Constitution for Europe and the overhaul of its legal instruments did not survive,10 the Article on judicial review was adapted, in part as a reaction to the long history of criticism mentioned earlier.11 However, the change implicitly refers to a category of legal instrument that was foreseen in the Constitution and is now difficult to categorise. The result is that the restrictive qualifier 'individual concern' is no longer used “against a regulatory act which is of direct concern to them and does not entail implementing measures.”. The problem being that “regulatory act” is a term of art unknown before Lisbon.
Both textual scrutiny and the literal interpretation by the Court of Justice have yielded the most obvious meaning of this addition.12 There is now official recognition of the fact that the modern EU has a more direct relationship with its citizens that was previously deemed to be the case. Here the crux of the Court's current conundrum is found. Because although the drafters of the Treaty clearly envisioned this innovation to have only a limited reach, solving a problem with the smallest possible impact, there are groups such as the environmental movement who want to make full use of the possibilities this offers. And so, the interpretation of a seemingly small change has lead the Court to actually evaluate how it sees the relationship between Union and Citizens. If there is a direct relationship, then under the Court's own interpretation to the rule of law, citizens should be able to address possible infringements of their rights. However, the Court has to be well aware of the history in the Member States of the road that will be taken if this nascent form of administrative law were initiated. Like its founding members, the EU is undergoing the changes that every legal system goes through. The nature of the Union has kept it sheltered from this reality, yet that to has now passed.
The main question is now whether the CJEU is going to follow the same route as many of its peers in the Member States. For the moment the answer appears to be “No”. The drafting of the Lisbon Treaty has reinforced the Court's view of the relationship between citizen and EU. Consequently, it has interpreted both the concepts of “regulatory act not entailing implementing measures” and “direct concern” restrictively, whilst reaffirming its view of the decentralised nature of the European judicial structure. So even though the CJEU has brought about significant change in other legal orders, changes that have had a manifest impact on the relationship between citizens and Member States, it refuses to do so for the Union.
Footnotes
- 1. : Since the Fifth Republic, the government (in the form of the president) has largely supplanted the role of the parliament in this regard.
- 2. : Famously, the father of English constitutional law A.V. Dicey was opposed to the notion of 'administrative law', although his views mellowed over the years.
- 3. : Case 25/62 Plaumann & Co. v Commission [1963] EU:C:1963:17
- 4. : Italics signify the additions made to the Article by the Lisbon Treaty.
- 5. : There is a long body of cases where environmental NGO were denied standing as they could not be individually concerned. Although the Court's has never given any obiter indicating anything going beyond strict literal interpretation, the proceedings before the Aarhus Convention Compliance Committee (part of an environmental rights convention signed by the EU) have yielded interesting pieces of reasoning from all institutions. For the complete proceedings, see: http://www.unece.org/env/pp/compliance/Compliancecommittee/32TableEC.html
- 6. : The list would be too extensive to be of interest for this contribution, however please see for instance: Laurence W Gormley, ‘Judicial Review – a New Dawn after Lisbon?’, Europe. The New Legal Realism: Essays in Honour of Hjalte Rasmussen (2010) 191–203.
- 7. : Famously A-G Jacobs in Case C-50/00P Unión de Pequeños Agricultores v Council [2002] EU:C:2002:197 (UPA)
- 8. : As for instance has been stated in the case mentioned above, UPA.
- 9. : Which might just be the Court's solution to the problem created by the Treaty text given its obiter in UPA that a different system could be possible, but that this was up to the Member States.
- 10. : Jean-Claude Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge University Press 2010) 92.
- 11. : See the final report by Circle I: CONV 636/03. The main legal problem solved was the one made famous by the Jégo-Quéré case in which some applicants would have needed to break the law in order to get access to justice, see Case C-263/02 Commission v Jégo-Quéré & Cie SA [2004] EU:C:2004:210
- 12. : Case C-583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [2013] EU:C:2013:625