Locus Standi of Private Applicants under the Article 230 EC Action for Annulment: Any Lessons to Be Learnt from France?

Abstract

This article examines the rules on locus standi of private applicants under the Article 230 action for annulment of the EC Treaty. It adopts a comparative approach to the question of standing of private parties to challenge a piece of secondary EC legislation under the action for annulment, by contrasting the standing rules in Article 230(4) EC, as interpreted by the ECJ and the CFI, with those, elaborated by the Conseil d'Etat, on locus standi of private applicants to challenge French administrative acts in a Recours pour Excès de Pouvoir (REP). Four major aspects will be considered: the types of acts amenable to review by non-privileged applicants, the two requirements of direct and individual concern and their equivalent in French administrative law (in particular the differences between the notions of ‘cercle d'intérêt’ and of'closed class'), as well as the locus standi of associations. The premise of this paper lies in the suggestion that ‘a revision of the Treaty which would borrow from the Member States' systems of judicial review should be considered’. Due consideration will be taken of the limits of comparing a supranational legal order to a national one. This comparison should be considered as a pretext to analyse the standing rules for private applicants under the action for annulment, and suggest possible improvements to these conditions in the light of the constitutional reflection on the role of citizens and of the civil society underlying the liberal standing requirements in French administrative law. The objective of this paper is therefore to demonstrate the inappropriateness of the strict locus standi rules for private applicants under Article 230(4) EC, and the refusal to abandon the ‘closed class test’ and the Plaumann formula, even where the applicants constitute a ‘small and easily identifiable group’, as the ECJ made clear in UPA and Jégo-Quéré. The need for reform of standing rules for non-privileged applicants is particularly pressing in light of the inadequacy of alternative mechanisms of judicial review and of the principle of effective judicial protection. In this respect, the modifications of the unratified 2004 Constitutional Treaty were clearly insufficient, and the 2007 Treaty of Lisbon, signed in December, reiterates this mistake by adopting an identical formulation of the standing rules for private applicants to that in the 2004 Constitutional Treaty.