Case C-50/00 P, UPA [2002] ECR I-6677

Key point

The court rejected the proposed test by AG Jacobs for individual concern under Article 263 TFEU, under which any person adversely affected by a EU measure will have individual concern

Facts

UPA, a trade association, sought the annulment of a Council Regulation withdrawing aid granted to producers of olive oil under Article 173 EEC Treaty (now Article 263 TFEU)
As the regulation did not require implementing measures, there was no way to contest the validity of the regulation in national court
UPA argued that its right to effective judicial protection would be denied if it is not given standing for a direct action to annul the regulation before the ECJ
In the Court of First Instance, it was held that the measure was not of individual concern UPA and this was not challenged on appeal by UPA

Ruling (Court of Justice)

The applicant had no standing

Judgment

In accordance with the principle of sincere cooperation, member states are required to implement the complete system of legal remedies and procedures established by the EC Treaty to permit the ECJ to review legality of measures adopted by Community institutions: Les Verts: [42]
For the ECJ ‘in each individual case, to examine and interpret national procedural law … would go beyond its jurisdiction when reviewing the legality of Community measures.’: [43]
Setting aside the condition of individual concern would result in the ECJ to ‘going beyond the jurisdiction conferred by the Treaty on the Community Courts.’: [44]
‘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.: [45]

Opinion of AG Jacobs

The applicant should be granted standing
A person shall be deemed to have individual concern: ‘where, by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests.’
The current case law on standing of individuals is problematic as an individual cannot directly challenge a measure which adversely affects him if it is not of individual concern
The court’s case law encourages individual applicants to bring issues of validity of Community measures indirectly before the ECJ via national courts through the preliminary reference procedure
However, the preliminary reference procedure is disadvantageous compared to a direct action:
- National courts may refuse to refer questions
- It may be impossible for an individual to challenge Community measures which do not require any acts of implementation by national authorities
- The fact that an individual affected by a Community measure might, in some instances, be able to bring the validity of a Community measure before the national courts by violating the rules laid down by the measures and rely on the invalidity of those rules as a defence in criminal or civil proceedings directed against him does not offer the individual an adequate means of judicial protection. Individuals clearly cannot be required to breach the law in order to gain access to justice
- The extra stage of preliminary reference as compared to direct action may involve substantial extra delays and costs

Commentary

Note that the situation in this case is now covered by amendment to Article 263(4) TFEU, which now provides that a individual can bring a direction action to annul a regulatory act of direct concern to the person that does not entail implementing measures