Case T-177/01 and Case C-263/02 Jégo-Quéré v. Commission

Key point

  • The Court of Instance, being influenced by AG Jacobs’ opinion in UPA, adopted a wider test for individual concern under the now Article 263 TFEU, but the Court of Justice reverted back to old Plaumann test

Facts

  • Commission Regulation No 1162/2001 prohibited the use by fishing vessels of nets with mesh below a certain size
  • Member states were required to enforce the regulation but not undertake any implementing measures
  • Jégo-Quéré, a fishing company, sought the annulment of the Regulation under Article 230(4) EC (now Article 263 TFEU)

Case T-177/01: Court of First Instance

Ruling

  • Jégo-Quéré had standing as the regulation was of individual concern to it

Judgment

  • Citing AG Jacobs’s opinion in UPA, the fact that an individual affected by a Community measure can only challenge its validity in national courts if proceedings are brought for violating its rules does not constitute an adequate form of judicial protection, individuals cannot be required to breach the law in order to gain access to justice
  • An action in damages under Article 235 EC did not offer a better alternative as its rational is not to remove an illegal act from the Community legal order and the review undertaken by the Court in an action for damages was not as comprehensive as in an annulment action, since in the former the Court’s scrutiny was limited to identifying a sufficiently serious breach and did not cover all the factors which might affect the legality of the measure in question
  • New test for individual concern was applied: a person is regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a manner which is both definite and immediate by restricting his rights or by imposing obligations on him
  • The number and position of other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard

Case C-263/02: Court of Justice

Ruling

  • Allowed the appeal, Jégo-Quéré had no standing

Judgment

  • It is ‘possible that under national law an operator directly concerned by Regulation No 1162/2001 may seek from the national authorities a measure under that regulation which may be contested before the national court, enabling the operator to challenge the regulation indirectly’
  • Adopting the Court of First Instance’s interpretation of individual concern amounted to setting aside the condition in the Treaty, thus exceeding jurisdiction
  • The Court of First instance’s interpretation has the effect of  ‘removing all meaning from the requirement of individual concern’

Commentary

  • The Court of Justice demanded that member states fill in the gap in judicial protection in accordance with their obligations under the principle of cooperation
  • This gap has now been removed by the amendment of Article 263(4) TFEU to grant individuals standing to challenge regulatory acts of general application that do not require implementing measures