1. Introduction
The admissibility of actions for annulment lodged by the private applicants remains, to this day, one of the most problematic issues in EU law. According to Article 263(4) TFEU, any natural or legal person can seek the annulment of an EU act addressed to that person, or of a legislative act that is of direct and individual concern to them, or of a regulatory act that is of direct concern to them and does not entail implementing measures. As the Treaties provide little to no explanation on the specific concepts regulating the locus standi of individual applicants, it is for the CJEU to determine, how far the interpretation of terms such as “legal person”, “direct concern” or “individual concern” can go. In that respect, the CJEU’s case law has famously been marked by its rigid and conservative stance on the “individual concern” condition, which in most circumstances, excludes private applicants from challenge EU legislative acts of general application before the CJEU.
The limited access of private applicants to the CJEU raises questions regarding the EU’s accountability and the degree of “actorness” granted to the vulnerable groups – particularly evident in cases regarding environmental protection. It also opens the possibility for the perception of double standards in the rule of law matters, especially, as the principle of effective judicial review (a core rule of law requirement) is in the spotlight of EU legal discourse on the backsliding of the rule of law in certain Member States.
At the same time, the case law provides no shortage of the judgments exemplifying the CJEU’s more flexible approach to interpretation of other conditions of admissibility mentioned in Article 263(4) TFEU. To name a few: in Les Verts, the Court of Justice famously interpreted Article 173 of the EEC Treaty (the predecessor of Article 263 TFEU) contra legem and established that it allowed for the contestation of acts of the European Parliament (which, at the time, were not included as challengeable acts in the provision). In Nord Stream 2, the Court held more recently, that a directive (regardless of its implementation into national law) can concern a private applicant directly.
In its recent case law, the CJEU has also demonstrated a more lenient approach interpreting the notion of “legal person” or “direct concern” and even “individual concern” in specific context of cases like Cambodia and CRF v Commission, Venezuela v Council and Front Polisario II, all regarding the access of subjects of public international law to the CJEU.These newer rulings of the CJEU are strongly embedded in principles of rule of law and effective judicial protection. The flexibility and openness of this new strand of case law concerning locus standi of external actors stands in contrast with the CJEU’s case law on the “individual concern” condition relating predominantly to the internal actors.
This post argues that, given the efforts invested recently into safeguarding the access of international actors to the CJEU, the moment has come for the CJEU to reconsider its settled case law on the understanding of “individual concern”, which restricts the access to justice at the EU level for all categories of private applicants. After all, the only entity stopping the CJEU from doing so is the CJEU itself.
2. In search of consistency in CJEU’s jurisprudence on the interpretation of Article 263 TFEU
In recent judgments from 2021 and 2024 in Venezuela v Council and Front Polisario II respectively, a new strand of the case law concerning the locus standi of international actors before the CJEU has emerged, building upon the earlier case law, especially the General Court’s order in Cambodia and CRF v Commission and cases predating the constitutional changes of the Lisbon Treaty (such as, Poland v Commission and PKK). These cases address in particular the notion of “legal person” in Article 263(4) TFEU in the specific context of the EU’s external relations, raising the problem of assessment whether third states and other international entities can be understood as “legal persons” capable of bringing an action for annulment before the CJEU.
The question of whether third states can be deemed “legal persons” within the meaning of the Article 263(4)TFEU was raised recently in Venezuela v Council. As early as 2009, in Poland v Commission, the General Court had admitted the complaint of Poland – at the date of filing the claim a candidate state – lodged under Article 263(4) TFEU. As the CJEU observed in the Polish case: “[a]lthough non-member countries, including new Member States before accession, cannot claim the status of litigant conferred on the Member States by the Community system, they may bring proceedings under the right of action conferred on legal persons” (para. 52). The CJEU compared the situation of Poland to that of the public entities from the EU and subordinated the interpretation of the prerequisites for bringing an action under Article 263(4) TFEU to the principle of “appropriate judicial protection” (paras. 52-56). In that respect, the case could serve as a reference for the interpretation of the notion of “legal person” in cases concerning all categories of third states. However, its precedential value could have also proven to be limited, due to the specific context concerning the situation of the Member State moments before its accession.
In its recent case law, however, the CJEU maintained the logic behind Poland v Commission and admitted cases lodged by Cambodia and Venezuela under Article 263(4) TFEU. First the General Court, and then the Court of Justice, interpreted explicitly the notion of “legal person” as encompassing a third state, irrespective of whether such state is in the accession process (see Cambodia and CRF v Commission, para. 51 and Venezuela v Council, para. 53). In Venezuela v Council, the Court of Justice referred to both Articles 2 and 21 TEU, concerning the EU’s external action and found that a reading of Article 263(4) TFEU in light of the principles of effective judicial review and rule of law necessitates the finding that a third state should have standing to bring proceedings as a “legal person” before it. In the Court’s own words:
“[a]s regards the contextual and teleological interpretation of the fourth paragraph of Article 263 TFEU, it must be recalled that the very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law (…). It follows from Article 2 TEU that the European Union is founded on values, such as the rule of law, which are common to the Member States in a society in which, inter alia, justice prevails (judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraph 62). Furthermore, the principle that one of the European Union’s founding values is the rule of law follows from both Article 2 TEU, which is included in the common provisions of the EU Treaty, and Article 21 TEU, concerning the European Union’s external action, to which Article 23 TEU, relating to the CFSP (…)” (para. 48)
This reasoning underlying Venezuela v Council was subsequently applied in Front Polisario II (para. 72), the newest installment in the long-standing dispute concerning efforts of the indigenous people of Western Sahara to annul the EU’s decisions on the conclusion of trade agreements with Morocco. In this case, the CJEU was required to assess whether the term “legal person” could be applied to Front Polisario – a liberation movement established for the purpose of fighting for the independence of the territory of Western Sahara which is currently occupied by Morocco (see the discussion on the procedural aspects of the case here). In Front Polisario II, the CJEU, in its assessment of locus standi of the applicant, entered shakier ground, arguably, than in Venezuela v Council. In the case of third states, it was sufficient for the CJEU to establish, that they possess legal personality under international and domestic law. In case of national liberation movement, the CJEU had to further explain why legal personality within the meaning of the Article 263(4) should be attributed.
In that respect the CJEU reiterated, that the Front Polisario is a: “[m]ovement which seeks to establish, in connection with the exercise of the right to self-determination of the people of the non-self-governing territory of Western Sahara, an independent State” (para. 67). After conducting analysis on Front Polisario’s participation in various international fora, the Court felt confident to establish that the Front Polisario possesses: “sufficient legal existence to be able to be a party to legal proceedings before the Courts of the European Union” (para. 70).
It is worth noting, that with regard to non-state international actors, Front Polisario II also does not constitute a completely novel development; similar entities were considered “legal persons” in earlier case-law. The General Court in Front Polisario I also established Front Polisario’s legal personhood. Notably, the Court’s ruling was later set aside by the Court of Justice. Earlier, in PKK, the Court of Justice famously recognized capacity of the Kurdistan Workers’ Party to contest EU act (para. 112), even though the very existence of that organization was contested.
In Front Polisario II, the Court of Justice notably applied a teleological interpretation also to the term of “direct concern”; admittedly, it was analyzed in a rather unusual context in this specific case. The Court had to assess whether the decision concerning the conclusion of an international agreement concerns directly Front Polisario (the applicant before it) and not the people of Western Sahara. In that regard, the Court established that if the act affects the legal situation of the people of Western Sahara directly (i.e., influences their right to self-determination), it affects also Front Polisario directly as the representative of the people of Western Sahara and thus the holder of their right to self-determination (paras. 89-91). The CJEU made very evident that its assessment went beyond the textual interpretation of Article 263(4) TFEU and relied also on the: “Article 73 of the Charter of the United Nations and the principle of effective judicial protection” (para. 91). Later, regarding the interpretation of the “individual concern” condition, the CJEU relied on the same standards (para. 108). Despite the fact that the issue of “individual concern” of Front Polisario could arguably be deemed most controversial, the Court addressed it with marked frugality. The CJEU limited its argument to two paragraphs, stipulating that, since the trade agreement with Morocco expressly mentioned the territory of Western Sahara, thereby bringing into its scope goods originating from that territory, the agreement individually concerned the people of Western Sahara. By extension, this meant that the notion of “individual concern” should also be attributed to the holder of the right of self-determination of people of Western Sahara, Front Polisario (para. 108).
The cases discussed above illustrate, that the CJEU’s case law can depart significantly from the textual or historical interpretation of Article 263(4) TFEU. Instead, the CJEU, is capable of placing the EU’s values – encompassing the principles of rule of law and effective judicial protection – at the heart of its argument.
3. Rule of Law and delimitation of the standing in case of private applicants
It is worth demonstrating, how the cases revolving around access of international actors to EU courts, fit within the broader framework of CJEU’s case law on the rule of law and effective judicial protection, particularly in relation to locus standi of unprivileged applicants under Article 263(4) TFEU.
The European Union, in Court’s own words, is a union of law. The principle of the rule of law, already well-established in the pre-Lisbon case-law (see in particular Les Verts and Kadi I) is now a part of the EU’s constitutional framework, explicitly listed as one of the EU’s values in the Article 2 TEU. Closely linked to the principle of the rule of law is a guarantee of its observance: the right to effective judicial protection (Article 47 of the Charter). The rule of law has two aspects: an objective one related to the mere existence of a system of control over acts of EU law, and a subjective onebased on the assumption that the subjects whose legal situation is affected by acts of EU law should be guaranteed a way to challenge these acts (Article 47 of the Charter and Article 6 of the ECHR). The objective aspect is often highlighted in the CJEU’s case law; the Court regularly reiterates, that the TFEU has established “a complete system of legal remedies and procedures” designed to ensure judicial review of the legality of European Union acts (see i.a. Inuit Tapiriit Kanatami, Les Verts).
At the same time, arguments raised by the private applicants, drawing the attention to the fact that, in casu, they might be left out without the legal remedy against EU legislative acts, are overlooked a (point famously raised in AG Jacobs’ Opinion in Unión de Pequeños Agricultores). This situation occurs, because it is nearly impossible for private applicants to challenge the legislative act under Article 263(4) TFEU, since legislative acts almost always do not concern private applicants individually (Plaumann). Private applicants rightly argue, that despite a theoretically complete system of legal remedies, they may be practically left without a remedy, even in situations, where they are affected by a legislative act (for example, if the Member State never issues measures implementing the legislative act or if a national court does make a preliminary reference).
The reasoning to uphold Plaumann to this day, relies on a textual reading of Article 263(4) TFEU; the CJEU maintains, that relaxing the interpretation would eliminate the difference between the direct and individual concern. The CJEU is generally reluctant to take into consideration teleological arguments for the reinterpretation of “individual concern” – which is particularly notable in cases regarding environmental protection, where starting with its position established in 1998 in Greenpeace, continuing through the recent case law in People’s Climate Case (discussed in detail here), the Court, regardless of the exceptional dimension of these cases brought forward in the common interest, denied standing to the private applicants.
Comparatively, the interpretative choices made by the CJEU – because ultimately with no guidance in the Treaty provisions it was up to the Court to decide how to lay out the terms used in Article 263(4) TFEU – in cases concerning legal standing of international actors, revolve around a teleological approach. The Court, in these cases, evidently emphasizes the subjective aspect of the rule of law, ensuring that a wide range of applicants (even public entities from outside the EU) can trigger the Article 263(4) TFEU annulment proceedings. In Venezuela v Council, Front Polisario IIand PKK, the Court stressed that the term “legal person” used in Article 263(4) TFEU cannot be interpreted restrictively and that, if an external actor is likely to have its rights or interests adversely affected by an act of the European Union, it must be able, in compliance with the conditions laid down in Article 263(4) TFEU, to seek the annulment of that act (Venezuela v Council, para. 50). In cases concerning international actors, the teleological interpretation goes so far as to bypass the historical intention of the Treaty-makers behind Article 263(4) TFEU (as the right to access to justice of the third states at EU level was unlikely their first priority) and dismisses the arguments relating to the reciprocity in international relations or exposing the EU’s system to the interventions from the third states. This highlights an anomaly in the CJEU’s case law which seemingly lends more consideration to safeguarding the procedural openness to contest the EU’s acts from the outside, than the access to judicial review of applicants that strive to protect common values from within the EU (like in the environmental cases, as mentioned above). Revisiting AG Jacobs’ Opinion 20 years later, the argument about inconsistency in CJEU’s jurisprudence concerning the interpretation of Article 263(4)TFEU remains persuasive.
4. The moment has come (for the reinterpretation of “individual concern”)
As demonstrated, there is evidence supporting claim of inconsistency in the CJEU’s interpretation of the different prerequisites of accessibility provided for in Article 263(4) TFEU. Without delving into the roots of such inconsistency, the argument can be made, that the teleological approach that the CJEU presents, when it focuses on EU’s axiology some procedural contexts, should take precedence over the rigid commitment to the 1963 Plaumann judgment.
Today, not only the changes introduced by the Treaty of Lisbon – providing a normative commitment of the EU to its values (Article 2 TEU) – deliver a valid constitutional framework for such reinterpretation; the CJEU itself also creates such context with its particular value-oriented strand of case law regarding the protection of the rule of law. In this regard, the CJEU’s judgment in Venezuela v Council was undoubtedly inspired by the case law on the rule of law backsliding in EU Member States – hence the reference to Repubblika in the judgment (discussed also in Thomas Vandamme’s blogpost). However, if the CJEU wants to practice what it preaches, it should be doing so in a consistent manner, and take the principle of the rule of law into consideration in examining all conditions of the standing of private applicants – including “individual concern”. In any other case, accusations can arise, regarding deficiencies in its own formulation of effective judicial protection system (in fact. this was already noted in the CEU’s shadow report on the EU’s rule of law performance).
The reinterpretation of the “individual concern” is possible and recommended (see famously AG Jacobs in the UPA caseand the General Court in Jégo-Quéré). Neither administrative considerations, nor considerations related to the division of power in principle, justify an arbitrarily restrictive approach to interpreting “individual concern” within the meaning of Article 263(4) TFEU. It must be stressed, that the more expansive approach to the understanding of other terms contained in Article 263(4) TFEU – such as “legal person” or “direct concern” – also extends the possibility of contesting EU acts, even legislative ones, by non-EU countries, thus shifting the final decision on an act’s validity to the CJEU anyway. Additionally, in case of privileged applicants under Article 263(2) TFEU, the same acts, which are secured from the action populaire (even legislative ones), can be contested. In this puzzle, the dismissal of the legal standing of entities or individuals, especially the ones working towards protection of the values recognized in the EU’s constitutional system, as in the case of environmental complaints, with little justification, and solely by the rigid adherence to the case law of the 1960s (Plaumann), appears disproportionate.
Katarzyna Szepelak is an Assistant Professor of European Law at the Krakow University of Economics. She holds a PhD in Law from the Jagiellonian University in Krakow. Her research focuses on values in the EU’s external policies.