Adjudicating Europe

The entry into force of the Lisbon Treaty has led (and will progressively lead) to significant changes in both the organisation and jurisdiction of the Court of Justice of the European Union. As is well-known by now, following the elimination of the ‘pillar’ structure, the whole court system of the EU is designed as the Court of Justice of the European Union, encompassing three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Besides the simplification of the rules for the creation of specialised courts and the new arrangements for the appointment of Members of the Court (very much inspired by those followed at the CST), the Treaty of Lisbon’s greatest impact on the European judicial architecture relates to the jurisdiction of the Court itself. Indeed, under Article 19 TEU, the jurisdiction of the Court extends to the law of the EU, unless the Treaties provide otherwise. Thus, following the repeal of Articles 35 EU and 68 EC, the Court acquired general jurisdiction to give preliminary rulings in the area of freedom, security and justice. Yet, the acts in the field of police/judicial cooperation in criminal matters adopted before the entry into force of the Treaty have been grandfathered for the duration of 5 years (see Article 10 of Protocol No 36). No similar restrictions have been adopted as regards visas, asylum, immigration and other policies related to the free movement of persons (i.e. judicial cooperation in civil matters, recognition and enforcement of judgments). As for the Common Foreign and Security Policy (CFSP), the Court’s jurisdiction remains subject to significant limitations (275 TFEU and 40 TEU). The Court got also a new judicial actor: national parliaments (although represented by their governments) may take a case before the Court if they consider that a legislative act is contrary to the principle of subsidiarity (Protocol 2 Art. 8). The Committee of the Regions, in turn, becomes entitled to bring actions for annulment for the purpose of protecting its prerogatives.

Yet the most intriguing changes to the Court’s day-to-day running relates to the improvement of the judicial review of EU acts. Indeed, the new Treaty does not only extend the preliminary ruling procedure to the validity (and interpretation) of acts emanating from all EU “bodies, offices or agencies” and the legality check to the acts of the European Council, but it also eases the conditions for the admissibility of actions brought by individuals against EU acts. Under Article 263 (4) (former Article 230.4), “any natural or legal person may […] 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”. The loophole vocally identified by the CFI in Jégo-Queré (but systematically denied by the ECJ) within the EU system of legal remedies seems to have been filled: in the absence of implementing measures of a EU act, Article 234’s preliminary reference procedure cannot be a viable solution to the problem raised by the strict conditions of admissibility enshrined in former Article 230 TEC (para 47). Indeed, contrary to the rhetoric of completeness enlightening the ECJ case law, the EU system of legal remedies was not “complete” and expecting individuals to breach the law in order to enjoy access to justice is hardly reconcilable with a “Community based on the rule of law”. As a result, under Lisbon, any natural or legal person may challenge the legality of “regulatory acts” which are of direct concern without having to show individual concern when these acts don’t entail implementing measures. Hence, having the requirement for individual concerned being dropped for challenges directed against ‘regulatory acts”, the Plaumann test will survive only with reference to non “regulatory acts”. By codifying the Jégo-Queré judgment, this new provision, which also builds upon Article III-365 of the defunct Constitutional Treaty, is likely to improve the access to justice within the EU. However, lacking a definition of ‘regulatory act’ within the Lisbon Treaty, it will be up to the Courts to determine, when called upon to interpret this notion, whether and how much the EU judicial gates will, as a result, be opened to individual action. There seems to be at least two equally plausible interpretations of the notion of “regulatory acts”. The first approach identifies them with all EU acts of general scope and producing legal effects, regardless of their legislative nature. Under this interpretation, all EU regulations would qualify as “regulatory acts”. Conversely, the second interpretation, by drawing inspiration on the European Convention’s legislative works, suggests that “regulatory acts” would encompass only non-legislative acts, i.e. acts different than those adopted under Art. 289 TFUE (legislative procedure). According to this interpretation, the democratic input provided for by the intervention of the Parliament should act as a boundary to the individuals’ access to justice. While the former reading would open the EU judicial gate, by ruling out the application of the Plaumann test for all acts not entailing implementing measures (thus fully codifying Jégo-Queré), the latter instead would keep the status quo for any challenge to legislative acts. This would leave unsolved the Jégo-Queré conundrum for those legislative acts not entailing implementation measures. But quid of “quasi-legislative” acts subject to the regulatory procedure with scrutiny (by the EP)?

Regardless of the interpretation which will finally be given by the EU judiciary, Article 263.4 is likely to improve individuals’ access to justice within the EU. This outcome is not only crucial in bringing the EU closer to full compliance with the ECHR (at the time of its forthcoming accession to this instrument) but is also a homage to the tenacity of many past unsuccessful plaintiffs.

Mancinus-