The Court of First Instance in Jego Quere

Plaumann & Co. contested that because they were a large-scale importer of clementines, they were ‘individually concerned’ about the legality of the Commission’s decision on the basis that their business was prejudiced by it (which it undoubtedly was, and to the extent of 3% duty!). However, the question was whether an individual had the power to bring such an action, given the limitations in Article 230? (then Article 173).

The ECJ returned a verdict which imposed a very strict test of direct and individual concern: essentially, any applicant was required to show that the regulation affected them uniquely by reason of some feature that they alone had, or, because their circumstances were unlike those of any other individuals. It was held that: “…the second paragraph of Article 173 [now Article 230] does allow an individual to bring an action against decisions addressed to ‘another person’ which are of direct and individual concern to the former, but this Article neither defines nor limits the scope of these words...

“Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them, or, by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually, just as in the case of the person addressed”. This has subsequently become known as the ‘Plaumann test’, and all ensuing cases involving individuals challenging EC Law on the basis of standing, and direct and individual concern, are measured against it.

However, if one were to apply the courts’ reasoning strictly (as they did), then firstly it would be almost impossible for anybody to have a direct and individual concern: had Plaumann been the only importer of clementines in Germany, he would still have failed in his application because it would be equally impossible for somebody else to set up a business as an importer of clementines; ergo: this is true for almost all types of businesses.

Secondly, it was economically unrealistic for the court to make such a ruling in this manner: there were only a limited number of clementine importers in Germany; and even if the demand for clementines had suddenly risen, all that would have happened would be those few firms already importing them would simply bring in more. It was completely unlikely that huge numbers of new importers would come into existence. The Plaumann matter (Case 25/62) came before the court just one case before that of the landmark ruling given in van Gend en Loos (Case 26/62) – no doubt it must have been a busy time for all at the ECJ.

More than thirty-five years had passed between the judgement in Plaumann and the next case we are asked to consider: Unión de Pequenõs Agricultores v Council. The UPA is a trade association which represents the welfare of small Spanish agricultural businesses, in this case their interest in the olive oil market following a proposal for a regulation to reform the market in oils and fats in 1998. The UPA argued that the regulation did not fulfil the Treaty requirement to give reasons for such a change, and that this was in direct contravention of the objectives of the common agricultural policy set out in Article 33 (ex Article 39) – part of the very foundations of the Community.

In addition, the UPA also put forward two further arguments to prove that it was individually concerned by the provisions of the contested regulation: a) that reviewing the legality of the contested regulation was a matter of EC public interest, and, b) that no effective judicial protection could be relied upon under national law (which contravenes Article 234 (ex Article 177) stating that: “…where any such question is raised in a case pending before a court or tribunal of a Member State against whose decision there is no judicial remedy under national law, that court tribunal shall bring the matter before the Court of Justice”).

At first, the CFI dismissed the UPA application as ‘manifestly inadmissible’, stating that actions by associations are only admissible if: (i) a legal provision expressly grants a series of procedural powers to trade associations; (ii) when the association represents the interests of undertakings which would themselves be entitled to bring proceedings; and, (iii) when the association is distinguished individually because its own interests as an association are affected, in particular because its negotiating position has been affected by the measure whose annulment is being sought.

The CFI felt that the UPA could not rely on any of these three criteria to establish the admissibility of its action; in addition, the CFI felt that the UPA had no rights of a procedural nature under the common organisation of the market in oils and fats, and that the UPA had not established that either it, or its members, could pass the criteria previously laid down in the Plaumann test.

More importantly, and very controversially, the court dismissed the two arguments on individual concern, stating that: “…the applicant cannot validly base any argument on the possible length of proceedings under Article 234. That circumstance cannot justify a change in the system of remedies and procedures… which is designed to give the Court of Justice the power to review the legality of acts of the institutions”.

Needless to say, the UPA, unhappy at this dismissal, appealed to the ECJ who promptly dismissed the appeal emphasising that the existing system of judicial review could not (and would not) be changed by the court (as that would be ultra vires), but only through legislature and the agreement of the Member States. Going as far as to cite Article 10 (ex Article 5), the ECJ commented: “It is for Member States to establish a system of legal remedies and procedures which ensure the respect for the right to effective judicial protection”.

Advocate General, the Right Honourable Sir Francis Geoffrey Jacobs, KCMG, QC was no stranger to controversy during his time in office at the ECJ. Being British, his somewhat heavyweight, highbrow-style was frowned upon by the more liberal Europeans, while his overtly Human Rights based opinions (he is also an Official in the Secretariat of the European Commission of Human Rights), had landed him in hot water on more than one occasion since his appointment in October 1988.

In all but 11% of European court cases, the ‘opinion’ of the Advocate General (which is usually delivered sometime before the actual judgement in a case) is followed by the court. When the result in the UPA case was obviously not going to follow his conclusion, Advocate General Jacobs pointed out: “…the UPA stated that it does not ask the Court of Justice to change its case-law on the interpretation of Article 230(4). However, implicit in its argument is a strong criticism of the case-law, since it is alleged that it may lead to a denial of justice unless exceptions are made to it in specific instances. I agree with UPA that the case-law on the locus standi of individual applicants is problematic. The fact that an individual cannot (in most cases) challenge directly a measure which adversely affects him seems unacceptable”.

Hardly had the dust settled from the UPA case, when in mid-2002, along came another case to challenge the interpretation of standing and individual concern: Jégo-Quéré et Cie SA v Commission. Jégo-Quéré is a small French fishing company, owning only four fishing boats, and whose sole business was the catching of young Hake – sometimes referred to as ‘Whiting’ – an important food fish in the northern Mediterranean, but now in general decline (so that fish stocks are highly valued). The Commission, responding to this decline in the fish stock introduced a regulation banning the use of 80mm mesh nets, and replacing them with 100mm nets designed specifically to allow the young fish to escape when trawled.

Jégo-Quéré applied to the CFI for an annulment of the regulation on the basis that it had standing and was individually concerned by virtue of the fact that the regulation restricted its ability to fish. The Commission argued that the CFI should declare the action inadmissible on the basis of criteria previously developed by the case law of the Community courts; but, as we have seen, EC Law is codified – it does not necessarily follow precedent – and that is exactly what the CFI did in this case.

Ruling that while Jégo-Quéré was unable to show individual concern according to the traditional interpretation (Plaumann test), the CFI concluded however: “…the strictness of that interpretation meant that in some circumstances Community law would fail to guarantee to individuals access to an effective judicial remedy”; and considered further that: “…the traditional interpretation was not required by the wording of Article 230”.

Essentially, the CFI had done a complete u-turn from its decision in the UPA case just months earlier, finding that Articles 230, 234, and 235 could no longer be regarded in the light of Articles 6 & Article 13 of the European Convention on Human Rights (ECHR), and of Article 47 of European Charter of Fundamental Rights (CFR). The CFI ruled that it could not change the system of remedies and procedures established by the Treaties; but it did believe that a strict reading of the notion of a person individually concerned must be reconsidered – almost precisely the same change in interpretation of Article 230 that Advocate General Jacobs had concluded from the UPA case.

Almost immediately the case was appealed, and, on 1 April 2004, as expected, the ECJ upheld the Commission’s appeal. The ECJ observed that any reforms of the system currently in force (such as those suggested by the opinion of Advocate General Jacobs and the ruling of the CFI in the original Jégo-Quéré case) would require an amendment to the Treaty. The court reiterated that: “…the Treaty has established a complete system of legal remedies and procedures designed to ensure review of the legality of acts of the institutions”, but at the same time recognised that there “might be gaps” in the system!

Despite this ‘recognition’, the ECJ strongly criticised the CFI for: “…removing all meaning from the requirement of individual concern set out in Article 230(4)”, and was completely silent with regard to the alternative tests put forward by Advocate General Jacobs in the UPA case. On reflection, it is hard to see how the ECJ could have done anything otherwise; the law – enshrined as it is within the Treaties – cannot be amended by the courts, as that would be ultra vires. Like it or not, the CFI, as junior of the two courts, pushed the boundaries a little too far, and its senior partner – the ECJ – firmly slapped it on the back of the hand for doing so… even if the ECJ may have quietly realised that strict interpretation of Article 230 and the Plaumann test has a limited lifespan.

Conclusion

The question asks us to critically appraise EC Law in the light of the statements of Advocate General Jacobs, while the passage from Weatherill asks if the Court of First Instance was open to putting things right in the model of judicial protection. The fact of the matter is that the CFI and the ECJ, despite the Advocate General’s opinion that the rulings were ‘unsatisfactory’, were only following the letter of the law as it is laid down in Treaty – how could they do anything else? As the ECJ was at pains to point out in the UPA case, the matter was ‘ultra vires’, beyond their powers, and the real responsibility for altering the interpretation of Article 230 lay with new legislation which could only come from the Member States.

In June 2002, the European Ombudsman suggested several new reforms, many of which would be adopted in the Treaty establishing a Constitution for Europe. The problem with this is that the Treaty has not been ratified – it is not therefore law – and as such is not worth the paper it is written on, regardless of any good intentions contained within. Consequently, future amendments to Articles 230, 232, 234 & 235 will have to wait for either additional legislation or the ratification of the Constitution – neither of which look to be on the immediate horizon.

There are some fundamental considerations at issue for each and every citizen of the EC here. While it remains imperative that we retain the right to query EC legislation when we might not necessarily agree with that legislation, there are also questions which must be asked of the legitimacy of individuals challenging laws which simply do not suit them alone. The Jégo-Quéré case is a prime example of this – had he been allowed to reduce the size of his fishing nets then he, and fishermen like him, could have (eventually) fished the seas dry. Now where is the economic and Community sense in that?

Advocate General Jacobs, who retired from his position at the ECJ on 10 January 2006, tried to sit on the fence (without actually appearing to do so of course!). His opinion was that the CFI and ECJ had their hands bound by Treaties, in which are enshrined the words of the law. They were therefore compelled to follow these, and in fact had little choice in the matter. However, the law is sometimes ‘unsatisfactory’; and when it is not satisfactory, then a catalyst may be required to bring that dissatisfaction to the attention of those whose job it is to write (and alter) the law. It is the individual people – for whom these laws are written, and to whom they most immediately effect – who have spoken here; laws sometimes need to be reinterpreted, and where erroneous, altered accordingly.

                                                ___(2,647 words – excluding direct quotes)

References:

Pernice, I.: ‘The Charter of Fundamental Rights in the Constitution of the European Union’, WHI Paper 14/02, Walter Hallstein-Institut fur Europaisches Verfassungsrecht, Humbolt-Universitat zu Berlin, 2003, pp31-35

Biernat, E.: ‘The Locus Standi of Private Applicants under article 230(4) EC and the Principle of Judicial Protections in the European Community’, Jean Monnet Program, Jean Monnet Working Paper 12/03, NYU School of Law, New York, December 2003

Koch, C.: ‘Commission of the European Communities v Jego Quere & Cie SA. Case C-263/02 P’, The American Journal of International Law, Vol.98, No.4, October 2004, pp814-819

Jurist EU, ‘The Month in Luxembourg – 2003’ [Online] Available at  (Accessed 20 December 2006)

Curia Europa, ‘Press Release No 41/02 Judgement of the Court of First Instance in Case T-177/01 – Jego Quere et Cie v Commission’ [Online] Available at  (Accessed 20 December 2006)

Curia Europa, ‘The opinion of Advocate General Jacobs delivered on 10 July 2003’ [Online] Available at  (Accessed 20 December 2006)

Curia Europa, ‘The opinion of Advocate General Jacobs delivered on 21 March 2002 (1) Case C-50/00 P’ [Online] Available at =() (Accessed 20 December 2006)

Europa, ‘Case C-263/02 P – Commission of the European Communities v Jego Quere & Cie SA’ [Online] Available at  (Accessed 20 December 2006)

Association of European Administrative Judges, ‘Participation of AEAJ to conference ‘Access to Justice in Community Law: the role of the national judge’ held in Paris on June 1st and 2nd 2006’ [Online] Available at  (Accessed 22 December 2006)

Revision-notes.co.uk, ‘Article 230: a critical analysis of he general standing rules for non-privileged applicants’ [Online] Available at (Accessed 29 December 2006)

Sweet & Maxwell, ‘April shower for Jego Quere’ [Online] Available at  (Accessed 30 December 2006)

University of Connecticut, ‘Jean Monnet Chair: Jean Monnet Working Papers – The Locus Standi of Private Applicants under article 230(4) EC and the Principle of Judicial Protections in the European Community’ [Online] Available at  (Accessed 29 December 2006)

EU Law 2004, ‘Jego-Quere’ [Online] Available at  (Accessed 3 January 2007)

The European Ombudsman Letters and Notes, ‘The European Ombudsman’s proposals for Treaty Changes’ [Online] Available at  (Accessed 3 January 2007)

JSTOR, ‘Cornelia Koch: Commission of the European Communities v Jego Quere & Cie SA. Case C-263/02 P’ [Online] Available at  (Accessed 3 January 2007)

The K-Zone, ‘The grounds for annulment under Art.230’ {Online] Available at  (Accessed 3 January 2007)

Bibliography:

CRAIG, P., DE BURCA, G.: ‘EU Law: Text, Cases & Materials’, 3rd Edition, (Oxford University Press, 2003)

STEINER, J., WOODS, L.: ‘Textbook on EC Law’, 8th Edition, (Oxford University Press, 2003)

WEATHERILL, S.: ‘Cases & Materials on EU Law’, 7th Edition, (Oxford University Press, 2006)

FOSTER, N.: ‘Blackstone’s EC Legislation 2006-2007’, 17th Edition, (Oxford University Press, 2006)

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NV Algemene Transport en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62)

Unión de Pequenõs Agricultores v Council (Case C-50/00P)

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Article 33 (ex Article 39) (as amended by the Treaty of Nice):

1)  The objectives of the common agricultural policy shall be: a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour; b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; c) to stabilise markets; d) to assure the availability of supplies; e) to ensure that supplies reach consumers at reasonable prices.

2) In working out the common agricultural policy and the special methods for its application, account shall be taken of: a) the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions; b) the need to effect the appropriate adjustments by degrees; c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole.

Article 230 (ex Article 173) (as amended by the Treaty of Nice):

1) The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties.

2) It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers.

3) The Court of Justice shall have jurisdiction under the same conditions in actions brought by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives.

4) Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

5) The proceedings provided for in this article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

Article 232 (ex Article 175) (as amended by the Treaty of Nice):

1) Should the European Parliament, the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established.

2) The action shall be admissible only if the institution concerned has first been called upon to act. If, within two months of being so called upon, the institution concerned has not defined its position, the action may be brought within a further period of two months.

3) Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court of Justice that an institution of the Community has failed to address to that person any act other than a recommendation or an opinion.

4) The Court of Justice shall have jurisdiction, under the same conditions, in actions or proceedings brought by the ECB in the areas falling within the latter's field of competence and in actions or proceedings brought against the latter.

Article 234 (ex Article 177) (as amended by the Treaty of Nice):

1) The Court of Justice shall have jurisdiction to give preliminary rulings concerning: a) the interpretation of this Treaty; b) the validity and interpretation of acts of the institutions of the Community and of the ECB; c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.

2) Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

3) Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.

Article 235 (ex Article 178) (as amended by the Treaty of Nice):

1) The Court of Justice shall have jurisdiction in disputes relating to compensation for damage provided for in the second paragraph of Article 288.

Article 253 (ex Article 190) (as amended by the Treaty of Nice):

1) Regulations, directives and decisions adopted jointly by the European Parliament and the Council, and such acts adopted by the Council or the Commission, shall state the reasons on which they are based and shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty.

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