Quite a Challenge: Article 263(4) TFEU and the Case of the Mystery Measures
17 Pages Posted: 2 Jan 2016
Date Written: April 3, 2011
It was hoped that Article 230 EC (as it then was) would be transformed by, firstly, the Convention on the Future of Europe, and, later, the negotiations leading to the Treaty of Lisbon. The procedure for challenging Community acts (now Union acts) before the European Court of Justice (“ECJ”) had for years been stymied by its restrictive rules on locus standi for private applicants, contained in the fourth paragraph of the Article. Confusion over what it meant to be “individually concerned” by a measure, and the growing sense of unfairness arising from years of judgments in which the Court of Justice had accorded this status to only a very few private litigants, had led to calls for a new test for standing vis-à-vis “natural or legal persons”, such that standing should be accorded in situations where the contested measure had a substantial impact on the applicant’s legal position, for example, by restricting his rights or by imposing obligations on him.
But what emerged from the legislative laboratory was a veritable Frankenstein’s monster. On the face of it, the new Article 263 of the Treaty on the Functioning of the European Union neither loosens the standing restrictions faced by the vast majority of potential challengers, nor clarifies the principle of individual concern so that those contemplating a challenge at least have a degree of legal certainty upon which to rely when deciding whether to proceed. An earlier confusion caused by the taxonomy of contestable acts under the old provision has in some respects been resolved, only – in other respects – to be made worse. Admittedly waiving the need for certain applicants to show individual concern, the legislators have proceeded to take with one hand what they gave with the other, by defining the category of beneficiaries of this waiver in such a Delphic manner that it is unclear who – if anyone – will benefit. The measure which they need to be challenging is unknown in the existing EU legal lexicon, and is undefined in the Treaty; what exactly is “a regulatory act which… does not entail implementing measures”? This paper attempts to discern what those who drafted the Lisbon Treaty and its predecessor may have meant by this new wording, and it looks at some of the background documents and travaux préparatoires in an effort to cast light on this. Case-law from the first year of operation of the Treaty of Lisbon will be examined. Although to date the Court has not given a comprehensive interpretation of Article 263(4), early indications suggest that the Luxembourg judges are intending to adopt a narrow definition of the term “regulatory act” when the time comes (see, for example, Case T-16/04 Arcelor, para. 123). Further, the paper investigates the use of the term “regulatory act” in different contexts, including case-law and legislation drawn from other aspects of EU law, to help determine how the ECJ might interpret this phrase when an opportunity to rule definitively on the fourth paragraph does finally present itself.
Keywords: EU Law, European Law, European Union Law, EU Constitutional Law, EU Administrative Law, Court of Justice of the EU
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