UM E-Theses Collection (澳門大學電子學位論文庫)


Legal standing of private parties within judicial reviews in the European Community : the missing piece in a complete system of remedies?

English Abstract

This thesis is focusing on the system of judicial review for individuals on European Community Measures, both natural and legal persons. I analyze the 5 procedures, which are action for annulment, action for a failure to act, preliminary ruling on validity, plea of illegality and action for damages, by which these private parties can challenge the contested Community acts which substantially adversely impact their interest. The contextual problem on which my research emphasizes is whether these remedies in EC Treaty and Case Law established a complete judicial protection system. The action for annulment is stipulated in Article 230(4), combined with a set of corresponding interpretation in case-law. The private parties are vested with only restrictive capacity to bring annulment proceeding. As it occupies the central position in the system of judicial remedies, many criticisms are on its narrow interpretation of 'direct and individual concem' (Plaumann formula) in the case-law in 1960s, which make it almost impossible for private parties to satisfy the standing conditions, and is against the principle of effective judicial protection and a denial of justice. Although the Plaumann formula has been valid for over 40 years, the extensive debate of liberalizing the standing of the private parties has been undertaking for ages. The cases Jégo-Quéré and UPA vividly showed the examples of the controversy that whether it is appropriate to widen locus standi of individuals, I will attempt to answer the types of the Community acts which can be challenged and on what grounds their application should be admitted based on the case-law, especially the evolution of interpretation of 'individual concern'. I will explore the typical reactions of the Community Court and set out some of reasons why the interpretation might be seen to be unjustified. The new rules on locus standi of private parties provided in the Constitutional Treaty and the Lisbon Treaty are also specifically mentioned in this part. However, due to veto of European Constitution and the unclear future of the Lisbon Treaty, such rules are just presented briefly. The European Court of Justice (ECJ) believes the right to effective judicial protection is not only guaranteed by the action for annulment, but by a system of remedies in the EC Treaty. I then analyze the other remedies and find that the action for a failure to act is another aspect of the same method of the action for annulment, which cannot be regarded as an alternative remedy of the annulment proceeding. Moreover, there are also sets of restrictive conditions for private parties to challenge the acts through preliminary ruling on validity, plea of illegality and action for damages. To sum up, the remaining remedies are insufficient to complement the legal lacuna in the annulment proceeding. I should apparently advocate that the overall effectiveness of Community measure judicial review system for private applicants is not adequate to keep the balance between the adverse effect and adequate remedy. The efficacy of the action for annulment as one of the instruments of many available remedies in the Community currently should be enlarged, and first of all, the conditions on locus standi should be liberalized, which is in the capacity of the Community Courts. In terms of special role of applicant associations (in fact interest groups) who played in the policy-making process and their intention in the legal proceedings, the liberalization of interpretation of standing in Article 230(4)and in many other challenge proceedings should be in a case brought by an individual rather than by a powerful trade association.

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Xu, Zi Wei


Faculty of Law




Extraordinary remedies -- European Union countries

Popular actions -- European Union countries

Judicial review -- European Union countries

Judicial review of administrative acts -- European Union countries


Castro, Paulo Canelas de

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