Delivered on October 25 2011, the Microban judgment, by defining the new category of challengeable acts laid down by the Lisbon Treaty, softens the locus standi of individuals in front of EU Courts. As such, it is of considerable importance for practitioners of EU law.
Under settled case law, access to justice is one of the constitutive elements of a European Union based on the rule of law. According to the Court of Justice of the European Union (CJEU), this is guaranteed in the treaties through establishing a ‘complete system of legal remedies’ designed to permit the CJEU to review the legality of measures adopted by the EU institutions. Yet, in the framework of the action for annulment, the conditions for legal standing have historically been restrictive, which has led many to question the ‘completeness’ of the EU judicial system. While an individual may lodge a complaint against an act that is specifically addressed to him (e.g. a decision finding anticompetitive behaviour), he could not challenge an act of which he was not the addressee unless he could show that the act was of individual and direct concern to him. In particular, the concept of ‘individual concern’ was construed very narrowly: the applicant had to show that he was affected by the measure in question just as if he had been the express addressee. This interpretation meant in practice that, besides a few exceptions, a complainant could contest the validity of general legislative measures, such as a regulation or a directive, in so far as they are typically designed to create general rules aimed at an indefinite number of addressees.
To mitigate the ensuing situation of ‘denial of justice’ caused by the restrictive rules on standing, the CJEU systematically held that the preliminary reference procedure under Article 267 TFEU (ex Article 234 EC) could adequately complement the action for annulment, in that it allowed individuals the opportunity to challenge the validity of measures adopted by EU institutions in front of national courts. However, as illustrated by judicial practice, this approach failed to recognize that, in the absence of implementation measures, the parties were often unable to initiate national court proceedings aimed at eventually triggering a request for a preliminary reference on the validity of the EU measure in question.
The Lisbon Treaty seemed to address this loophole in the EU ‘complete system of legal remedies’: the provision setting out the annulment action was modified such that Article 263(4) TFEU now allows individuals standing to challenge ‘regulatory acts’ which are of ‘direct concern’ to them and ‘do not entail implement measures’. However, in the absence of a definition of this expression, the precise meaning of this additional category of acts that are subject to judicial review by individuals was unclear. We have had to wait until October 25, 2011 to obtain from the General Court of the European Union (GCEU) a first definition of this new category of challengeable acts.