The Law To Know

Union courts and procedure · European Union · about 5 minutes

Annulment actions and standing

The guest list drawn before the party

← The hardest concepts in European Union law

In one breath

Under the annulment action the Court reviews the legality of Union acts, and a person who is not the addressee of an act can challenge it directly only if it is of direct and individual concern to them. The usual formulation of individual concern, the Plaumann test, is demanding, so the route through national courts and preliminary references matters.

The picture

The guest list drawn before the party

A host sends a rule to the door staff: “Nobody who came by taxi may enter.” Dozens of people are affected, but only those whose names were on the guest list before the party and who all came by taxi that evening can say the rule was aimed at them. A stranger who might come by taxi on any night is affected as an unknown member of the public. The doorman will listen to the first group and not to the second.

Plaumann works this way. A person who is not the addressee of an act is individually concerned only if the act affects them by reason of attributes peculiar to them or circumstances that distinguish them from everyone else, as if the act had been addressed to them. A trader in a field that anyone else could enter does not qualify. A member of a closed group, fixed when the act was adopted, may.

Where the picture stops working

A host can change the guest list, but the test is applied to the act as it stood on the day it was adopted. The Treaty also lets a person challenge a “regulatory act” that is of direct concern and needs no implementing measures without proving individual concern. And the picture leaves out the privileged applicants: Member States and the main institutions can challenge acts without showing any concern.

How it really works

  1. 1Know where the rule comes from. The action is set out in Article 263 of the Treaty on the Functioning of the European Union, and the test for individual concern comes from the Court’s case law.
  2. 2Identify the act. It must be one intended to produce legal effects, and recommendations and opinions are excluded.
  3. 3Identify the applicant. Member States, Parliament, the Council and the Commission may challenge without showing a special interest. Individuals and companies need an act addressed to them, or one of direct and individual concern to them, or a regulatory act of direct concern that entails no implementing measures.
  4. 4Apply the grounds. The usual grounds are lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, and misuse of powers.
  5. 5Mind the time limit and the alternatives. Proceedings must be brought within two months of publication or notification. If the time has passed, an indirect challenge may be possible through a national court, which can refer a validity question under Article 267, and in some cases through a plea of illegality (Article 277).

Why people get it wrong

  • Thinking anyone affected by an act can challenge it. The standing rules for non-privileged applicants are strict.
  • Confusing direct concern with individual concern. Both are needed, and individual concern is usually the harder.
  • Assuming the Court has relaxed the test to fill a gap in judicial protection. The Court has said that the remedy lies in national courts and the preliminary reference, not in a wider reading of the Treaty.
  • Forgetting the two-month time limit, which the Court applies strictly.
  • Believing that the national court can annul a Union act. It cannot, and must refer a validity doubt to the Court of Justice (see the reference page).

A worked example

The facts are invented

A Union regulation, adopted by the Commission, bans the import of a certain type of preserved fruit from a particular country from a date set in the act. Three groups are unhappy. A Member State thinks the Commission lacked power; it can challenge the regulation as a privileged applicant. An importer, Marta, deals in many fruits and could in future import this one, but has no contract for it. She is affected like any importer, so she is probably not individually concerned.

A second importer, Lucas, signed a contract for this fruit the week before the ban and has goods in transit. Whether he is individually concerned depends on whether the regulation applied to a closed class of traders fixed in advance, and the Court tends to resist treating a trader’s commercial position as enough. Either may instead challenge a national customs decision applying the ban and ask the national court to refer the validity question.

Try it

A company wants to challenge a general Union regulation that affects it as it affects every other company in its trade. It is not the regulation’s addressee. What is the usual conclusion about its direct challenge?

Landmark authorities

Read the sources themselves; this list is a starting point.

  • Plaumann v Commission, Case 25/62, 1963
  • Unión de Pequeños Agricultores v Council, Case C-50/00 P, 2002
  • Inuit Tapiriit Kanatami v Parliament and Council, Case C-583/11 P, 2013

Where to go next

More hard concepts in European Union law

This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.