Direct Concern in Regional Policy: The European Court of Justice and the Southern Question

• Published date: 01 November 2011
• Author: Daniela Caruso
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00579.x
• Date: 01 November 2011

eulj_579804..827

Direct Concern in Regional Policy:

The European Court of Justice and

the Southern Question

Daniela Caruso

Abstract: For a few years, the European Court of Justice (ECJ) has declared inadmis-

sible, for lack of direct concern, a number of annulment actions initiated by sub-state

actors in the context of regional policy. This article compares the ECJ’s holdings with the

General Court’s more generous application of the ‘direct concern’ standard in some of the

same disputes, and argues in favour of the General Court’s approach. The cases hereby

analysed pertain to the implementation of structural funds in Southern Italy. Relating

regional policy to the historical unfolding of the ‘Southern Question’, this article examines

the unexpected opportunity for civic and administrative renewal brought by regional

policy to Italy’s South in the late 1990s, and links standing for sub-state actors to the

long-term realisation of that opportunity. It further argues that a more direct judicial

involvement with territorial policies would prompt taxonomic renewal in EU law as a

discipline.

I Introduction

The issue of standing to challenge European Community (EC) acts received great

interest in European law circles in two different circumstances. First, in the 1980s,

judicial standing became the catalyst for debates on European democracy. It was

through the lens of standing in actions for annulment that the European Parliament

fought and eventually won its battle for political recognition.1Second, in the past

decade, the fundamental theme of effective judicial protection in the legal order of the

EU was debated at length in terms of judicial standing. The famous pleas of Spanish

farmers and French f‌ishermen, whose right to challenge various EC regulations had

been denied in court, brought to everyone’s attention the lofty goal of guaranteeing

an effective remedy to all those affected by Community action.2That debate resulted

1Case 294/83, Parti Ecologiste ‘Les Verts’ v Parliament [1986] ECR 1339; Case 302/87, Parliament v Council

(Comitology Decision) [1988] ECR 5615; Case C-70/88, Parliament v Council (Chernobyl I) [1990] ECR

I-2041.

2Case C-50/00 P, Unión de Pequeños Agricultores v Council [2002] ECR I-6677; Case C-263/02 P, Comm’n

v Jégo-Quéré & Cie SA [2004] ECR I-3425.

European Law Journal, Vol. 17, No. 6, November 2011, pp. 804–827.

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in a new formulation of Article 263 of the Treaty on the Functioning of the EU

(TFEU).3

Today, other salient issues are emerging from the doctrinal intricacies of judicial

standing. The Treaty of Lisbon, in the context of a general expansion of the institu-

tional role of sub-state entities, granted judicial access to the Committee of Regions as

a whole,4but left unanswered the plea of regions for privileged standing.5Against this

background, this article focuses on a particular string of actions for annulment of

Community decisions, initiated by sub-national actors in the context of structural

funds.6The excruciating technicality of the problems involved should not bury their

substantive importance. At stake in these disputes are the architecture of participatory

democracy and the legal (as opposed to political) status of cohesion in contemporary

Europe.

Essentially, the cases analysed in these pages share the following pattern: regions or

local government agencies receive EU structural funds for specif‌ic projects; implemen-

tation and spending prove problematic; the Commission decides to revoke funding;

and the recipients demand that the Commission’s decision be annulled, only to f‌ind

their pleas rejected in court. Several of these cases concern development policies in

Southern Italy, also known as Mezzogiorno—an area notoriously characterised by

thorny social and political issues.7

The message that the Union sends this area at the end of such disputes is, for right

or wrong, one of disinterest. The Commission seems eager to engage the periphery of

sub-national actors when things go well, so as to bypass the state and to promote

supranational integration,8but it is equally eager to disengage when things go badly.

The General Court occasionally opens the door to judicial dialogue between Brussels

and the southern periphery, but the ECJ regularly shuts it down, thereby aff‌irming the

Commission’s posture.

One aspect of this story has already been identif‌ied in the literature under the heading

of ‘regional blindness.’9The diff‌iculty for regions in establishing standing in annulment

actions is just one of the many hurdles they encounter in asserting their political

3Treaty of Lisbon amending the Treaty on EU and the Treaty establishing the EC, December 13, 2007,

2007 O.J. (C 306) 1 [hereinafter Treaty of Lisbon]; Consolidated Version of the Treaty on the Functioning

of the European Union Art 263, Sept. 5, 2008, 2008 O.J. (C 115) 47 (hereinafter TFEU).

4TFEU Art 263 and Treaty of Lisbon Protocol (No 2) on the Application of the Principles of Subsidiarity

and Proportionality Art 8.

5See K. Lenaerts, ‘Access of regions with legislative powers to the European Court of Justice’, in

Committee of the Regions (ed), Implementation of the Subsidiarity Principle (Brussels, 2008), at 13. The

recent Case C-444/08 P (Região autónoma dos Açores v Council [2009] ECR I-200) further highlights the

relevance of regional standing in the context of environmental debates.

6The issue of standing for non-privileged actors in matters of structural funds regards, of course, not just

regions. See, eg Case C-321/95, Stichting Greenpeace Council (Greenpeace International) and Others v

Comm’n, [1998] ECR I-1651.

7The expression ‘Southern Question’ (Questione Meridionale) refers to the socio-economic problems

experienced by the south of Italy since its political unif‌ication in 1861. It also refers to the profound

economic dualism of the country, which is characterised by a lively and competitive economy in its

northern regions. N. Moe, The View from Vesuvius (University of California, 2009), at 1.

8Evidence of this cooperative attitude is given in Case T-272/02, Comune di Napoli v Comm’n [2005] ECR

II-1849 (where the Commission expresses hope for a non-judicial solution of the controversy and counts

on further meetings).

9S. Weatherhill, ‘The Challenge of the Regional Dimension in the European Union’, in S. Weatherill and

U. Bernitz (eds), The Role of Regions and Sub-National Actors in Europe (Oxford: Hart, 2005), at 1.

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