A Paradox in the Making: Detecting Something Positive in UPA Under the Ten Kate Effect

Date01 July 2009
AuthorCostas Kombos
Published date01 July 2009
A Paradox in the Making: Detecting
Something Positive in UPA Under the
Ten Kate Effect
Costas Kombos*
Abstract: The European Court of Justice has persisted in adopting an unduly restrictive
interpretation of Article 230(4) EC and that persistence has reached its apogee in the
UPA decision, while at the same time it was mirrored in the relevant provisions of the draft
Constitution. Therefore, it is surprising to see that in the aftermath of UPA, there can be
something positive that can be explored further and that can be tested in order to establish
whether any indirect, alas limited, liberalisation of the standing criteria is possible. The
Ten Kate case established that, in principle, a Member State could be under an obligation
under domestic law to challenge the validity of Community legislation. If the state, in all
of its different manifestations, fails to challenge the validity of a Community measure
when such an obligation arises under municipal law, then the citizen could be in a position
to claim compensation. Therefore, the case introduces the doctrine of state liability and
the agency analogy (with the state representing the individual or as parens patriae) as
connected paths trying to circumvent the standing restrictions. The advantage is that the
proceedings would take place under national law and would be detached from the Plau-
mann conditions. It is proposed that constitutionally entrenched human rights, like effec-
tive judicial protection, combined with the principle of legitimate expectation, could create
the legal basis for an obligation of the state under national law to challenge the validity of
Community norms. The paradox is that effective judicial protection was the exact argu-
ment that the European Court of Justice sidelined in UPA.
I Introduction
The unduly restrictive nature of the standing requirements as developed by the Euro-
pean Court of Justice (ECJ) and the Court of First Instance is well documented in the
literature.1The negative and formalistic approach adopted by the ECJ stands in stark
* Law Department, University of Cyprus. I would like to thank my former colleagues at the University of
Hull, Anne Bonnie and Dr Katarzyna Gromek-Broc, for their useful comments on earlier drafts of this
paper. Needless to say, the usual disclaimer applies.
1For some classic accounts, see C. Harding, ‘The Private Interest in Challenging Community Action’,
(1980) 5 European Law Review 345; C. Harlow, ‘Towards a Theory of Access for the European Court of
Justice’, (1992) 12 Yearbook of European Law 213; P. Craig, ‘Legality, Standing and Substantial Review
in Community Law’, (1994) 14 Oxford Journal of Legal Studies 507; H. Rasmussen, ‘Why is Article 173
Interpreted Against Private Plaintiffs?’, (1980) 5 European Law Review 112; A. Arnull, ‘Private Applicants
European Law Journal, Vol. 15, No. 4, July 2009, pp. 506–535.
© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
contrast to the general methodology adopted in other areas,2the main characteristic of
which is a willingness to expand the scope and enforcement potential of European
Community (EC) law. It is exactly that general approach of the ECJ that has created a
corpus of polemics questioning the authority of the Court.3The Plaumann4conditions
interpreting the individual concern requirement of Article 230(4) EC have helped to
form a second class of critics5of the ECJ. On this instance, the critics are not ques-
tioning the ECJ’s proactive stand, since their point of origin is the challenge of the
conservative and highly restrictive approach of the Court in the f‌ield of standing. Those
critical voices asking for a reversal of the Plaumann requirements placed their hopes for
a turnaround in the case-law in the relatively recent cases of UPA6and Commission v
Jègo-Quèrè,7but in vain. The critique that followed the preceding rulings placed the
issue of standing once again at the epicentre of the legal debate with a universal feeling
of surprise8and with a handful of alternative approaches trying to offer an exegetical
basis for understanding the judgments of the ECJ.9
and the Action for Annulment under Article 173 of the EC Treaty’, (1995) 32 Common Market Law
Review 7; R. Greaves, ‘Locus Standi under Article 173 EEC when Seeking Annulment of a Regulation’,
(1986) 11 European Law Review 119; N. Neuwahl, ‘Article 173 Paragraph 4 EC: Past, Present and Possible
Future’, (1996) 21 European Law Review 112; A. Arnull, The European Union and its Court of Justice
(Oxford University Press, 1999), at 21–69; A. Ward, Judicial Review and the Rights of Private Parties in
EC Law (Oxford University Press, 2000), at 202–287; A. Albors-Llorens, Private Parties in European
Community Law. Challenging Community Measures (Clarendon Press, 1996).
2eg the development of State liability: A. Pekka, ‘Twelve Years of Francovich in the European Court of
Justice: A Survey of the Case-Law on the Interpretation of the Three Conditions of Liability’, in
S. Moreira de Sousa and W. Heusel (eds), Enforcing Community Law from Francovich to Köbler: Twelve
Years of the State Liability Principle (Bundesanzeiger, 2004), at 59; A. Arnull, ‘Rights and Remedies:
Restraint or Activism?’, in J. Lonbay and A. Biondi (eds), Remedies for Breach of EC Law (Wiley, 1997),
at 15; A. Barav, ‘State Liability in Damages for Breach of Community Law in the National Courts’, in
A. Barav and D. A. Wyatt (eds), Yearbook of European Law 1996 (Clarendon Press, 1997), at 87.
3For the epitome of the critical approach, see H. Rasmussen, On Law and Policy in the ECJ. A Comparative
Study in Judicial Policymaking (Martinus Nijhof, 1986); H. Rasmussen, ‘Between Self-Restraint and
Activism’, (1988) 13 European Law Review 28; H. Rasmussen, European Court of Justice (Galdjuva, 1998),
at 292–297.
4Case 25/62, Plaumann v Commission [1963] ECR 95 (Plaumann).
5See the critical analysis in J. A. Usher, ‘Direct and Individual Concern—An Effective Remedy or a
Conventional Solution?’, (2003) 28 European Law Review 575; A. Albors-Llorens, ‘The Standing of
Private Parties to Challenge Community Measures: Has the European Court Missed the Boat?’, (2003)
62(1) Cambridge Law Journal 72; P. Craig, ‘Standing, Rights, and the Structure of Legal Argument’,
(2003) 9 European Public Law 493; F. Ragolle, ‘Access to Justice for Private Applicants in the Com-
munity Legal Order: Recent (r)evolutions’, (2003) 28 European Law Review 90; E. Biernat, The Locus
Standi of Private Applicants under Article 230(4) EC and the Principle of Judicial Protection in the
European Community, Harvard Jean Monnet Working Section No. 12/03, available at http://
6Case C-50/2000P, Union de Pequenos Agricultores v Council [2002] ECR I-6677 (UPA).
7Case C-263/02P, Commission v Jègo-Quèrè [2004] CMLR 12 (Jègo-Quèrè Appeal).
8M. P. Granger, ‘Towards a Liberalisation of Standing Conditions for Individuals Seeking Judicial Review
of Community Acts: Jégo-Quéré et Cie SA v Commission and Union de Pequeños Agricultores v Council’,
(2003) 66 Modern Law Review 124; S. Enchelmaier, No-One Slips Through the Net? Latest Developments,
and Non-Developments, in the European Court of Justice’s Jurisprudence on Article 230(4) EC, Working
Paper 3, available at http://www.competitionlaw.ox.ac.uk/iecl/pdfs/working3enchelmaier.pdf.
9C. Kombos, ‘The Recent Case-Law on Locus Standi of Private Applicants under Article 230(4) EC: A
Missed Opportunity or A Velvet Revolution?’, (2005) 9(17) European Integration online Papers (EIoP),
available at http://eiop.or.at/eiop/pdf/2005-017.pdf.
July 2009 Detecting Something Positive in UPA
© 2009 Blackwell Publishing Ltd.

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