Same old, same old: The European Court of Justice’s fixation with the Plaumann test for individual concern

By Mr Konstantinos Alexandris Polomarkakis, Graduate Teaching Assistant and PhD Candidate (University of Bristol Law School).

© Trevor Parker

© Trevor Parker

In its Judgment in Ackermann Saatzucht and Others v Parliament and Council, joined Cases C-408/15 P and C-409/15 P, EU:C:2016:893, the European Court of Justice was given yet another chance to set out its position on the admissibility criteria, and more specifically on that of individual concern, for individuals to bring an action for annulment under the fourth paragraph of Article 263 TFEU.

This Judgment follows its recent rulings in T&L Sugars (C-456/13 P), Stichting Woonpunt (C-132/12 P), Stichting Woonlinie (C-133/12 P), Telefónica (C-274/12 P) and Inuit (C-583/11 P). The cases at hand were decided by the ECJ on appeal, lodged by two groups of German and Dutch operators active in the field of plant breeding, following the rejection by two orders of the General Court (in cases T-559/14 and T-560/14) of their  annulment actions against Commission Implementing Regulation (EU) No 511/2013 establishing the standard import values for determining the entry price of certain fruit and vegetables into the EU’s internal market.

The annulment of the said regulation was sought on the basis of it being incompatible with the content of Regulation (EC) No 2100/94 and the International Convention for the Protection of New Varieties of Plants. These laid down the breeders’ exemption granting plant breeders unrestricted access to protected varieties without a duty to disclose any information, something that was allegedly hampered by the entry into force of Article 4(3) of Regulation 511/13, which bestowed upon them an obligation of disclosure. Nonetheless, the said operators’ actions for annulment were dismissed by the General Court as inadmissible due to the lack of individual concern. In their appeal to the ECJ, they contested this finding, pleaded that the Regulation runs counter to higher ranking rules, and, also, claimed that because of the inadmissibility of their action, their right to effective judicial protection has been impinged.

Judgment

As to the first ground of appeal, the erring of the General Court in finding that the groups of operators were individually concerned, the ECJ reiterated its standard position on the matter, drawing on its rather homogeneous case-law: the Plaumann test shall apply, meaning ‘that a measure of general application such as a legislative act can be of individual concern to natural and legal persons only if it affects them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee’ (para. 30).

Those affected by the Regulation in question, thus, have to be identifiable as a limited class of traders at the time of its adoption. An indication for that would be the possession of acquired rights, which were affected when that measure entered into force. The operators claimed they were in such situation, because of the applicability of the breeders’ exemption, and, additionally, that there is no need to be individually distinguished as if they were the addressees of the act. Nevertheless, the ECJ sided with the General Court, reasserting the high –almost unattainable- threshold required for one to be individually concerned, and noting that this could not be satisfied by the appellants, whom it was not possible to individually distinguish in the same manner as an addressee when the Regulation was adopted. The number of persons falling under the breeders’ exemption was rather volatile, and, consequently, undeterminable at any point in time.

On a similar note, the operators’ plea that the General Court overlooked their argument that the Regulation imposed on them a contractual obligation contradicting higher-ranking rules of law, such as those found in International Agreements, was swiftly dismissed by the ECJ. The General Court can be implicit on its reasoning so long as ‘it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review’ (para. 43). Moreover, the higher-ranking rules did not impose any obligation on EU law to consider the consequences of the adopted act towards a group of operators. Only if such an obligation was in place, it could have then been possible to re-open the discussion on the appellants’ individual concern.

The third ground of appeal was not lucky for the applicants either. According to the ECJ there was no infringement of their right to effective judicial protection by rejecting the operators’ locus standi to bring an action under the fourth paragraph of Article 263 TFEU. Neither the principle nor Article 47 of the EU Charter of Fundamental Rights intended to change the admissibility rules or to enable individuals to bring annulment actions unconditionally. In any case, if it is not possible to bring an action under Article 263 TFEU, then the route of adjudication before national courts contesting the validity of the Regulation in question, which could then be referred for a preliminary ruling to the ECJ per Article 267 TFEU, remains always open.

Comments

In attempting to evaluate the case, what is the most striking is the stubbornness through which the Court approaches the issue of individual concern. While the Court’s case law vis-à-vis other concepts of EU law tends to evolve over time, the resilience of the Plaumann test represents a proud exception to that, standing the test of time.

There is a very high threshold set for the test’s discernible factors, which could not be met by the appellants. They might have held acquired rights, but even so, it was virtually impossible for them to be determined both in number and identity just because they fell under the breeders’ exemption. The latter did not require a system of prior authorisation through, for example, the use of a royal decree, as in Stichting Woonpunt (C-132/12 P) and Stichting Woonlinie (C-133/12 P), to accurately specify the operators affected at the time of the Regulation’s entry into force. On the contrary, those coming under the breeders’ exemption were an open-ended group of traders, not having to conform to any formalities to rely on it. It was therefore easy, and predictable that the ECJ sided with the General Court and found that individual concern was absent therein.

The Court easily dismissed, without much ado, the argument concerning the existence of an obligation imposed by higher-ranking rules enshrined in International Conventions for the EU institutions to consider the effects the Regulation might have on certain operators. This was an attempt from the appellants to rely on Piraiki Patraiki (Case 11/82), whereby the stringent requirements for individual concern were eased a bit. Nonetheless, even if the higher-ranking rules were found to impose an obligation, this alone would not be enough to establish individual concern, as some sort of identifying link, in the form of a prior contract for example, needs to be in place (as in Commission v Nederlandse Antillen, C-142/00 P, paras. 72-5). The ability to be determinable is of paramount importance as regards to individual concern.

Nor was the Court affected in its conclusions by claims invoking Article 47 EUCFR and the principle of effective judicial protection. These recall the opinion of Advocate General Jacobs in Unión de Pequeños Agricultores (C-50/00 P), and the Judgment of the General Court in Jégo-Quéré (T-177/01), which have been quickly turned down by the ECJ’s subsequent case-law. In the present ruling, the Court was rather laconic in dismissing these arguments, referring to Article 267 TFEU and the possibility to question the validity of an EU measure in national courts, which could then make a preliminary reference to the ECJ, as pertaining to the complete system of remedies laid down in the Treaties. It is a system that neither Article 47 EUCFR nor the general principle for effective judicial protection intended to reshape, as it conforms to these requirements. Perhaps one should recourse to the Judgment in Inuit (C-583/11 P, in particular paras. 86-107), which is cited by the ECJ here, to find a more elaborate reasoning laying the foundations for this outcome.

Nothing can, therefore, stop the Court from applying the Plaumann test strictly in the case at issue here. The Treaties provide the appellants with an alternative route to bring their claims, and the fact that they might have held acquired rights alone, was not enough to discern them in the particular way the ECJ has established in its case-law on individual concern. That case-law, founded on the conditions set out in Plaumann (Case 25/62), has been reiterated and applied consistently in almost all subsequent judgments, rendering the pertinent test deeply embedded in the Court’s jurisprudence, which does not seem to be set for a change, at least not in the near future.

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