Judicial Review

Annulment is the process by which the Court will declare that an Act has no legal
effects and therefore no longer exists. Article 263 TFEU (ex Article 230 EC) is the key provision. The Treaty of Lisbon has introduced several changes.
Article 263(4) now reads as follows;
“Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person.”
In Article 263(4) TFEU, the word ‘decision’ has been replaced by the word ‘act’ and the words ‘against a decision which, although in the form of a Regulation or a Decision addressed to another person’ have been replaced by the simpler formula ‘or which is of direct and individual concern to them’.
The new s.4(2) of Article 263 TFEU refers also to a regulatory act which does not entail
implementing measures (see below). We will discuss below the impact (if any) of the
changes on the case law of the European Courts.
Finally, Article 263 TFEU has added a paragraph providing that acts setting up bodies,
offices and agencies of the Union may lay down specific conditions and arrangements
concerning actions brought by individuals (natural or legal persons) against acts of
such bodies, offices or agencies of the European Union which are intended to produce
legal effects in relation to them.
There are three classes of applicant under Article 263 TFEU: privileged, semi-privileged
and non-privileged.
Privileged applicants:
Under Article 263 TFEU, Member States, the Council and the Commission have always
been privileged applicants. That is, they are accepted to have a sufficient legal interest
to give them standing (locus standi).
Semi-privileged applicants:
Semi-privileged applicants have locus standi to bring actions for the purpose of
protecting their prerogatives. The institutions that have this status under Article 263
TFEU are the Court of Auditors, the European Central Bank and the Committee of the
Regions.
Non-privileged applicants:
Under Article 263 TFEU, non-privileged applicants (i.e. natural and legal persons) may
bring review proceedings under specified circumstances.
The difficulties that occurred with the original Article 230 (now Article 263 TFEU) were
twofold. First, the term ‘decision’ ‘in the form of a regulation or a decision addressed to
another person’, and second, which ‘is of direct and individual concern to the former’.
The word ‘decision’ has been replaced by the wider term ‘act’ in the first limb of 263(4)
and by ‘regulatory act’ in the second. The requirement of direct and individual concern
remains for ‘acts’ not addressed to a person, but the requirement of individual
concern has been dropped for a regulatory act, only leaving direct concern.
Individual concern
We will consider the two situations where changes have occurred together:
a. where the decision is a decision addressed to another person
b. where the decision is in the form of a Regulation
The leading case on individual concern is Plaumann [1962]
He claimed individual concern as an importer of clementines. The Court of Justice refused standing, saying that the decision was not of individual concern to Plaumann.
The Court found that:
Persons other than those to whom a decision is addressed may only claim to be
individually concerned if that decision affects them by reason of certain attributes which
are peculiar to them or by reason of circumstances in which they are differentiated from
all other persons and by virtue of these factors distinguishes them individually just as in
the case of the person addressed. He was not part of a ‘closed group’ but part of an ‘open group’. In order to get standing it was necessary for the applicant to show that they were part of a closed circle of persons who were known at the time of the adoption of a decision.
It seems, therefore, that a measure is of individual concern to an applicant only if
the class of people whom it may affect is closed on the date of its adoption and if the
applicant belongs to that class. The class is closed if the number and identity of its
members is in one way or another unalterably fixed and therefore ascertainable at the
time when the measure is taken. As stated above, the restrictive interpretation of the meaning of individual concern,
as interpreted in the case law of the Court, was criticised as being at odds with the
requirement for effective judicial protection for Community law rights, a principle
established and upheld by the Union courts.
Advocate General Jacobs’ opinion in Case UPA v Council [2002] , for instance, proposed a new test for individual concern under Article 230 EC (now Article
263 TFEU):

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