Standing before the European Court of Justice

Tue Mar 1 12:31:13 PST 2005

Apologies for the late response.  I just got the original exchange.

The Court's current restrictive approach makes little sense.

It is not related to the exhaustion of remedies.   In the twin cases of 
Jego Quere and UPA, the Court recently rejected the idea (put forward by 
the Court of First Instance) that the lack of alternative remedies should 
militate in favor of standing.  The Court of Justice reiterated its old 
view that an individual only had standing essentially when the Community, 
by decision, regulation, or otherwise, singles out that individual.

In my view, the Court seems to be drawing on conservative international law 
sensibilities that individuals have no place in international legal 
institutions.  This, of course, is uncharacteristic of the Court's approach 
more generally--the Court is usually solicitous of individuals' 
interests.  In effect, the Court seems to be saying that unless the 
Community institutions single out a particular individual, the individual 
has no business coming to the Court directly.  (Perhaps--and the court 
never says this--like a bill of attainder idea, although not dependent on 
the idea of "punishment.")  Advocate General Jacobs has made interesting 
and wide ranging arguments deriding the Court's approach, but he, in turn, 
does not seem sufficiently attuned to concerns about blowing standing open.

The Court has drawn support for its narrow approach from the text of 
Article 230 EC, holding that it's up to the Member States to broaden 
standing from the narrow confines of what the treaty currently 
provides.  Again, this is uncharacteristic given the Court's general 
willingness to take liberties with the text of the treaty.

Finally, you may be interested to know that the standing provisions have 
indeed been revised and are more liberal under the Draft Treaty 
establishing a Constitution.  Once the draft Treaty goes into effect and 
the Court has a chance to interpret the new provisions, we'll see whether 
the Court was really just trying to stay faithful to the treaty or whether 
they have some broader agenda.

Of course, one particular concern on the part of the Court is docket 
control, which is especially acute in the EU given the minuscule central 
judiciary.  But that can't provide an easy explanation either, since many 
direct actions can wind up before the court indirectly, via reference 
actions from national courts.  In any event, the docket control problems 
may have been eased somewhat by the Draft Constitutional Treaty as well, 
given the modest expansion of the central judiciary that it envisions.

All the best,

Daniel Halberstam
Professor of Law
University of Michigan Law School
625 S. State Street
Ann Arbor, MI 48104

(734) 763-4408 (voice)
(734) 763-9375 (fax)

daniel.halberstam at umich.edu

At 05:56 PM 2/17/2005, Douglas Laycock wrote:
>         In that case, it really is a puzzle.  But maybe also just a
>formality?
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX  78705
>    512-232-1341 (phone)
>    512-471-6988 (fax)
>
>-----Original Message-----
>From: Jonathan Miller [mailto:jmiller at swlaw.edu]
>Sent: Thursday, February 17, 2005 4:49 PM
>To: Douglas Laycock
>Cc: CONLAWPROF at lists.ucla.edu
>Subject: Re: Standing before the European Court of Justice
>
>Except that the national courts are required to refer the EU law
>question to the European Court anyway.  The lower national courts have
>the option of forwarding the issue and the final appellate court has the
>obligation to forward the issue before resolving the case.  It is very
>different from the exhaustion of remedies requirements typical of human
>rights tribunals.
>
>Douglas Laycock wrote:
>
> >Sounds like an exhaustion of national remedies requirement.
> >Individuals have to first present their claim to a national court. It
> >is not uncommon for governments to legislate special privileges for
> >themselves, or for decision makers to assume that government agencies
> >with a broad range of responsiblities will litigate responsibly
> >(sometimes true, sometimes not, but widely assumed) and that
> >individuals pursuing only their own self interest may litigate less
> >responsibly.  Compare the conservative hostility to private rights of
>action in this country.
> >
> >
> >
> >Douglas Laycock
> >University of Texas Law School
> >727 E. Dean Keeton St.
> >Austin, TX  78705
> >   512-232-1341 (phone)
> >   512-471-6988 (fax)
> >
> >-----Original Message-----
> >From: conlawprof-bounces at lists.ucla.edu
> >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Jonathan Miller
> >Sent: Thursday, February 17, 2005 4:03 PM
> >To: CONLAWPROF at lists.ucla.edu
> >Subject: Standing before the European Court of Justice
> >
> >The European Court of Justice has some rather odd standing rules that I
>
> >do not see the rationale for.  A case can come before the European
> >Court of Justice (or its courts of first instance) either indirectly,
> >with a national court referring the the EU question -- something the
> >national court is obligated to do if it is the final domestic court
> >with jurisdiction over the matter -- or directly, in an action directly
>
> >to the European Court.  But the Court only entertains direct actions
> >from private litigants if they are the subjects of actions by an organ
> >of the EU -- generally either because the Commission has made a
> >decision regarding them or there is a regulation that is effectively
> >directed at them and not at an entire industry.  At the same time,
> >national rules on standing, which the European Court expects to include
>
> >any party with an affected interest, apply to cases that get to the EU
> >Court of Justice through the indirect route.  Why have such a
> >restrictive approach on standing for direct actions?
> >
> >My apologies if this does not fit within this list serve's usual range
> >of topics.
> >
> >Thanks,
> >
> >Jonathan Miller
> >
> >--
> >Jonathan Miller
> >Professor of Law
> >Southwestern University School of Law
> >675 S. Westmoreland Ave.
> >Los Angeles, CA 90005-3992
> >Tel. 213-738-6784
> >
> >
> >_______________________________________________
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> >
> >
>
>--
>Jonathan Miller
>Professor of Law
>Southwestern University School of Law
>675 S. Westmoreland Ave.
>Los Angeles, CA 90005-3992
>Tel. 213-738-6784
>
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
>private.  Anyone can subscribe to the list and read messages that are 
>posted; people can read the Web archives; and list members can (rightly or 
>wrongly) forward the messages to others.