Generally speaking, individuals cannot challenge Regulations because their legal effects apply in a general and abstract manner. In order to successfully establish standing, the applicant is claiming that although the challenged measure is in the form of a Regulation, it is in fact a disguised Decision which is of direct and individual concern to him or her. Non-privileged applicants may bring actions to annul Regulations only if they are, in truth, Decisions and they are of direct and individual concern to them.
The EC has formulated two tests for whether such a measure is of individual concern to the applicant. Test 1: The general application/abstract terminology test and Test 2: The closed category test: Where the Regulation applies to a closed category, the ECJ will sometimes apply this test and hold that the measure is a disguised Decision of individual concern to some applicants. The ECJ has adopted this ‘closed category approach’ in cases which deal with a completed set of past events where the ‘Regulation’ relates to a fixed, closed set of traders and is therefore a ‘disguised Decision’.
A Decision is characterised by the fact that the category of those to whom it is addressed is limited: Cases 41-44/70 International Fruit . This case concerned the import of apples from non-Member States. Import licences were required and importers would apply for the licences to their Member State. The Member States would notify the Commission of the number of applications for import licences that it had received in the previous week. The Commission would then decide on the issue of licences on the basis of this information. The challenge was to a Regulation which implemented this scheme every week.
The ECJ held that the applicant was individually concerned; the number of those applications affected by this regulation was fixed and known when the Regulation was adopted. The Regulation applied to a closed category of persons: the fruit importers who had applied for import licences the week before. It was characteried as a bundle of Decisions. An exception to the general rule regarding challenges to Regulations was established in Codorniu. Here, the applicant was given standing although the ECJ stated that the legislation challenged was a true Regulation.
So a measure was held to be a true Regulation and yet to be of individual concern. The judgment turns on the particular facts: Case C-309/89 Codorniu , in which the ECJ expressly acknowledged that a Regulation can still be one of general application and yet could still be of individual and direct concern. In Case 209/94P Buralex v Council the ECJ applied the ‘abstract terminology’ test to deny standing despite the fact that the identities of the companies (seeking to challenge a Regulation on the shipping of waste) could be determined.
In Case T-472/93 Campo Ebro Industrial SA v Commission where the only iso-glucose producer in Spain was seeking to challenge a Regulation which laid down sugar prices in Spain, the CFI refused them standing. from the above discussion it is very difficult for Morgan, and Jenkins Dairies to get locus standi. Interest groups: It seems that sometimes the Court applies the abstract terminology test and is not concerned with whether a closed category is involved. Interest groups may rely on this head.
Greenpeace and other applicants specifically argued for a liberalisation of the rules on standing, but this was rejected by the CFI which restated the Plaumann test. In Case T-585/93 Stichting Greenpeace Council (Greenpeace International) v Commission it was held that interest groups do not have locus standi where the individuals that they represent are not individually and directly concerned. The applicants sought the annulment of a Commission decision granting financial assistance from the European Regional Development Fund for the construction of two power stations in the
Canary Isles in an environmentally sensitive area. The applicants were individual fishermen, farmers and residents concerned with the environmental impact and the impact on tourism and also environmental groups. They specifically advocated the use of a wider, more liberal test for standing. The applicants were individual fishermen, farmers and residents concerned with the environmental impact and the impact on tourism and also environmental groups. From the above discussion it can be said that Llangloffan Plc.
Can be challenged under Article 230. The action must be brought within two months (Article 230(5) EC). However, infringement of an essential procedural requirement, Infringement of the Treaty or of any rule of law relating to its application, Misuse of power: An example is Case 105/75 Giuffrida v Council where it was successfully argued that the competition held for appointment to a position in the Commission was a pretence since it had already been decided to appoint a certain official to that position.
If an action is well founded, the ECJ will declare the Act concerned to be void. Such a declaration of annulment will have erga omnes (general) and ex tunc (retroactive) effects.
Bibliography: Josephine Steiner, Lorna Woods, and Christian Twigg-Flesner, EU Law 9th edition 10 Aug 2006, Pg. 244-276 Craig, P. , and De Burca, G. , EU law: text, cases and materials 3rd edition (Oxford University Press, 2002) Pg. 214-245