EU Law Blog

Standing to Sue, Direct and Individual Concern and Panem et Circenses: Case C-125/06 P

A while ago, the Court of Justice handed down a significant judgment on the issue of the standing of individuals to challenge acts of the EU institutions. The judgment in Case C-125/06 P Commission v. Infront WM AG broadens a little the otherwise fairly restrictive rules on standing of individuals.

You'll recall that Article 230 §4 EC requires that individuals demonstrate that they are directly and individually concerned by an act which is not addressed to them. In its classic statement in Case 25/62 Plaumann v Commission, the Court of Justice held that persons other than those to whom a decision is addressed may claim to be individually concerned only 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 by such a decision.

In its judgment in Case T-33/01 Infront WM v. Commission, the Court of First Instance held that a Infront, which owned the exclusive rights to broadcast certain soccer matches in European countries, was directly and individually concerned by a Commission decision that approved a measure taken by the British authorities under Article 3a of Directive 89/552/EC, the TV without frontiers directive. That measure, as inserted by Directive 97/36/EC, allowed national authorities to strip broadcasters of their exclusive rights to broadcast TV programs of "major importance for society" so that a substantial portion of the population could see them. The British authorities, applying the Juvenal's metaphor of panem et circenses, decided that the sports broadcasts of which Infront owned the exclusivity came within that category and deprived Infront of the exclusive right to transmit them in the United Kingdom. The British authorities notified their decision to the Commission and the Commission took a decision in its turn approving the British measure. Infront then challenged the Commission measure and won in the Court of First Instance.

The Court of First Instance held that Infront was directly concerned by the contested decision in so far as it enables the implementation of the mechanism of mutual recognition by the other member States of the measures adopted by the United Kingdom pursuant to Article 3a(1) of Directive 89/552. It also held that Infrant was individually concerned by the Commission decision because it concerns Infront by reason of a characteristic peculiar to it, namely its capacity as the exclusive holder of the TV broadcasting rights for one of the designated events. Although Infront, in its capacity as broker of the relevant television broadcasting rights is not expressly covered by the national measures approved by the Commission, the effect of the measure was to impede its ability freely to dispose of its rights by restricting their transfer exclusively to a broadcaster established in a member State other than the United Kingdom which wishes to broadcast that event in the latter State.

The Commission then appealed the judgment in Case T-33/01 to the Court of Justice on the point of standing.

The Court of Justice in its judgment in Case C-125/06 P upheld the ruling of the Court of First Instance.

The Court of Justice held first that Infront was directly concerned by the Commission measure since it imposes certain restrictions on broadcasters where they envisage broadcasting designated events for which Infront acquired exclusive rights and those restrictions are linked to the circumstances in which those broadcasters acquire the TV broadcasting rights to designated events from Infront. Consequently, the effect of the measures adopted by the United Kingdom and the Commission decision is to subject the rights held by Infront to new restrictions which did not exist when it acquired those broadcasting rights and which render their exercise more difficult. Those new restrictions were imposed by the Commission measure and the member States implementing it were left with no discretion as to how to apply it (see, Case C-386/96 P Dreyfus v. Commission, paragraph 43).

The Court also held that Infront was individually concerned because the Commission decision altered a right acquired by Infront prior to its adoption (see Joined Cases 106/63 and 107/63 Toepfer and Getreide-Import Gesellschaft v. Commission, paragraph 411). It found that Infront acquired those exclusive rights prior to the adoption of the Commission decision and that, at that time, there were only six companies which had made substantial investments in the acquisition of TV broadcasting rights to events in that list. Thus, Infront was perfectly identifiable at the time when the contested decision was adopted.

What is interesting in this judgment is that the Court finds that an affectation of exclusive rights held by the plaintiff, not their abolition, is enough to give the plaintiff standing.

We've not given much thought to this, but this caselaw could soon be superseded - on the issue of individual concern - by the new Article 263 §4 of the Treaty on the Functioning of the European Union as amended by the Lisbon-Reform Treaty that provides that an individual has standing to challenge "a regulatory act which is of direct concern to them and does not entail implementing measures". Provided of course that the Commission measure impugned is characterized as a "regulatory act" which is not defined.

For a previous post on standing, look here.

National Courts and the EU Judicial System: Draft Report of the European Parliament

Blogging has been light for a number of reasons but we'll do some catching up....

Back in June 2007 we noted the hearing that was held by the Legal Affairs Committee of the European Parliament recently held an interesting hearing on "The role of the national judge in the judicial system of the European Union" and announced that Diana Wallis MEP would draft an own-initiative report on the subject.

Ms Wallis has done that now and you can find the draft report and its annex here.

The draft report is well worth reading. It deals with how national courts can better enforce and apply EU law. Topics covered are not just the preliminary reference procedure but also training for judges, access to EU law (no mention of this blog, alas) and better drafting of EU law itself.

Particularly interesting is the extensive annex which is a distillation of responses sent by 2300 national judges.

2007 Annual Reports from the Courts

Following on from the presentation of the statistics we noted here, the 2007 Annual Reports of the Court of Justice, the Court of First Instance and the Civil Service Tribunal are now available online at least in a provisional form here (for the Court of Justice), here (for the Court of First Instance) and here (for the Civil Service Tribunal).

Everyone with an interest in EU law should read them. They contain a survey of what each jurisdiction considers to be the major cases and other developments of the year.

And, for you students out there, read the surveys carefully because they are a fantastic revision aid when exams come up. The cases mentioned are the ones you will expected to know about ! There's an excellent summary of the Microsoft judgment, for example, here (scroll down a bit).

Also invaluable are the statistical annexes (here for the Court of Justice, here for the Court of First Instance and here for the Civil Service Tribunal).

For the 2006 Annual Reports, look here and for the 2005 Annual Reports, here.

Court Statistics for 2007

We should have spotted this earlier but didn't. Sorry about that.

The Court of Justice has recently published its statistics for 2007 in a press release.

There's cause for celebration and cause for concern too.

Things at the Court of Justice are looking pretty good. It received the highest number of new cases ever in 2007 - 508 - (except for 1979 when it took on 1,324 new cases but many of those were related action) and dealt with 551 cases in 2007 compared with 503 in 2006 (taking account of the joinder of cases). The important thing is that the average duration of preliminary ruling proceedings was 19.3 months in 2007, as against 23.5 months in 2004. In 2007 the average time taken to deal with references for a preliminary ruling reached its shortest since 1995.

Interestingly, the Court made significantly more frequent use of the possibility of judging cases without an Opinion of the Advocate General since about 43% of the judgments delivered in 2007 were delivered without an Opinion (33% in 2006).

At the Court of First Instance, however, things are not so rosy. Case load has increased significantly, for a start: 522 cases were brought in 2007, compared with 432 in 2006. The number of cases completed went down (397 in 2007 as against 436 in 2006). The press release states:

Conscious of this situation, the Court of First Instance has embarked upon detailed consideration of its operation and working methods in order to improve its efficiency. In this context, it has already been considered necessary to alter the way in which the Court is organised, in particular so as to derive greater advantage from the increase in the number of its Members. Thus, since 25 September 2007 the Court has comprised eight Chambers, of three Judges or, where the importance of the case so justifies, five Judges (extended composition).

All this has to be seen in the light of the discussions on the creation of specialist tribunals to speed things up, such as a Competition tribunal.

For last year's statistics, see here.

Jurisdiction of the Court of Justice in Police and Criminal Matters: Article 35 TEU

Back in December 2005, we noted here the state of play on declarations accepting the jurisdiction of the Court of Justice to give preliminary rulings on the acts referred to in Article 35 of the Treaty on European Union (TEU). Those are the acts adopted under Title VI of that Treaty dealing with police and judicial cooperation in criminal matters.

There have been new declarations by Hungary, Latvia, Lithuania and Slovenia. See also the notice from the Council about them.

Latvia, Lithuania and Slovenia now accept the jurisdiction of the Court of Justice to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under Title VI and on the validity and interpretation of the measures implementing them. Moreover, they have declared that any of their national courts or tribunals may refer questions (under Article 35 § 3 (b)).

Slovenia has accepted that its courts of last resort are obliged to refer preliminary questions to the Court of Justice (under art. 35 §1).

Hungary, for its part, has withdrawn its previous declaration in which it accept the jurisdiction for its courts of last resort only (under art. 35 §3(a)).

For ease of reference (and because nobody else seems to have taken the trouble), the current situation for each member State that has accepted jurisdiction is as follows:

Austria: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Belgium: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Czech Republic: Any court (art. 35 §3(b)) - declaration here (at p. 980) - Obliged to refer (at p. 980).

Finland: Any court (art. 35 §3(b)) - declaration here.

France:Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Germany: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Greece: Any court (art. 35 §3(b)) - declaration here.

Hungary: Any court (art. 35 §3(b)) - declaration here.

Italy: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Latvia: Any court (art. 35 §3(b)) - declaration here.

Lithuania: Any court (art. 35 §3(b)) - declaration here.

Luxembourg: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Netherlands: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Portugal: Any court (art. 35 §3(b)) - declaration here.

Slovenia: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Spain: Court of last resort (art. 35 §3(a)) - declaration here - Obliged to refer.

Sweden: Any court (art. 35 §3(b)) - declaration here.

Minority Holdings, Mergers and Interim Measures: Case T-411/07 R

The President of the Court of First Instance has handed down an important and significant order in a case concerning the failed attempt by Ryanair, the discount airline, to take over the Irish flag carrier Aer Lingus.

In his order, handed down in Case T-411/07 R Aer Lingus v. Commission, the President of the Court of First Instance dismissed an action by Aer Lingus to order the Commission to order Ryanair not to exercise its voting rights pertaining to the minority stake it holds in the capital of Aer Lingus.

The case is important because it goes to the heart of a debate on whether the Commission has the power, under Regulation 139/2004 - the infamous merger regulation - to regulate minority shareholdings.

The story goes like this. The Irish government privatized Aer Lingus in 2006 and shortly after Ryanair acquired a 19.16% stake in it. Ryanair launched a hostile public bid in October 2006 for the entire share capital of Aer Lingus and notified the Commission of the proposed acquisition in accordance with Regulation 139/2004. During the bid period Ryanair acquired further shares.

On June 27th 2007 the Commission adopted a decision prohibiting the proposed take-over by declaring it incompatible with the common market. Ryanair commenced an action to annul that decision in Case T-342/07 that is currently pending. Following that decision Ryanair acquired further shares, bringing its total holding to 29.4%.

Aer Lingus asked the Commission to order Ryanair to divest itself of its shareholding in Aer Lingus. The Commission refused in a decision of October 2007, stating that it was not within its power under Article 8 of Regulation 139/2004 to order such a divestiture where the intended acquisition had not been implemented and where Ryanair had only a minority shareholding which did not permit it to exercise de jure or de facto control over Aer Lingus.

Aer Lingus then lodged an action for annulment against that decision before the Court of First Instance and at the same time filed a request for interim measures, requesting, in essence, that Ryanair be ordered to refrain from exercising its voting rights in Aer Lingus pending the outcome of the case.

What is fairly remarkable about the order is that the President rejects it the request on the ground, amongst others, that Aer Lingus had failed to establish a prima facie case. Usually, the President, when dealing with interim measures, leaves the issue of the prima facie case to one side and examines the other conditions that must be complied with to obtain interim relief. That way, the Court hearing the main action remains entirely free to rule on the merits. But not in this case because the President considered that Aer Lingus' case was entirely devoid of merit. The President held that the Commission only has powers under Regulation 139/2004 when a change of control has been carried into effect. Consequently, the Commission has no powers - at least under Regulation 139/2004 - to act in relation to minority shareholdings which do not result in a change in control of the target company.

If that were not enough, the President also found that Aer Lingus has totally failed to produce adequate evidence that interim measures are required to avoid serious and irreparable harm. He found that the assertions put forward by Aer Lingus that Ryanair can use its shareholding to cause serious and irreparable harm to Aer Lingus are largely hypothetical and unsubstantiated statements which do not satisfy the condition of foreseeability of harm with the required degree of probability.

One little odd twist is that the President rejected the plea of the Commission that interim measures orders cannot be addressed to parties that are not the main parties in the proceedings. He found that in this case, Ryanair had intervened in the proceedings and therefore could be heard.

The way the order is set out, Aer Lingus' main case on the merits looks doomed to fail.

Civil Service Tribunal Practice Directions

We're back from a break and a much needed rest.

The European Civil Service Tribunal has issued new Practice Directions.

These Practice Directions set out how the written pleadings should be set out and lodged and how the oral hearing should be conducted.

One important thing the Practice Directions do is set up a system - complete with the appropriate form - of legal aid for plaintiffs.

They enter into force on May 1st 2008 and replace the 2006 Notes on Guidance on Oral Argument before the Civil Service Tribunal.

Update on Urgent Preliminary Ruling Procedure

We noted a short while ago the introduction of the urgent preliminary ruling procedure in the area of freedom, security and justice. The procedure is effective from March 1st, 2008.

The Court of Justice has issued a press release summarizing the procedure nicely. You can find it here. It sets out the three features that distinguish it from the normal preliminary reference procedure:

"In the first place, with the aim of speeding up the process, the urgent preliminary ruling procedure makes a distinction between the persons who may participate in the written stage of the procedure and those entitled to participate in the oral stage. In the new procedure, only the parties to the main proceedings, the Member State of the court making the reference, the European Commission and, if appropriate, the Council and the European Parliament (if one of their measures is at issue) are authorised to lodge written observations in the language of the case within a short period of time. The other interested persons and, in particular, the Member States other than that of the referring court, do not have that opportunity but are invited to a hearing at which they may, if they wish, submit their oral observations on the questions referred by the national court and on the written observations lodged.
In the second place, the internal handling of cases under the new procedure is accelerated considerably, as all cases falling within the area of freedom, security and justice are, as soon as they reach the Court, referred to a Chamber of five judges specifically designated for a period of one year to be responsible for the screening and processing of such cases. If that Chamber decides to allow a request for the urgent procedure to be applied, it will go on to give its ruling shortly after the hearing, and after hearing the Advocate General.
Finally, to ensure the desired expeditiousness, the procedure will, in practice, essentially be conducted electronically. Communication between the Court and the national courts, the parties to the main proceedings, the Member States and the Community institutions will, as far as possible, be electronic."

The Court has also issued a new supplemental information note on the urgent procedure addressed to national courts on how it will operate.

Finally, while we're at it, here are the consolidated rules of procedure incorporating the amendments relating to the new procedure.

Reviewing an Administrative Decision, Error of EC Law and Interpreting an ECJ Judgment: Case C-2/06

The Court of Justice has handed down an interesting and important judgment in Case C-2/06 Willy Kempter AG in which it opens up the possibility even further to reopen and review national administrative decisions contrary to EC law.

Remember the judgment in C-453/00 Kühne & Heitz NV that we mentioned here ? The Court of Justice held in C-453/00 Kühne & Heitz NV that a national administrative body is, in accordance with the principle of cooperation arising from Article 10 EC, under an obligation to review a decision it has taken in order to consider the interpretation of a relevant provision of EC law given in the meantime by the Court. Such an obligation was made subject to the following four conditions:
- under national law, it has the power to reopen that decision;
- the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance;
- that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under the third paragraph of Article 234 EC; and
- the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court.

For brevity's sake, we won't get into the facts. Suffice it to say that Kempter, the claimant in the national proceedings, was ordered to repay some agricultural subsidies received. The point was litigated in the German courts and the claimant was finally ordered to repay them. After that, a judgment of the Court of Justice held that in a similar situation, the claimant was entitled in EC law to keep the subsidy. Kempter then sought to have the final decision ordering him to repay the subsidy reopened and reviewed based on the subsequent judgment of the Court of Justice.

Two questions came up in Case C-2/06 Willy Kempter AG. First, whether whether Kühne & Heitz requires an administrative decision that has become final by virtue of a judgment of a court of final instance to be reviewed and amended only if the claimant relied on Community law in the legal action under domestic law which he brought against that decision. And second whether EC law imposes a limit in time for making an application for review of a national administrative decision that has become final.

On the first issue, the Court replied that, in the context of a procedure before an administrative body for review of an administrative decision that became final by virtue of a judgment, delivered by a national court of final instance, which, in the light of a decision given by the Court of Justice subsequent to it, was based on a misinterpretation of EC law, EC law does not require the claimant to have relied on Community law in the legal action under domestic law which he brought against that decision.

The Court held that it is sufficient if either the point of EC law the interpretation of which proved to be incorrect in light of a subsequent judgment of the Court was considered by the national court ruling at final instance or it could have been raised by the latter of its own motion. While EC law does not require national courts to raise of their own motion a plea alleging infringement of EC provisions where examination of that plea would oblige them to go beyond the ambit of the dispute as defined by the parties, they are obliged to raise of their own motion points of law based on binding EC rules where, under national law, they must or may do so in relation to a binding rule of national law (Joined Cases C-430/93 and C-431/93 van Schijndel and van Veen, paragraphs 13, 14 and 22, and Case C-72/95 Kraaijeveld and Others, paragraphs 57, 58 and 60).

On the second issue, the Court of Justice held EC law does not impose any limit in time for making an application for review of an administrative decision that has become final. The member States nevertheless remain free to set reasonable time-limits for seeking remedies, in a manner consistent with the EC principles of effectiveness and equivalence.

The Court noted that in the absence of applicable EC rules it is for the domestic legal system of each member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EC law, provided, first, that such rules are not less favorable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (Case C-432/05 Unibet, paragraph 43, and Joined Cases C-222/05 to C-225/05 vander Weerd and Others, paragraph 28 and the case-law cited).

The Court thus recognized that it is compatible with EC law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty (Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral, paragraph 5; Case 45/76 Comet, paragraphs 17 and 18; Case 61/79 Denkavit italiana, paragraph 23; Case C-208/90 Emmott, paragraph 16; Case C-261/95 Palmisani, paragraph 28; Case C-90/94 Haahr Petroleum, paragraph 48; and Case C-255/00 Grundig Italiana, paragraph 34). Such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by Community law (Case C-255/00 Grundig Italiana, paragraph 34).

First Case Reviewing Decision of Community Plant Variety Office, Standing and Mandarins: Case T-95/06

We don't promise to follow these issues very closely, but you may wish to know that the Court of First Instance handed down its first judgment in a case in which a decision of the Community Plant Variety Office ("CPVO") was challenged. What is cool is that it concerns the issue of standing.

The CPVO, based in Angers, France, administers a system of intellectual property rights, valid throughout the EC, granted for plant varieties. It was established by Regulation 2100/94 and has been operational since April 27th, 1995. The CPVO has received almost 30.000 applications and has granted more than 21.000 titles of protection.

In this first case, Case T-95/06 Federación de Cooperativas Agrarias de la Comunidad Valenciana ("FECOAV") v. CPVO, the Court of First Instance dismissed an action to annul a decision of the CPVO to grant a Community plant variety right.

The CPVO granted a Community plant variety right in the Nadorcott mandarin to a French company. The plaintiff in Case T-95/06, FECOAV, a federation of unions of farming cooperatives in the provinces of Alicante, Castellón and Valencia (Spain), then challenged that decision before the Board of Appeal of the CPVO. The Board of Appeal dismissed that challenge on the ground that the FECOAV did not have locus standi to mount such a challenge because it was not directly and individually concerned by the contested decision within the meaning of Article 68 of Regulation 2100/94 that provides:

Any natural or legal person may appeal, [...], against a decision, addressed to that person, or against a decision which, although in the form of a decision addressed to another person, is of direct and individual concern to the former. The parties to proceedings may, and the Office shall, be party to the appeal proceedings.

Now that sounds familiar, doesn't it ? Just like Article 230 §4 EC, isn't it ! The Court of First Instance noticed that too, of course, and held that the terms of Article 68 of Regulation 2100/94 must be regarded as being identical to those of Article 230 § 4 EC. As those terms have been specifically interpreted by the Court of Justice (judgment in Case 25/62 Plaumann v. Commission), the Court of First Instance takes the view that care should be taken to provide a consistent interpretation of the concept of a person to whom a measure is ‘of individual concern’ in so far as the terms of the basic regulation do not prevent it.

The Court of First Instance held that FECOAV did not have standing as a professional association to bring this action. It recalled that a professional association set up to protect and represent the interests of its members has standing to bring an action for annulment, firstly, where the association is differentiated by reason of the adverse impact on its own interests as an association, in particular because its position as a negotiator has been affected by the measure of which the annulment is sought, secondly, where the association represents the interests of undertakings which themselves have locus standi and, thirdly, where a legal provision expressly confers upon it a number of powers of a procedural nature (Order in Case T-381/02 Confédération générale des producteurs de lait de brebis et des industriels de Roquefort v. Commission, paragraph 54). It found that none of those conditions were met by FECOAV in this case.

Consequently, the Court of First Instance held that FECOAV lacked standing to bring the action. It also held that individual mandarin growers were not individually concerned by the contested decision and thus also lacked standing to bring the action themselves.

Since 1995, the Board of Appeal has received 76 appeals against CPVO decisions. Only two decisions have been appealed to the Court of First Instance, of which one is still pending (Case T-187/06 Schräder v. OCVV).