the european court of justice and democratic control in the european union

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Journal of European Public Policy 10:5 October 2003: 740–761 The European Court of Justice and democratic control in the European Union Olivier Costa ABSTRACT From a legal point of view, European integration concerned the citizens at a very early stage. This explains why law specialists have always tended to deny the fact that there would be any democratic deficit in the EU. They underline the various legal ways the Court of Justice can be asked by any member state or private individual to pass a judgment over the legality of acts adopted by the EC, and even to challenge some of the decisions made by its institutions. However, such researchers do not propose much quantitative or qualitative analysis of individual direct litigation. The aim of this article is to go beyond legal reasoning and to assess the concrete possibilities for citizens to go to the Court. The analysis reveals a great asymmetry between the capacity of European citizens to resort to European law and shows that the impact of the ECJ on the democratization of the EU is, at least in that respect, marginal. KEY WORDS Citizenship; democracy; European Court of Justice; judicial integration; litigation. When the founding fathers created the European Community (EC), they set up a hybrid institutional system based on the intertwining of several logics and objectives. The rule of law was to ensure coherence and efficiency, to further European integration, to be the Community’s common language and to regulate inter-institutional relationships. Thus the European Court of Justice (ECJ), with the task of interpreting and implementing EC law, has played a key role from the start. It has also given rise to conflicting interpretations and opinions. Some political actors and specialists, among the most fervent adversaries of supranational integration, denounced the ‘drifts’ in the ECJ’s jurisprudence and the very ‘free’ way judges interpreted the Treaties to serve the objective of European construction, ensure the independence of its institutions and enforce Community law (Alter and Meunier-Aitsahalia 1994). Judges were accused of openly promoting European integration with no consideration for the still existing nation-states and the opinions of the actors most concerned, i.e. citizens. Conversely, the most fervent supporters of European integration Journal of European Public Policy ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/1350176032000124069

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Journal of European Public Policy 10:5 October 2003: 740–761

The European Court of Justice anddemocratic control in the EuropeanUnionOlivier Costa

ABSTRACT From a legal point of view, European integration concerned thecitizens at a very early stage. This explains why law specialists have always tendedto deny the fact that there would be any democratic deficit in the EU. Theyunderline the various legal ways the Court of Justice can be asked by any memberstate or private individual to pass a judgment over the legality of acts adopted bythe EC, and even to challenge some of the decisions made by its institutions.However, such researchers do not propose much quantitative or qualitative analysisof individual direct litigation. The aim of this article is to go beyond legal reasoningand to assess the concrete possibilities for citizens to go to the Court. The analysisreveals a great asymmetry between the capacity of European citizens to resort toEuropean law and shows that the impact of the ECJ on the democratization of theEU is, at least in that respect, marginal.

KEY WORDS Citizenship; democracy; European Court of Justice; judicialintegration; litigation.

When the founding fathers created the European Community (EC), they set upa hybrid institutional system based on the intertwining of several logics andobjectives. The rule of law was to ensure coherence and efficiency, to furtherEuropean integration, to be the Community’s common language and to regulateinter-institutional relationships. Thus the European Court of Justice (ECJ), withthe task of interpreting and implementing EC law, has played a key role fromthe start. It has also given rise to conflicting interpretations and opinions.

Some political actors and specialists, among the most fervent adversaries ofsupranational integration, denounced the ‘drifts’ in the ECJ’s jurisprudenceand the very ‘free’ way judges interpreted the Treaties to serve the objective ofEuropean construction, ensure the independence of its institutions and enforceCommunity law (Alter and Meunier-Aitsahalia 1994). Judges were accused ofopenly promoting European integration with no consideration for the stillexisting nation-states and the opinions of the actors most concerned, i.e.citizens. Conversely, the most fervent supporters of European integration

Journal of European Public Policy

ISSN 1350-1763 print; 1466-4429 online © 2003 Taylor & Francis Ltdhttp://www.tandf.co.uk/journals

DOI: 10.1080/1350176032000124069

O. Costa: The ECJ and democratic control in the EU 741

immediately opposed such an accusation of ‘judicial activism’ and insisted onthe prominent part played by the ECJ in the incorporation of EC doctrinesinto domestic constitutions, and the respect of their obligations by memberstates and economic actors arising out of the Treaties. They also credited theECJ with the ‘democratization’ of the EC’s institutional system – notablythrough the strengthening of the European Parliament’s prerogatives andinfluence – and the recognition of citizens’ new rights.

The controversy over the merits and shortcomings of the ECJ1 has somewhatabated in recent years (Mattli and Slaughter 1998; Alter 1998). The significantcontribution and impact of the ECJ’s judgments are no longer a matter ofcontention, all the more so as the Court’s decisions have not been as ‘dramatic’as in the past. The numerous debates and reports about the future of theUnion and the reform of its institutions in the late 1990s have not addressedthe question of a reform of the ECJ’s legal capacity and working methods. Onthe contrary, the ECJ is now seen as a resource and a base for further progressin European integration or, conversely, as an instrument to check its excesses.However that may be, the Court is one of the pillars of the European Union(EU)2 not only guaranteeing the respect of Community law but also ensuringthe mutual limitation of the powers of its actors – Community institutions,national governments and individuals. The Court is not the only authoritythat investigates the disputes which divide these actors but it gives opinionswhich are often binding in the last resort, and thus contributes to some formof ‘mutual checks and balances’.

In answer to those who denounce the Union’s ‘democratic deficit’ thechampions of European integration have put forward the various legal waysthe Court can be asked by any member state or private individual to make ajudgment over the legality of acts adopted by the Community, and even tocontest some of the decisions made by its institutions. The ECJ pronouncedvery early on on the federal character of the Community legal system andinsisted on its implications for European citizens. Among other things, it hasruled that they were directly and individually involved in the Union’s legalnorms and could benefit from them. As early as 1963, in the Van Gend enLoos judgment,3 the judges ruled that ‘Community law creates rights forcitizens which national courts must recognize and enforce’, thus linking theobjective of the defence of individual rights with the enforcement of Commun-ity law by national courts. Judges and most Community law specialists haveargued that the possibilities for individual citizens to invoke Community lawin national courts and the Court’s ‘bold’ rulings point out the specificcontribution and crucial role of the ECJ, not only in the promotion ofEuropean integration but also in the level of satisfaction of European citizenswith the way the ECJ has been working.4 According to these actors andauthors, the Court partially makes up the democratic deficit and elitism thataffect the European political system by preserving institutional equilibriumsand the fundamental rights of the citizens, and by offering them the possibilityto contest Community decisions that infringe on them directly.

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The abundant literature on the subject is focused on the legal possibilitiesfor European citizens to go to court, on the contents of legal judgments andthe overall logic of the judicial system. However, it does not propose anyquantitative or qualitative analysis of direct litigation.5 Consequently, we thinkit useful to study such a subject with the tools of political science and gobeyond legal reasoning and the letter of Treaties. As in every analysis of theUnion’s political system (Duprat 1996), it is not necessary to make anyexcessive distinction between politics and law that should be envisaged as apolitical or economic instrument. It should not be overlooked either that theEU integration process is entirely based on this instrumental legal logicwhich makes it possible to account for inter-institutional relationships and tounderstand the interactions of the political system with its environment. Thatis the reason why following indiscriminately the Court’s reasoning and ruling,and considering the EC as a complete and coherent legal system that protectsindividual rights and interests, amount to stating that European citizens areclose to the European political system, which is far from being proved by facts.We thus intend to assess the concrete possibilities for citizens to go to theCourt of Justice, and more particularly to study who brings actions and howjudges react to such interventions. In so doing the contribution of the ECJ tothe defence of individual interests and its capacity to check the Union’s policy-making can be evaluated.

PRIVATE INDIVIDUALS AND THE COMMUNITY LEGALSYSTEM: THEORY AND PRACTICE

The ‘opening’ of the Community Court and the legitimacy of the Union

The Union is not in constant contact with the citizens: its legitimacy is stillessentially procedural and cross-systemic. Nor is it endowed with ‘substantial’legitimacy; the capacity of the Union to redistribute resources is limited andsecretive and there is little ‘utilitarian’ support for political institutions.6 Theattempts to justify the system through citizens’ involvement have not beensuccessful either – there has been an increasingly low level of turnout inEuropean elections, which are in fact mainly centred on national politicalissues. European institutions have tried to diversify the ways and means ofcitizens’ participation by undertaking European-wide opinion polls and creatinga ‘European civil dialogue’, but the ordinary citizen does not feel muchconcerned. To take up David Easton’s systems theory,7 the Union is a politicalsystem that finds it difficult to create links with its citizens through outputs(public policies, redistribution) and inputs (participation, opinion polls, ‘publicopinion’).

That situation has urged the actors of the Union and the champions ofEuropean integration to recommend the diversification of internal auditingprocedures and incited them to underline the involvement of private individualsin such control through the ‘EU citizenship’ principle acknowledged by the

O. Costa: The ECJ and democratic control in the EU 743

Court.8 It is true that the ECJ’s decisions are given more and more coverageand have increasing impact on the daily activities of citizens and economicand social actors. Over the last few years, there have been many examples –the 1995 Bosman judgment deeply transformed the world of team sports; thecondemnation of Volkswagen the car manufacturer (2000) emphasized theprinciple of the free movement of goods; the repeal of the Directive on tobaccoadvertising (2000) is a good illustration of the Court’s contribution to therespect of the prerogatives of member states and of the principle of subsidiarity.However, though citizens are becoming more aware of the important roleplayed by Community law, little is known about their perception of theirrights to litigation. And what about the ‘right to go to court’ presented as apriority by the ECJ?

In public, Community judges insist on their deep concern for Europeancitizens.9 Like their counterparts in the European Court of Human Rights(ECHR), they consider that the ‘right to go to court’ is a fundamental elementin the rule of law and even a fundamental right of EU citizens. In order toensure the effectiveness of citizens’ rights based on Community law, the ECJlaid down the principle that member states should implement procedures thatcannot be less favourable to individuals than those in their national legislation(the ‘equal treatment’ principle) and must be readily accessible (the ‘effec-tiveness’ principle) (Dutheil de la Rochere 2001). The legal protection ofprivate individuals is extensive since it concerns all the rights derived fromCommunity law and not only the ‘civil rights’ as in the ECHR case law. Theapproach is the same in the brochure entitled ‘Your questions on the ECJ’10

destined for the general public. The contribution of the Court to citizens’well-being and defence of their rights is presented – from all points of view –as one of the Court’s primary missions. The short brochure states that‘Community law concerns citizens in their everyday activities’ and ‘the ECJ,in its task of interpreting and enforcing Community law, takes into considera-tion the citizens’ concerns in their everyday activities’. It specifies that ‘citizensmay go to the ECJ or the CFI through two legal processes’ – one indirect(preliminary action) and the other direct (direct action). The document alsoinsists on the various possibilities offered to the Union’s citizens – legal aid,free appeals, the possibility of using any of the Union’s official languages inlegal matters.

Complex and narrow legal procedures

The analysis of the concrete possibilities for individuals to go to the ECJ orthe CFI shows that there are considerable variations between natural and legalpersons according to their means and knowledge of the system. Whether fordirect actions (actions for annulment, failure to act or for damages brought bypersons against the Community, competition proceedings, European Coal andSteel Community (ECSC) cases and disputes between the Community and itsofficials . . .) or preliminary actions, the study of the jurisprudence and of the

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identity of the litigants shows that legal procedures benefit only limitedcategories of actors. Specialized Community law firms, which bring most ofthe direct actions in Luxembourg, say that their clients are mainly Europeanmultinationals or large interest groups. Judges and chief clerks agree with thisfact but point out that many actions are also brought by small businesses,farmers or individual companies without the assistance of such law firms.

More precisely, although the ECJ has established jurisprudence in order toset up a complete legal system based on the rule of law,11 its efforts have beenmore limited for private individuals than for institutions. As early as 1957, theEuropean Economic Community (EEC) Treaty provided for proceedings forannulment against acts by institutions with decision-making powers, modelledon the French actions ultra vires. However, it established a very clear hierarchybetween litigants. Under Article 230, any member state, the European Parlia-ment,12 the Council or the Commission – as privileged litigants – can bringan action to the ECJ either on the grounds of lack of competence, or becauseof an infringement of the Treaty or procedural requirement. In contrast, theCourt of Auditors and the European Central Bank belong to a second categoryand can only bring actions to protect their own prerogatives. Finally, citizenscan bring actions against a decision by the Union’s institutions which is ofdirect concern to them.

It is not within the scope of this article to examine in detail the complexityand intricacy of the jurisprudence on the subject.13 Nevertheless, it must bestressed that judges have mainly focused their attention on the interpretationof the collective or individual nature of the disputed acts and established avery restrictive case law. Although there is more flexibility today, it is stillconfined to three areas – competition, anti-dumping measures and state aids.On these subjects, the ECJ stated that private individuals can be concernedby measures (even legislative measures) and therefore be entitled to bringaction to the Court. In the Codorniu judgment (1994),14 the ECJ stated thatcases brought by individuals did not necessarily have to concern individualdecisions. However, such a statement was reached only after a bitter debatewithin the Court between the proponents and opponents of greater possibilitiesoffered to individuals to bring action to the ECJ, and in an unusual contextwhich was not free from economic considerations (according to the judges weinterviewed on the point). The ECJ’s jurisprudence has notably evolved in amore restrictive way following the appointment of new judges.15 In addition,the CFI, which took over the cases some time later, was not very keen togive effect to the Codorniu judgment and often referred to the previousjurisprudence.16 Although this judgment apparently heralded the Court’sdeclining tendency to protect systematically the Union’s institutions againstindividual actions (Carvalho Montinho de Almeida 1995), it has not broughtabout the expected opening. Private individuals have indeed other possibilitiesof litigation but they seldom use them.17 There is still today a persistentcleavage between the theoretical individual rights granted by EU integrationand the rights that private individuals can actually benefit from.

O. Costa: The ECJ and democratic control in the EU 745

For all that, the Union cannot be denied its status of ‘legal community’. Asearly as 1963, individuals benefited from a very liberal interpretation of theprinciple of non-discrimination.18 Likewise, the ECJ ruled that the direct effectof Community law meant that individual citizens could invoke it and had rightsthat must be upheld by national courts. The ECJ has also encouraged nationalcourts to bypass the Commission – which has the monopoly of bringing anaction on the grounds of lack of competence – by using the preliminary refer-ences procedure to highlight the cases when national rights are not compatiblewith Community law. The ECJ and CFI jurisprudence has thus contributed toreaffirming citizens’ rights on three accounts – the protection of fundamentalrights, the right of access to information and the principle of subsidiarity. Judgeshave favoured individuals’ access to Community judicial protection, but it isessentially delegated to national courts and cannot be considered as an instru-ment of control of EU politics and decisions by individuals.

EUROPEAN CITIZENS’ ACCESS TO THE COURT: A PRACTICALAPPROACH

Unequal access to the Community judicial system

Analysis of private litigants reveals strong disparities as regards their nationali-ties. If this factor is related to the respective populations of the Europeanstates, litigants from Belgium, Greece and The Netherlands are much morenumerous than in Spain, Portugal, the UK and Italy, which can be explainedby the type of action brought and the various national judicial traditions.However, the criterion of the social classes of litigants is also an importantelement – in Northern Europe, big firms tend to bring actions on their ownbehalf, whereas in Southern Europe individuals are more concerned. In Greece,Italy and Spain, there is a discrepancy between the number of actions and thenumber of litigants concerned because small farmers and fishermen tend toresort to collective actions.

In short, four types of actor can be distinguished, falling into relativelycoherent categories of actions. In the first type, collective actions are broughtby many actors who share the same interests, for example Mediterraneanfarmers and fishermen. The second category deals with actions on a single caseover a long period of time – they are often brought by firms in the same sectorof activity which try to make member states take the necessary measures tocomply with the judgments of the ECJ. Third, there is the category of actionsrepeatedly brought by a single litigant in order to force a Communityinstitution to give in, or as part of a long-term strategy of which legal actionis only an element. The last category is made up of limited and individualappeals against sanctions brought by farmers, physical persons and firms.

The preliminary references procedure too is used differently by memberstates, even if automatic action minimizes such contrasts. If we relate the datagiven by the ECJ to the respective populations of each state, the average

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number of actions per annum and per capita varies by a factor of twentybetween the citizens who use them least (France) and those who use themmost (Luxembourg).

Numerous factors may explain these national contrasts. As direct actions arethe last judicial resort that can be used by litigants when all national legalways are exhausted, they tend to be used according to the characteristics ofeach national judicial system. As regards the preliminary references procedure,national differences are partly explained by the type of national courts incharge of the cases (constitutional courts, with the exception of Belgium’sConciliation Court, do not bring actions), by their attitude towards Commun-ity law and by the quality of the citizens’ protection guaranteed by nationallegislation. Broadly speaking, the member states’ judicial and political traditionsstrictly condition the perception which citizens have of the benefit they mayhave in going to the Court. Contrary to some states like Germany with astrong tradition of using legal ways to contest the decisions of the authorities,and great confidence in the legal protection of citizens’ rights, in other countrieslike France, lobbying of the political process is preferred to legal action. Asregards firms, Christopher Harding points out that the behaviour of companymanagers in legal matters is closely linked to their profiles which varygreatly from one state to another (Harding 1992: 106). Given that the ECJjurisprudence on the possibilities of litigation by individuals varies accordingto Community policies, which do not homogeneously concern the Union, itstands to reason that there should be geographic contrasts.19 Finally, the levelof knowledge of the litigants, their lawyers and judges on the possibilities oflitigation is also a determining factor. By way of proof, citizens from Belgiumand Luxembourg tend to use preliminary references procedures massively –the presence of EU institutions in Brussels and Luxembourg undoubtedlymakes them more sensitive to the legal opportunities offered by EU integrationand facilitates such legal processes. It is also significant that Community lawhas been taught in both countries’ faculties of law since the 1950s.

In addition to the national differences, there are deep contrasts betweencitizens in their access to the ECJ, according to their financial means andknowledge of the legal system. This may also be linked to the litigant’s differentstrategies and points out the close connection between their motivations andthe type of action chosen. By going to the Court, individuals aim not only tohave their rights acknowledged but may also seek to influence a Communitypolicy or obtain the modification of national regulations (Alter 2000). Theobscurity of some Community law provisions – in the letter or in theirinterpretation – and the ‘bold’ jurisprudence of the Court encourage suchstrategies. For instance, actions can be brought to claim for substantial damagesfrom a state that has not complied with Community law (Barnard 1995).Finally, such direct actions may be used as a pretext for great legal battles –through ‘remarks’ made to the Court – opposing directly or indirectly memberstates or EU institutions (Dehousse 1999). It is notably the case when judgesare asked to rule over the compatibility of national laws with Community law.

O. Costa: The ECJ and democratic control in the EU 747

Preliminary actions are also used strategically. When Community regulationsseem more favourable than national ones, private individuals can bring anaction to their national courts and ask them to act on their behalf. Even ifthis process does not imply a direct intervention of the Court in the case athand, it enables plaintiffs to hope that possible infringements of Communitylaw will be denounced (Dehousse 2000). Preliminary action must therefore beconsidered as a means for EU citizens to defend their rights but also as ameans for them to participate in the governance process of the Union.

A typology of direct action litigants

The ECJ and CFI case laws, together with the strategic dimension of directactions explain why Community courts have mainly to deal with very specificcategories of actors. It is particularly the case for the litigants who bring actionsfor annulment. Here again, three types of litigant can be found.

The first type is composed of the most powerful interest groups and largefirms which have the necessary means to follow the regular production of regula-tions by the Union and the member states. They can go to court whateverthe complexity, cost, duration and even outcome of the case. Proceedings areparticularly long with an average length in March 2000 of nineteen months fordirect actions (ECJ 2000). Moreover, diverging conclusions by the CFI and theECJ increasingly encourage plaintiffs to contest first instance decisions andrulings – in December 1999, appeals were lodged in 40 per cent of direct actioncases20 with an average length of twenty-two months. Direct actions to the CFIare particularly risky. In 1999, out of 227 judgments (attached questions notincluded), the CFI ruled that only twenty-three cases were fully or partiallyjustified. Preliminary references procedures take time too – about twenty-fourmonths on average in 2000. The average length of proceedings and the smallchance of success explain why big lobbies and firms make up a high proportionof litigants.

Legal costs are also a dissuasive element. It is, for example, essential to resortto a specialist lawyer at a cost of up to 2,500 euro for a single case. For morecomplex cases, like a dispute over a new regulation or an action for annulmentwhich has never been examined by the CFI, experts have to be consulted.Proceedings essentially consist in abundant exchanges of very detailed reports.For competition cases such documents are often more than a hundred pageslong and grow in number – petitions, reports for the defence, plaintiff ’sresponse, possible interventions by other actors concerned, response to theseinterventions, reports about various points of law. A complex case mayeventually cost more than 150,000 euro in lawyer’s fees. In a non-suit, aplaintiff may be condemned to pay costs up to 100,000 euro in importantcases. However, judges take into consideration the individual’s financial statusand bona fides, together with the degree of responsibility of the institutionconcerned – with the notable exception of unjustified and openly dilatorycases about which judges are now very strict.

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Unlike private individuals and small businesses who may be discouraged bythe length, cost and risks of a direct action, such is not the case for big firmsand powerful lobbies. The fact that they can meet the expenses and otherrelated constraints is not a sufficient explanation, as their criteria of success ina legal case probably include other objectives than just a favourable judgment(Galanter 1974). They may try, for example, to trigger a public debate tosupport other lobbying actions in order to change a policy or modify aregulation, or even help to create an abundant jurisprudence to influence andalter the interpretation of some Community regulations.

The second category is made up of actors from well-defined social classes.They may not necessarily have the financial or legal resources but are motivatedby favourable precedents concerning individuals in similar situations. They aretherefore well informed about the legal possibilities offered to them. Analysisof CFI jurisprudence shows that each year actors belonging to specific socialand economic groups bring actions on the grounds of case law precedents orexceptional situations with regard to Community law. This has recently beenthe case for winegrowers from Southern European countries, and Dutch smallgarage owners, milk producers, customs officials and petrol station managers.21

Even if plaintiffs have restricted financial means and are more familiar withthe intricacies of Community law, they are aware of the opportunities offeredby such types of action. Trade unions and private interest groups often play akey role in the drawing-up of ‘standardized’ files which make up the majorityof actions brought by these actors. In spite of their insufficient financial means,they have acquired the necessary collective expertise in Community law thatenables them to ‘invest’ any ‘breach’ opened by an ECJ or CFI judgment.

The third category of plaintiffs is composed of private individuals. They arefew in number22 considering the constraints in terms of cost and time, asexplained before. European civil servants excluded, the number of actionsbrought by individuals is of the order of a few dozen per annum, comparedto the 8,396 cases in the ECHR in 1999. European judges point out thatdecisions by Community institutions rarely concern individuals in particular,who therefore have few reasons to go to court. However, we should note thatin the areas where conditions of admissibility of direct actions by individualshave been made more flexible by judges, individuals have taken full advantageof such opportunities. But judges have been reluctant to accept direct actionsfrom citizens in disputes over Community law concerning individual rights.Since 1998, it has notably been the case with the principle of ‘free movementof persons’ which has prompted the Court to evoke the principle of ‘citizenshipof the Union’.23 So far, judges have proved very wary and done nothing toencourage European citizens to invoke their rights and go to the Court.

We must add that those few litigants belong to an elite, a privileged minorityof citizens who are fully aware of the legal possibilities and live in the Europeanmicrocosm. The Court has set up a complete system of legal aid24 – insolventlitigants may not be condemned to pay costs even in a non-suit, provided theycan prove their bona fides. However, such legal facilities do not compensate

O. Costa: The ECJ and democratic control in the EU 749

for the poor access to information for individuals and lawyers not specializedin Community law. The present dispute over the access to documents of theCouncil and the Commission is a good proof of it. Actions are mainly broughtby journalists25 and political personalities, and the number of Members of theEuropean Parliament (MEPs) who bring direct actions or use the preliminaryreferences procedure is a striking element in that respect.26

The relative presence of actors familiar with the subtleties of Communitylaw has not only to do with their expertise but also with their motivations.Just as big firms can resort to legal strategies whatever the duration, cost andoutcome of the proceedings, individuals who go to the Court often have othermotivations than the annulment of an act. It may be part of a political strategy.French Euro-sceptic MEP Georges Berthu, a member of the Europe of Nationsgroup, asked for the annulment of the Treaty on European Union (TEU) onthe grounds that it infringed on the sovereignty of the French Republic.27

Likewise, he tried to oppose the introduction of the euro.28 In both cases, hecertainly did not have many illusions as to the legal outcome of his actions.The Court’s jurisprudence on the access to documents and the free movementof persons clearly shows that the individuals concerned mainly seek to contestthe principles or denounce cases of misadministration. More broadly speaking,what they really contest is the way the Union’s institutional system works.

Finally, let us mention two other types of litigant. The first ones may becalled ‘quibblers’ whose legal actions often deal with questions which havenothing to do with the competence of the Court or the Union. Such actionsare often examined very quickly by judges who do not want to act as ‘Justicesof the Peace’ or exhaust the resources of the institutions for unfounded cases.The second group is composed of ‘figureheads’ acting on behalf of professionalorganizations, consumer associations or lobbies which seek to multiply actionsin order to influence the jurisprudence but cannot do so because of therestrictive attitude of the Court on the subject.29

THE PERSPECTIVES OF EU INTEGRATION AND CITIZENS’ACCESS TO THE COURT

At the heart of the possibilities for individuals to bring an action to the ECJin order to defend their rights or influence the way the Union’s political systemworks is a double contradiction. On the one hand, the Court judges’ views oncitizens’ actions conflict with their jurisprudence and preoccupations with thefuture of the European legal system, which, on the other hand, are inopposition to the ambitions of member state representatives about Europeancitizens’ access to Community law.

The Court’s jurisprudence and priorities

There is a discrepancy between the views expressed by ECJ judges and officialson the contribution of their institution to the defence of public interest and

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the respect for democratic principles by the Union’s legal system, and theirrecent preoccupation with the reform of the legal capacity and workingmethods of the Court. In spite of its demands for better access to justice innational legislation and in spite of its official defence of citizens’ rights andinterests, the problem of the relationship between the EU political and legalsystem and EU citizens – as well as the problem of their supranational legalguarantees – is not addressed in the recent Green Paper on the future of theECJ.30 The documents show that the main objective of judges and experts isto preserve and improve the way the Court works while asserting the supremacyof the Community legal system over national law and constitutions (Ronseand Waelbroeck 2000). Emphasis is thus laid on the fundamental stakesattached to the reform of the Court. The structural disequilibrium betweenthe number of cases brought before the Court and its capacities must beaddressed. The workload of the ECJ will increase dramatically because of thesubstantial extension of its legal competence under the Treaties of Amsterdamand Nice, the conventions for police and judicial co-operation in criminalmatters, the growing role played by Community regulations in the everydaylife of citizens and firms, and the enlargement of the Union. The Treaty ofNice has partially attained this objective by adopting a reform of the Commun-ity judicial system meant to simplify and speed up the way the Court works.31

The judges also give priority to pragmatism and functional efficiency in theinternal organization of the ECJ and the CFI. They have obtained severalmeasures from the Council – without waiting for the reform of the Treaties –in order to institute the principle of a single judge in the CFI, the transfer ofsome ECJ competence to the CFI and a hierarchy of cases according to theircomplexity and degree of urgency. The CFI has also obtained the right torevise its regulations and has used this new possibility to speed up proceedingsthrough a series of modifications.32 Such reforms have had consequences forindividuals as they favour efficiency and rapidity in decision-making, over therights of the litigants to defend their cases. Both the ECJ and the CFI sharethe same philosophy when they invite litigants to contribute to ‘quick andefficient’ proceedings and limit the length and complexity of their reports andspeeches in court.33

In all the ECJ texts, projects and reports, there is never any mention of theterms ‘citizens’ or ‘individuals’.34 Such lack of interest sheds new light on theconsiderable gap that exists between the concrete possibilities for privatelitigants to go to court, and the Court’s demands. We would be tempted tosay that, though judges have recognized a right to legal protection for theUnion’s citizens, their main objective has been to establish an efficient andcoherent system in the Union, and guarantee the supremacy of Community law.

Restricted access to the Court: a thing of the past?

Hard pressed as it is by its heavy caseload, the Court seems to have givenpriority to functional efficiency and rapidity in decision-making over its will

O. Costa: The ECJ and democratic control in the EU 751

to be the guarantor of the fundamental rights of the Union’s citizens. Manycommentators, however, had proposed an opposite interpretation to a Courtdecision (opinion 2/94), which ruled that it would be unconstitutional for theUnion to sign the Convention of Human Rights without preliminary revisionsof the Treaties.35 The most experienced academic lawyers had also consideredthat the Court wanted to overstep the purely economic limits of its jurisdictionand become an active and autonomous actor in the field of human rights. Butthe Court’s jurisprudence and reasoning have proved them wrong. Nevertheless,the prospect of the introduction of a ‘double standard’ in matters of thedefence of human rights36 has been confirmed on two accounts.

First, the Treaty of Amsterdam stated that ‘the Union is founded on theprinciples of liberty, democracy, respect for human rights which are upheld bythe Member States’ (Article 6). Far from being purely symbolic, this declarationbroke with the previous situation which seemingly implied that the guaranteeof fundamental rights in the Union was the prime responsibility of the memberstates and the Council of Europe only. Standards in respect of human rightshave suffered from the rapid enlargement of the Council of Europe to countrieswhere the human rights situation is still problematic (Croatia, Russia, Ukraine).In order to fight against any drift, the Treaty of Amsterdam reaffirmed thevalues of the Union and established a mechanism to sanction any ‘serious andpersistent infringement by a Member State of the principles as stated in Article6’ (Article 7).

The written and formal translation of the founding principles of the Unionhas also been guided by the evolving relationships between Community andnational courts. As there was greater demand for better protection of funda-mental rights in Western Europe, Community law could not possibly remainan exception. In a judgment about the Treaty of Maastricht, the GermanConstitutional Court denounced the limits of a political system which wasnot based on democratic norms and restricted access to justice for individuals(Gerkrath 1996). The influence of national courts is not new – the conditionalacceptance of Community law supremacy by national courts (as in Germanyand Italy) was based on the respect of fundamental rights by the ECJ. Unlikethe Treaty of Maastricht, the Treaty of Amsterdam was not simply anaggiornamento meant to incorporate ECJ jurisprudence, but opened up consid-erable possibilities of evolution (Quermonne 1999: 96). The definition of theUnion as ‘an area of freedom, security and justice’ was an invitation for theECJ to be fully responsible for the protection of fundamental rights within asingle judicial area.

The possible introduction of a ‘double standard’ in the defence of humanrights was confirmed by a decision by the Cologne European Council to beginwork on drafting a ‘catalogue’ of fundamental rights in the Union. Manydrafters of the Charter hoped that the Court would become the prime courtin charge of the protection of individual rights in the Union thanks to theincorporation of the Charter in the Treaties. But at the Nice Summit, memberstates refused to make the Charter a binding document both at Union and

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national level. Therefore, the Court’s judges can refer to some provisions ofthe Charter but until it is transposed into law it will probably be invoked onlyin conformity with the original definition of human rights in Community lawas interpreted by the judges. As already explained, the Court seems morepreoccupied by the preservation of its legal capacities than by the extension ofthem. The improvement in relationships between the ECJ and the ECHR isthe best illustration that priority is being given to better functional methodsof working in the Court (Simon 2001).

Recent developments in the Treaties and the ambitions of member states toestablish a European area of justice conflict with the persistent restrictions onindividual access to the ECJ. The Court’s arguments are less and less convincingthough, and very few judges still openly refer to them (Dashwood 1996: 308–11). As shown by the study of the Court’s jurisprudence and various interviewswith judges, five main reasons are usually called upon to support the Court’spolicy. First, we may cite the specific legal order of the Community. Becauseof the absence of distinction between ‘law’ and ‘regulation’, giving citizens aright to control Community regulations (as defined in the TEU) wouldamount to enabling them to start a constitutionality control process.37 Thereare very few member states in which citizens are not obliged to use thepreliminary references procedure to contest legal acts. Secondly, the Courtpoints out that the Community rarely enforces its legislation directly and thatin most cases individual rights are guaranteed by national courts and can onlybe contested at national level. Thirdly, the preliminary references procedure isused by the national courts in their own judgments on the cases at hand.Fourthly, the Court refers to the letter of the Treaties and contends that it isnot its role to unilaterally open the Court more freely to individual litigants.Finally, the ECJ asserts that European citizens have few reasons to bring actionstoday because Community law mainly deals with economic matters. Citizens’active participation is still embryonic in Community legal disputes but it isbound to develop along with the strengthening of European citizenship andnew policies in favour of individual rights.

The arguments used by the ECJ and the CFI hardly stand up to carefulanalysis. The argument of national law sovereignty is not acceptable as thereare more and more cases in which Community law directly concerns indi-viduals. We may also note an increase in the number of cases in which bothnational and Community courts say they are legally unqualified because of theexistence of Community law for the former and domestic laws for the latter.Moreover, only national courts use the preliminary references procedure fortheir national citizens, which is a source of considerable differences betweenstates. Lastly, the Court has repeatedly ignored the letter of the Treaties,notably when it entitled the European Parliament to bring actions.38 Besidesthe ECJ and CFI judgments on European citizenship show that Communityjudges are reluctant to encourage private litigants to claim for the enforcementof Community law.

According to most specialists,39 the individual’s restricted access to Commun-

O. Costa: The ECJ and democratic control in the EU 753

ity Courts illustrates the paradox of the Union’s political system which is basedon the rule of law but provides for no judicial control – except underexcessively restrictive conditions – on the activities of its legislative andexecutive institutions. They also point out that Community institutions takemore and more measures – and impose sanctions – which are directlyenforceable, with no intervention from national courts. In such cases, the‘right to go to court’ is not guaranteed. Two solutions are often put forward:the first would be the adhesion of the Community to the European Conventionon Human Rights; the second would consist in making explicit reference tofundamental rights and facilitate direct litigation in the Court. Some specialistseven advocate closer co-operation of European citizens in the Union’s decision-making process through legal means, and consider the possibility of bringingdirect actions to the ECJ as a fundamental right and an essential part ofEuropean citizenship (Vandersanden 1994, 1995).

How can we therefore explain the persistent behaviour of the Court? Somejudges admit that their positions are not only motivated by legal rationale butalso by functional constraints. We have already mentioned their concern aboutmaintaining efficient methods of working. We must add that the ECJ judgesare no longer all pro-Europeans whose activism would have been ‘genetically’transmitted by the drafters of the European Treaties (Mancini and Keeling1994: 186; 2000). The judges are career magistrates who favour a ‘legal-formalism’ approach and stick to the letter of the Treaties. This is particularlytrue of the CFI and partly explains the discrepancies between its jurisprudenceand the ECJ’s about conditions of access to direct litigation.40

There may also be political and strategic motivations. The restrictivejurisprudence of the judges must be analysed as reflecting the conception theyhave of their relationships with the other Community institutions and of therole of the Court in the Union’s political system. Their rationale is notnecessarily one of ‘judicial activism’.41 It is no longer possible, as was the casein the 1960s and the 1970s, to claim that the Court’s jurisprudence ismotivated by a desire for more integration and governance at the Europeanlevel. Some researchers think that the drafters of the Treaty of Rome incorpo-rated a ‘genetic code’ in the Treaty, which made it possible for the Court touphold a federal interpretation of European integration (Mancini and Keeling1994: 186). This jurisprudence may just as well be ‘self-restraint’, which canbe explained by several reasons. First, the political context has a significantimpact on the judges’ decisions – the fact that there was little public supportfor the European construction process in the early 1990s has not incited theECJ judges to make bold decisions. Secondly – because of institutionalconstraints – judges seek ‘consensus’ within the Court (there are no provisionsfor judges in the minority to register dissenting opinions, as is the case withthe ECHR). Thirdly, the Community judges want some kind of ‘exclusivity’ –in spite of its workload and lack of decentralized means in member states, theCourt still wants to be the single ‘interlocutor’ of litigants or at least theinstitution which makes the final decision. That is why it has deliberately

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restricted conditions of access to the Court for direct litigation. The judgesdefend – more or less openly – a model in which the CFI would act as anappellate court for national courts. The ECJ and the CFI abstain from passingany judgment on such matters and limit the retroactivity of some judgmentsof annulment in order to prevent the multiplication of such actions. Theyeven re-examine previous rulings when they think they have been at the originof too many cases (Dehousse 1999).

The ECJ judges’ jurisprudence may not be explained by their pursuit ofpower for the sake of power – contrary to many national courts – but ratherby their desire to ensure the coherence of Community law and serve theobjectives of the EU Treaties. The key role played by Community law inEuropean integration has incited judges to privilege the preservation of theCourt’s jurisdiction. In that respect limited access to direct litigation byindividuals is of paramount importance. It helps to strengthen Communitylaw and prevents too many citizens from challenging more and more decisions.It also wards off any accusation against the ECJ of ‘government by judges’.

CONCLUSIONS

The ‘right to go to court’ is particularly limited for natural persons, so limitedthat in a speech on 20 May 2001, French Prime Minister Lionel Jospindeclared that ‘the Union’s citizens should be able to submit their cases directlyto the Court of Justice, under certain conditions’, implying that such was notthe case. More broadly speaking, we must remember that national courts arein charge of implementing Community law. We should also note the increasein the number of non-judicial actions brought by individuals to defend theirrights – direct complaints forwarded to the Commission, to the EuropeanOmbudsman, the right to petition the European Parliament, access to Com-munity institution documents. Moreover, individuals who cannot bring actionsto the ECJ, or are non-suited, can now turn to the ECHR.42 However, suchproceedings lack efficiency and are not implemented in an egalitarian way.The various legal ways for European citizens to defend their rights and interestsare complex and confusing. They are not devoid of incoherence and may evenlead to denial of justice (de Bechillon 2001).

Does it mean that European citizens have been left out of the Union’s legalsystem? It may be excessive to say so but the Court defends fundamental rightsin an indirect way, through standards at the Union level that national courtsmust comply with. The ECJ seems to consider that broader dissemination ofthe Court’s jurisprudence and the principle of supremacy of Community lawover national law contribute more to democracy in the Union and betterprotection of fundamental rights than easier access to the Court. The judgesand clerks who we interviewed considered that the role of the ECJ was to give‘landmark’ judgments rather than hear individual cases. One judge even saidthat he was pleased that ECJ and CFI jurisprudence should be more publicizedand concern big firms ‘known to everyone’.43

O. Costa: The ECJ and democratic control in the EU 755

It is significant that the Court should have created a press relations andcommunication division with considerable means. It not only passes judgmentsbut makes its decisions public and available through press releases. Its rulingscan be found translated into every official language of the Union on the Website of the Court. It has also multiplied initiatives – just like the Commissionand the Parliament – to arouse citizens’ interest and inform them regularlyabout their rights. In the same vein, we should mention the organization oftraining sessions for national judges in the ECJ. To quote a CFI auditor:‘Community law only exists if it is known. It is original and complex. Nationaljudges and lawyers should know about it, and, more widely, citizens andeconomic actors too.’44 Such initiatives may also be understood as part of amore global strategy aimed at giving the ECJ more ‘substantial’ legitimacy byinsisting on the ‘benefits’ for the Union’s citizens of the activities andjurisprudence of the Court.

The fact is that its jurisprudence on the protection of fundamental rights isconsiderable. It has ruled that these rights were part of the general principlesof law which it intended to enforce (Bribosia 2000). It is influenced by theconstitutional traditions shared by all member states and by the ‘instructions’from the institutions which are in charge of the protection of human rights,such as the ECHR.45 Since the TEU was signed, the Court has often mentionedArticle F.2 (new Article 6), which refers to this convention.46 However, theexact nature of these rights is still obscure, even for the most experienced lawspecialists. Though the adoption of the Charter of Fundamental Rights at theNice Summit (December 2000) is a first decisive step, it remains an essentiallypolitical text which brings no real clarification.

There is therefore a strong discrepancy between the restrictive attitude ofthe CFI which limits possibilities of bringing direct actions to a privilegedminority, and the ambitions of the member states which consider law andaccess to law as essential to further legitimacy and democracy in the Union.The affirmation in the Treaty of Amsterdam that the Union is ‘founded’ ondemocratic principles commands a new interpretation of the institutionalarchitecture of the Union’s objectives and working methods. It is bound tofurther the legal protection of European citizens. The Treaty also reinforcesthe principle of non-discrimination based on sex, racial or ethnic origin,religion or belief. The future setting-up of an area of freedom, security andjustice for more effective action against ‘organized crime’ will logically implythe development of an embryonic Community criminal law and the creationof Community police and judicial institutions (de Kerchove and Weyembergh2000). Such an evolution would challenge the present legal system (Jacque1999), which is based on co-operation between Community and nationalcourts. The ECJ would therefore be transformed into a Constitutional Courtor a Supreme Court. It would indeed be confirmed in its restrictive attitudeas regards direct litigation but the Union’s citizens would benefit from newpossibilities of legal action against Community decisions in national or ad hoc

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courts, together with new possibilities of being directly indicted by Communitycriminal courts – which may not be an advantage.

Today the possibilities for individuals, notably European citizens, to beheard by Community Courts and to interact with the Union’s political system,are limited. The Union’s legal system is considered by the Court’s judges asthe ‘guardian’ of the respect of Community law in order to further Europeanintegration, but not as a means for citizens to be involved in the governanceof the Union, or to be protected from excesses from Community institutions.Legal practice and judges’ opinions lend little credit to the possible advent ofa ‘judicial democracy’ which would go beyond the mere judicialization ofEuropean politics.

Address for correspondence: Olivier Costa, Institut d’Etudes Politiques deBordeaux, 33607 Pessac Cedex, France, Tel: 33 5 56 84 41 93.email: [email protected]

NOTES

1 In a decision on 24 October 1988, the Council created the Court of First Instance(CFI) in order to help the ECJ to cope with the extremely large volume of cases.Among other tasks, the CFI deals with direct actions brought by individuals whocan appeal against its decisions to the ECJ. According to the Treaties and from abudgetary point of view, the CFI is not an institution independent from the ECJ(Gautron 1995). So, the generic term ‘Court’ will be used throughout this article.

2 For an analysis of the Court’s contribution to European integration, see Dehousse1998; Stone Sweet and Caporaso 1998; Mattli and Slaughter 1998.

3 Case C-26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963,ECR 1.

4 Judge G.F. Mancini (see Mancini and Keeling 1994, 2000) was one of the mainpromoters of this idea.

5 With the notable exception of C. Harding (1992).6 The programmes conducted thanks to the structural funds are largely publicized

in lagging regions and may influence citizens in their support of the project ofEuropean integration. The Eurobarometer polls and the turnover figures for theEuropean elections give interesting clues on the subject. Without taking up thecaricatural vision of the ‘consumer-citizen’, we have observed that there are veryunstable levels of support for integration and that this support is more directedtoward a precise sector of action than toward the Union’s political system as awhole. In another context, David Easton (1975) has made a distinction betweenthe diffuse support of citizens for a government – which is linked to their adhesionto the political system – and the specific support – which concerns their perceptionof a policy or a utilitarian benefit. The failure of the referendum on the ratificationof the Treaty of Nice in Ireland, on 8 June 2001, may not be alien to thisphenomenon of differentiation between the affective support of citizens for someUnion policies (notably the structural policy) and the more specific support ofEuropean integration.

7 Easton 1965. For the application of the systemic approach to the EU, seeScharpf 1999.

8 This situation has incited the drafters of the Treaty of Maastricht to incorporatethe following formula in the article about citizenship of the Union: ‘Citizens of

O. Costa: The ECJ and democratic control in the EU 757

the Union shall enjoy the rights conferred by this Treaty and shall be subject tothe duties imposed thereby’ (Article 17 §2 TEC)). See Magnette 1999.

9 During a one-day conference organized on 19 October 1999 for the celebrationof the tenth anniversary of the Court of First Instance, one of the subjects debatedwas devoted to the judicial protection of citizens.

10 ECJ, ‘Your questions on the European Court of Justice’, Luxembourg, 1999, ref.DX-23-99-823-EN-D.

11 Many books on the jurisprudence of the Court clarify this point (Arnull 1999;Lasok 1994; Simon 1999).

12 Since the entry into force of the Nice Treaty.13 See Nihoul 1994. For updated analysis destined for non-lawyers, see Costa 2002;

Magnette 2003.14 Codorniu judgment (Codorniu SA v. Council), Case 309/89, 1994, ECR I-1853.15 Before the end of the year when the judgment was passed (1994), four judges left

the ECJ and three new judges from the new member states took office at thebeginning of 1995.

16 This vision is shared by several auditors and civil servants of the ECJ and the CFI.Some authors have diverging opinions, though. For instance, Georges Vander-sanden says that ‘the jurisprudence of the CFI shows that, while strictly abidingby the restrictive interpretation of these notions [direct and individual interest] bythe Court of Justice, it has tried its best to adopt a more flexible attitude as regardsthe admissibility of actions brought by individuals.’ Nevertheless, he adds that ‘thisjurisprudence, though not incoherent, is not always homogeneous and it mayprove difficult to reconcile several judgments without a careful analysis of thespecific facts and the procedure used’ (Vandersanden 2000: 111–12). Ourtranslation.

17 Actions brought on grounds of infringement of the Treaty (Article 232 EEC), lackof jurisdiction (Article 241 EEC), appeals against sanctions related to the applica-tion of some acts (Article 229 EEC), actions for damages (Articles 235 and 288EEC), actions to contest state aids (Article 88.2 EEC).

18 Case C-26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963,ECR 1.

19 The figures in the Court’s annual report about the subject matter of direct actionsbrought by individuals show the much ‘segmented’ nature of the jurisprudence. In1999, actions mainly concerned (in decreasing order): convergence of legislations,freedom of establishment and to provide services, taxation, agriculture, competi-tion, the environment, staff regulations, free movement of goods (ECJ 1999: 226).

20 Only there were actions brought against 31 per cent of the CFI decisions thatcould be appealed in late December 1998, and 25 per cent in 1997. In 1999, outof fifty-seven actions, the Court quashed eight judgments of the CFI.

21 The milk producers, who have brought actions against decisions of the Commissionsince the beginning of the 1990s, also initiated 190 cases in 1998 and 88 in 1999.

22 As the ECJ and CFI do not make any distinction between natural and legalpersons in their data, it is difficult to give exact figures. It is, however, possible todistinguish between the two categories of litigants through the mentions ‘residingin’ for physical persons and ‘set up in’ for legal persons in the wording of theCourts’ judgments.

23 See Case C-85/96 Martinez Sala (12 May 1998) ECR I-2691; Case C-378/97Wijsenbeek (21 September 1999) ECR I-6207.

24 Article 76 in the Rules of Procedure of the Court provides for free legal aid, forwhich there is a limited budget. If a party is ‘wholly or in part unable to meet thecosts of the proceedings’, it may apply for legal aid at any time. ‘If the applicationis made prior to proceedings which the applicant wishes to commence, it shallbriefly state the subject of such proceedings. The application need not be made

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through a lawyer.’ ‘In its decision as to costs the Court may order the payment tothe cashier of the Court of the whole or any part of amounts advanced as legal aid.’

25 See Svenska Journalistforbundet v. Council, T-174/95, 17 June 1998, R II-2289.26 The Wijsenbeek judgment is the result of a preliminary ruling, in a procedure

against an MEP who had refused to show his passport and prove his Dutchnationality when he returned to the Netherlands after a session in Strasbourg. Seealso Hautala v. Commission, T-14/98, 19 July 1999, R II-2489.

27 Case T-207/97 Berthu v. Commission, 12 March 1998, R II-0509.28 Case T-175/96 Berthu v. Commission, 15 May 1997, R II-811.29 The authors often refer to the Defrenne judgment (C-80/70 and 43/75). A plaintiff

was chosen by feminist groups to bring an action, though she was not reallyconcerned by the case (Harlow and Rawlings 1992).

30 ECJ, ‘The Future of the Judicial System of the European Union: Proposals andReflections’, submitted to the Council of Justice Ministers, 27/28 May 1999;‘Proposals submitted by the ECJ and the CFI with regard to the new intellectualproperty cases’, 2000. See also Puissochet 2001.

31 According to the Treaty of Nice, ‘the Court of Justice shall consist of one judgeper Member State’, but shall then be composed of several groups. It ‘shall sit inchambers’ (composed of three to five judges), ‘in a Grand Chamber’ (composedof eleven judges) or ‘as a full Court’. ‘The Council, acting unanimously, mayincrease the number of Advocates-General.’ The Treaty also extends the CFIjurisdiction, notably in cases for damages. It creates judicial panels to hear anddetermine at first instance certain classes of action. A decision establishes the rapidcreation of a judicial panel to hear and determine at first instance disputes betweenthe Community and its staff.

32 Official Journal L 322, 19 December 2000.33 See the ‘Notes for the Guidance of Counsel at the Hearing of Oral Argument’

and the ‘Note for the presentation and drafting of pleadings’, ECJ Web site(www.curia.eu.int).

34 The terms ‘citizen’ and ‘individual’ do not exist in the rules and regulationsgoverning the procedure of the Court. There is only one mention of the term‘individual’ in Article 104§6 about the possibility of judicial aid by the Court.The official expression is ‘person’ and rules of procedure only introduce thedistinction between ‘natural’ and ‘legal’ person in one instance.

35 ECJ, Opinion 2/94 (28 March 1996), ECR I-1763. See Flauss 1997; Wachsmann1996.

36 This expression comes from Denys Simon (2001). See also Constantinesco (1999).37 The protection of individual rights is one of the elements which have nurtured

the preparation of a new category of acts – ‘Community law’. This process wasinitiated in the European Parliament, during the drafting of the Treaty of theUnion adopted on 14 February 1984 (the Spinelli project). The issue was raisedagain during the negotiations on the Union – in the absence of any consensus,the drafters of the Treaty of Maastricht only invited the next intergovernmentalconference to consider the introduction of a hierarchy of Community norms(Declaration no. 16). As we know, there was no concrete result.

38 The Court has progressively acknowledged the right of the European Parliamentto bring various types of action, though Treaties make no provisions for that. Ithas also obtained that member states follow its reasoning and modify Article 173EEC during the drafting of the Treaty of Maastricht.

39 It is the case in most Community law books and monographs on the ECJ(Vandersanden 1995; Dutheil de la Rochere 2001). On this point, the Quermonnereport is explicit: ‘The system of actions for annulment against regulations is muchcriticised today as individuals can only bring such actions under very restrictiveconditions because they must prove that they are directly and personally concerned

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by a regulation. In fact only institutions and Member States can contest regulations.Such a situation which restricts the legal protection of individuals is not acceptable’(Quermonne 1999: 116). Author’s emphasis, our translation.

40 In 1998, the Court quashed four decisions by the CFI which had deemedinadmissible four actions for annulment brought by companies against someCommission decisions, on the grounds that the plaintiffs were not directlyconcerned. Case Dreyfus v. Commission, C-386/96 P. ECR I-2309; Case CompagnieContinentale (France) v. Commission, C-391/96 P, ECR I-2377; Case GlencoreGrain v. Commission, C-403/96 P, ECR I-2405 and C-404/96 P, ECR I-2435.

41 For a critical analysis of the improper use of this notion, see Keeling 1998.42 The ECHR has recently acknowledged the admissibility of an appeal against the

fifteen member states of the Union. Societe Guerin Automobiles v. the fifteenMembers States, 4 July 2000.

43 Interview with a CFI judge, Luxembourg, 17 October 2000.44 Interview with a CFI auditor, Luxembourg, 17 October 2000.45 Johnston judgment (15 May 1986), C-222/84, ECR 1651–18; Kremzow judgment

(29 May 1997), C-229/95, ECR I-2629–14.46 ‘The Union respects the fundamental rights, as guaranteed by the European

Convention for the Protection of Human Rights and Fundamental Rights, signedin Rome on 4 November 1950 . . .’. See Case May-Melnhof Kartongesellschaft v.Commission, T-347/94, 14 May 1998, ECR II-1751.

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