• In the case of Case T-177/01 and Case C-263/02 Jego-Quere v Commission, the Court of First Instance was influenced by AG Jacobs’ opinion in Case C-50/00 P, UPA [2002] ECR I-6677 to a person adversely affected by an EU measure. A wider test was adopted under Article 263 TFEU. However, the European Court of Justice reversed the decision, stating the Plaumann test for ‘individual concern’ should be used.

Facts of Case T-177/01 Jego-Quere v Commission

  • Fishing company Jego-Quere, was established in France and operated regularly in Irish waters
  • The company sought an action to annul Commission Regulation No 1162/2001
  • This Regulated prohibited the use of nets with mesh below a certain size by fishing vessels
  • Member States were required to this regulation, but there were no implementing measures they had to take

Issues in Case T-177/01 Jego-Quere v Commission

  • Did the fishing company have the legal standing under Article 230(4) EC (now Article 263 TFEU)?

Held by the European Court of First Instance

  • Yes, Jego-Quere had the standing required as per the wider test adopted by the Court of First Instance.

Findings of the Court

To be able to provide judgment, the Court of First Instance believed it to be “necessary to consider whether, in a case such as this, where an individual applicant is contesting the lawfulness of provisions of general application directly affecting its legal situation, the inadmissibility of the action for annulment would deprive the applicant of the right to an effective remedy” [43]

Citing AG Jacobs in UPA [2002], the Court of First Instance noted:

  • “individual affected by a Community measure may be able to bring its validity before the national courts by violating the rules it lays down and then asserting their illegality in subsequent judicial proceedings brought against him does not constitute an adequate means of judicial protection. Individuals cannot be required to breach the law in order to gain access to justice”[45]

Using the procedural route of a damages-based action would not provide a satisfactory solution to protecting the individual affected. Such action would not result in removing the obligation of the Community law, nor the admissibility for such action compared to that of an annulment [46]

Therefore, the Court of First Instance provided a new test for individual concern:

  • “a natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him” [51]
  • “The number and position of other persons who are likewise affected by the measure … are of no relevance in that regard.” [51]

The judgment was then appealed to the Court of Justice of the European Union:

Case C-263/02 Jego-Quere v Commission

Held by the European Court of Justice

Appeal allowed. Reversed the decision of the Court of First Instance, Jego-Quere had no standing – reverting back to the old Plaumann test.

Findings of the Court

Where the individual cannot be distinguished, the action of annulment cannot be made available. [33]

Presently, “Regulation No 1162/2001 applies directly, without intervention by the national authorities”, this “does not mean that a party who is directly concerned by it can only contest the validity of that regulation if he has first contravened it”. Domestic law may be able to permit “an individual directly concerned by a general legislative measure of national law which cannot be directly contested before the courts to seek from the national authorities under that legislation a measure which may itself be contested before the national courts, so that the individual may challenge the legislation indirectly.” [35]

Having a look at the contested judgment of the Court of First Instance, the CJEU believed their new test would have “the effect of removing all meaning from the requirement of individual concern set out in Article 230 EC” [38] and thus “erred in law”. [39]

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