On 1 December 2009, the long-awaited Treaty of Lisbon, now successfully ratified by all 27 Member States, entered into force. The Treaty of Lisbon amends and restructures the Treaty Establishing the European Community (the “EC Treaty,” now called the Treaty on the Functioning of the European Union, or TFEU) and the Treaty on European Union.
The key objectives of the Treaty of Lisbon are reform of the EU’s institutions and legislative procedures, with particular focus on the speed and efficiency of the decision-making process. Most of the substantive provisions of the EC Treaty remain unchanged. There are, however, some significant stand-out items, including judicial review of measures taken by the EU institutions (e.g., legislation, enforcement decisions, etc.) by natural legal persons (i.e., private parties).
Prior to the Treaty of Lisbon, private parties could only institute proceedings before the European courts under Article 230 of the EC Treaty to annul a measure of the EU institutions in two circumstances: where the measure was specifically addressed to the party concerned; or, if the measure was in the form of a regulation or a decision addressed to another person, or had general application and effect, where the party could show that the measure was of “direct and individual concern” to it. Under the Treaty of Lisbon, the wording of this article in the TFEU (now Article 263) has been altered slightly. Whilst the requirement for “direct” concern still stands, “individual” concern has been deleted, and is no longer a condition under Article 263. This is a small change that could make a big difference.
To date, satisfying the Article 230 admissibility threshold has been extremely difficult in circumstances where the measure being challenged was one of general application and effect. Whilst showing that a party is directly concerned by a particular act can be relatively straightforward, under the old Article 230 one was then required to take the extra step of proving that the effect of the measure was so peculiar to it (and it alone) that the party was individually distinguished by the measure from all others.
Making this argument was no easy task, as only in the most particular of circumstances could a party argue that a general measure was of individual concern to it. The very nature of general measures are that they tend to have universal application and will, therefore, effect a range of parties rather than any one individually. Such a high threshold meant that many actions for annulment under Article 230 were doomed from their inception, being struck out by the European courts on grounds of inadmissibility well before the institutions were forced to stand behind their measure and file a defence. The road block was, in most cases, insurmountable. In taking away the requirement for individual concern the Member States are acknowledging, finally, that the rule-making of the EU should be subjected to the same level of scrutiny as their own laws are at a national level. The disparity of treatment always looked a little anachronistic, to say the least. As a result we can expect to see many more cases brought to the EU courts under the new Article 263 going full term rather than being struck out summarily as inadmissible. Whether this leads to more EU measures being annulled, only time will tell. The grounds for annulment remain unchanged, however, and are quite restrictive. Whatever the statistical outcome, providing access to justice is a noble objective in itself and an indication of a political arrangement that’s fast maturing.