Introduction
Case T-173/98 P, UPA v. Council, represents an early attempt by the Court of First Instance (CFI) to refine the stringent standing requirements for individual applicants challenging Community acts established in the Plaumann case. This 1999 judgment concerns the admissibility of an action brought by an association of undertakings against a Council regulation regarding the common organization of the market in bananas. The central issue revolved around the interpretation of Article 230 EC (now Article 263 TFEU), specifically the conditions under which an individual can show that a measure is of “individual and direct concern” to them. The CFI, while upholding the formal structure established by Plaumann, sought to provide some flexibility in its application, particularly regarding the concept of a "closed group." This approach, while significant, ultimately maintained a formalistic approach to standing, leaving the broader implications of Plaumann largely untouched.
The Plaumann Test and its Implications
The Plaumann formula, stemming from Case 25/62, requires an individual applicant to be affected by a Community act “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.” This effectively creates a requirement for showing that the applicant belongs to a “closed group” ascertainable at the time the measure was adopted. The restrictiveness of this test has long been a source of debate within EU law scholarship.
UPA's Arguments and the CFI's Response
UPA, representing importers of bananas from third countries, argued that the contested regulation, by altering the import licensing system, directly and individually affected its members. They contended that the regulation's impact was limited to a closed group of operators already engaged in the banana import business at the time of the regulation's adoption. The CFI, while acknowledging the potential for a more refined application of the Plaumann test, ultimately rejected UPA's argument. The court found that the criteria employed by UPA were insufficient to define a closed group, as the regulation did not definitively limit the number of future importers. The mere fact that current importers were likely to be more affected than future market entrants did not satisfy the individualized impact required by Plaumann.
The Concept of a "Closed Group" and its Application
The CFI's reasoning in UPA provides important understanding of the challenges of defining a “closed group” in practice. The judgment emphasizes the need for objective factors, existing at the time the measure is adopted, to clearly delimit the group affected. The court clarified that a potential future impact, even if highly probable, cannot serve as the basis for individual concern. This strict interpretation effectively maintains the high threshold for standing established in Plaumann.
Significance of UPA within the Broader Jurisprudence
UPA, despite its formalistic reliance on Plaumann, represents an important step in the evolution of standing before the European Courts. The judgment demonstrates the CFI’s willingness to address the difficulties presented by the Plaumann formula and its attempt to offer some clarity on the “closed group” concept. While the outcome for UPA was unfavorable, the case led to further discussion about the accessibility of judicial review for individuals affected by Community acts. Subsequent case law, particularly Jégo-Quéré (Case C-263/02 P), would explore these issues further, eventually leading to a slight relaxation of the Plaumann criteria in specific situations.
Comparing UPA with Later Developments in Standing
Comparing UPA with subsequent judgments like Jégo-Quéré highlights the gradual shift in the Court's approach to standing. Jégo-Quéré recognized the potential for individual concern when a regulation significantly affects an individual’s ability to exercise a specific right, even if the regulation is not formally addressed to that individual. This marked a departure from the strict “closed group” requirement of Plaumann, offering a slightly broader avenue for individuals to challenge Community acts. However, even with these developments, the fundamental principles established in Plaumann and refined in UPA remain influential in the determination of standing before the European Courts.
Conclusion
Case T-173/98 P, UPA v. Council, provides a valuable illustration of the complexities present in the Plaumann doctrine. The CFI's analysis in UPA, while upholding the formal structure of Plaumann, grappled with the details of the “closed group” concept. The judgment clarifies the necessity of objective factors to define such a group and highlights the importance of a demonstrably individualized impact at the time of the measure's adoption. This formalistic approach, though potentially limiting access to justice, provides legal certainty and predictability in applying Article 230 EC (now Article 263 TFEU). While UPA itself did not significantly soften the Plaumann test, it provided a basis for subsequent developments in the jurisprudence on standing, leading to a more refined understanding of individual concern in cases like Jégo-Quéré. The changes in this area of law remain a topic of debate and academic commentary within the field of EU law.
