See notes in Gormley article (below) An association of farmers (UPA) sought the annulment of Regulation 1638/98, which amended the common organisation of the olive oil market. CFI dismissed the application because the members of the association were not individually concerned by the Regulation under Article 230(4). UPA argued that it was denied effective judicial protection (principle of EC law) because it could not readily attack the measure via Article 234 either. The question was whether, in the alleged absence of a remedy before the national courts, the ECJ had to hear the claim at the European level. ECJ said no. It held that the right to effective judicial protection is part of the “constitutional traditions common to the Member States” and is enshrined in Arts. 6 and 13 ECHR, and therefore part of Community legal order. That does not however mean that the ECJ must hear every case. The Treaty contains “a complete system of legal remedies and procedures” that includes both direct actions and preliminary reference. Beyond that it is the Member States that shall see to it that effective judicial protection is achieved by establishing a system of legal remedies and procedures. Thus, Member State courts shall as far as possible give individuals an opportunity to challenge the legality of national law under Community law. Any reform of the system currently in force would require an amendment to the Treaty.
AG Jacobs (different view to the ECJ): He says that the ECJ’s assertion that the possibility of NCs making a reference under 234 creates effective judicial protection is flawed: P cannot force a reference, nor decide what the reference asks, while the NC cant declare EC laws invalid itself; it may be impossible for P to challenge a law indirectly (via 234) if there is no national implementing measure (which is what is actually being challenged under 234), or it may be necessary for P to break the law in question in order to challenge the sanctions via a challenge to validity; and the procedures for challenging indirectly (via 234) are more complex, time consuming and expensive than a direct challenge (under 230). He says the ECJ’s solution of asking MSs to ensure that references are available in national systems to challenge C law is inadequate as v hard to monitor and would require far reaching interference w/ national procedural autonomy. Instead he recommends that the ECJ “recognise that an applicant is individually concerned by a C measure where the measure has, or is liable to have, a substantial adverse effect on his interests”. This would prevent the denial of justice by giving a direct right to a court which can grant a remedy; removes the anomaly that the greater the no. people affected, the less likely it is to get JR under 230 (since harder to show ‘individual concern’ under Plaumann test); would simplify the law, rather than complex procedural rules that we currently have; continues trend of increasing JR powers of ECJ to match increasing competence of the EC institutions. This solution is possible: wording of art 230 doesn’t preclude it, while requirements of time limit and ‘direct concern’ will prevent floodgates fear.