The Court of Justice has not been so generous when it comes to its own jurisdiction. The fundamental right to effective judicial protection and access to a competent court has been invoked in order to convince the
53 Case 222/86UNECTEF v Georges Heylens [1987] ECR 4097, at para 14: ‘the existence of a rem- edy of a judicial nature against any decision of a national authority refusing the benefit of that right is essential in order to secure for the individual effective protection of his right’.
54 For an explanation: C Kilpatrick, ‘Turning Remedies Around: A Sectoral Analysis of the Court of Justice’, in G de Búrca and JHH Weiler (eds), The European Court of Justice (Oxford, OUP, 2001) 143, who argues that gender equality cases provide a perfect launch- ing pad for more ambitious moves in the direction of procedural and remedial effective- ness, given the combination of ‘vulnerable individuals’, fundamental rights and State non-compliance with Community law.
55 So for instance Case C–97/91 Oleificio Borelli v Commission[1992] I–6313 (action for judi- cial review of a preparatory administrative decision must be held admissible even if it would not be under national procedural law, where the national act is binding on the Commission taking the final decision); Joined Cases C–87/90, C–88/90 and C–89/90 Verholen and Others v Sociale Verzekeringsbank[1991] ECR I–3756 (on the extension of the rules of standing and individual interest to bring a case); Case C–226/99 Siples Srl v Ministero delle Finanze[2001] ECR I–277 (the power of judicial authorities to suspend the application of a decision derives from the principle of effective judicial protection).
Court to relax the conditions for standing for individuals in direct actions for annulment brought under Article 230(4) EC. In Greenpeace,56 for instance, the applicants argued that if they were not awarded standing under Article 230(4) EC, they would not be able to obtain effective judicial protection, since they did not have standing under national law, and there was, accordingly, a gap in the ‘complete system for judicial review of Community acts’ which the Court claims to exist. Accordingly, Article 230(4) must be interpreted in such way as to safeguard fundamental envi- ronmental interests and protect individual environmental rights effec- tively. The Court dismissed the case as inadmissible, referring the applicants to the national courts.57 The Court has systematically pre- tended that the indirect route via the national courts and the action for non-contractual liability pursuant to Article 235 EC and the second para- graph of Article 288 EC in all cases provide the relevant framework to achieve effective judicial protection of private individuals.
In Jégo-Quéré,58 the Court of First Instance considered whether in a case where provisions of general application directly affect the legal sit- uation of an individual, the latter’s right would be effectively protected if he could not bring a direct action for annulment, and instead, had to follow the route via the national court,59 or the route of an action for damages based on the non-contractual liability of the Community.60The Court of First Instance held that the right to an effective remedy before a court of competent jurisdiction was founded on the common constitu- tional traditions of the Member States and on Articles 6 and 13 of the ECHR and was reaffirmed by Article 47 of the EU Charter of Fundamental Rights, and arrived at the conclusion that the current restrictive interpre- tation of Article 230 (4) EC could no longer be considered compatible with the right to an effective remedy. Instead, the Court suggested that
‘in order to ensure effective judicial protection for individuals, 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 by imposing obligations on him. The number and position of other persons
56 Case C–321/95 P Stichting Greenpeace Council (Greenpeace International) and Others v Commission[1998] ECR I–1651.
57 See also Case C–70/97 PKruidvat BVBA v Commission[1998] ECR I–7183.
58 Case T–177/01 Jégo-Quéré Cie SA v Commission[2002] ECR II-2365.
59 However, in the situation under analysis, where the general act directly affects the indi- vidual’s legal position, i.e.without intervention by the national authorities, access to the national courts can only be obtained by knowingly infringing the act and awaiting judi- cial proceedings brought against him.
60 Which cannot lead to the removal of the measure held to be illegal; there is no compre- hensive judicial review, but is limited, in the type of cases under scrutiny, to the censur- ing of sufficiently serious infringements of rules of law intended to confer rights on individuals.
who are likewise affected by the measure, or who may be so, are of no relevance in that regard’.61
The Court of Justice, however, implicitly reversed Jégo-Quéréin Unión de Pequeủos Agricultores. The Court did make a note of the principle of effective judicial protection of Community rights of individuals, a princi- ple stemming from the common constitutional traditions of the Member States and Articles 6 and 13 of the ECHR.62However, in the complete sys- tem of legal remedies and procedures designed to review judicial protec- tion of the legality of acts of the Community institutions, it was for the Member States to establish a system of legal remedies and procedures to ensure respect for the right to effective judicial protection… Accordingly the nationalcourts are under an obligation to interpret nationalprocedural law so as to enable natural and legal persons to challenge before the courts the legality of any decision or other nationalmeasure relative to the application to them of a Communityact of general application, by plead- ing the invalidity of such an act. Yet, this was the point exactly, namely, that in some cases there is no national act operating as an interface between the Community act of general application and the legal position of the individual. The Court maintained its case law on direct and indi- vidual concern,‘although this last condition must be interpreted in the light of the principle of effective judicial protection by taking account of the various cir- cumstances that may distinguish an applicant individually [reference omitted], such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdic- tion conferred by the Treaty on the Community Courts’.It is striking that in this context the Court no longer speaks of a rightto effective judicial pro- tection, but only of a principleof effective judicial protection in the light of which Article 230 EC must be interpreted. It does not by and of itself cre- ate a right to judicial review or right to access to a Court having jurisdic- tion to conduct such review, as seemed to be the case for the national courts in Johnston, Heylensor Borelli.
5.4. THE REQUIREMENT OF UNIFORM APPLICATION OF COMMUNITY LAW
The need for a degree63of uniformity in the application64of Community law is another consideration in the case law of the Court. The need for
61 Case T–177/01 Jégo-Quéré et Cie SA v Commission[2002] ECR II-2365, at para 51.
62 Note that the reference to Art. 47 of the EU Charter is omitted.
63 The vagueness is intentional; the question is of course what level of uniformity is required and feasible.
64 The uniformity in the interpretation of Community law is ensured by the Court of Justice and the preliminary rulings procedure. Uniform interpretationdoes not however neces- sarily ensure uniform applicationdue the procedural autonomy of the Member States.
uniformity was one of the arguments in favour of the precedence of Community law in Costa v ENEL.65However, given the fact that Community law depends on national law for its application and enforcement and given the principle of national procedural autonomy, this uniformity will be not be complete. There is not and cannot be a principle of full uniformity.66On the other hand, the Court has stated that the ‘uniform application of [Community law] is a fundamental requirement of the Community legal order’.67
The requirement of the uniformity of Community law is especially important in cases where the validity of a Community act is in question, in cases like Foto-Frost, Zuckerfabrik Süderdithmarschen, and in cases where a national rule threatens the application – any application – of Community law as in Pafitis.68
5.5. INTERMEDIATE CONCLUDING REMARKS