Plaumann withering : standing before the EU General Court underway from distinctive to substantial concern

Abstract

Direct access to the EU General Court for annulment of certain EU legal acts presupposes that the applicant is individually concerned. Longstanding case law has defined ‘individually’ as distinctive and unique. This formal definition has often been criticised for substantially restricting access to justice. The present contribution takes this criticism further, arguing first, that under cover of the formal criterion of distinctiveness, practices have emerged that are uncertain and inconsistent sometimes rather tending towards substantive criteria. And second, that insofar as the criterion is taken literally, it provokes the paradoxical effect that the more serious and therefore widespread the damage resulting from a legal act is, the less legal protection of rights is granted – a situation that has become virulent with climate change. For several reasons, indirect access via national remedies combined with the referral of validity questions to the European Court of Justice is no effective substitute. The article submits, based on a reflection on principles of legal protection, that individual concern should not be defined formally as distinctive but rather be defined materially as a personal and severe concern. Furthermore, the article discusses the doctrinal implications of such a new definition and shows how the risk of opening the floodgates for actions could be managed.