RETHINKING ACCESS BY PRIVATE PARTIES

The current dissertation deals with an old topic of EU law regarding access by individuals to the Court of Justice of the European Union(CJEU) in order to challenge the validity of Union acts. The study is based on two landmark judgments rendered by the CJEU in 1986, i.e. Les Verts and Johnston. It argues that the bridge between these twodecisions has not been fully built in the CJEU’s case-law, which has left room for uncertainties, ambiguities and insufficiencies in what concerns the judicial protection of private parties vis-à-vis the EU. Preface Table of cases Table of Legislation Table of Abbreviations Table of Contents INTRODUCTION 1. From the “Complete System of Legal Remedies and Procedures” to the Need to Ensure Effective Judicial Protection of Private Parties 2. The European Union as a Rechtsgemeinschaft and the Deficits of Judicial Protection 3. Plan and Terminology PART I - A Conceptual Analysis: the Les Verts Approach to the Union´s System of Judicial Protection 1. Judicial Review of Union Acts under the CJEU’s General Jurisdiction 1.1. Direct Access of Private Parties to the Union Courts: the Objectivist, Institutional and Systemic Approach to Judicial Review in the European Union 1.1.1. The Action for Annulment Established in the Treaties 1.1.2. An Approach Mostly Focused on the Type of Reviewable Act: a Recours Donné Contre un Act? 1.1.3. The Restrictive Case-Law Regarding the Locus Standi Requirements of Private Parties 1.1.4. The Irrelevance of a Breach of the Right to Effective Judicial Protection: “Do as I Say and not as I do…” 1.1.5. The Case-Law Favouring Objective and Institutional Dimensions of the System of Judicial Review 1.1.6. The “Hidden Reasons” for the CJEU’s Restrictive Approach to Direct Access: Une Certaine Idée of the Union’s Judicial System and the Issue of Caseload 1.2. Indirect Access by Private Parties to the CJEU: Still an Objectivist, Institutional and Systemic Approach to the Judicial Protection of Private Parties 1.2.1. The “Alternative Routes” Approach 1.2.2. The So-called “Gap Theory”: Practical Difficulties Surrounding Indirect Access to the CJEU 1.2.3. Conceptual Difficulties Surrounding Jurisdictional Subsidiarity 1.3. Caught in between: the TWD and Nachi “Guillotines” 2. The CJEU’s Jurisdiction over the Intergovernmental Pillars: Articles 6(2), 46 and 47 TEU 2.1. The Jurisdiction of the CJEU under the Treaties 2.2. The Case-Law of the CJEU and the Gaps of the System of Judicial Review 2.2.1. General Remarks 2.2.2. On the Institutional Balance between the Union and the Member States: from Air Transport Visa to the Small Arms Case 2.2.3. On the Effective Judicial Protection of Private Parties: from Pupino to the Fight against Terrorism 3. The Right to Effective Judicial Protection as an Institutional Guarantee 3.1. The Objective, Institutional and Systemic Elements in the CJEU’s Case-Law: Summary of the CJEU’s Views on the Union’s System of Judicial Review 3.2. Echoes of Institutional Guarantees in the CJEU’s Case-Law PART II - A New Conceptual Approach after the Lisbon Treaty: the Impact of the Johnston Principle on the Union’s System of Judicial Protection 1. The Right of Access to Justice within the Union’s Judicial System in Light of the Renewed System of Fundamental Rights Protection 1.1. General Remarks 1.2. Article 6(1) TEU: the Binding Legal Value of the Charter of Fundamental Rights 1.2.1. The Protection of Fundamental Rights within the European Union: from Substance to Procedure 1.2.2. The Johnston Principle: the Right to Effective Judicial Protection and the Effectiveness of Union Law 1.2.3. Beyond Johnston: Effective Judicial Protection vis-à-vis the European Union? 1.2.4. Article 47 of the Charter of Fundamental Rights 1.2.5. The Impact of the Charter on the Union’s System of Judicial Protection 1.3. Article 6(2) TEU: the Mandatory Accession to the ECHR 1.3.1. General Remarks: from Opinion 2/94 to the Draft Agreement on Accession 1.3.2. The Right of Access to Justice under the ECHR: Articles 6 and 13 ECHR 1.3.3. The Union’s Judicial System under the EctHR’s Watch 2. Access by Private Parties to the CJEU under the Lisbon Treaty: Reforming Jurisdiction within the Union’s Judicial System 2.1. A New Test on Locus Standi of Private Parties: the Scope and Meaning of the new Article 263(4) TFEU 2.1.1. General Remarks: the Lisbon Treaty and the Establishment of a Pro Actore Approach 2.1.2. The Notion of Regulatory Acts 2.1.3. The Test of Direct Concern and the Absence of Implementing Measures 2.1.4. A New Approach to the Test of Individual Concern 2.1.5. Ensuring Fundamental Rights Review 2.1.6. “Plugging the Gaps”: Taking Effective Judicial Protection Seriously or “Do as I do…” 2.1.7. TWD and Nachi after Lisbon: an Overlapping of Available Remedies? 2.2. The CJEU’s Jurisdiction over the CFSP under the Lisbon Treaty 2.2.1 The Unified and Extended Jurisdiction of the CJEU 2.2.2. The Scope and Meaning of Article 275 TFEU 2.2.3. Expanding Jurisdiction over CFSP Measures: a Move towards Constitutionalism 2.2.4. Reasons for Judicial Self-Restraint: a “Political Questions” Doctrine for the EU? 3. Dealing with Caseload: the Reform of the Union’s Judicial System 3.1. From Jurisdictional Subsidiarity to the Limits of the Judicial System 3.2. A Certiorari Approach for the Union Courts: de Minimis non Curat the CJEU? 3.3. The Issue of Judicial Reform Conclusion ANNEX ABSTRACT RESUMO REFERENCES