1 See, e.g., Barav, Ami, Direct and Individual Concern: An Almost Insurmountable Barrier to the Admissibility of Individual Appeal to the EEC Court, 11 Common Mkt. L. Rev. 191 (1974)Google Scholar; Harlow, Carol, Towards a Theory of Access for the European Court of Justice, 12 Y.B. Eur. L. 213 (1992)Google Scholar; Albertina, Albors–Llorens, Private Parties In European Community Law: Challenging Community Measures (1996)Google Scholar; Arnull, Anthony, Private Applicants and the Action for Annulment Since Codorniu, 38 Common Mkt. L. Rev. 7 (2001)Google Scholar.

2 Case T–177/01, Jégo–Quéré & Cie SA v. Commission, 2002 E.C.R. 11–2365 [hereinafter CFI judgment]. See the Web site of the Court of Justice of the European Communities, <http://www.curia.eu.int/en/index.htm> , for its recent judgments and the opinions of the advocates general.

3 Case C–263/02 P, Commission v. Jégo–Quéré & Cie SA(Eur. Ct. Justice Apr. 1, 2004) [hereinafter ECJ judgment].

4 Commission Regulation (EC) No 1162/2001 of 14 June 2001 Establishing Measures for the Recovery of the Stock of Hake in ICES Sub–areas III, IV, V, VI and VII and ICES Divisions VIII a, b, d, e and Associated Conditions for the Control of Activities of Fishing Vessels, 2001 O.J. (L 159) 4 [hereinafter Hake Regulation]. European Union legal documents are available online at <http://europa.eu.int/eur-lex/index.html> .

5 Hake Regulation, supra note 4, Arts. 3(d), 5.

6 Treaty Establishing the European Community, Mar. 25,1957,298 UNTS 11, as amended by Treaty of Nice, Feb. 26, 2001, 2001 O.J. (C 80) 1, consolidated version reprinted in 2002 O.J. (C 325) 33 Google Scholar [hereinafter EC Treaty].

7 A decision is a binding legislative act of die EC that is addressed to a specified person or persons. Only persons individually identified in the decision are its addressees. A regulation is a binding legislative measure of general application—that is, one not addressed to individual persons. While on its face Article 230(4) allows actions only against decisions, die ECJ has held that regulations can also be challenged under this provision. See, e.g., Case T–43/ 98, Emesa Sugar (Free Zone) v. Council, 2001 ECR11–3519, para. 47.

8 The CFI decided to determine die question of admissibility before considering die arguments as to substance. Therefore, its judgment considered only matters of admissibility.

9 See, e.g., Case C–358/89, Extrametlndustrie v. Council, 1991 ECR 1–2501, paras. 13–14; CaseT–43/98, Emesa Sugar (Free Zone) v. Council, para. 47.

10 CFI judgment, supra note 2, para. 25.

11 Id., para. 26.

12 The ECJ first enunciated this test in Case 25/62, Plaumann v. Commission, 1963 ECR 95.

13 CFI judgment, supra note 2, para. 27. The ECJ has not conclusively defined when individuals have characteristics peculiar to them or when they are differentiated from all other persons; this area of law is very complex. For the purpose of the present discussion, it is sufficient to note that an individual applicant will fail the Plaumann test if a disputed measure not addressed to him or her affects an indeterminate number of persons.

14 Id., paras. 28–38.

15 Since EC regulations do not require national implementing measures before they take effect in member states, the Hake Regulation did not have to be implemented at the national level. Therefore, there was no national rule that the applicant could have challenged before a domestic court. Moreover, individuals cannot bring direct actions for review of EC measures in member state courts. Hence, a national court could not have heard the applicant’s case.

16 A claimant can bring an action in the Community courts against the EC for noncontractual liability. In order to succeed, the applicant must show that EC institutions or servants committed a wrongful act that caused damage to die applicant. If the allegedly wrongful act is a legislative measure, die claimant has to demonstrate that the EC institution has committed a serious breach of a superior rule of law designed to protect individuals. See Case 5/71, Aktien–Zuckerfabrik Schoppenstedt v. Council, 1971 ECR 975, para. 11; see also Steiner, Josephine, Woods, Lorna, & Christian, Twigg-Flesner, Textbook on Ec Law 641–63 (8th ed. 2003)Google Scholar.

17 CFI judgment, supra note 2, para. 41.

18 Under this procedure, and on matters that arise in proceedings before them, national courts can refer questions concerning the interpretation and validity of EC law to the ECJ for a preliminary ruling prior to applying the law themselves.

19 CFI judgment, supra note 2, para. 45.

20 Id., para. 46. See supra note 16 as to the requirements that have to be fulfilled for a successful challenge to a legislative measure in an action for noncontractual liability. In proceedings under Article 230(4), die Community courts can declare an EC measure invalid if any breach of law has occurred.

21 CFI judgment, supra note 2, para. 47

22 Id., para. 48.

23 Id., para. 49

24 Id., para. 50

25 Id., para. 51 (emphasis added).

26 Opinion of Advocate General Jacobs, para. 33 (July 10, 2003)Google Scholar, ECJ judgment, supra note 3. The parties raised further substantive and procedural issues on appeal. For the purpose of this brief note, however, I will limit the discussion to the parties’ arguments and the ECJ’s judgment with regard to the relationship between Article 230(4) and the right to effective judicial protection.

27 According to Article 230(5), actions for annulment can be initiated only within a period of two months of publication, notification, or obtaining knowledge of the disputed EC measure. After that time limit has expired, Article 241 permits a party to plead die invalidity of a regulation indirectly; the principal proceedings must have been brought under another provision of the EC Treaty since Article 241 itself does not provide a basis for a claim against an EC measure. See Steiner, Woods, & Twigg–Flesner, supra note 16, at 635–40.

28 ECJ judgment, supra note 3, paras. 29–32. The duty imposed on national courts arises from the principle of sincere cooperation laid down in Article 10 of the EC Treaty.

29 Case 25/62, Plaumann v. Commission, 1963 ECR 95, 107.

30 ECJ judgment, supra note 3, para. 33.

31 Id., para. 36 (citation omitted).

32 Id., para. 38.

33 Arnull, Anthony, Private Applicants and the Action for Annulment Under Article 173 of the EC Treaty, 32 Common Mkt. L. Rev. 7, 25–30 (1995)Google Scholar; Ragolle, Filip, Access to Justice for Private Applicants in the Community Legal Order: Recent (Revolutions, 28 Eur. L. Rev. 90, 92–93 (2003)Google Scholar.

34 CFI judgment, supra note 2, para. 51. In order to have standing, they would also have to satisfy the other requirements of Article 230(4), but those requirements have created comparatively few problems for applicants in the past.

35 Ragolle, supra note 33, at 94.

36 ECJ judgment, supra note 3, para. 38

37 Id., paras. 36–38.

38 Case 25/62, Plaumann v. Commission, 1963 ECR 95, 107.

39 Id.

40 Arnull, supra note 1, at 51.

* I would like to thank my colleagues Laura Grenfell and Steven Churches for their comments on earlier drafts of this note, and my assistants Devita Pathi and Anthony Orford for their excellent work.