Direct action

Direct action provides an inadequate remedy against the protection of the individual. - Justin Santiago

Direct action comes under the broad area of judicial review of Community legislation. Specifically it means the ability to challenge the legality of a particular legislation directly to the European Court of Justice. The relevant law is Article 230 which states that the ECJ has the power to review the legality of acts intended to produce legal affects vis-à-vis third parties.

There are several constraints to Article 230. The reviewable acts must have legal effect for it to be subject to judicial review. Although the ERTA case held that the meaning of 'acts' was not restricted to the secondary legislation of the Community under Art 249 - Regulations, Directives and Decisions - but could include any act which had legal effects, Recommendations and Opinions as well as statements of objections raised by the Commission : Case 60/81 IBM.

Additionally for the action to succeed, the petitioner must show three things. First, the petitioner must have standing to bring the action. Second, the action must be against some institution over which the Court has jurisdiction. Third, the petitioner must show that the provision falls within one of the defined grounds for annullment. In addition, the action must be brought inside the strict time limit of two months.

Individuals come under the category of "non privileged applicants" distinct from privileged applicants such as Member States, the Council and the Commission. Under Article 230 as “non privileged applicants”, individuals can challenge an act where :-

1. the decision is addressed to the applicant
2. the decision is in the form of a Regulation
3. the decision is addressed to another person

In situation 1 where the decision is directly addressed to the applicant there is usually no problem. In situation 2 and 3 the applicant must show that the contested measure is of direct and individual concern to him or her.

Direct concern - it is necessary to show that there has been no exercise of discretion on the part of national authorities : Toepfer cases

Individual concern – Plaumann & Co v Commission – certain attributes which are peculiar and the number of persons identified are fixed. Class of people is closed on the date of adoption, identity of its members are unalterably fixed and therefore ascertainable : Piraiki- Patraiki.

However there have been criticisms which have led to AG Jacobs' opinion in UPA v Council which proposed a new test for individual concern - an applicant is individually concerned by a measure where by reason of his particular circumstances, the measure has, or is liable to have, a substantially adverse effect on his interests

The CFI suggested a new test in Jego-Quere et Cie SA v Commission a person is individually concerned if the measure affects his legal position in a manner which is both definite and immediate, by restricting his rights or be imposing obligations on him.