Judicial Protection for Private Parties in European Commission Rulemaking

Abstract

Against the background of the general developments of judicial protection of private parties within the European Union, this chapter analyses the remaining incoherencies of judicial protection for private parties in European Commission rulemaking. Whereas enhanced judicial control would increase the democratic legitimacy of Commission rulemaking, the Lisbon Treaty introduced some relaxed rules on stranding for private parties to challenge non-legislative acts. Although stronger scrutiny of non-legislative acts involving non-majoritarian institutions such as the Commission is welcome, it is still unclear how far the Lisbon changes allow for judicial protection for private parties in Commission rulemaking. The remaining questions concern the coherence of the terminology used in Articles 290 and 291 TFEU on the one hand and in Article 263 TFEU on the other. A narrow interpretation of the Article 263 criteria of regulatory acts, direct concern and implementing measures might clasp with demands put on the EU legal order by the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (EU Charter). In contrast, a wider interpretation of the key concepts would increase democratic control of Commission rulemaking, enhance judicial protection of private parties and meet the demands of the ECHR and the EU Charter. In particular, the Court of Justice’s approach when interpreting the imprecise term ‘regulatory act’ (cf. French les actes reglementaires, and German Rechtsakte mit Verordnungscharakter), will provide a measure of the importance it now attributes to the principle of effective judicial protection.