Standing, Rights, and the Structure of Legal Argument

Abstract

There is an extensive case law and literature on standing to seek judicial review in EU law. The ECJ's decision in the UPA case was nonetheless eagerly awaited. This was in large part because of the powerful Opinion of Advocate General Jacobs, which contained a wide-ranging critique of the existing law, combined with proposals for reform. The ECJ declined to follow the Advocate General's lead, and suggested that reform would have to be undertaken through Treaty amendment. The Court's decision and the Advocate General's Opinion are fascinating in many respects and are discussed in the following article. This article will explore the issues raised in four parts. There will be a brief overview of the law on standing to seek review prior to the UPA case. This will be followed by an analysis of the way in which the right to effective judicial protection was used by the Advocate General and the Court. The fact that rights can influence the development of doctrine in EU law is well recognised. It is less often that we are presented with such a good example of the different ways in which the same right can be used within legal discourse, and where this difference can have such a marked impact on the final outcome. The third part will focus directly on the arguments for expanding the standing requirements articulated by the Advocate General, and the ECJ's response. The article will conclude with a glimpse at the future and the extent to which reform might be forthcoming in the political forum.