The Functional Representation of the Individual's Interests Before the EC Courts: The Evolution of the Remedies System and the Pluralistic Deficit in the EC

Abstract

The Functional Representation of the Individual's Interests Before the EC Courts:The Evolution of the Remedies System and the Pluralistic Deficit in the EC Luigi Malferrari (bio) Abstract Introduction Given the democratic deficit affecting Community governance, the representation of the individual's interests through tools that are different from the traditional political ones is particularly necessary and important in the European Community (EC).1 Although such alternative tools cannot substitute for the political channels of interest representation, they can integrate them and they are essential to enhance the effectiveness of the representation of the individual's rights and the respect of the rule of law. Given the difficulties citizens and enterprises experience in making their voices heard by the EC political institutions (Council, Commission, and Parliament) and national governments, sometimes the only feasible channel for effectively pursuing their interests is the judicial one. At the same time, the increasing "juridification" of society has turned judicial processes into sites of policymaking within the Community as well. As a result, the functional representation of individual interests before the courts plays a crucial role in the EC. To be effective, the functional representation of the individual's interests before courts presupposes three elements. First, individuals must have sufficient access to courts. Second, the individual's interests must be taken into account in [End Page 667] judgments. Third, those judgments must be enforced. This article will focus on the first element, whereas it will only touch on the second and third elements. Acknowledgment I would like to thank Miriam Aziz, Julio Baquero Cruz, Marco Dani, Nicoletta Falcone, Kirsten Roberts, Louise Robinson, Peter Teachout, and Lorna Young for precious input on the substance and language of this paper. However, the content of this paper reflects only my personal views, and any error of law or fact is solely my responsibility. A previous version of this paper was delivered at the symposium Back to Government? The Pluralistic Deficit in Decisionmaking Processes and Before the Courts held on June 11 and 12, 2004 at the University of Trento, Italy. The aim of this article is thus twofold. First, it illustrates the development of the different avenues that allow the functional representation of the individual's interests before the EC courts. Such avenues are described and critically assessed in regard not only to their aptness to ensure effective interest representation, but also to their impact on European, as well as national, governance. Second, building on this assessment, the paper will discuss possible reforms of the EC judicial remedies with a view to improving or at least maintaining their effectiveness as tools for the functional representation of the individual's interests. I. The Tools for the Individual's Interest Representation Before the EC Courts Before tackling the question of the reform of the EC remedies system, it is necessary to analyze and assess its development from the perspective of the individual's interest representation. The functional representation of the individual's interests before the EC courts is achieved basically through two avenues: 1) access to the EC judiciary in its function as supreme and/or constitutional court and 2) access to the EC judiciary in its function as administrative court. A. Interest Representation through Supreme or Constitutional Adjudication The main and foremost tool for the judicial interest representation at the EC level is doubtlessly the adjudication by the European Court of Justice (ECJ), acting in its role as supreme and constitutional court. This type of adjudication can be achieved in two ways. The first and more relevant one is the preliminary ruling procedure under Article 234 of the EC Treaty (ECT).2 The second is the infringement action that can be brought by the Commission against a Member State under Article 226 of the ECT. 1. Preliminary Ruling Procedure The basic traits of the preliminary ruling procedure under Article 234 of the ECT are generally well-known. They will be very briefly recalled here for the [End Page 668] sake of clarity. Where a dispute before a national judge poses a question regarding the interpretation of EC law, he (usually spurred by the parties) may or, if it is a court of last instance, must refer this question...