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REMEDIES AGAINST THE EU INSTITUTIONS AFTER LISBON: AN ERA OF OPPORTUNITY?

Published online by Cambridge University Press:  27 November 2012

Albertina Albors-Llorens
Albertina Albors-Llorens*
Affiliation:
University Senior Lecturer and Fellow, Girton College, University of Cambridge.
*
Address for correspondence: University of Cambridge, Faculty of Law, 10 West Road, Cambridge CB3 9DZ. Email: [email protected].
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Abstract

This article considers some of the challenges which lie ahead for the Court of Justice of the EU in the field of remedies against the EU institutions following the entry into force of the Lisbon Treaty. It examines the evolving role of EU remedies and, in particular, recent decisions of the General Court applying the new standing rules in Article 263(4) TFEU.

Keywords

Judicial ReviewEU remediesArticle 263(4) TFEURegulatory actsAction for Annulment
Type
Articles
Information
The Cambridge Law Journal , Volume 71 , Issue 3 , November 2012 , pp. 507 - 536
Copyright
Copyright © Cambridge Law Journal and Contributors 2012

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References

1 See, Waldron, J., “The Core of the Case against Judicial Review” 115 Yale L.J. 1346 (2006)CrossRefGoogle Scholar and Fallon, R.H., “The Core of an Uneasy Case for Judicial Review” 121 Harvard L.Rev. 1693 (2008)Google Scholar.

2 See Craig, P., “Political Constitutionalism and Judicial Review” in Forsyth, C., Elliott, M., Jhaveri, S., Ramsden, M. and Scully-Hill, A. (eds.), Effective Judicial Review: A Cornerstone of Good Governance (Oxford, 2010), 19, 22–24Google Scholar and Kyritsis, D., “Constitutional Review in Representative Democracy” (2012) 32 O.J.L.S. 297, 324Google Scholar.

3 See P. Craig, note 2 above, pp. 24–42.

4 Case 294/83 [1986] E.C.R. 1339.

5 Ibid. at [23].

6 See Lenaerts, K. and Corthaut, T., “Judicial Review as a Contribution to the Development of European Constitutionalism” in Tridimas, T. and Nebbia, P. (eds) European Union Law for the Twenty-First Century (Oxford 2004), 17Google Scholar.

7 See Article 19(1) TEU.

8 Case 26/62 [1963] E.C.R. 1.

9 Ibid. at [13].

10 See e.g., Case 41/74 Van Duyn v Home Office [1974] E.C.R. 1337, Case 148/78 Ratti [1979] E.C.R. 1629 and Joined Cases C-6 and 9/90 Francovich v Italy [1991] E.C.R. I-5357.

11 See e.g. Case 33/76, Rewe-Zentralfinanz v Landwirtschaftskammer für das Saarland [1976] E.C.R. 1989.

12 Case C-50/00P, Unión de Pequeños Agricultores (UPA) v Council [2002] E.C.R. I-6677.

13 See Joined Cases 31/62 and 33/62 Wöhrmann and Lütticke v Commission [1962] E.C.R. 501 at 507, and Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno v Commission and Council [1985] E.C.R. 2523 at [36].

14 Case 66/80, International Chemical Corporation v Amministrazione delle finanze dello Stato [1981] E.C.R. 1191 at [13]–[16].

15 See Jaeger, M., “Les Voies de Recours, Sont-elles Vases Communicants?” in Iglesias, G.C Rodriguez (ed.), Mélanges en homage à Fernand Schockweiler (Baden-Baden 1999), 233Google Scholar.

16 See the Opinion of Advocate General Jacobs in UPA v Council, note 12 above at para. 44 of the Opinion.

17 Article 264 TFEU.

18 See op. cit, note 15 above.

19 The Court has repeatedly stated that a decision adopted by a Union institution which has not been challenged by its addressee within the time-limit laid down by Article 263(6) TFEU becomes definitive as against that person (see Case 156/77, Commission v Belgium [1978] E.C.R. 1881 at [20–24]. Such a rule is based on considerations of legal certainty and to prevent legally binding EU measures from being called into question indefinitely (Case C-178/95, Wiljo v Belgian State [1997] E.C.R. I-585 at [19]).

20 Case C-188/92, TWD Textilwerke Deggendorf v Germany [1994] E.C.R. I-833.

21 However, given the complexity of the case law on standing, it proved quite difficult in the past (except for an addressee or in cases where there is a consistent line of case law) to demonstrate that the applicants would have clearly had standing to bring an action for annulment against a regulation (Case C-241/95, R. v Intervention Board for Agricultural Produce Ex p. Accrington Beef [1996] E.C.R. I-6699, at [15]).

22 See the Order of the Court in Case C-249/99P, Pescados Congelados Jogamar v Commission [1999] E.C.R. I-833 3 at [10–22].

23 See Simmenthal v Commission (Case 92/78, [1979] E.C.R. 777) at [39]) and more recently, Case T-120/99, Kik v OHIM [2001] E.C.R. II-2235 at [21].

24 Thus, in Case C-11/00, Commission v European Central Bank [2003] E.C.R. I-7147, the Court took a literal reading of Article 277 TFEU, which allows “any party” to challenge the legality of a general act by means of a plea of illegality “notwithstanding the expiry of the time-limit” in Article 263 (6) TFEU. There, it held that Member States and institutions could bring an Article 277 TFEU to challenge a general act (but not a decision) even though, as privileged applicants, they would have certainly had standing to bring an Article 263 TFEU action and had failed to do so within the time limit (at [76–78]). See Vogt, M., “Indirect Judicial Protection in EC Law: The case of the Plea of Illegality” (2006) 31 E.L.Rev. 364, 369–370Google Scholar suggesting that, thus interpreted, the function of the plea of illegality is not so much to prevent a denial of justice – i.e. provide an opportunity for challenge when the action for annulment was not available – but to provide an additional mechanism to ensure an indirect challenge of general acts. See Lenaerts, K., Arts, D. and Maselis, I., Procedural Law of the European Union, 2nd ed. (London, 2006), 348Google Scholar, for the concerns that the ruling generates in terms of legal certainty.

25 See Case 5/71, Zuckerfabrik Schöppenstedt v Council [1971] E.C.R. 975 at [3].

26 See Case T-180/00, Astipesca v Commission [2002] E.C.R. II-3985 at [139–147].

27 Frequently both actions are brought together, see Case C-152/88, Sofrimport v Commission [1990] E.C.R. I-2477.

28 See Case T-177/01 Jégo-Quéré v Commission [2002] E.C.R. II-2365 at [46].

29 See, e.g., Case 22/70, Commission v Council (ERTA) [1971] E.C.R. 263.

30 See, among others, Barav, A., “Direct and Individual Concern: an Almost Insurmountable Barrier to the Admissibility of Individual Appeals to the European Court” (1974) 11 C.M.L.Rev. 191Google Scholar; Arnull, A., “Private Applicants and the Action for Annulment since Codorníu” (2001) 38 C.M.L.Rev. 7Google Scholar; Neuwahl, N., “Article 173, paragraph 4, Past Present and Possible Future” (1996) 21 E.L.Rev. 17Google Scholar; Usher, J., “Direct and Individual Concern: An Effective Remedy or a Conventional Solution?” (2003) 28 E.L.Rev. 575Google Scholar.

31 See Article 230(4) EC (post-Amsterdam), which in the original version of the Treaty was Article 173(2) EEC. See further, section IVA.

32 See the Opinion of AG Lagrange in Case 16/62, Confédération nationale des producteurs de fruits et légumes v Council [1962] E.C.R. 471, 486. The reluctance of the Court to annul measures of a legislative nature has been well documented (see e.g. the Opinion of AG Cosmas in Case C-321/95P, Greenpeace v Commission [1998] E.C.R. I-1651 at paras. 92 and 100–101).

33 See J. Waldron, op. cit., note 1 above, p. 1348.

34 See Case 11/82, Piraiki Patraiki v Commission [1985] E.C.R. 207 at [6–10].

35 For a recent study see Tridimas, T. and Gari, G., “Winners and Losers in Luxembourg: A Statistical Analysis of Judicial Review before the European Court of Justice (2001–2005)” (2010) 35 E.L.Rev. 131, 171–172Google Scholar.

36 Case 25/62, Plaumann v Commission [1963] E.C.R. 95.

37 For an early example where the applicants contended that if their Article 263 TFEU action was dismissed as inadmissible, they would be deprived of any judicial protection, see Case 40/64, Sgarlata v Commission [1965] E.C.R. 215, 227. See, more recently, for a case where the applicants contended a possible breach of a fundamental human right, Case C-345/00, FNAB v Council [2001] E.C.R. I-3811 at [35–40].

38 For a recent example, see Case T-16/04, Arcelor v European Parliament and Council [2010] E.C.R. II-211, at [94–122].

39 See A. Albors-Llorens, “The Standing of Private Parties to Challenge Community Measures: Has the European Court Missed the Boat?” [2003] C.L.J. 72, 77–79.

40 Case C-50/00P, note 12 above.

41 Case T-177/01, note 28 above.

42 See Case C-50/00P, note 12 above, at para. 60 of the Opinion.

43 Case T-177/01, note 28 above, at [51].

44 Case C-50/00P, note 12 above, at [44].

45 Ibid. at [41].

46 Ibid. at [45].

47 See note 16 above.

48 In this respect, see Arnull's comments on the Unibet case (Case C-432/05 [2007] E.C.R. I-2271) where the Court held that effective judicial protection – in a case concerning the possibility of an action reviewing the compatibility of national law with EU law- would not be secured if an applicant had to break the law first. Arnull observes that, by contrast, the Court of Justice seemed to accept in the appeal against the General Court's decision in Jégo-Quéré that standing under Article 263 TFEU would not be granted even if an applicant would have to break a Union act first in order to trigger proceedings before the national court that could result in an indirect challenge to the validity of an EU act (see A. Arnull, “The Principle of Effective Judicial Protection in EU law: An Unruly Horse” (2011) 36 E.L.Rev. 51, 56.)

49 Only a decade earlier, and despite the silence of the Treaty, the Court had held that the European Parliament should have standing to challenge EU measures. See Case C-70/88, Parliament v Council (Chernobyl) [1991] E.C.R. I-4529.

50 In Case C-511/03, Ten Kate [2005] E.C.R. I-8979, the Court extended the same conclusion to cases where a private applicant does not satisfy the standing conditions to bring an action for a failure to act under Article 265 TFEU ( at [29]).

51 See new Article 19(1) TEU.

52 See Case 33/76, note 11 above.

53 Case C-354/04P, [2007] E.C.R. I-1579.

54 See Lenaerts, K., “The Basic Constitutional Charter of a Community Based on the Rule of Law” in Poiares, M., Maduro, and Azoulai, L. (eds.), The Past and Future of EU Law (Oxford, 2011), 295, 308Google Scholar.

55 Ibid. at [52–54]. In the same ruling, however, the Court had read old Articles 35 and 41(1) TEU literally by denying the possibility of an action for damages against the Union institutions in matters falling within the old Third Pillar, at. [44–48].

56 Although the Order of the General Court (Case T-173/98 [1999] E.C.R. I-3357), the ruling of the Court and the Opinion of the Advocate General in UPA were solely focused on the admissibility of the action, it is clear from the arguments of the applicants before the General Court that there were concerns about the substantive legality of the regulation, including procedural irregularities and lack of reasoning (at [24] of the Order of the General Court). There was no chance for these substantive issues to be considered after the action was declared inadmissible.

57 See Cortés, J.M.Martín, , “Ubi Ius, Ibi Remedium? – Locus Standi of Private Applicants under Article 230(4) EC at a European Constitutional Crossroads” (2004) 11 Maastricht J. Eur.& Comp. L. 233, 259–261Google Scholar.

58 See Article 276 TFEU and Article 10(1) of Protocol 36 on Transitional Provisions. See further, Lenaerts, K., “The Contribution of the European Court of Justice to the Area of Freedom, Security and Justice” (2010) 59 I.C.L.Q. 255Google Scholar.

59 See Articles 275 TFEU, 24 TEU and Article 40 TEU.

60 This is also mirrored in the indirect avenue of judicial review provided in Article 267(1) (b) TFEU which now refers to preliminary references on the validity of “acts of the institutions, bodies, offices or agencies of the Union”.

61 See Case T-411/06, Sogelma v European Agency for Reconstruction [2008] II-2771 at [33–37]).

62 See further Lenaerts, K. and Cambien, N., “Regions and the European Court: Giving Shape to the Regional Dimension of the Member States” (2010) 35 E.L. Rev. 609, 625–629Google Scholar.

63 See Article 8(1) Of the Protocol of Subsidiarity and Proportionality.

64 Case C-309/89, [1994] E.C.R. I-1853.

65 Case T-135/96, UEAPME v Council [1998] E.C.R. II-2335, at [62–68] and Case T-321/02, Vannieuwenhuyze-Morin v Parliament and Council [2003] E.C.R. II-1997 at [21].

66 Case C-10/95, Asocarne v Council [1995] E.C.R. I-4149 at [28–34] and Joined Cases T-172/98, Salamander and Others v Parliament and Council [2000] E.C.R. II-2487, at [28–29].

67 Case 22/70, note 29 above.

68 See for example, the French system, covered extensively in Brown, L. Neville and Bell, J.S, French Administrative Law 5th ed. (Oxford, 1998)CrossRefGoogle Scholar.

69 Morton, F.L, “Judicial Review in France: A Comparative Analysis” (1988) 36 A.J.C.L. 89, 90–91CrossRefGoogle Scholar and de Parfouru, A. Abaquesne, “Locus Standi of Private Applicants under the Article 230 EC action for annulment: Any lessons to be learnt from France?” (2007) 14 Maastricht Journal 361, 377Google Scholar.

70 This new form of control is the exception d'inconstitutionnalité, found in Article 61-1 of the French Constitution.

71 See further Fabbrini, F., “Kelsen in Paris: France's Constitutional Reform and the Introduction of A Posteriori Constitutional Review of Legislation” (2008) 9 German Law Journal 1297, 1304–1307Google Scholar and Bossuyt, M. and Verrijdt, W., “The Full Effect of EU law and of Constitutional Review in Belgium and France after the Melki judgment” (2011) 7 European Constitutional Law Review 355, 360–362Google Scholar.

72 See Arnaiz, A. Saiz, “Constitutional Jurisdiction in Europe: Between Law and Politics” (1999) 6 Maastricht Journal 111, 116–117Google Scholar.

73 Ibid at p. 118.

74 See Joined Cases 789 and 790/79, Calpak v Commission [1980] E.C.R. 1949 at [7–9].

75 See Abaquesne de Parfouru, op. cit., note 69 above, pp. 377–378.

76 OJ 2004 C 310/1. For an examination of all the difficulties leading to the formulation of this provision, see the Final Report of the Discussion Circle on the Court of Justice of 25 March 2003, CONV 636/03 at paras. 17–23 and Barents, R., “The Court of Justice in the Draft Constitution” (2004) 11 Maastricht J. Eur.& Comp. L. 121, 130–134Google Scholar. The Discussion Circle was divided with some members in favour of the relaxation of the standing rules for any acts of general application but in the end the relaxation was confined only to the challenge of the so-called regulatory acts. (see paras. 20–22 of the Report).

77 See T. Tridimas, “The European Court of Justice and the Draft Constitution” in European Law for the Twenty-First Century, op. cit, note 6 above, pp. 113, 121 and Koch, C., “Locus Standi of Private Applicants under the EU Constitution: Preserving Gaps in the Protection of Individuals' right to an effective Remedy” (2005) 30 E.L.Rev. 511, 520–521Google Scholar.

78 See Articles I-33, I-35, I-36 and I-37 of the Constitution.

79 These were legislative acts. See Article I-34 of the Constitution which defined legislative acts as those adopted by legislative procedure.

80 See Articles I-35–I-37 of the Constitution.

81 See Arnull, A., “April Shower for Jégo-Quéré” (Editorial) (2004) 29 E.L.Rev. 287, 288Google Scholar.

82 See Koch, op.cit. note 77 above, pp. 525–527.

83 Article 289(3) TFEU.

84 See Article 288 TFEU. For a list of examples, see Dashwood, A., Dougan, M., Rodger, B., Spaventa, E. and Wyatt, D. in Wyatt ad Dashwood's European Union Law, 6th edition (Oxford, 2011), 83–87Google Scholar.

85 See Article I-33(1) of the Constitution.

86 Article 207(6) TFEU, in the context of the Common Commercial Policy is the one other Treaty provision that uses the term “regulatory” and implies that it should refer to non-legislative acts.

87 See the very interesting study by Werkmeister, C., Pötters, S. and Traut, J., in “Regulatory Acts within Article 263(4) TFEU: A Dissonant Extension of Locus Standi for Private Applicants” (2011) 13 C.Y.E.L.S. 311Google Scholar, which carried out a grammatical, historical, systematic and teleological interpretation of the notion of “regulatory acts” and concluded that this notion refers to non-legislative acts of general application.

88 See K. Lenaerts and N. Cambien, op. cit, note 62 above, 616–617.

89 See Dougan, M., “The Treaty of Lisbon 2007: Winning Minds, not Hearts” (2008) 45 C.M.L.Rev. 617, 677–679Google Scholar and Balthasar, S., “Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants: the new Article 263(4) TFEU” (2010) 35 E.L.Rev. 542, 546–547Google Scholar.

90 See Barents, R., “The Court of Justice after the Treaty of Lisbon” (2010) 47 C.M.L.Rev. 709, 725Google Scholar and with reference to Article III-365(4) of the Constitution, T. Tridimas (op. cit., note 77 above, p. 125).

91 OJ 2009 L 286/36.

92 Case T-18/10, Order of the General Court of 6 September 2011, not yet reported.

93 Case T-262/10, Judgment of the General Court of 25 October 2011, not yet reported.

94 Case T-18/10, note 92 above at [56] and Case T-262/10, note 93 above at [21].

95 Case T-18/10, note 92 above at [42].

96 Ibid. at [46].

97 Ibid. at [49–50].

98 See Dashwood, Dougan, Rodger and Spaventa, op. cit., note 84 above at p. 85.

99 See section III.

100 See note 39 above.

101 See Barennes, M., “The Standing of Competitors of the Aid Recipient in State Aid Cases” in Kanninen, H., Korjus, N. and Rosas, A. (eds.) EU Competition law in Context (Oxford 2009), 321, 332–333Google Scholar.

102 Case T-221/10, Judgment of the General Court of 8 March 2012, not yet reported.

103 Ibid at [44–48].

104 Ibid at [25], emphasis added.

105 In anti-dumping proceedings, the Court has traditionally used a more flexible construction of the general standing test based either on procedural participation (Case 264/82 Timex v Council and Commission [1985] E.C.R. 849) or, in the case of the principal importer of a product, the potential harm that the applicant could suffer as a result of the EU act (Case C-358/89 Extramet v Council [1991] E.C.R. I-2501). See also Arnull, A., “Challenging EC Anti-Dumping Regulations: the Problem of Admissibility” (1992) 13 E.C.L.R. 73Google Scholar and Greaves, R., “Locus Standi under Article 173 EC when seeking the Annulment of a Regulation” (1986) 11 E.L.Rev, 119Google Scholar.

106 OJ 2009 L 343/51.

107 Article 14 of Regulation 1225/2009.

108 Article 7(4) of Regulation 1225/2009.

109 Article 9(4) of Regulation 1225/2009.

110 Case T-221/10, note 102 above.

111 See, for example, the ruling in Case C-321/95P, note 32 above, and the Opinion of Advocate General Cosmas in this case at paras. 104–113.

112 Case T-262/10, see note 93 above.

113 Ibid. at [21–25].

114 Ibid. at [ 27–30]

115 Ibid. at [33–38]. For a hint towards a liberal interpretation, see [37].

116 Case T-526/10 Inuit Tapiriit Kanatami and Others v Commission, OJ 2011 C 13/66.

117 OJ. 2010 L 216/1.

118 It was adopted on the basis of Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ( OJ 1999 L 184/23) – which has now been replaced by Regulation 182/2011, OJ/2011 L 55/13.

119 Case 92/78, Simmenthal, note 23 above, at. [40] and Cases T-6/92 and T-52/92, Reinarz v Commission [1993] E.C.R. II-1047 at [56].

120 Case T-526/10, note 116 above.

121 Directives (legislative and non-legislative) could also be challenged in this fashion but only on the rare occasions where they constitute the basis of another EU measure that could be the subject of the main action – i.e. a Commission decision adopted on the basis of the directive – and hence this does not represent a significant change from the pre-Lisbon state of affairs.

122 See Case C-68/95, T.Port v Commission [1996] E.C.R. I-6065 at [59].

123 Article 13 TEU.

124 In this respect, see the observations by Schermers, H.G. and Waelbroeck, D., Judicial Protection in the European Communities, 4th ed. (Deventer 1987) 256Google Scholar referred to the more flexible Dutch and Italian language versions of this provision, which could accommodate a broader interpretation, in comparison to the narrower Danish, French, Irish and German texts.

125 Case C-68/95, note 122 above at [59].

126 See inter alia, Case 314/85, Foto Frost v Hauptzollamt Lübeck-Ost 1987] E.C.R. 4199, at. [16] and Case 321/95P, Greenpeace v Council [1998] E.C.R. I-1651, at [32–33].

127 See section III.

128 See note 60 above and Article 267(4) TFEU, which sets out the urgent preliminary ruling procedure.

129 For recent confirmation of this approach see Case T-221/10 Iberdrola, note 102 above at [43].

130 See note 16 above.

131 Two aspects of the wording of Article 340 TFEU merit some consideration. First, Article 340(3) continues to extend non-contractual liability in relation to any damage caused by the ECB or its servants in the performance of their duties. Given that ECB is now a Union institution (Article 13(1) TFEU) and that Article 340(2) TFEU already covers the non-contractual liability of the Union “institutions”, it is questionable why the separate paragraph to cover the ECB has been maintained. Secondly, despite the changes made to Article 263 TFEU in terms of the reviewability of acts of the bodies and agencies of the Union, Article 340 TFEU does not expressly refer to non-contractual liability arising from the actions of these entities – although there is support in the case law for them attracting liability (see Case T-209/00, Lamberts v Ombudsman [2002] E.C.R. II-2203) and provisions in the decisions establishing some of the EU agencies sometimes specifically provide a basis for such liability, like Article 21(2) of Council Regulation 2062/94 establishing a European Agency for Safety and Health at work OJ 1994 L 216/1).

132 See Case 4/69 Lütticke [1971] E.C.R. 325 at [10] and Case 26/81 Oleifici Mediterranei [1982] E.C.R. 3057 at [16].

133 Case 5/71 [1971] E.C.R. 975 at [11].

134 See, in particular, Cases 116 and 124/77, Amylum v Council and Commission [1979] E.C.R. 3497, where the Court held that for this condition to be satisfied the action of the EU institutions would have to be “verging on the arbitrary” ( at [19]).

135 See Cases C-104/89, Mulder v Council [1992] E.C.R. I-3061.

136 Case C-352/98 P, Bergaderm v Commission [2000] E.C.R. I-5291. See also Tridimas, T., “Liability for Breach of Community Law: Growing Up and Mellowing Down” (2001) 38 C.M.L.Rev. 301, 321–330Google Scholar.

137 Case C-352/98P, note 136 above, at [46].

138 Ibid. at [43].

139 See Cases 116 and 124/77, note 134 above at [13].

140 See J. Wakefield “Retrench and Reform: The Action for Damages” (2009) 28 Y.E.L. 390. 432–434

141 Case C-440/07P, Commission v Schneider Electric SA [2009] E.C.R. I-6413.

142 See note 27 above.

143 On the parallels between the restrictive approach of the Court in the interpretation of the action for annulment and the action for damages, see Arnull, A., “The Action for Annulment: A case of Double Standards?” in O'Keefe, D. and Bavasso, A. (eds.), Judicial Review in European Union Law: Liber Amicorum in Honour of Lord Slynn of Hadley (Deventer 2000) 177Google Scholar at 186,187 and189.

144 For recent endorsements of this conclusion, see the decisions of the General Court in Iberdrola (Case T-221/10, note 102 above, at [43]) and in Case T-291/04, EnviroTech Europe, Judgment of 16 December 2011, not yet reported at [117]).

145 See Joined Cases C-92/09 and C-93/09, Schecke and Eifert v Land Hessen [2010] E.C.R. I-11063 and Case C-236/09 Association Belge des Consommateurs Test-Achats, Judgment of 1 March 2011, not yet reported.

146 See Scott, J., “In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law” (2011) 48 C.M.L.Rev. 329 at 349–353Google Scholar.

147 Case C-583/11 P, O.J. 2012 C 58/3.

148 See the recent decisions of the General Court in Case T-221/10, Iberdrola v Commission, note 102 above, at [1–44] and also in Case T-291/04 Enviro Tech Europe (note 144 above), where the Court adopted a particularly narrow construction of the test and expressly held that the fact that applicants may suffer a major economic loss as a result of an EU measure cannot justify a finding that they are individually concerned (at [111] of the judgment). The applicants brought an action for damages against the Commission, which was also declared inadmissible (at [121–166]).