Protecting the Interests of Civil Society in Community Decision—Making—the Limits of Article 230 EC

Abstract

In the Commission's White Paper on European Governance 1 and the subsequent Laeken 2 Declaration, the participation of civil society in the Community method of decision-making was viewed as the primary way of engaging directly with EU citizens. The White Paper accepts that participatory democracy is created from the bottom up by ‘groups of people dedicated to the disinterested search for the public interest in society’. 3 This statement recognises that participation goes beyond the pre-legislative lobbying process. It suggests that the representation and protection of citizens' interests requires ex post judicial protection in circumstances where the legislative measure breaches fundamental rights or if its application infringes principles of procedural propriety. The only vehicle for such judicial protection at the Community level is paragraph 4 of Article 230 EC, which already provides recourse to individuals who are ‘directly and individually concerned’ by an act of the institutions. Direct actions under Article 230 EC are preferable to the indirect protection available in national courts when a preliminary reference can be made under Article 234 EC. This is because national courts cannot declare a Community measure as being invalid or provide a remedy against the Commission. Despite these deficiencies with domestic enforcement actions, the Court's judgments have been consistently of the view that the granting of locus standi under Article 230 EC should be narrowly construed and most significantly does not extend to judicial review actions by representative groups. This is in stark contrast to the practice within the domestic courts of Member States where proxy actions have, in recent years, been encouraged.