EU Law: Plaumann Test
What is the Plaumann test and why has it been so widely criticised?
The Plaumann test, as its name would suggest, was fabricated in the Plaumann case. It has been criticised as unrealistic commercially and, in practice, virtually impossible to satisfy. This is because it necessitates that the applicant be so dissimilar to all other persons, when the distinguishing characteristics could undoubtedly be acquired by any other person at any time. In Piraiki-Patraiki it was argued that even if there were incentives for others to join the trade, this might take a considerable time and might well not occur during period of application; the court rejected this argument. Craig and De Burca, on assessing the reasonableness of the aforementioned problem, state that ‘the fact that I may wish to become a striker for England, a great pianist, or a Clementine importer does not mean that I currently have the attributes associated with any of those roles in life. Such examples highlight the absurdity of the test because it could always be argued that others might engage in the trade at some juncture; these arguments are made with little more evidence than mere chance, and common law would suggest this leads to ‘an anomalous and deeply unsatisfactory result’.
The main argument against the Plaumann test proposes that it is inadequate on both pragmatic and conceptual grounds. Pragmatically the test is economically unrealistic. It is not simply by chance that only a limited number of firms pursue a particular trade at any one time; thus the popularity of a given trade will be unlikely to unexpectedly escalate. On conceptual grounds, the reasoning of the CJEU in Plaumann makes it virtually impossible that an applicant will ever succeed because, as formerly stated, the courts can rely on the mere possibility that another person might eventually engage in the same trade, and will use this as reasoning to render the application inadmissible.
How did the cases of UPA and Jego-Quere influence the reform of the Plaumann test?
The severe consequences of the Plaumann test prompted the courts in UPA and Jego-Quere to propose reform. The Advocate General in UPA, in stating that case law is increasingly out of line with liberal developments within Member States, submitted a revised test based upon establishing that a measure has a ‘substantial adverse effect’ on the applicant. This leaves much wider scope for applicants to prove their concern, in comparison to Plaumann which requires complete differentiation from all others. The A-G’s test has been commended by Albors-Llorens: ‘the Jacobs test would not only eliminate the obscurity inherent in the current body of case law but would also be easy to apply.’
The Court of First Instance in Jego-Quere also formulated an alternate test, albeit narrower in scope than the A-G’s proposition. The successfulness of individuals under this test is based on procuring evidence to suggest their legal position has been affected by a measure. That measure must have ‘either restricted his rights or imposed obligations on him’. Furthermore, the effects must be definite and immediate, thus excluding potential effect and making it instantly more realistic than Plaumann.
However, despite such proposition for reform and the plethora of critical responses elicited from the Plaumann test, the CJEU in UPA demonstrated an obvious declination to depart from the precedent.
Why has the CJEU stuck so rigidly with the Plaumann test?
There have been a multitude of suggestions as to why the European Court dismissed the opportunity to reform judicial review; however it is perhaps best to first analyse their reasoning.
There appear to have been two main reasons: Firstly, the CJEU said that ‘the solution lay in the hands of the Member States and their national courts' as it was outside of their jurisdiction. Secondly, the Court held the view that the indirect alternatives to judicial review could provide adequate judicial protection in the event that an applicant failed to achieve locus standi.
In their judgement, regarding the latter point, ‘the ECJ largely ignored the A-G’s analysis of the difficulties faced by individuals who seek to use Article 267.’ Similarly, they also rejected the argument that locus standi should automatically be granted where no alternative remedies apply. It is concerning that the CJEU would rather citizens use the somewhat deficient preliminary ruling procedure as a means of judicial review ‘when a direct route to the...courts exists in the Treaty.’ ‘The failure of the ECJ in expanding the import of ‘individual concern’ in UPA and Jego-Quere reveals its attitude towards judicial review and rights of individuals and its conviction that expansion of standing of private persons should be decided by the member states and not by judicial interpretation.’
Interestingly, Albors-Llorens notes how far the CJEU has previously gone ‘to safeguard the rights of Community citizens...’ What therefore seems strange is why the Court would now deprive its citizens of effective judicial protection, especially given that ‘the letter of Article 230(4) EC does not bind the Court to a particular interpretation of that test.’ The initiation of a new test would simply require changing the common law precedent - something that the Courts have never demonstrated a reluctance to do.
Astley considers the reasoning of three different scholars in attempting to establish why the CJEU have stuck so rigidly with the Plaumann test. In a 1980 journal article, Rasmussen suggests that the Court ‘has a long-term interest in reshaping the judiciary’ so that it can ‘act more like a high court of appeals’. This denotes that the Member States would act as a Court of First Instance for the European Union, ultimately reducing the workload of the CJEU. Harding, rejecting the former argument, argues that Article 230(4) was never intended to give much scope to applicants; he purports that allowing individuals to contest decisions that are addressed to another would ultimately be detrimental to the EU. Finally, Craig, in disagreement with both of the above, suggests that the crucial issue is based around the interpretation and application of the Article and not the wording itself. After all, as mentioned previously, the provision is not restricted to one specific interpretation. Craig proposes that the Courts are attempting to avoid an overabundance of cases in which applicants challenge ‘difficult discretionary policy choices.’ The author, Astley, considers this suggestion and comments that it seems wrong that a Court should avoid a liberal approach for fear of the floodgates opening, particularly when this would suggest that a multitude of individuals have had their interests ‘adversely affected’.
Despite the Court’s decision to retain the Plaumann test, ‘the judgement does not convincingly demonstrate that the Court opposes the relaxation of the standing requirements in Article 230(4) EC.’ This was reiterated at the 1996 Intergovernmental Conference, where the CJEU invited Member States to contemplate reforming the aforementioned Article. The Court also reminded them that by itself, the provision is ineffective in providing adequate judicial protection for citizens; however this suggestion appears to have fallen on deaf ears because no change has since been implemented by any of the MS. This, of course, begs the question as to whether our criticisms should be aimed at national authorities as opposed to supranational ones. The only real factor demonstrating an acknowledgment of the Court’s suggestions is that the English courts have since applied their judgements more liberally in respect of the Plaumann test.
NB: Not all of the above is my own work, however footnotes could not be included.
Posted by Rebecca Day