Commentaire d'arrêt Plaumann

Océane SIX                                                                         7th October 2019

European Legal Proceedings

COMMENTARY of Plaumann case C-25/62

Judgment of the Court, 15 July 1963

1. Introduction

EU law sustains that Member States should give general access to justice. Since the Johnston case^[1], the effective judicial protection has become a general principle of EU law, first on the bases of Articles 6 and 13 ECHR. Article 47 of the Charter is now the main legal basis for judicial protection in the EU and the Court is widely applied by the Court of justice of the European Union^[2]. Access to justice is considered as one of the cores of the rule of law.

The action for annulment against the decisions of the European Union is one of the few actions giving the possibility for individuals and companies to claim the protection of their rights before the Court of justice of the EU. It is expressively written in Article 173 EEC (current Art. 163 TFEU) that “Any natural or legal person may (…) institute proceedings against a decision (…) which, although in the form of a decision (…) addressed to another person, is of direct and individual concern to the former”. However, the interpretation given by the Court from the Plaumann case has been extremely restrictive, introducing thus a paradox with the principle of effective judicial protection. Some scholars call to review the Plaumann test^[3].

1. Facts and proceedings

In the case at stake, on 16 June 1961, Plaumann, a German company importing fresh clementines in the Federal Republic of Germany challenged a decision of the Commission addressed to Germany refusing authorization partially to suspend the application of a customs duty provided for in the Common Custom Tariff on fresh clementines imported^[4].

It also asked to apply the 10% duty provided for in the German Customs Tariff. This request has been the subject of an oral amendment in Brussels following which it concerns the creation of an "ex-position for clementines", providing for a duty of 10%.

In a decision « S III 03079 »  rendered on 22 May 1962, addressed to the German Government, the Commission refused the requested authorization. It was against that decision that the applicant, a limited partnership, brought the present action on 30 July 1962.

Concerning the proceedings, on 16 August 1962 the applicant requested the suspension of the contested decision. A second application to this effect was lodged on 6 December 1962. These two requests for interim measures were dismissed by order of the President.

Following that, by an application of 28 August 1962 under Article 91 of the Rules of Procedure, the defendant raised an objection of inadmissibility concerning the present action. By an order of the Court of 24 October 1962, the said objection was joined to the merits.

By an order of 6 December 1962, the Court decided to hear the parties orally on the admissibility of the application for a declaration of the Federal Republic of Germany.

In its written observations lodged on 21 December 1962, the applicant withdrew those conclusions.

By order of 24 January 1963, the Court decided that there was no longer any need to rule on those claims.

During the oral proceedings the applicant assessed the damage claimed at 39,414.01 of damages.

1. Arguments of the parties

In that case, the Court raises the issue whether and under which conditions, according to Article 173 TEEC, can an individual challenge a Decision of the Commission addressed to a Member State?

The Commission on the admissibility of the claim for annulment, sustains that the request for annulment is inadmissible because the contested Decision was rather a Regulation as it prevented the adoption of a legislative act. Fisrtly, it considers that “another person” under Art 173 TEEC cannot designate a State. Secondly, the Commission considers that there is no direct concern, the F.R Germany was also concerned and was the only one bound by the decision. Thirdly, it argues also that there is no individual concern because the company is not affected by reason of its individuality or its special position, the contested decision concerned “certain products on the Common Market” and persons affected by it may change over the time and the decision concerned importers but also domestic producers and consumers.

On the other side, the Plauman company on the admissibility of the claim for annulment argues that the F.R Germany had no reason to challenge the Decision because no damage was caused to it. It sustains that a reasonable interpretation of Art 173 TEEC would include Member States in “another person”. Plaumann was directly concerned because the Decision was the direct cause of the damages it suffered. Plaumann was individually concerned because the decision affected an ascertained class of person. It alleged that it was irrelevant thas this category of persons could changer later.

1. Findings of the Court

On the admissibility of the claim for annulment, the Court ruled that “another person”, under Art 173 EEC, includes Member States, but also that the right of interested parties to bring an action shall not be understood strictly where the Treaty is silent. The contested act was to be regarded as a decision as it was addressed to a limited and specific number of persons.

The Court gives the meaning of individual concern: “Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed”. Plaumann was affected by the Decision but in the same way as any other importer so it could not be distinguished as in the case of the addressee of the Decision. Its claim was inadmissible.

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