Ubi ius,Ibi Remedium ? — Locus Standi of Private Applicants under Article 230 (4) EC at a European Constitutional Crossroads

Abstract

The ancient Roman legal maxim ubi ius remedium reminds us that the law provides many types of remedy for the breach of legal wrongs, including an inherent power of superior courts, in some situations, to fashion novel remedies where existing ones are inadequate to redress particular violations of rights. In this sense, and despite the strict conditions required by Article 230 EC, the ECJ has sometimes in the past accepted the standing of applicants in the name of the principle of effective judicial protection. This is exactly like the English common-law tradition, where the law does not provide a means of enforcing a right, equity will. However, we wonder if the Court's propensity to safeguard the fundamental principles of the Community legal order continues to have the same validity today in light of recent developments. Whereas the CFI and several AG pronounced in favour of a radical jurisprudential change by means of opening individual access to Community Courts, the ECJ – in the UPA and Jégo-Quéré cases – pronounced in favour of maintaining the traditional interpretation of person particularly affected, although, at the same time, inviting Member States to reflect upon the possibility of modifying the Treaty. This reflection has led to the introduction in the Constitution of a minimalist reform which will barely alter the position of the individual. The question arises, firstly, if this resistance to provide an essential change in the Constitution is really an issue of legal subsidiarity and, secondly, if the current interpretation really satisfies the essential requirements of the principle of effective judicial protection.