Standing may seem like a legal technicality related to abstract notions of ‘rights’ or ‘interests’. Ellingsen demonstrates how consequential this concept is throughout the entire field of EU public and private law. It is extremely often that the Court of Justice faces the problem of individual standing to enforce EU law before national courts. It may come as a surprise that it has not yet elaborated an explicit, common EU doctrine of standing, possibly due to the melting pot of national conceptions. A standing doctrine determines the ease with which individuals can petition courts for remedies against other individuals or public authorities. Do individuals need to invoke a ‘subjective right’, a certain kind of ‘private interest’, or can they also litigate in the public interest? A standing doctrine has a significant impact on courts’ position in society and within the governance structure. In the absence of pan-European consensus, the Court proceeds in small steps and refrains from imposing a specific doctrine. The apparent drawback is a mosaic of solutions, worked out for individual cases, not free from inconsistencies and scattered across many branches of EU case law.
Ellingsen took up the challenge of crafting from these bits and pieces a possibly coherent EU doctrine of standing before national courts. Her book offers a meticulous doctrinal study of EU case law and scholarly constructs relating to standing. Its significant and original contribution lies in an explicit normative stance permeating the entire analysis. According to Ellingsen, the normative rationale of standing in EU law rests not only in the protection of individual rights but also in the enforcement of EU obligations imposed on the Member States, even if violations have no identifiable victims (like in environmental law) or the victims are not willing to pursue their cases (like in consumer protection or anti-discrimination law). Ellingsen links this conception of standing to ‘eurolegalism’, a regulatory method transplanted from the US, consisting in enacting precise legal norms backed up by the interaction of both private and public enforcement, as well as private enforcement in the ‘public interest’. Therefore, as Ellingsen argues, the EU standing doctrine should not only consider the effective judicial protection of ‘rights’-holders but also the effectiveness of EU law in what is essentially a ’shared legal order’. The care for ‘effectiveness’ pushes the Court to expand standing rules, sometimes at the expense of ‘national procedural autonomy’. Another advantage of the book is a detailed discussion of this elaborate conceptual matrix in which the EU standing doctrine is embedded.
Following a conceptual introduction in Chapters 1-3, the book offers in Chapter 4 a detailed analysis of how to identify an EU ‘right’ that may give rise to standing before national courts and, in Chapter 5, a comprehensive discussion of standing-related requirements imposed on national courts and procedural laws. Undoubtedly, this analysis will prove particularly useful to legal practitioners, apart from scholars, facing doubts about the compliance of national standing rules with EU law. Chapters 6-7 carry on the analysis by distinguishing ‘standing’ from ‘direct effect’, ‘invocability’ and ‘remedies’. Chapters 8-11 provide illustrative studies of problems in specific areas, such as the nowadays particularly pressing issue of access to justice for individuals and civil society against potentially unlawful environmental acts. Chapter 12 examines standing to enforce third-party’s rights. Chapter 13 provides a framework for analysing the potential need for private enforcement in light of gaps in the public enforcement system. Chapter 14 summarises the key findings.
Given the enormous volume of standing-related case law and literature, it would be helpful to know how Ellingsen had selected the specific cases of the Court of Justice she discussed. The issue of standing is exceptionally dynamic as it may indirectly and incidentally appear in many cases. However, it should be appreciated that Ellingsen is well aware of her endeavour’s inescapable limitations, calling the EU doctrine of standing ‘embryonic’ in its current form. The proposed standing test substantially elucidates the Court’s approach, even though the analysis reveals that it is not entirely possible to reconstruct a fool-proof method of decoding EU ‘rights’ giving rise to ‘standing’.
It is extremely valuable that, writing in the doctrinal tradition, Ellingsen is concerned with bringing in more coherence to the field, although she also points out inconsistencies in the Court’s approach. A possible future research strategy, methodical and critically oriented, could consist in investigating changes in the Court’s approach over a specific period, especially after the codification of effective judicial protection in Article 47 of the Charter of Fundamental Rights. It could also consist in comparatively examining the contextual evolution of standing doctrine in separate legal fields or in national procedural laws, thereby exploring the dynamic of the feedback loop between the EU and national legal orders.
Overall, Ellingsen’s book is a welcome contribution to the literature, and it will surely be of great help to legal practitioners, including national and EU law judges. It will hopefully inspire other researchers to pursue the problem of standing further.
Michał Krajewski is a post-doctoral research fellow at iCourts Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. He works on an ERC research project ‘IMAGINE – European Constitutional Imaginaries: Utopias, Ideologies and the Other’.