Time to Rethink Locus Standi

The Common Court docket (GC) dismissed the motion introduced by the Affiliation of Jurists for Respect for Worldwide Regulation (JURDI) below Article 265 TFEU in September 2025, amid the humanitarian disaster in Gaza ensuing from the Israeli offense. JURDI requested the Court docket to declare that the EU establishments had did not act in response to the state of affairs in Gaza in accordance with the optimistic obligation to forestall genocide. Specifically, JURDI argued, the EU ought to have suspended the Euro-Mediterranean Settlement establishing an affiliation between the EU and Israel, triggered applicable sanctions, audited EU-Israel cooperation programmes, and issued a transparent public place. Admittedly, the Court docket’s determination to disclaim locus standi to JURDI is per the case regulation regarding people’ entry to court docket below Articles 263 and 265 TFEU, notable for its strictness. Nevertheless, conscious of the restrictions set out within the Treaties, we consider that there’s a house for a extra liberal interpretation of the foundations of entry to the CJEU, rooted within the core values of the EU. We argue, subsequently, that it’s excessive time the Court docket rethink its stance on locus standi and transfer in the direction of an inclusive and participatory mannequin of legality assessment that will enable for actions to be introduced by non-governmental organisations within the public curiosity of human rights compliance.

“Europe must do extra.” Does this additionally apply to the CJEU?

On 5 September 2025, throughout the State of the Union, Ursula von der Leyen, president of the European Fee, said that “what is occurring in Gaza is unacceptable” and that in response to European residents’ issues “Europe must do extra”. Thus, she declared that the Fee would suggest “a bundle of measures to carve out a means ahead”.

In reference to the assertion by the President of the Fee, one may ask whether or not the CJEU might and will have carried out extra in response to issues voiced by residents within the type of motion for failure to behave. The choice within the JURDI case is, nevertheless, one more chapter within the ongoing saga of the CJEU’s intransigence concerning the standing of personal candidates to lodge actions primarily based on Articles 263 and 265 TFEU. Though the GC’s determination ought to come as no shock, it’s cheap to query it in mild of the core values of the Union, reminiscent of human rights and the rule of regulation, and the duty to uphold these values within the exterior actions, as said in Articles 3(5) and 21 TEU.

Background of the case

The continuing armed battle within the Gaza Strip has given rise to questions concerning Israel’s respect for worldwide human rights in view of the unprecedented scale of intervention and its impression on the civilian inhabitants. In its Advisory Opinion from 19 July 2024, the Worldwide Court docket of Justice declared the Israeli occupation of Palestine as illegal below worldwide regulation and located a sequence of violations towards IHRL in a type of, as an example, forcible evictions and discriminatory practices towards the Palestinian inhabitants. The UN Particular Rapporteur on the state of affairs of human rights within the Palestinian territories occupied since 1967, alongside different consultants and civil society, has repeatedly emphasised that the Israeli offensive in Gaza meets the factors for being categorised as genocide.

In 2025, owing to mounting strain from sure Member States and EU residents, the European Fee has proposed a sequence of measures in response to Israel’s violations of worldwide regulation within the occupied territories of Palestine. The Excessive Consultant of the EU for International Affairs and Safety Coverage introduced a assessment of the EU-Israel Affiliation Settlement so as to asses Israel’s compliance with human rights and democratic rules (hyperlink). Consequently, the Fee proposed a partial suspension of Israel’s affiliation to Horizon Europe (hyperlink). Furthermore, it put ahead a proposition to droop commerce concessions with Israel and to impose sanction on sure people (hyperlink). Nevertheless, on the time of finalizing this text in January 2026, no vital sanctions had been imposed by the European Union itself.

Within the mild of the EU’s inadequate response to the breaches of worldwide regulation, JURDI, the Affiliation of Jurists for the Respect of Worldwide Regulation, based in 2024 so as to promote respect for and the applying of worldwide regulation within the context of the Israeli-Palestinian battle (hyperlink), known as the EU establishments earlier this yr to take applicable motion to make sure respect for worldwide regulation. Within the absence of applicable response to the request, JURDI lodged a grievance below Article 265 TFEU for the failure to behave.

Procedural pitfall

The GC declared the motion manifestly inadmissible with out additional analyzing its deserves, as a result of it discovered that the applicant lacked standing below Article 265 TFEU. In that respect, GC reminded that Articles 263 and 265 TFEU represent the expression of a single authorized treatment, which implies that situations to attribute standing to a person below 265 TFEU are nearly the identical as these prescribed in 263 TFEU (para 10). That means that people can deliver an motion for annulment towards an inaction of an establishment not addressed to them, supplied that the act issues them immediately and individually, or towards regulatory acts that concern them immediately and that don’t embody implementing measures (mutatis mutandis para. 10). Moreover, in line with the CJEU’s case regulation, associations can typically be attributed authorized standing if: (1) a authorized provision expressly acknowledges a sequence of procedural powers for such associations; (2) affiliation represents the pursuits of people which might be entitled to deliver an motion, (3) the affiliation is individualized due to the impression of the measure by itself pursuits as an affiliation (see right here and right here).

Regardless of the claimant’s arguments, GC didn’t discover it immediately and individually affected by the inaction of the Council and the Fee. In that respect, it noticed that not one of the three measures that the Council and the Fee allegedly did not undertake would immediately have an effect on JURDI’s authorized state of affairs by modifying its rights or obligations (para. 13). Particularly, GC didn’t agree with the applicant’s argument that it was involved immediately since its statutory mission was primarily based on the prevention of worldwide crimes and genocide (para. 14, following Union syndicale-Service public européen ea v Council case-law). GC additionally discovered that the measures talked about within the declare wouldn’t produce any direct impact on the authorized state of affairs of the JURDI’s members (para. 17). Moreover, GC established that JURDI shouldn’t be individually involved, since there isn’t any clear proof that it may be distinguished from some other affiliation charged with comparable mission (“contributing to the promotion, defence, respect and implementation of worldwide regulation in France, Europe and the world within the context of the Israeli-Palestinian battle”) (para. 20).

The GC didn’t additionally settle for JURDI’s argumentation primarily based on ClientEarth case through which a non-governmental organisation efficiently introduced an motion for annulment in a public curiosity towards a call of the European Funding Financial institution rejecting the applicant’s request for an inside assessment of the decision of the EIB’s Board of Administrators approving the financing of a biomass energy technology plant in Galicia. In keeping with the GC, conditions in these instances weren’t comparable, since in ClientEarth the Court docket merely acknowledged that an environmental NGO was entitled to request such a assessment in accordance with Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the applying to the establishments and our bodies of the European Union of the provisions of the Aarhus Conference on Entry to Info, Public Participation in Resolution-making and Entry to Justice in Environmental Issues (OJ 2006, L 264, p. 13). Consequently, in ClientEarth the Court docket subsequently didn’t rule on the admissibility below the overall situations laid in Article 263 TFEU however solely utilized an current act of secondary laws.

Criticism towards the CJEU’s inflexible stance

The JURDI case is one more instance of failed public curiosity litigation, which couldn’t stand the rigidity of the accessibility check below Articles 263 and 265 TFEU. The problem of the inflexible standing standards limiting, in lots of cases, entry of people to the CJEU has been broadly mentioned within the literature (see as an example right here and right here). It has additionally been a matter of consideration in outstanding advocate basic’s opinions each earlier than the adoption of the Lisbon Treaty (see opinion in Unión de Pequeños Agricultore) and extra lately in AG Emiliou’s opinion given in Nicoventures.

AG Emiliou, in his opinion, identified two main strands of criticism towards the interpretative decisions of the CJEU that led to a slim understanding of the phrases “direct” and particularly “particular person” concern. The primary strand of criticism highlights that the case regulation of the CJEU on admissibility is sophisticated and incoherent. For instance, within the case of locus standi of worldwide actors, the CJEU tends to be extra versatile within the interpretation of the premise of “authorized particular person” talked about in Article 263 TFEU (see dialogue right here). The second group of arguments concentrates on the truth that the present interpretation of the standing standards is rendering public litigation within the widespread curiosity virtually unimaginable in lots of cases (like within the case of legislative acts). Certainly, the current Caravhalo judgement depicts how reluctant the CJEU is to loosen up its standards of accessibility even in instances regarding the widespread risk that local weather change poses.

As AG Emiliou rightly identified, it stands in contradiction with the bold axiological foundations of the Treaties (see the Opinion critically mentioned right here). Certainly, the strategic litigation of NGOs generally issues the safety of EU values like human rights and the rule of regulation. That was the case of the JURDI’s utility. The GC was significantly silent on the problem that the targets the affiliation pursues replicate the very values prescribed in Article 2 TEU in addition to the rules and goals of the EU’s exterior motion acknowledged in Articles 3 (5) and 21 TEU. In that respect the GC merely adopted the case regulation established since Inuit Tapiriit Kanatami – interpretation of the Article 263 TFEU can’t put aside situations lied in Treaties of direct and particular person concern (para. 27). Nevertheless, one might wonder if the CJEU actually can’t make an interpretative alternative to know an affiliation as immediately and individually involved by EU’s inaction that results in the undermining of mentioned associations mission (stopping genocide).

The argument for the admissibility of the general public curiosity litigation

One can argue that the system of authorized treatments within the EU is mostly geared toward defending people whose rights and freedoms are assured by EU regulation, and have been violated, as said in Article 47 of the EU Constitution of Basic Rights. Thus, actions for annulment and for failure to behave have to be understood as measures designed to guard particular person pursuits of the candidates. This might indicate that since neither JURDI nor its members are affected by the establishments’ failure to behave, the organisation can’t efficiently provoke court docket proceedings. Nevertheless, such a slim studying of the provisions of the Treaties doesn’t appear supported by the elemental values and rules of the EU that ought to information the Court docket in its interpretative exercise. The Court docket has beforehand demonstrated its capability to switch the interpretation of the Treaties when overriding concerns necessitate such motion, as evidenced in its ruling in Les Verts. Why, then, wouldn’t the CJEU rethink its stance on the factors for admissibility within the context of Articles 263 and 265 TFEU?

First, as said earlier than, it may be argued {that a} civil society organisation ought to have a proper to an efficient judicial safety every time an motion or a failure to behave on a part of EU establishments threatens values which the organisation is selling and defending. This, in actual fact, constitutes a person concern since guaranteeing respect for these values is the essence of the existence of such an organisation.

Second, one might query the Court docket’s stance on admissibility in mild of the truth that the EU is a group primarily based on the rule of regulation. Nevertheless, a inflexible interpretation of Article 263 and 265 TFEU has the impact of decreasing the flexibility of this group to make sure that the regulation is upheld. Certainly, it reinforces a system of self-policing, which can be thought to be questionable not solely from the angle of rule of regulation but in addition the democratic foundations of the Union. It’s, subsequently, crucial that the CJEU, because the custodian of the regulation, assumes the accountability entrusted to it by the Treaties (Article 19 TEU) to make sure compliance with elementary values and, so as to fulfil this obligation, grant civil society organisations the opportunity of litigation within the public curiosity. The query of admissibility doesn’t prejudge the deserves of the grievance. It merely establishes a discussion board by which compliance with elementary values might be ensured, particularly the place neither EU establishments themselves nor Member States exhibit concern for the matter.

The extra dimension of this case that underscores the CJEU’s obscure reluctance is the truth that the EU-Israel settlement accommodates a human rights clause. Provisions designed by the EU exactly to keep away from the state of affairs of engagement in commerce relations with a rustic that’s violating worldwide regulation. Suffice to say, the inspiration for its adoption was the suspension of the settlement with Yugoslavia in 1991 primarily based on the customary worldwide regulation (Racke). Human rights clauses have been mainstreamed for years on the EU’s personal initiative.

Conclusions

Is public curiosity litigation earlier than the CJEU a Sisyphean job? Although the Court docket’s present case-law doesn’t instil a way of optimism, we stay hopeful that the reply to this query is a adverse one. We consider it to be a laborious job, however not a futile one. Why? The present framework of the Treaties doesn’t preclude the admissibility of the actions for annulment and for failure to behave introduced by civil society organisations within the public curiosity – solely, in lots of cases, the interpretation given to it by the CJEU does. Nevertheless, all through the course of its historical past, the CJEU has repeatedly demonstrated its capability to interpret acts of EU regulation from a liberal and pro-value standpoint.

In reality, it’s worthwhile to critically revisit on this context the GC’s unlucky and blatant commentary that “associations haven’t any proper, below the Union authorized order, to have the goals of their actions unaffected by acts of the Union” (para. 16). Such an unnuanced reflection doesn’t change something as regards procedural regulation. It appears, nevertheless, out of kilter and in distinction with EU’s axiological foundations within the context of JURDI’s goals to forestall worldwide crimes and genocide.