Complaints to the European Court of Justice
Direct complaints to the European Court of Justice are possible, but are strictly controlled by the TFEU. There are limitations on who can make a complaint directly to the ECJ, against whom, and on what subjects complaints may be made.
Article 259 TFEU provides that a Member State can bring such a complaint directly to the ECJ against another Member State. However, such complaints have been extremely rare. Much more frequent are direct complaints by the European Commission against a Member State. Article 258 TFEU provides that the Commission may bring before the Court of Justice a complaint that a Member State has failed to fulfil an obligation under the Treaty.
Those mostly affected by EU law on employment and industrial relations – employees, trade unions and employers – cannot normally make a direct complaint to the ECJ. Complaints of violations of employment rights in EU law do not come before the ECJ: they go to national (labour) courts. Claims by employees, trade unions and employers based on EU law will reach the ECJ only indirectly through a procedure whereby the national courts make what is known as a ‘preliminary reference’ under Article 267 TFEU.
However, another source of direct complaints to the ECJ is Article 263 TFEU. This is concerned with judicial review by the ECJ of the legality of acts of the EU institutions. Article 263 TFEU makes a distinction between complaints by ‘privileged’ and ‘non-privileged’ applicants. The Treaty makes it much easier for ‘privileged’ applicants (Member States, the EU institutions) to challenge the acts of the EU which are concerned with employment and industrial relations. It is much more difficult for ‘non-privileged’ applicants (individuals, employees, employers, trade unions and so on) to complain to the ECJ concerning the legality of acts of these EU institutions.
Although direct complaints may not be possible, Article 37 of the Statute of the European Court of Justice grants intervention rights to Member States and institutions of the Community in complaints lodged by others. Intervention by others is also provided for: ‘The same right shall be open to any other person establishing an interest in the result in any case submitted to the Court, save in cases between Member States, between institutions of the Community or between Member States and the institutions of the Community.’
As in the case of direct complaints to the ECJ, there is a question as to whether the European social partners should be treated like all other applicants, and have to establish an interest in each case in order to intervene.
‘Non-privileged’ applicants, who may include individual employees, employers and trade unions, can directly complain to the European Court of Justice about acts of the EU institutions, but only under certain conditions: ‘Any natural or legal person may directly complain against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’ (Article 263 TFEU).
Although seemingly very wide, the ECJ has interpreted this provision very strictly. In the leading case of Plaumann & Co. v. Commission, Case 25/62,  ECR 95, the ECJ allowed for individuals to complain about EU decisions directly to the ECJ only ‘… 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.’
Specifically, the ECJ has refused to accept that collective organisations representing their members qualify as individually and directly concerned. For example, the ECJ refused to hear two cases where French works councils complained against decisions of the Commission allowing mergers between French companies to proceed (Comité Central d’Entreprise de la Société Générale des Grandes Sources v. Commission, Case T-96/92 ; Vittel v. Commission, Case T-12/93 ), and again in a case where a works council complained about a Commission decision condemning state aid to an industry (Comité d’entreprise de la Société Française de Production v. Commission, Case T-189/97 ).
The result is that it is very difficult for complaints to be made by individuals against actions of the EU institutions, even where these affect employment and industrial relations.
Privileged applicants, with unconditional access to make complaints to the European Court of Justice, are defined as ‘a Member State, the European Parliament, the Council or the Commission’ (Article 263 TFEU). For example, the United Kingdom complained to the ECJ about the Council’s adoption of the Working Time Directive (United Kingdom of Great Britain and Northern Ireland v. Council of the European Union, Case C-84/94 ).
The Treaty of Amsterdam granted the Court of Auditors a right to bring action before the Court of Justice, but only for the purpose of protecting its prerogatives.
Finally, the Treaty of Nice added the European Parliament to the list of privileged applicants. This raises the possibility that the EU social partners could also claim to be ‘privileged’ applicants by an interpretation or revision of Article 263 TFEU. Articles 154-155 TFEU require the Commission to consult management and labour, which may initiate the social dialogue. In turn, the dialogue may lead to agreements, which shall be implemented. The case law on Parliament’s rights under Article 263 TFEU was developed before the Maastricht Social Policy Agreement had provided for the European social partners to participate in the making of EU social and labour legislation. The Court then regarded the institutional balance in the EU as requiring that the prerogatives of the European Parliament be respected, first, allowing Parliament to challenge acts, which threaten its prerogatives, and second, acknowledging that these prerogatives included the right to participate in the legislative process.
The European social partners could use litigation under Article 263 TFEU in a number of specific disputes arising under the social dialogue procedure. For example, the EU social partners may complain that the consultation by the Commission either did not take place or was inadequate (procedurally or substantively). Or the EU social partners may complain if the Commission submits to the Council a proposal, or the Council makes a decision, which deviates from the agreement reached by the social partners. Finally, if the European social partners were recognised as ‘privileged’ applicants under Article 263 TFEU – even if only ‘for the purpose of protecting their prerogatives’ – they might challenge Directives on social policy, which were channelled through other legislative processes and bypassed the social dialogue.