INDIVIDUAL CONCERN:

        • The predecessor of art 263(4) was art 230(4) EC: focus on substance rather than form, so that measure in the form of a Reg could be found to be of direct and indiv concern!
          • The new article does not encourage this, cos of the formalistic test for legislative acts. By contending that Court should look to substance of a measure across the categories of legal acts, it would render what was a legislative act invalid, should it be re-classified as a delegated act, because of the lack of adherence to formal procedures.
        • BASIC TEST: **Plaumann v Comm, 1963: ECJ held that treaty provisions on standing must be interpreted broadly. Usually, wouldn’t say that Comm decision addressed to German govt can be challenged by individual. Still, need to prevent actio popularis.
          • There is individual concern: if
            • 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 others, Dentist Airdrie
            • hence distinguished them individually just as in the case of the person addressed.
          • However, A was importer of clementines, this was commercial activity which anyone could take up. Hence no indiv concern!
          • Criticism:
            • Pragmatically speaking, the test is economically unrealistic – limited number of firms in industry is determined by supply and demand. Further, it takes time and resources for potential traders to enter the market (ignores practical realities that determine number of traders in an open category).
            • Conceptually speaking, the test imposes too high a threshold, making it literally impossible for A to succeed. Further, ECJ has held that test for standing should be judged when application for review is lodged, yet ECJ  also saying that activity could be carried out by anyone at any time – focus shifts to ill-defined future.
            • Hence, basically impossible unless challenged decision had retrospective impact!
            • Because of element of retroactivity (looking to closed class of applicants), we exclude potential applicants who could be affected much more in the future.
        • JURISPRUDENCE: higher degree of individualisation than present in Plaumann is required:
          • Toepfer, 1965: applied for import licence before measure enters into force
          • Piraiki-Patraiki, 1985: pending contracts entered into before measure was adopted.
          • Comm v Infront, 2008: where measure has specific object of altering rights acquired by indiv prior to adoption of the measure.
        • Measures in the form of Regulations/Directives?
          • True Regs are not open to review (too general – no indiv concern!)
          • Abstract terminology test (stricter!) 
            • Exemplified in Calpak SpA v Comm, 1980: ECJ has to look beyond form, to determine if the measure is really a Reg in substance. A Reg will be a true Reg if it applied to ‘objectively determined situations and the Dentist Airdrie produces legal effects with regard to categories of persons described in a generalised and abstract manner’, hence not be open to review.
            • Criticism: always possible to draft norms in this way, especially since ECJ held that knowledge of number/identity of those affected would not preclude norm from being held to be a true Reg, immune from attack.