The Functional Representation of the Individual’s Interests Before the EC Courts: The Evolution of the Remedies System and the Pluralistic Deficit in the EC

Luigi Malferrari
Court of First Instance of the European Communities

Given the democratic deficit affecting Community governance, the representation of the individual’s interests through tools that are different from the traditional political ones is particularly necessary and important in the European Community (EC). Although such alternative tools cannot substitute for the political channels of interest representation, they can integrate them and they are essential to enhance the effectiveness of the representation of the individual’s rights and the respect of the rule of law. Given the difficulties citizens and enterprises experience in making their voices heard by the EC political institutions (Council, Commission, and Parliament) and national governments, sometimes the only feasible channel for effectively pursuing their interests is the judicial one. At the same time, the increasing “juridification” of society has turned judicial processes into sites of policymaking within the Community as well. As a result, the functional representation of individual interests before the courts plays a crucial role in the EC.

To be effective, the functional representation of the individual’s interests before courts presupposes three elements. First, individuals must have sufficient access to courts. Second, the individual’s interests must be taken into account in judgments. Third, those judgments must be enforced. This article will focus on the first element, whereas it will only touch on the second and third elements.

The aim of this article is thus twofold. First, it illustrates the development of the different avenues that allow the functional representation of the individual’s interests before the EC courts. Such avenues are described and critically assessed in regard not only to their aptness to ensure effective interest representation, but also to their impact on European, as well as national, governance. Second, building on this assessment, the paper will discuss possible reforms of the EC judicial remedies with a view to improving or at least maintaining their effectiveness as tools for the functional representation of the individual’s interests.

See other articles in Volume 12, Issue 2. Bookmark the permalink.