Individuals Standing in Actions for Annulment

The European Union (EU) Directive 2002/58/EC of the European Parliament is the community law concerning the processing of data and protection of privacy in electronic communications. As any other EU Directive, Member states must incorporate Directives' precepts within their domestic legislation. An interesting issue arouse when an individual filed a petition for partial annulment of Directive 2002/58/EC before the Fourth Chamber (Court of First Instance of the European Communities) and, on appeal, the European Court of Justice rendered its final decision holding that this individual did not have standing to seek annulment of the EU Directive. EU Directive 2002/58/EC of the European Parliament is commonly known as the "Directive on Privacy and Electronic Communications." This Directive establishes rules protecting the right to privacy with respect to the processing of personal data in the electronic communication sector, and provides rules for the free movement of such data in the EU community. Directive 2002/58/EC complements Directive 95/46/EC of the European Parliament regarding individuals' protection rights when third parties process or transfer their personal data across EU borders. Articles 13(1) to (3) of Directive 2002/58/EC were contested by an individual plaintiff before the Court of First Instance. Article 13 is titled" "Unsolicited Communications" and establishes that prior consent must be obtained from recipients of direct marketing communications when those communications are sent through fax, automated calling systems, or e-mail. The same Article establishes that a business or natural person may obtain their clients' e-mail address and send direct marketing e-mails of their similar products or services, provided that those clients are given the opportunity to object, easy and free of charge, to such contact. Lastly, Article 13 requires EU Member States to adopt legislation that ensures that unsolicited direct marketing communications, except the two previous cases explained above, are forbidden unless prior consent from the recipients is obtained or the wishes of those rejecting these types of communications are considered. Additionally, Preamble 40 to Directive 2002/58/EC established: "Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes, in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonized approach to ensure simple, Community-wide rules for businesses and users." The plaintiff seeking partial annulment of Directive 2002/58/EC is a French internet user and owner of the domain name 'Internet-libre.net.' Plaintiff sent a bulk of unsolicited employment applications via e-mail. He also used this method to make himself known. Plaintiff's e-mails say they are sent by 'Internet-libre.net' and allow recipients to opt-out from the mailing list. Plaintiff filed the present petition for partial annulment of Directive 2002/58/EC before the Court of First Instance, particularly regarding Articles 13(1) to (3). The EU Parliament and the Council raised an objection to plaintiff's petition arguing inadmissibility pursuant to Article 114 of the Rules of Procedures of the Court of First Instance. They also argued that Article 13(1) of the challenged Directive was not directly applicable to plaintiff because he was not an intended direct subject of these regulations. The European Court of Justice held that even though Article 230 EC does not expressly address the issue of whether private persons may file actions for annulment of a directive, case law shows that this fact alone does not render these actions automatically inadmissible. What Article 230 EC does says is that: "any natural or legal person may ... institute proceedings 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." Thus, the Court reasoned, in these situations it is required to analyze whether the challenged directive is a decision of 'direct and individual concern' to the applicant for annulment within the meaning of Article 230 EC. The Court held that Directive 2002/58 is a legislative measure regulating objective and specific situations regarding electronic communications. This Directive was applicable to any natural or legal person that provides electronic communications services and to any subscriber of those services. The fact that the Directive is a legislative measure does not itself precludes private parties' actions for annulment. The main issue is whether the directive is of individual or direct concern to the applicant for annulment. In the present case, the Court held, Directive 2002/58/EC was not specifically directed to plaintiff. The Directive was directed to any Internet user, business or natural person. There are not distinctions in the Directive that makes it of individual concern for the plaintiff. Thus, plaintiff's action for annulment was inadmissible and the case was dismissed. Paul Vannieuwenhuyze-Morin v. Council of the European Union and European Parliament European, Court reports 2003 Page II-01997 (2003).