OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 16 April 2026 (1)
Case C‑555/24 P
Magistrats européens pour la démocratie et les libertés (Medel),
International Association of Judges,
Association of European Administrative Judges,
Stichting Rechters voor Rechters
v
Council of the European Union
( Appeal – Recovery and Resilience Facility – Regulation (EU) 2021/241 – Council implementing decision on the approval of the assessment of the recovery and resilience plan for Poland – Milestones – Rule of law – Judicial independence – Action for annulment – Association representing judges – Standing – Fourth paragraph of Article 263 TFEU – Direct concern – Individual concern – Association acting on behalf of its members – Association acting in its own name – Effective judicial protection )
Table of contents
I. Introduction
II. Background
A. The Recovery and Resilience Facility
B. Events leading to the proceedings before the General Court
1. The decision at issue
2. Aftermath
III. Proceedings before the General Court and the order under appeal
IV. Procedure before the Court of Justice
V. Analysis
A. Admissibility of the claims relating to milestones F2G and F3G
1. First ground of appeal (direct concern of Polish judges affected by the decisions of the Disciplinary Chamber)
(a) Summary of the main arguments of the parties
(b) Assessment
(1) First condition for direct concern
(2) Second condition for direct concern
2. First part of the second ground of appeal (direct concern of Polish judges who were not subject to decisions of the Disciplinary Chamber)
(a) Summary of the main arguments of the parties
(b) Assessment
B. Admissibility of the claims relating to milestone F1G
1. Second part of the second ground of appeal (direct concern of all Polish judges and judges of the other Member States and of the EEA)
(a) All Polish judges
(b) Judges of the other Member States and of the EEA
2. Third ground of appeal (standing of the associations in their own name in the circumstances of the present case)
(a) Summary of the main arguments of the parties
(b) Assessment
C. Standing of associations in their own name
1. Arguments based on the dysfunctional judicial system in Poland
2. Importance of associations for participatory democracy
3. Arguments based on the standing of privileged applicants
4. The relevance of the KlimaSeniorinnen judgment
5. What are associations’ own interests?
6. What is direct concern and what is individual concern of an association?
VI. Consequences
A. Standing of the associations acting on behalf of their members
B. Standing of the associations acting in their own name
VII. Costs
VIII. Conclusion
I. Introduction
1. When can an association representing collective interests bring an action directly before the EU Courts?
2. That question is at the heart of the present appeal.
3. Four associations representing judges brought before the General Court actions for annulment challenging a decision of the Council of the European Union approving the recovery and resilience plan for the Republic of Poland, which contains milestones requiring certain changes in the judicial system of that Member State.
4. Those actions were rejected by the General Court on the grounds that those associations did not have standing to bring them under EU law.
II. Background
A. The Recovery and Resilience Facility
5. While the present appeal relates only to the question of standing to bring an action for annulment and hence its admissibility, the substance of the action concerns the European Union’s funding under one of its financial instruments, the Recovery and Resilience Facility (‘RRF’). A brief explanation of that instrument is necessary for understanding and addressing the present case.
6. The RRF, established by Regulation (EU) 2021/241 (‘the RRF Regulation’), (2) is the main financing instrument of the Next Generation EU programme, (3) which was agreed upon in the aftermath of the Covid-19 pandemic. (4) The RRF is a temporary financing instrument, used only during the 2021-2027 multiannual framework. (5) The RRF finances reforms and investments in the Member States by 31 December 2026. (6) One of its novelties is that it is financed from money borrowed by the European Commission on behalf of the European Union on the capital markets. The EU debt created in this way is to be repaid by the year 2058 from the European Union’s own resources.
7. Spending under the RRF consists of grants and loans (7) provided to Member States on the basis of their recovery and resilience plans (‘RRPs’). (8) That means that the reforms and investments to be financed are chosen and proposed by Member States, depending on their particular needs. However, those reforms and investments must pursue one of the six objectives which fall within the scope of the RRF Regulation. According to Article 3 thereof, these are: (1) green transition; (2) digital transformation; (3) smart, sustainable and inclusive growth; (4) social and territorial cohesion; (5) health, and economic, social and institutional resilience; and (6) policies for the next generation, children and the youth, such as education and skills. It is obvious from that list that RRF financing aims at more than just recovery from the Covid-19 pandemic.
8. Moreover, the RRF is a performance-based instrument, (9) whereby payments are made to Member States solely on the basis of the progress in the achievement of the reforms and investments in their RRPs. (10) For that purpose, Member States propose milestones and targets, (11) achievement of which triggers the disbursement of funds. (12)
9. Certain milestones, which must be complied with or no payment under the RRF can be made, are commonly referred to as super milestones. Three such super milestones, which relate to the justice system in Poland, are at issue in this case.
10. Spending under the RRF is thus submitted to conditionality, including rule of law conditionality, as with other EU financial frameworks. (13) That generally means attaching conditions to payment from the EU budget which pursue EU policy objectives beyond the primary purpose of spending. (14)
11. The procedure for providing financial support under the RRF Regulation may be summarised as follows.
12. First, a Member State wishing to receive financial support under the RRF submits a RRP to the Commission. (15) That plan sets out a number of elements, including, inter alia, an explanation of how it contributes to addressing challenges in the Council country-specific recommendations (‘CSRs’) in the context of the European Semester, (16) as well as the envisaged milestones and targets and an indicative timetable for the implementation of the reforms and investments and their effective monitoring. (17)
13. Second, the Commission, acting in close cooperation with the Member State, assesses the RRP (within two months), in accordance with the criteria laid down in the RRF Regulation, (18) and makes a proposal for a Council implementing decision. (19)
14. In that respect, Article 20(2) of the RRF Regulation states: ‘In the event that the Commission gives a positive assessment to a recovery and resilience plan, the Commission proposal for a Council implementing decision shall set out the reforms and investment projects to be implemented by the Member State, including the milestones and targets and the financial contributions calculated in accordance with Article 11.’ (20)
15. By virtue of Article 20(5)(e) of the RRF Regulation, the Commission proposal to the Council must also lay down measures necessary for the protection of the financial interests of the European Union.
16. That provision refers to Article 22 of the RRF Regulation, according to which, in implementing the RRF, the Member States as beneficiaries or borrowers of funds must take all appropriate measures to protect EU financial interests and ensure that the use of funds in relation to measures supported by that facility complies with the applicable EU law and national law. To that end, they must provide an effective and efficient internal control system. (21)
17. Third, the Council, on a proposal from the Commission, approves (within four weeks), by means of an implementing decision, the assessment of the RRP submitted by the Member State. (22)
18. Fourth, upon completion of the relevant milestones and targets, the Member State concerned can submit to the Commission a duly justified request for payment. (23)
19. When the Commission, after obtaining the opinion of the Economic and Financial Committee, (24) makes a positive assessment, it adopts a decision authorising disbursement. (25) When, on the contrary, the Commission establishes that the milestones and targets have not been satisfactorily fulfilled, the payment of all or part of the financial contribution is suspended. (26)
20. The action for annulment in the present appeal is concerned with a Council implementing decision and thus precedes the steps for authorising the actual disbursement of funds.
B. Events leading to the proceedings before the General Court
21. On 3 May 2021, Poland submitted its RRP to the Commission. (27)
22. On 1 June 2022, the Commission issued a positive assessment of Poland’s RRP.
23. On 17 June 2022, on the basis of the Commission’s proposal, (28) the Council adopted an implementing decision on the approval of the assessment of the RRP for Poland (‘the decision at issue’). (29)
1. The decision at issue
24. By that decision addressed to Poland, (30) the Council approved the RRP proposed by that Member State, including the relevant milestones and targets. (31) That decision sets out the amounts of non-repayable grants available to Poland, (32) as well as amounts available as loans. (33)
25. The preamble of that decision indicates that Poland’s RRP aims, inter alia, to address challenges in the CSR in the context of the European Semester related to the investment climate, and in particular the Polish justice system. (34)
26. According to recital 45 of that decision, in order to protect EU financial interests, ‘milestones are set out for a reform strengthening the independence and impartiality of courts, a reform to remedy the situation of judges affected by the decisions of the Disciplinary Chamber of the Supreme Court in disciplinary cases and judicial immunity cases, with a view to their reinstatement following positive review proceedings by the new Chamber, to be conducted without delay, and a reform ensuring an effective audit and control of Poland’s RRP, including protection of the financial interests of the Union’. Poland should fulfil those milestones before submission of the first payment request, and no payment may be made before their fulfilment.
27. Furthermore, recital 45 of that decision provides that the requirement to fulfil those milestones ‘is without prejudice to Poland’s obligation to comply at all times with its obligations under Union law, in particular Article 19(1) of the Treaty on the European Union (TEU), as interpreted by the Court of Justice of the European Union, which constitutes a key component of the Union acquis’.
28. Recital 50 of that decision additionally makes it clear that: ‘this Decision, approving the positive assessment of Poland's RRP by the Commission, in particular on the corresponding milestones on the reform of the judiciary, is without prejudice to any ongoing and future infringement proceedings and, more generally, to the obligation of Poland to comply with Union law, in particular the rulings of the Court of Justice of the European Union.’
29. The justice system milestones are set out in the annex as milestones F1G, F2G and F3G. That annex explains that ‘the main aim of the reforms is to raise the standard of judicial protection and to improve the investment climate in Poland, as well as to support the internal control system referred to in Article 22 of [the RRF Regulation], by strengthening the guarantees of independence and impartiality of courts. The reform shall result in a strengthening of the independence and impartiality of courts and judges established by law in accordance with Article 19 [TEU] and the relevant EU acquis. In accordance with Article 24(3) of [the RRF Regulation], any other reform shall be undertaken without weakening this result and negatively impacting the below elements.’ (35)
30. Milestone F1G relates to ‘F1.1 Reform strengthening the independence and impartiality of courts’. It is described as follows:
‘The reform shall:
a) in all cases relating to the judges, including the disciplinary and waiver of judicial immunity, determine the scope of jurisdiction of the Supreme Court Chamber, other than the existing Disciplinary Chamber, meeting the requirements ensuing from Article [19(1)] TEU. This shall ensure that the abovementioned cases shall be examined by an independent and impartial court established by law, while the discretionary power to designate the disciplinary tribunal with jurisdiction at first instance in cases concerning judges of ordinary courts shall be circumscribed,
b) clarify the scope of disciplinary liability of judges, by ensuring that the right of Polish courts to submit requests for preliminary rulings to the [Court of Justice of the European Union] is not restricted. Such request shall not be grounds to initiate disciplinary proceedings against a judge,
c) while the judges may still be held liable for professional misconduct, including obvious and gross violations of the law, determine that the content of judicial decisions is not classified as a disciplinary offence,
d) ensure that initiation of the verification, within the court proceedings, whether a judge meets the requirements of being independent, impartial and “being established by law”, according to Article [19] TEU is possible for a competent court where a serious doubt arises on that point and that such verification is not classified as a disciplinary offence,
e) strengthen procedural guarantees and powers of parties in disciplinary proceedings concerning judges, through
(i) assuring that the disciplinary cases against judges of the ordinary courts are examined within a reasonable time,
(ii) making more precise regulations on territorial jurisdiction of the courts examining the disciplinary cases to ensure that the relevant court can be directly determined in accordance with the legislative act; and
(iii) ensuring that the appointment of a defence counsel in disciplinary proceedings concerning a judge is done within a reasonable timeframe, as well as providing time for substantive preparation of the defence counsel to perform their functions in the given proceedings. Simultaneously the court shall suspend the course of proceedings in case of a duly justified absence of the accused judge or his or her defence counsel.
The reform shall enter into force by the end of the second quarter of 2022.’
31. Milestone F2G relates to ‘F1.2 Reform to remedy the situation of judges affected by the decisions of the Disciplinary Chamber of the Supreme Court in disciplinary cases and judicial immunity cases’. It is described as follows:
‘The reform shall ensure that judges affected by decisions of the Disciplinary Chamber of the Supreme Court have access to review proceedings of their cases. Such cases already decided by the Disciplinary Chamber shall be reviewed by a court that meets the requirements of Article [19(1)] TEU, in accordance with the rules to be adopted on the basis of the reform above. The legislative act shall set out that the first hearing of the court to adjudicate those cases shall take place within 3 months from receipt of the motion of the judge asking for a review, and that the cases shall be adjudicated within 12 months from receipt of such motion. The cases which are currently still pending before the Disciplinary Chamber shall be referred for further consideration to the court and in accordance with the rules determined within the [abovementioned] proceedings.
The reform shall enter into force by the end of the second quarter of 2022.
Both reforms listed above with a completion date of [the second quarter of] 2022 shall be fulfilled before the first payment request is submitted to the Commission and shall be a precondition for any payment under Article 24 of the RRF Regulation.’
32. Milestone F3G relates to ‘F1.2 Reform to remedy the situation of judges affected by the decisions of the Disciplinary Chamber of the Supreme Court in disciplinary cases and judicial immunity cases’. It is described as follows:
‘All review cases launched in accordance with Milestone F2G shall be adjudicated, unless in duly justified exceptional circumstances.’
33. That milestone must be completed by the fourth quarter of 2023.
2. Aftermath
34. On 15 December 2023, Poland submitted a request for payment of the first instalment of grant and loan support under the RRF.
35. On 29 February 2024, the Commission gave a positive preliminary assessment, finding that Poland had satisfactorily fulfilled milestones F1G and F2G. (36) That assessment was based, in particular, on the provisions of Polish legislation adopted on 9 June 2022 (‘the Law of 9 June 2022’), (37) shortly before the Council adopted the decision at issue on 17 June 2022.
36. On 5 April 2024, the Commission adopted an implementing decision authorising disbursement, affirming that milestones F1G and F2G were satisfactorily fulfilled. (38)
37. Later, on 27 December 2024, Poland requested payment of further instalments. After a positive preliminary assessment finding that Poland had satisfactorily fulfilled milestone F3G, (39) on 19 November 2025, the Commission adopted an implementing decision authorising the disbursement of those instalments. (40)
III. Proceedings before the General Court and the order under appeal
38. In the meantime, on 28 August 2022, four associations representing judges each brought an action seeking the annulment of the decision at issue in its entirety, raising five pleas in law. (41)
39. According to the case file before the General Court, the first association, Magistrats européens pour la démocratie et les libertés (Medel), is an association founded in France, whose members are associations of judges and prosecutors. While its membership is restricted to such associations, any individual member of a member association is ipso facto considered to be a member of Medel. Its members include the Polish judicial association Iustitia, comprising a number of Polish judges subject to disciplinary proceedings. (42) Medel’s objectives include, inter alia, the defence of the independence of the judiciary and respect for the rule of law.
40. The second association, the International Association of Judges (IAJ), is an international organisation founded in Austria, whose members are national associations or representative groups of judges from five continents. While its membership is restricted to one representative association per country, any individual member of a member association is ipso facto considered to be a member of the IAJ. Its members, like Medel’s, include the Polish judicial association Iustitia, comprising a number of Polish judges subject to disciplinary proceedings. The IAJ’s main aim is to safeguard the independence of the judiciary.
41. The third association, the Association of European Administrative Judges (AEAJ), is an association founded in Germany, whose members include national associations of administrative judges, representing administrative judges across Europe including Poland, as well as individuals who are administrative judges from countries from which no national association is a member. Its objectives include, inter alia, advancing legal redress for individuals vis-à-vis public authority in Europe and promoting freedom and justice.
42. The fourth association, Rechters voor Rechters (Judges for Judges), is a foundation founded in the Netherlands. It was established by judges to support fellow judges, in particular those who have experienced interference with their independence. It defends the interests of Polish judges, including those subject to disciplinary proceedings.
43. The main thrust of their actions was that the Council was wrong to approve the assessment of Poland’s RRP because milestones F1G, F2G and F3G infringed EU law in a number of ways. In that respect, they claimed that milestones F2G and F3G were inconsistent with the Court’s case-law (43) concerning the Disciplinary Chamber of the Supreme Court of Poland (‘the Disciplinary Chamber’) and thus worsened the position of Polish judges subject to unlawful sanctions and further undermined judicial independence, while milestone F1G was insufficient to ensure effective judicial protection in Poland and therefore failed to meet the relevant standards required by EU law.
44. Poland, Hungary and the Commission were granted leave to intervene in support of the Council.
45. By order of 4 June 2024, Medel and Others v Council (‘the order under appeal’), (44) the General Court, sitting as a Grand Chamber in an expedited procedure, (45) dismissed the actions as inadmissible, ruling that those four associations did not have standing to bring the actions under the fourth paragraph of Article 263 TFEU. (46)
46. The General Court noted at the outset, in paragraph 40 of the order under appeal, that ‘in accordance with settled case-law, actions for annulment brought by associations are held to be admissible in three types of situation: first, where a legal provision expressly grants a series of procedural powers to trade associations; second, where the association represents the interests of its members, who would themselves be entitled to bring proceedings; and, third, where the association is distinguished individually because its own interests as an association are affected, in particular because its negotiating position has been affected by the act in respect of which annulment is sought.’ (47)
47. The General Court then assessed the admissibility of the actions brought by those four associations as acting in their own name and as acting on behalf of their members. It seems that the General Court considered that the first and the third situations described in the previous point pertained to the associations acting in their own name, and the second situation to the associations acting on behalf of their members.
48. First, the General Court found that the actions were inadmissible in so far as the applicants were acting in their own name. As regards the first situation, the General Court considered that there were no legal provisions granting the applicants procedural powers in the context of the RRF (paragraphs 42 to 45 of the order under appeal). As regards the third situation, the General Court considered that the applicants did not establish that their own interests as an association were affected, since the fact, inter alia, that they were interlocutors with the EU institutions in the context of the rule of law or that they had observer status in bodies of the Council of Europe was not sufficient (paragraphs 46 to 51 of the order under appeal).
49. Second, the General Court held that the actions were inadmissible, in accordance with the second situation, in so far as the applicants were acting on behalf of their members. (48) It started with the condition of direct concern and divided its assessment into three groups of judges (paragraphs 59 and 60 of the order under appeal).
50. In the General Court’s view, milestones F1G, F2G and F3G were of a budgetary conditionality nature, in that their achievement was a condition for obtaining funding under the RRF. By setting those milestones, the Council did not seek to replace the rules on the value of the rule of law or on effective judicial protection, nor to authorise Poland not to comply with judgments of the Court of Justice (paragraphs 65 to 80 of the order under appeal).
51. In that light, the General Court found that milestones F2G and F3G did not directly concern the legal situation of the Polish judges affected by the decisions of the Disciplinary Chamber (paragraphs 81 to 93 of the order under appeal). It further reasoned that, in so far as milestones F2G and F3G did not directly concern the legal situation of Polish judges affected by the decisions of the Disciplinary Chamber, the same applied to Polish judges who were not affected by such decisions (paragraph 96 of the order under appeal).
52. Turning to milestone F1G, the General Court considered that all Polish judges and judges of the other Member States and of the European Economic Area (EEA) were not directly concerned. In that regard, the applicants merely made assertions of a general nature based on their view as to what should have been included in that milestone, without indicating the specific elements that directly affected Polish judges. In any case, the absence in the decision at issue of rules that the applicants regarded as necessary did not constitute a direct interference with the rights of Polish judges which directly affected their legal situation (paragraphs 97 to 101 of the order under appeal).
53. Likewise, the General Court considered that, even if deficiencies in the legal order of one Member State may have repercussions on the exercise of judicial power in others, that did not mean that the decision at issue was capable of directly affecting the legal situation of judges of other Member States and of the EEA. Nor did the risk of possible spill-over effects between Member States, in so far as the legislature of one Member State would draw on reforms from other Member States, demonstrate that the decision at issue directly affected the situation of those judges (paragraphs 102 to 107 of the order under appeal).
54. Third, the General Court rejected the applicants’ arguments, which it described as inviting it to ease the admissibility conditions in the present case. As the applicants could not claim to be directly concerned by the decision at issue, that would mean for the General Court setting aside the condition of direct concern in Article 263 TFEU contrary to the case-law of the Court of Justice. Systemic deficiencies in the Polish judicial system could not justify derogating from that condition. Nevertheless, the General Court emphasised that its findings were without prejudice to Poland’s obligations to remedy the infringements of EU law found by the Court of Justice with respect to the rule of law, that Article 263 TFEU allows the Member States and EU institutions to bring actions against EU measures, and that it was for the Commission to act, as guardian of the Treaties, to ensure Poland’s compliance with the second subparagraph of Article 19(1) TEU (paragraphs 113 to 118 of the order under appeal).
IV. Procedure before the Court of Justice
55. By their appeal lodged on 14 August 2024, the four associations, as the appellants, request that the Court set aside the order under appeal, declare the actions admissible and refer the case back to the General Court to rule on the substance. They also request that the Court order the Council to pay the costs.
56. By order of the President of the Court of Justice of 4 February 2025, (49) applications for leave to intervene submitted by the associations RECLAIM and The Good Lobby, along with the foundation Fundación Hay Derecho, in support of the form of order sought by the appellants were rejected.
57. In its response lodged on 14 November 2025, the Council requests that the Court dismiss the appeal and order the appellants to pay the costs.
58. In its response lodged on 12 November 2025, Poland requests that the Court dismiss the appeal and order the appellants to pay the costs.
59. In its response lodged on 14 November 2025, Hungary requests that the Court dismiss the appeal.
60. In its response lodged on 7 November 2025, the Commission requests that the Court dismiss the appeal and order the appellants to pay the costs.
61. The appellants also lodged a reply on 25 February 2025, while the Council and the Commission each lodged a rejoinder on 4 April 2025, and Poland and Hungary each lodged a rejoinder on 7 April 2025.
62. A hearing was held on 2 December 2025 at which the appellants, the Council, Poland, Hungary and the Commission presented oral argument.
V. Analysis
63. The main question raised by this appeal is whether the General Court erred when it rejected the actions for annulment of the four appellant associations based on the lack of standing under the fourth paragraph of Article 263 TFEU.
64. It can be discerned from the case-law of the Court of Justice that associations can introduce actions for annulment either on behalf of their members or in their own name. (50)
65. The present case gives the Court the opportunity to clarify differences in the standing requirements in relation to those two different procedural possibilities of associations. Importantly, the Court is invited to interpret the requirements of direct and individual concern in situations when associations act in their own name, an issue that has not yet been sufficiently explained in the case-law.
66. The appellant associations’ three grounds of appeal follow those two procedural possibilities. By the first two grounds, they claim that the General Court erred in finding that different categories of judges, members of those associations, did not have standing. The third ground concerns the standing of the appellant associations in their own name.
67. At the same time, it is important to observe at the outset that, as seen in point 43 of the present Opinion, the claims as they relate to milestone F1G and as they relate to milestones F2G and F3G are of a different nature.
68. In relation to the two latter milestones, at first instance, the appellants argued, in essence, that the requirement to introduce review proceedings for disciplinary decisions imposed by the Disciplinary Chamber conflicts with EU law as interpreted by the Court of Justice, since such decisions should be considered non-existent per se without the need for any such proceedings.
69. In relation to milestone F1G, the appellants asserted that it is insufficient to ensure the independence of the judiciary in Poland. (51) Thus, it is the insufficiency of, rather than the conflict between, existing requirements which is why, according to the appellants, the decision at issue failed to ensure an internal control system necessary for safeguarding EU financial interests, in contravention of Articles 20(5)(e) and 22 of the RRF Regulation.
70. The difference in nature of those claims is relevant for the assessment of the fulfilment of direct concern as one of the standing requirements, as that assessment rests on the effects that the challenged act has on the position of an applicant.
71. For that reason, my analysis is structured as follows. Under A, I will assess the admissibility of the claims relating to milestones F2G and F3G. The relevant grounds of appeal in that respect are the first ground and the first part of the second ground. They address the General Court’s rejection of the appellant associations’ claims based on the lack of direct concern of two different groups of Polish judges, members of those associations. They therefore concern the standing of the appellant associations on behalf of their members.
72. Under B, I will assess the admissibility of the claims relating to milestone F1G. The relevant grounds of appeal in that respect are the second part of the second ground and the third ground. On the one hand, they address the General Court’s rejection of the appellant associations’ claims based on the lack of direct concern of all Polish judges and judges of the other Member States and of the EEA and thus concern the standing of the appellant associations on behalf of their members. On the other hand, they also address the General Court’s rejection of the appellant associations’ claims based on the lack of standing in their own name.
73. Under C, I will assess questions left unanswered by the General Court relating to the standing of associations in their own name for the purposes of resolving the issue of standing in the present case.
A. Admissibility of the claims relating to milestones F2G and F3G
1. First ground of appeal (direct concern of Polish judges affected by the decisions of the Disciplinary Chamber)
(a) Summary of the main arguments of the parties
74. By the first ground of appeal, the appellants argue that the General Court erred in law, in paragraphs 65 to 93 of the order under appeal, in finding that milestones F2G and F3G do not directly concern the legal situation of Polish judges affected by the decisions of the Disciplinary Chamber.
75. That ground is divided into three parts, which I will deal with together. First, the appellants claim that the General Court erred in failing to focus on the effects of those milestones on their members and instead concentrated on their purpose. Second, the appellants complain that the General Court erred in identifying the purpose of those milestones as simply concerning budgetary conditionality. Third, the appellants argue that the General Court erred in its interpretation and application of the direct link requirement for direct concern.
76. The Council, supported by Poland, Hungary and the Commission, submits that the General Court correctly found that milestones F2G and F3G are merely budgetary conditions to be fulfilled by a Member State and do not create any direct link between the requirement for review proceedings and the Polish judges affected by the decisions of the Disciplinary Chamber. The General Court was therefore correct to consider that those milestones are not of direct concern to the appellants as representatives of those judges.
(b) Assessment
77. The first ground of appeal invites the Court to establish whether the Polish judges affected by the decisions of the Disciplinary Chamber are directly concerned by milestones F2G and F3G.
78. As the General Court correctly observed, (52) according to settled case-law, in order for a person to be directly concerned by an EU measure, two cumulative conditions must be fulfilled: ‘the measure being contested, first, directly affects the legal situation of that person and, second, leaves no discretion to the addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from EU provisions without the application of other intermediate rules’. (53)
(1) First condition for direct concern
79. As regards the first condition for direct concern, it requires that the legal position of the applicant will be changed because of the challenged measure. There must be, in other words, a direct link between the measure and the legal position of the applicant. (54)
80. The appellants claim that, in assessing whether such a link existed, the General Court wrongly disregarded the effects of milestones F2G and F3G on the Polish judges who were subject to disciplinary sanctions, and only took, wrongly, into consideration the purpose of those milestones.
81. As the General Court noted in paragraph 64 of the order under appeal, (55) the Court of Justice’s case-law explains what is to be taken into consideration to establish whether there is a direct link between the challenged measure and the applicant’s legal position. In that respect, ‘it is necessary to assess whether the challenged act is the source of a distinct change in the legal position of the natural or legal person in question, by examining the substance of that act and by assessing its effects in the light of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution, body, office or agency which adopted it’. (56)
82. Therefore, the content, context and purpose of the milestones are relevant in determining the effects which they have on the position of Polish judges affected by the decisions of the Disciplinary Chamber.
83. For that reason, even if the appellants are correct when they assert that the effects of the act are what the Court of Justice must focus on, the General Court did not err by taking into consideration the content, context and purpose of the act, as they are factors to be taken into account in determining its effects on the appellants.
84. However, taking into consideration its purpose, the General Court did not consider that there is a direct link between the content of milestone F2G and the legal situation of the judges concerned. In that respect, it drew a parallel with Nord Stream 2, stating that in that case: ‘the Court of Justice was able to conclude that there was a direct link between the contested act, which was a directive, and its effects, since the provisions at issue had rendered specific obligations applicable to the applicant’. (57)
85. The General Court then explained that, in the present case, no specific obligation was imposed on Poland, (58) and that ‘even after the adoption of the [decision at issue], the situation of the judges affected by decisions of the Disciplinary Chamber remained governed by the relevant provisions of Polish law’. (59)
86. In my view, the General Court misinterpreted the Court’s case-law. Milestone F2G imposed a specific obligation on Poland to introduce review proceedings, in the same way as a directive introduces an obligation of result on Member States. Those review proceedings directly affect the legal position of the judges at issue.
87. The appellants claim that the need to initiate such review proceedings is what changes those judges’ legal position, as relevant judgments of the Court of Justice (60) have the effect of making those disciplinary sanctions non-existent. If their argument is correct, which is a matter for a decision on the merits, insisting on review proceedings of any kind to eliminate disciplinary sanctions would indeed worsen the legal position of Polish judges who were subject to such sanctions.
88. The finding of the General Court, in paragraph 89 of the order under appeal, that the situation of those judges will remain governed by Polish law does not matter, as it is the milestone F2G itself that requires the introduction of review proceedings that directly affect their legal position.
89. The Court’s findings in Nord Stream 2 are precisely what leads to the conclusion that, despite the fact that milestone F2G requires Poland to introduce review proceedings and that sanctioned judges will have to have recourse to such proceedings on the basis of Polish law, the milestone itself nevertheless is the source of the change of the judges’ position, as it requires the establishment of review proceedings in a similar way to how directives impose an obligation of result.
90. Therefore, I agree with the appellants that the General Court drew the wrong conclusions on the basis of the Court of Justice’s case-law.
91. Likewise, the arguments put forward by the Council, supported by Poland, Hungary and the Commission, that Poland is left with the choice of the form and concrete rules for the review proceedings also does not matter. It is the requirement to have review proceedings of whatever form that is relevant. It is that requirement which has a direct link to the legal position of the concerned judges.
92. Consequently, I consider that the General Court erred, in paragraph 88 of the order under appeal, in finding that the first condition for direct concern was not fulfilled.
(2) Second condition for direct concern
93. The more complex question, which the General Court left unanswered, (61) relates to the second condition for direct concern, which essentially requires that no discretion is left in the implementation of the challenged measure, if such implementation is necessary (see point 78 of the present Opinion).
94. As with the first condition, the Court of Justice has also held that assessing ‘the question whether an act leaves discretion to the addressees responsible for its implementation must be examined by reference to the substance of that act’. (62)
95. Therefore, the nature of the milestones is also relevant in as much as it determines the margin of discretion enjoyed by Poland in relation to the introduction of review proceedings.
96. In general, if an EU measure requires implementing measures, the direct link between the challenged measure and the legal position of the person challenging it does not exist if the implementing authority is left with the choice not to implement the measure or to alter its effects on the person challenging it.
97. Consequently, if assessed from the point of view of the person whose legal position may be changed by the challenged measure, what matters is that the subject responsible for implementing the measure (in this case, Poland) cannot change its effects on the person challenging it. (63)
98. In the present case, milestone F2G requires implementing measures. Those measures are to be adopted by Poland. The relevant question is, therefore, whether Poland could decide not to introduce review proceedings.
99. In that respect, the nature of the milestones becomes relevant. The Council, supported by Poland, Hungary and the Commission, submits that the General Court correctly found that milestone F2G did not create a legal obligation for Poland to introduce review proceedings. Rather, the introduction of such proceedings is merely a budgetary condition in order for Poland to receive payment under the RRF. Those parties add that qualifying the milestones as super milestones does not change their legal nature, as non-compliance merely means that funding cannot be obtained.
100. The appellants, on the contrary, emphasise that the possibility for Poland not to give effect to the milestones is purely theoretical.
101. To my mind, on the one hand, it is true that Poland is not obliged to ask for the payment of funds under the RRF. (64) In that sense, the milestones could be understood merely as spending conditionality, and Poland could decide not to use the funds available under the RRF. (65) In that case, Poland would indeed not be ‘bound’ by the requirement to introduce review proceedings.
102. On the other hand, however, the Court has accepted that, for the purposes of finding direct concern, the challenged act can be characterised as leaving no discretion ‘where the possibility for addressees not to give effect to the contested European Union act is purely theoretical and their intention to act in conformity with it is not in doubt’. (66)
103. For example, Bock v Commission (67) concerned an action for annulment brought by a German company against a Commission decision authorising Germany to exclude from EU treatment certain products originating from third countries but already in circulation in the Member States (here, mushrooms from China). The Commission had argued that an authorisation granted to Germany was not of direct concern to the applicant since that Member State remained free to make use of it. The Court found that the German authorities had nevertheless already informed the applicant that they would reject its application as soon as the Commission had granted them authorisation and they had requested that authorisation with particular reference to the applications already before them at that time. The Court found that the decision was of direct concern to the applicant.
104. Another well-known example is Piraiki-Piraiki and Others v Commission, (68) which concerned an action for annulment brought by certain Greek companies against a Commission decision authorising France to take protective measures that limited imports of cotton yarn from Greece. The Commission and France argued that the applicants were not directly affected by that decision because it merely authorised France to institute a quota system on imports and thus left that Member State free to make use of it or not. The decision therefore did not itself establish a system limiting imports but, in order for it to have practical effect, required implementing measures on the part of the French authorities. The Court nevertheless considered that that fact did not in itself prevent the decision from being of direct concern to the applicants because, even before being authorised to do so by the Commission, France applied a very restrictive system of licences for imports of cotton yarn of Greek origin, and it was France itself that requested authorisation for stricter measures. In those circumstances, the possibility that France might decide not to make use of the authorisation granted to it by the Commission decision was entirely theoretical, since there could be no doubt as to the intention of the French authorities to apply that decision. (69)
105. These examples, although they concern commercial cases, show that, even if formally the addressee is left with the choice to implement the challenged measure, its discretion might not exist as it is purely theoretical in the circumstances of a particular case. Obviously, such a conclusion necessitates a case-by-case examination. (70)
106. In the present case, to decide whether the discretion of Poland can be understood as purely theoretical, it is necessary to take into consideration the nature of the procedure of agreeing to milestones and targets under the RRF Regulation.
107. As I have explained in points 5 to 20 of the present Opinion, the procedure under the RRF Regulation suggests that it was Poland that proposed the milestones to the Commission, which the latter found acceptable and proposed to the Council, which ultimately also accepted them. (71) Therefore, as rightly pointed out by the appellants, given that Poland came up with the milestones, there seems to be no reason why it would not implement them.
108. Importantly, the reform required under milestone F2G had already been adopted by Poland on the basis of the Law of 9 June 2022 when the decision at issue was adopted (see point 35 of the present Opinion). In reality, therefore, the Council’s implementing decision in fact endorsed the choice already made by Poland. If such a choice is legally flawed, as claimed by the appellants, it seems necessary to allow its endorsement by EU institutions to be challenged before the EU Courts. (72)
109. Consequently, in the circumstances of the present case, to paraphrase Advocate General Dutheillet de Lamothe, considering that milestone F2G left discretion to Poland not to apply it would, in my view, represent excessive formalism. (73)
110. Finally, the General Court considered that only milestone F2G is relevant in assessing the direct concern of the judges affected by the decisions of the Disciplinary Chamber, as milestone F3G merely sets a time limit within which the review proceedings must be implemented. (74)
111. I must disagree with that finding as well, since allowing for the resolution of the legal situation of those judges until the end of 2023 on the basis of milestone F3G also directly affects the legal position of those judges. As claimed by the appellants, that milestone concretises milestone F2G and reinforces its effects on the judges under disciplinary sanctions and is therefore of direct concern to them.
112. To sum up, I agree with the appellants that the General Court misapplied the case-law and failed to properly assess the effects of milestones F2G and F3G in the decision at issue on the legal situation of Polish judges affected by the decisions of the Disciplinary Chamber. Milestones F2G and F3G have a direct link with the specific legal situation of those judges, capable of altering that situation, and the discretion of Poland not to implement those milestones is merely theoretical. Accordingly, the General Court erred in finding that milestones F2G and F3G did not directly concern those judges and in rejecting the actions for annulment introduced by associations representing them as inadmissible.
2. First part of the second ground of appeal (direct concern of Polish judges who were not subject to decisions of the Disciplinary Chamber)
(a) Summary of the main arguments of the parties
113. By the first part of the second ground of appeal, the appellants argue that the General Court erred in law, in paragraphs 95 and 96 of the order under appeal, in finding that milestones F2G and F3G did not alter the legal situation of Polish judges that were not subject to decisions of the Disciplinary Chamber.
114. In relation to milestones F2G and F3G, the appellants contend that there is a fundamental difference in effects as between the Polish judges affected by the decisions of the Disciplinary Chamber and Polish judges who remain in office and are required to continue fulfilling their functions in the absence of their peers. The General Court thus failed to deal with their arguments regarding the chilling effects on, and the increased workload of, those judges.
115. The Council, supported by Poland, Hungary and the Commission, submits that there is no obligation on the Member States to implement milestones, which does not change depending on the categories of judges, and thus the decision at issue is incapable of producing legal effects on those judges.
(b) Assessment
116. As regards the direct concern of Polish judges other than those affected by the decisions of the Disciplinary Chamber with milestones F2G and F3G, I can agree with the appellants that the General Court did not take into consideration their arguments that those judges are affected in a different way than the judges addressed by the first ground of appeal. For that reason, the General Court failed to assess whether there is a direct link between milestones F2G and F3G and those other Polish judges.
117. Even if the General Court erred by not responding to the appellants’ arguments at first instance, I am nevertheless of the opinion that there is no direct link between milestones F2G and F3G and the legal position of those other Polish judges. In my view, the appellants failed to demonstrate that there would be chilling effects which would directly affect those judges’ legal position. As far as the possible higher workload of some Polish judges, which I understand would be a consequence of suspension from work of sanctioned judges until the end of the review proceedings, is concerned, neither was such an increase in workload substantiated by the appellants, nor could it be characterised as affecting the legal position of those judges. (75)
118. Consequently, I consider that the General Court correctly concluded that milestones F2G and F3G do not directly concern Polish judges that were not subject to disciplinary sanctions imposed by the Disciplinary Chamber.
B. Admissibility of the claims relating to milestone F1G
119. The grounds of appeal discussed until now have concerned milestones F2G and F3G. The remaining grounds of appeal concern milestone F1G.
120. To recall, milestone F1G requested Poland to introduce reforms with the aim of strengthening the independence and impartiality of courts. The appellants’ substantive claim at first instance was that the concrete reforms required under milestone F1G were insufficient to achieve that aim as necessary for safeguarding the financial interests of the European Union.
121. The General Court rejected those claims based on the lack of direct concern of the appellant associations acting on behalf of their members and the second part of the second ground of appeal is directed against that rejection. I will analyse it under 1. The General Court also rejected claims relating to the insufficiency of milestone F1G put forward by the appellant associations in their own name and the appellants have challenged that rejection under the third ground of appeal, which I will assess under 2.
1. Second part of the second ground of appeal (direct concern of all Polish judges and judges of the other Member States and of the EEA)
122. By the second part of the second ground of appeal, the appellants argue that the General Court erred in law, in paragraphs 97 to 107 of the order under appeal, in failing to grant standing to the appellants to challenge the insufficiency of milestone F1G on behalf of their members.
123. This part of that ground of appeal relates separately to the appellant associations acting in the name of all Polish judges, on the one hand, and judges of the other Member States and of the EEA, on the other. I will start with the claim relating to all Polish judges.
(a) All Polish judges
124. The appellants claim that all Polish judges are directly concerned by the insufficiency of milestone F1G. The General Court wrongly found that their arguments were merely general assertions of insufficiency on the basis of which direct concern cannot be established. Rather, they set out in detail the requirements flowing from the Court of Justice’s case-law and the deficiencies in judicial protection.
125. In paragraph 100 of the order under appeal, the General Court considered that the appellants had merely made assertions of a general nature, and that they did not indicate, in the actual text of that milestone, specific elements which directly affected Polish judges.
126. At first instance, the appellants submitted that milestone F1G directly affected the legal situation of Polish judges because, due to the insufficiency of milestone F1G to re-establish effective judicial protection in Poland, those judges will be forced to adjudicate cases in professionally impossible circumstances where they will still be subject to unlawful pressures and curtailment of their independence and impartiality. Polish judges would be forced to exercise their functions in circumstances where there would be doubts about their ability to make preliminary references, to give full effect to EU law and to render decisions against the interests of the government or the ruling political party. (76)
127. Even if this might be true, it does not allow the Court to conclude whether and how those insufficiencies would be the source of changes in the individual legal position of all or some Polish judges that are members of the appellant associations, which is the test developed in the case-law for establishing direct concern of natural and legal persons (see point 81 of the present Opinion). In other words, it is not clear how they would influence particular rights and obligations of some or all Polish judges.
128. I, therefore, consider that the General Court did not err when it rejected the appellants’ claims based on the fact that Polish judges were not directly concerned by the insufficiency of milestone F1G.
(b) Judges of the other Member States and of the EEA
129. The appellants contend that the General Court failed to state reasons for rejecting their arguments that the insufficiency of milestone F1G directly affects the legal situation of all judges of the Member States and of the EEA because it interferes with their daily work, such as recognising and enforcing judgments of Polish courts, as well as because of the spillover effects from one legal order to others.
130. To my mind, even if a deterioration in the respect for the rule of law in one Member State can have some effects on cross-border judicial cooperation, I do not see how a direct link can be established between insufficient measures and their effect on the rights and obligations of the judges of the other Member States and of the EEA.
131. Therefore, the General Court did not err in that respect either.
2. Third ground of appeal (standing of the associations in their own name in the circumstances of the present case)
(a) Summary of the main arguments of the parties
132. By the third ground of appeal, the appellants argue that the General Court erred in law, in paragraphs 41 to 51 and 110 to 119 of the order under appeal, in failing to grant standing to the appellants in their own name under the current rules.
133. In that respect, the appellants divide their arguments into three parts. First, the appellants argue that the General Court wrongly interpreted the fourth paragraph of Article 263 TFEU because that interpretation should have taken into consideration the dysfunctionality of the judicial system in Poland. Second, the appellants argue that the General Court should have interpreted the fourth paragraph of Article 263 TFEU when applied to associations acting in their own name in the light of the KlimaSeniorinnen judgment of the European Court of Human Rights (ECtHR). (77) Third, according to appellants, the General Court wrongly considered that the privileged standing of the Member States and EU institutions justified denying standing to the appellants.
134. The Council, supported by Poland, Hungary and the Commission, submits that the General Court correctly found that the appellants did not have standing and that deficiencies in the Polish justice system do not justify setting aside the requirements of direct and individual concern laid down in the Treaties. Hungary and the Commission add that the appellants’ claims regarding the lack of an effective route before the Polish courts are unsubstantiated. In relation to the KlimaSeniorinnen judgment, those parties contend that it is based on specific considerations relating to climate change and cannot be transposed to the present case.
135. In particular, at the hearing, the Council emphasised that the conditions set out in the fourth paragraph of Article 263 TFEU are themselves an essential element of the rule of law and part of the complete system of remedies under the Treaties, which is the cornerstone of the EU system of judicial protection. Applying a lenient approach for standing risks introducing uncertainty, and recognising the standing of the appellants in the present case would lead de facto to introducing an actio popularis.
136. The appellants responded that they are not asking the Court to introduce an actio popularis, but to interpret the fourth paragraph of Article 263 TFEU as applied to associations acting in their own name in the light of the principle of effective judicial protection as enshrined in Article 19(1) TEU and Article 47 of the Charter.
(b) Assessment
137. By the third ground of appeal, the appellants argue that their actions should have been accepted as admissible on the basis of the ‘third type of situation’ under which associations may have standing in their own right. In the alternative, they argue that the ‘three types of situations’, which the General Court recalled in paragraph 40 of the order under appeal, are not closed, and that the General Court should have admitted their actions outside of those situations.
138. As seen in point 46 of the present Opinion, the General Court initiated its assessment by stating that there exists settled case-law that associations may bring direct actions in three types of situations.
139. In my view, as I mentioned in point 64 of the present Opinion, associations can have standing either on behalf of their members or in their own name. Those three situations are merely a description of the situations recognised in the case-law thus far in which associations have been found to have standing to bring actions for annulment. (78) They do not represent a closed list. (79)
140. The Court of Justice, in contrast to the General Court, has not referred to three types of situations as an accepted interpretation of the fourth paragraph of Article 263 TFEU in relation to associations. It has merely referred to those situations when assessing the findings of the General Court on appeal. (80)
141. In relation to the ‘third type of situation’, in paragraphs 46 to 50 of the order under appeal, the General Court assessed whether the appellants’ position as negotiators was involved in the present case, and concluded that it was not. (81) It is true that, in the case-law thus far, the EU Courts have narrowly interpreted the situation allowing standing of an association in its own name on the basis of its negotiating position. In fact, there are only two cases in the case-law of the Court of Justice in which standing was recognised on the basis of negotiating position, (82) and the interpretation of those two cases was narrowed down in subsequent judgments, in which standing as negotiator was not recognised. (83) In that sense, the General Court did not err in applying the existing case-law.
142. However, the General Court did not interpret the rest of the ‘third type of situation’, according to which standing may be granted to associations in other situations in which they defend their own interests, and not only in those in which they were negotiators. (84) It equally did not assess the claim that the appellants might have standing outside of the ‘three types of situations’.
143. In paragraph 116 of the order under appeal, the General Court concluded that the appellants could not claim that they were directly concerned, referring back to its findings relating to the standing of those associations on behalf of their members. Therefore, the General Court did not at all consider how the requirement of direct concern should be interpreted when it comes to the standing of associations in their own name.
144. I am therefore of the view that the General Court failed to assess the appellants’ claim that the requirements of direct and individual concern of associations bringing actions in their own name should be interpreted in the light of the principle of effective judicial protection.
145. In my opinion, that lack of reasoning in relation to the appellants’ arguments is sufficient to accept the third ground of appeal and annul the order under appeal as inadequately reasoned in relation to the standing of the associations in their own name.
146. That said, for the purposes of resolving the issue of standing in the present case, I find it necessary to provide the Court with an analysis of the questions that were left unanswered by the order under appeal.
C. Standing of associations in their own name
147. The appellants have put forward several arguments in favour of interpreting the fourth paragraph of Article 263 TFEU as granting them standing in their own name in the present case. I will first assess the arguments relating to the dysfunctional judicial system in Poland, before I consider other arguments of a more general nature.
1. Arguments based on the dysfunctional judicial system in Poland
148. The appellants claim that the Court’s interpretation of the fourth paragraph of Article 263 TFEU is based on the premiss that the rule of law is respected and upheld throughout the European Union and that there exist effective remedies in national judicial systems. That is, they claim, no longer the case in Poland, which justifies broadening the standing requirements under which associations can bring direct actions in their own name.
149. In that respect, it is true that the interpretation according to which the European Union is based on a complete system of legal remedies implies that persons who consider that their rights based on EU law have been breached can in principle turn to a court to ask for their protection. (85) If direct access to the EU Courts is closed, there must exist ways to introduce an action before a national court, which then may or must refer questions of EU law to the Court of Justice. (86) In that sense, functional judicial systems in Member States, which guarantee the independence of the judiciary, are an indispensable part of such a system.
150. The line of argument put forward by the appellants is, therefore, that, if the national avenue is closed because of systemic issues, the EU avenue must be open; otherwise, there would be a breach of the right to effective judicial protection.
151. There are two reasons that militate in favour of rejecting that line of argument, one legal and one factual.
152. The legal argument, also presented by the Council at the hearing, and underlined by the Court on several occasions, is that the requirements of direct and individual concern laid down in the fourth paragraph of Article 263 TFEU cannot be changed by the Court, even for the sake of effective judicial protection. Only the Member States may decide to change the system of judicial protection as envisaged by the Treaties. (87)
153. The factual argument concerns the judicial system in Poland. Even if there are serious problems in the functioning of the Polish judiciary, it appears that that system is not dysfunctional to such a degree that the cases relating to the use of the RRF funds in Poland could not reach the competent courts and subsequently also the Court of Justice, if necessary. (88) It is, therefore, exaggerated to consider that ‘a complete system of legal remedies’ cannot count on the Polish judicial system. (89) That, however, does not mean that improvements are not necessary. Reforms, including those under the RRF, contribute to improving the independence of the judiciary, even if that is, according to the appellants, not sufficient. Furthermore, as agreed by all the parties to these proceedings, Poland is under the obligation to implement all judgments in which the Court of Justice found particular problems relating to the rule of law in that Member State, and the milestones could not affect that obligation.
154. Consequently, I do not consider that the impaired independence of the judiciary in Poland is a sufficient reason to justify changes in the system of legal protection under the Treaties for the purposes of the present case. That argument of the appellants should be rejected.
155. Nonetheless, that does not mean that, within the framework of the existing system of judicial protection in the European Union, the standing of associations acting in their own name, including associations of judges, cannot be interpreted in a way that allows them access to the EU Courts for the purpose of defending their own interests.
156. The Court’s affirmation that the Treaties cannot be changed through judicial practice does not mean that standing requirements may not, as indeed they must,(90) be interpreted in the light of fundamental principles, including the principle of effective judicial protection. (91) In what follows, I will, therefore, assess how the concepts of direct and individual concern may be interpreted in relation to associations acting in their own name, taking into consideration arguments put forward by the parties.
2. Importance of associations for participatory democracy
157. The appellants emphasise the importance of associations, especially associations of judges, for the defence of the independence of the judiciary and thus for safeguarding or restoring the rule of law in the Member States.
158. Indeed, the importance of such associations which exist in order to defend the independence of the judiciary is recognised in different European materials (92) and scholarly literature, which especially accentuates the role of associations in the events relating to the reorganisation of the justice system in Poland. (93)
159. However, the recognition of the importance of associations, and in particular associations of judges, in the defence of the independence of the judiciary and the rule of law is not in itself a sufficient reason for enabling such associations to bring direct actions before the EU Courts.
160. In the context of access of associations of judges to national courts, after recognising the importance of such associations, the Court has considered that EU law, including Article 19(1) TEU and Article 47 of the Charter, does not require Member States to provide for procedural avenues by which associations of judges could bring actions before national courts. (94) The same might be applied to opening new avenues to associations of judges before the EU Courts. (95)
161. At the EU level, the valuable role of associations is recognised by the Treaties in Title II of the TEU, containing provisions on democratic principles. While Article 10(1) TEU states that the functioning of the European Union is founded on representative democracy, Article 11(1) TEU also recognises the importance of participatory democracy. It provides that ‘the institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’. (96)
162. Participatory democracy, in principle, counts on associations as interlocutors in political debates about the proper organisation or regulation of society. Therefore, it emphasises their role in a democratic, political process. The participants in the political process fight for the acceptance of a solution which they consider to be preferable. However, the courts are not institutions before which such political issues are to be resolved.
163. Does that mean that associations should only have access to political processes?
164. To my mind, if an act adopted as the outcome of the EU political process is, in the view of an association, legally invalid, there is no reason why it should not have access to the EU Courts to defend its own interests by legal claims as to the invalidity of such an act that is of direct and individual concern to it. That could also be one of the modalities for realising participatory democracy at the EU level. It is important, however, that the arguments before those courts are not political, in the sense that a certain solution is ‘wrong’, but rather legal, in the sense that a certain solution is ‘contrary to the law’.
165. In other words, bringing a case before the EU Courts that involves protecting collective interests should not be a continuation of a political battle by legal means, as courts are not legitimised for political decision-making.
166. A claim, such as the one that relates to milestone F1G in the present case, according to which an institution did not regulate certain issues sufficiently, will only be a legal claim if the law imposes a sufficiently clear obligation on that institution. However, whether that is so is a question of merits and not of access to the EU Courts.
167. In the present case, the appellant associations seem to bring before the EU Courts legal arguments claiming that the Council failed to fulfil its legal obligations under Articles 20(5)(e) and 22 of the RRF Regulation. Should the Court find that such a legal obligation does not exist, it will reject the action on the merits. It is not necessary to ‘shield’ the EU Courts from possible political questions at the level of access to courts.
168. In other words, if an act that is potentially legally invalid is of direct concern for the collective interest represented by an association, which can be individualised because such a collective interest is its own interest, there is no reason why that association should be denied access to the EU Courts.
169. Furthermore, if associations are permitted to access the EU Courts in order to protect collective interests, that would not mean the introduction of an actio popularis in EU law, as such access is still conditioned by the direct and individual concern of the association that brought the action.
3. Arguments based on the standing of privileged applicants
170. The appellants criticise paragraph 118 of the order under appeal, arguing that the possibility of granting associations standing in their own name in order to protect collective interests is not excluded by the fact that the second paragraph of Article 263 TFEU grants privileged applicants the possibility of bringing an action before the Court in the general interest.
171. In that paragraph of the order under appeal, the General Court seemed to imply that easing the conditions for standing was not necessary given that privileged applicants, namely the Member States and the EU institutions, have the possibility of bringing direct actions against EU measures whenever they consider it necessary.
172. To my mind, such a possibility is irrelevant for the question of interpreting the standing requirements of associations.
173. First, the standing of privileged applicants has nothing to do with the separate question relating to the conditions under which non-privileged applicants have standing under the fourth paragraph of Article 263 TFEU. That provision does not link the standing of non-privileged applicants to that of any other categories of applicants.
174. Second, the circumstances of the present case demonstrate that often the procedural avenue open to privileged applicants cannot replace that offered to non-privileged applicants. There is no reason why the Council or the Commission would challenge their own decision before the Court. It is also quite unlikely that Poland would challenge milestones that it came up with itself. While it could be possible for the European Parliament (97) or other Member States to bring an action challenging milestones, (98) that on its own does not diminish the role that associations may play, in addition to privileged applicants, in initiating judicial review for compatibility of EU acts with the rule of law, as argued by the appellants.
175. Therefore, even if the reasoning of the General Court in paragraph 118 of the order under appeal seems to have been included only for completeness, I agree with the appellants that that reasoning is misconceived.
4. The relevance of the KlimaSeniorinnen judgment
176. In the appellants’ view, the KlimaSeniorinnen judgment has introduced a new standard of protection of the procedural rights of associations in judicial proceedings whose purpose is the protection of rights against threats arising from developments of seminal societal importance, which in that case concerned climate change, but which may also be applied to the rule of law and associations such as the appellants which represent the interests of the judiciary united with the aim of promoting the rule of law. They submit that, as a result of Article 52(3) of the Charter, a similar approach should be taken with respect to the interpretation of the fourth paragraph of Article 263 TFEU.
177. I consider, contrary to the appellants’ arguments, that it is difficult to draw parallels between the KlimaSeniorinnen judgment and the standing requirements under the fourth paragraph of Article 263 TFEU.
178. First, as indicated by subsequent case-law of the ECtHR, (99) that judgment appears to be limited in principle to the context of climate change.
179. Second, that judgment dealt with victim status under Article 34 of the European Convention on Human Rights (ECHR), which is not the same as the standing conditions under the fourth paragraph of Article 263 TFEU. (100)
180. In that respect, it is necessary to bear in mind that the task of the ECtHR and the function carried out by the EU Courts in conducting judicial review of EU acts on the basis of Article 263 TFEU are not the same. While the role of the ECtHR is to protect individual rights, the role of judicial review under Article 263 TFEU is objective. It aims at ensuring that the EU institutions and bodies respect the law that binds them, thus protecting the EU legal order. (101) Accordingly, the rules governing access to the ECtHR and the EU Courts might legitimately differ.
181. Therefore, I do not find convincing the appellants’ arguments that the Court is bound, on the basis of Article 52(3) of the Charter, to follow the case-law of the ECtHR on the standing of associations. The two procedures are different, and Article 52(3) of the Charter does not, in any case, relate to the acceptance of procedures under the ECHR, but rather to respecting, as a minimum, the meaning and scope of the rights guaranteed by the ECHR. In that regard, the KlimaSeniorinnen judgment is indeed, as claimed by the Council, supported by Poland, Hungary and the Commission, irrelevant for determining whether the appellant associations should be granted standing.
182. Nonetheless, the underlying logic that motivated the ECtHR to open up standing for associations in climate cases might be taken into consideration when interpreting the conditions of the fourth paragraph of Article 263 TFEU in order to respond to the question as to when an association has standing in its own name.
183. Even if that judgment is understood as opening up access for associations to the ECtHR, it has, at the same time, as noted by the commentaries, (102) made such access more difficult for individuals. The way in which I see the KlimaSeniorinnen judgment is that the ECtHR in fact established very high standards for individual standing to challenge general climate legislation, motivated by the fact that each individual is a potential victim of climate change, which is otherwise sufficient for establishing victim status and, consequently, standing before the ECtHR. The latter would in fact enable any individual to initiate proceedings before the ECtHR. However, that would not in itself be contrary to actio popularis logic, as such individuals would defend their own rights while at the same time defending general interests. For that reason, it seems that the ECtHR added conditions to potential victim status by requiring a demonstration of a particular level and severity of the risk of adverse consequences, which distinguishes an individual from any others. (103) In a way, the ECtHR thus introduced a requirement similar to individual concern in the fourth paragraph of Article 263 TFEU, as interpreted by the Court of Justice. In a further step, and in order not to close the access to the ECtHR entirely, that Court broadened the access for associations that represent the same collective interests, and detached their right to bring the action from the standing of individuals whose rights they defend. (104)
184. In that sense, the reason for opening up access of associations to the ECtHR might be relevant for addressing the reasons for allowing access of associations protecting collective interests to the EU Courts in a situation in which an individual, due to the high bar established by the requirement of individual concern, cannot access the EU Courts to defend collective interests, even if they are at the same time of direct concern for that individual.
185. In that respect, the criticism expressed by Advocate General Jacobs in his Opinion in UPA, (105) according to which individual concern as interpreted by the Court results in situations in which the more important it is to resolve the potential illegality of an EU measure (as the harm may be greater), the less chance there is that subjects affected by such a measure will have standing to challenge it, remains, in my view, valid. Even if the Court did not accept his proposal to change its interpretation of the requirement of individual concern, (106) allowing associations access to the EU Courts in their own name may make up for this illogical consequence of the current interpretation of the standing requirements, without the need to change that interpretation.
5. What are associations’ own interests?
186. The foregoing discussion reveals that there might be reasons to interpret the conditions for access to the EU Courts by associations to protect their own interests in a way that is different from the interpretation of those same conditions when applied to their members.
187. It is, therefore, necessary to discern what an association’s own interests are and how to interpret direct and individual concern in that light.
188. In Carvalho, (107) the association Sáminuorra raised an argument before the Court of Justice that it should be granted standing because it introduced an ‘action of a collective defending a collective good’. However, as that argument was raised for the first time on appeal, the Court of Justice was precluded from taking it into consideration. Thus, the Court has not answered whether ‘collective good’ is what is understood as an association’s ‘own interest’.
189. Associations in principle exist in order to defend some collective interest, that is, an interest which is common to a larger group of individual subjects. (108) That interest can be of different types: for example, trade or commercial interests (most often dealt with in cases before the EU Courts), interests of different market participants (such as employers and employees), or interests of a particular profession (medical doctors, construction workers, professional drivers, etc.). Those associations’ own interests correspond to the interests of their members. The associations which defend such collective interests would not even be established if it was not for their members.
190. Associations could also exist to defend interests which they understand as general societal interests. For example, organisations concerned with democratic elections, the defence of certain human rights, such as equality or the right of expression, or those that protect the environment or certain aspects of it, such as bio-diversity or climate change, come to mind. Such associations would have a reason to exist even if they had no members. The four associations in the present case could be placed in that group, as they protect the societal interest of having independent justice systems.
191. The interests protected by associations that belong to that group, even if also pertaining to their members, are not merely the sum of those individual interests. They also represent those associations’ own interests, which they may decide to pursue in a way different from their members. At the same time, those interests are the reason for their existence, and in that sense form their identity, which not only enables one association to be differentiated from another, but also allows for the differentiation of the association from its members.
192. An association’s own interests can in principle be determined on the basis of its statute or other founding act and the past activities of that association, which could serve to prove that it genuinely exists to pursue a certain type of interest. (109)
193. There is case-law that denied the possibility that an association can defend collective interests of its members in the EU Courts if those members themselves would not have such access. (110) Thus, the Court considered that an association which represents a category of natural or legal persons could not ‘be individually concerned by a measure affecting the general interests of that category’. (111) The Court seemed to fear that granting standing to an association, even if its members could not have it, ‘would derogate from the system of the Treaty’ and ‘would result in the grouping, under the heading of a single legal person, of the interests properly attributed to the members of a category’, who, however, are not allowed to bring direct actions to the Court in their own name. (112) That case-law might be applied to the category of associations whose interests correspond to the sum of its members’ interests, and which, for that reason, do not have their ‘own interests’ they would defend.
194. However, if an association has an interest that is more than the sum of the interests of its members, so that such interest can be recognised as its own interest, the system introduced by the Treaties would not be circumvented if the association could access the EU Courts in its own name to protect its own interests, even if its members could not do so.
195. The associations in the present case protect the interests of judges, not as a profession but as a necessary part of a liberal democratic society that necessitates independent judges to ensure the rule of law. Such interests are, or should be, the interests of every judge, but are also the interests of citizens who are parties in the judicial proceedings, or of the companies or other market actors who want to defend their rights in courts. In that sense, the four appellant associations’ own interests surpass those of their members. They are the separate, individual interests of those associations. They are the reason for their existence; in other words, they are their identity.
196. I understand the case-law recognising that associations may have standing in their own name before the EU Courts as relating to the kind of interests that form the ‘identity’ of those associations. Similarly, Advocate General Emiliou recently argued that an association should be granted standing if ‘the contested measure can have a significant impact on [its core activity], as defined in its statute.’ (113)
197. Thus, the requirements of direct and individual concern within the meaning of the fourth paragraph of Article 263 TFEU could, in my view, be assessed in relation to the identity of an association. Such an assessment necessitates looking at the association as separate from the persons whose collective interests it represents.
6. What is direct concern and what is individual concern of an association?
198. As regards the standing of the appellant associations acting in their own name, it is not entirely clear whether the General Court denied their direct concern, their individual concern, or both. (114)
199. This blurring of the two requirements should not be accepted. The interpretation of the fourth paragraph of Article 263 TFEU demands that both requirements be given a different meaning. (115)
200. In other words, the Court should provide for a separate interpretation of direct and of individual concern of associations acting in their own name.
201. Additionally, in interpreting those two requirements in relation to associations, the Court must keep in mind the purpose for which the FEU Treaty enables direct access to individuals to challenge EU measures in the EU Courts, which is not only the protection of their rights based on EU law, but also the general interest of maintaining legality in the EU legal order through judicial review of EU acts. That latter purpose would seem to be the very reason why associations, such as those in the present case, seek to bring annulment actions before the EU Courts.
202. That notwithstanding, I must observe that Article 263 TFEU divides applicants into two principal categories – privileged applicants (under the second paragraph) and non-privileged applicants (under the fourth paragraph). Associations clearly are not privileged applicants, and can bring an action only under the conditions laid down in the fourth paragraph. As stated by Advocate General Cosmas, the Court cannot create a third category extra legem. (116)
203. Does that mean that the Court cannot recognise the difference in nature of individuals or companies, on the one hand, and associations acting in their own name, on the other, which could justify a different interpretation of the concepts of direct and individual concern in the fourth paragraph of Article 263 TFEU, without dispensing with those requirements?
204. The interpretation of those concepts in the case-law was connected to applicants protecting their individual interests, usually individuals or companies. However, as already discussed, ‘individual’ interests of an association are by their nature collective. So how could those concepts be understood when applied to a ‘collective defending a collective good’?
205. The question whether the challenged act affects an association’s interest directly (direct concern) and the individual distinctiveness of an association from other subjects in relation to the object of the claim (individual concern) cannot be answered but by taking into account its own interest, which is collective.
206. In that light, I propose that the Court interprets direct concern also on the basis of two conditions.
207. First, there is a requirement of a direct link. When applied to individuals, a direct link, as developed in the case-law, requires a demonstration that the challenged act is a direct source of the change in that individual’s legal position. However, if that usual formula for direct concern were applied to associations in the same way as it is to individual applicants, associations could practically never establish standing except to challenge measures that affect the legal position of associations as such. Acts affecting the collective interests that they defend would not affect their legal position. Therefore, to enable effective judicial protection of associations to protect their own interests, the concept of direct concern has to be adapted to their specific nature of protecting collective interests. Thus, to satisfy the direct link requirement in relation to an association, the test might be whether the challenged act is a direct source of the effects on the collective interests that the association defends.
208. Regarding the second condition, as in relation to individuals, the challenged act must not leave any discretion to an addressee invited to implement it, if such an intermediary exists.
209. As far as the individual concern of an association is concerned, the test could be whether its core interests and activities differentiate it from other associations and from its members in relation to the challenged measure. In that respect, it does not matter that the association at issue is not the only one protecting the collective interests at issue; it only needs to be identifiable through the collective interests that are involved in a case.
210. The Plaumann formula (117) requires that applicants be individualised in the same way as the addressee of the act. In relation to the collective interest that is the core of their identity, the associations themselves would not be a ‘target’, direct or incidental, of a legislator or regulator. The measure they challenge would invariably be ‘applied by virtue of an objective legal or factual situation defined by it’ and an association could likely never be, as, for example, an individual shareholder, individually concerned ‘by reason of criteria specific to the members of that group’. (118)
211. Consequently, if associations are to have standing in their own right, it must be possible for them to be individualised on the basis of their individual interests, which are in fact collective interests, and which are affected by objectively determined situations. For instance, an association may be individually concerned by milestones relating to the independence of the judiciary in Poland if it exists in order to defend the independence of the judiciary in Poland, but not if its core activities are the protection of the environment or the welfare of animals.
212. To my mind, interpreting direct and individual concern in this way would not amend the Treaties, as the Court has so far not yet clarified those concepts in relation to associations acting in their own name. The text of the Treaties leaves sufficient room for such an interpretation.
213. It is on this basis that I will assess, in the next section, whether the appellant associations should be regarded as having direct and individual concern in the circumstances of the present case.
VI. Consequences
214. The first and third grounds of appeal are well founded. Accordingly, point 1 of the operative part of the order under appeal should be set aside.
215. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, after setting aside a decision of the General Court, refer the case back to the General Court for judgment or, where the state of the proceedings so permits, it may itself give final judgment in the matter.
216. In the present case, I consider that, while the Court of Justice is not in a position, at this stage of the proceedings, to rule on the merits of the actions before the General Court, it does have the necessary elements before it to give a final ruling on the admissibility of those actions.(119)
A. Standing of the associations acting on behalf of their members
217. Whether an association has standing to bring an action for annulment before the EU Courts on behalf of its members depends on whether all or some of its members are directly and individually concerned and could therefore bring the action themselves.
218. In the present case, the claims of the appellant associations can essentially be divided into two different groups, one alleging the illegality of milestones F2G and F3G as contrary to the effects that follow from the judgments of the Court of Justice relating to the Disciplinary Chamber, and the other directed against milestone F1G, alleging the insufficiency of that milestone to restore the independence of the judiciary in Poland. Therefore, it is necessary to assess separately the standing of those associations to bring each of those types of claims.
219. As far as the claim for annulment of milestones F2G and F3G is concerned, in response to the first ground of appeal, I have concluded that Polish judges affected by the decisions of the Disciplinary Chamber are directly concerned by those milestones. It remains to be assessed whether those judges are individually concerned.
220. Polish judges who were subject to disciplinary sanctions clearly fulfil the Plaumann formula. (120) They belong to the closed group that could be identified at the time when milestones F2G and F3G were adopted, and those milestones in fact targeted those judges. (121)
221. As that group of members is directly and individually concerned by milestones F2G and F3G, the associations representing them are also entitled to bring an action challenging those milestones on their behalf.
222. It follows from the submissions at first instance that three out of the four associations (all but the AEAJ (122)) have Polish judges affected by decisions of the Disciplinary Chamber as their members. However, even if the AEAJ does not seem to have such members, according to the case-law, since one and the same application is involved, there is no need to consider whether the other applicants are entitled to bring proceedings. (123)
223. In relation to the second ground of appeal, I have concluded that Polish judges not affected by decisions of the Disciplinary Chamber are not directly concerned by milestones F2G and F3G. Therefore, the appellant associations cannot establish standing as their representatives, and there is no need to assess their individual concern, or whether the decision at issue constitutes a regulatory act not entailing implementing measures.
224. As far as the claim relating to the insufficiency of milestone F1G is concerned, I have concluded that all Polish judges and judges of the other Member States and of the EEA are not directly concerned by the insufficiency of that milestone. Therefore, the appellant associations cannot establish standing as their representatives, and there is no need to assess their individual concern, or whether the decision at issue constitutes a regulatory act not entailing implementing measures.
225. I conclude that the appellant associations have standing on behalf of their members in relation to milestones F2G and F3G, but do not in relation to milestone F1G.
B. Standing of the associations acting in their own name
226. It remains to be established whether the appellant associations have standing in their own name to bring an action based on the insufficiency of milestone F1G.
227. As I have proposed in points 205 to 212 of the present Opinion, the examination of direct and individual concern of associations in their own name should take into consideration whether the challenged act is connected to the identity of the association, understood as its collective interest.
228. The appellant associations have as their core activity the defence of the collective interest regarding the independence of the judiciary and the rule of law, including in Poland. (124)
229. To find direct concern, the challenged act must be a direct source of the effects on the collective interests that the association defends, and it must not leave any discretion to the addressee invited to implement it.
230. With respect to the first condition, milestone F1G is about strengthening the independence and impartiality of courts in Poland. That is precisely the collective interest which is the core activity of the appellant associations. That milestone is therefore a direct source of the effects on the collective interest of the appellant associations.
231. As regards the second condition for direct concern, I have concluded in relation to milestones F2G and F3G that Poland’s discretion not to apply those milestones is only theoretical. I see no reason why those conclusions would not apply to milestone F1G.
232. Additionally, I have to ask myself whether it is relevant for deciding on the fulfilment of direct concern that the primary purpose of the justice system milestones is to safeguard the financial interests of the European Union by requiring a sufficient level of the functioning of an independent judiciary to guarantee the correct spending of funds granted through the RRF. In other words, is it relevant that their purpose is not generally to restore judicial independence in Poland in order to bring about respect for the value of the rule of law and Article 19(1) TEU in Poland?
233. To my mind, the fact that milestones are adopted in order to protect the financial interests of the European Union might be of relevance for the decision to be taken on the merits, (125) but it is not relevant for establishing the direct concern of the appellant associations, for which it is sufficient to find a direct link between the content of the milestones and their collective interests.
234. When it comes to individual concern, the appellant associations also fulfil that requirement. Their core interests differentiate those associations, in relation to milestone F1G, from other associations, including those that have as their core interest the defence of the rule of law generally, but are not concerned specifically with Poland.
235. I am therefore of the opinion that the appellant associations are directly and individually concerned for the purposes of bringing an action to challenge milestone F1G on the ground that it is insufficient to restore the independence of the judiciary in Poland.
236. On the basis of the foregoing, I propose that the Court find that the actions of the appellant associations are admissible and refer the case back to the General Court for a decision on the merits.
VII. Costs
237. Since, according to my analysis, the case must be referred back to the General Court for a decision on the merits, the costs must be reserved, in accordance with Article 137 of the Court’s Rules of Procedure, which applies to appeal proceedings pursuant to Article 184(1) of those rules.
VIII. Conclusion
238. In the light of the foregoing, I propose that the Court should:
– find the first and third grounds of appeal well founded;
– set aside the order of 4 June 2024, Medel and Others v Council (T‑530/22 to T‑533/22, EU:T:2024:363);
– find the present actions for annulment admissible;
– refer the case back to the General Court for a decision on the merits;
– reserve the decision on costs.