Nigel Foster. EU Law Directions 6 ed. 2018. p. 243.
18.104.22.168 Direct concern
With ‘direct concern’, the general rule is that if a member state is granted discretion to act under the provision, then the Community or EU provision itself cannot by its nature give rise to direct concern. Discretion on the part of the member states means that the applicants are only indirectly concerned. This was certainly the initial view taken by the CoJ in Cases 25/62 Plaumann and 69/69 Alcan as examples of how the Court has interpreted this. In Case T-138–89 BBV v Commission, it was held by the CFI that it was not possible to challenge a potential decision (in other words, a decision that might be made, but which had not actually been made at the time of the challenge to the claim that the potential decision would affect the applicant’s interest). The applicant cannot be seen to be ‘jumping the gun’ by challenging a claim that will be heard in court before that claim goes to court.
Case 62/70 Bock v Commission (Chinese Mushrooms) is a good example that involved the authorisation for a member state to restrict imports—that is, it had the discretion. An application was made by Bock to import Chinese mushrooms, but was refused by Germany on 11 September and only authorised by the Commission on 15 September. Hence the decision was a retroactive measure in direct response to the application from Bock. In other words, the discretion to act was already waived and Bock was therefore held to be directly concerned.
In Case 62/70 Bock v Commission, the company was individually concerned because applications made by Bock to import Chinese mushrooms were refused by Germany on 11 September, but the required authorisation by the Commission was passed only on 15 September. Hence, the decision was a retroactive measure in direct response to the application from Bock, which was held to have a vested legal interest and therefore individually concerned.
Whose "discretion to act was already waived"?
How was whoever's "discretion to act was already waived"?