Eu- Review Of Legality

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Judicial Review - Art 263

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~Enables a court to consider whether a legally binding measure violates procedural or substantive rules of law and should therefore be rendered inapplicable..

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Article 263 (1)

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~COJ of the EU shall review legality of legislative acts, of acts of commission and of the ECB, other than recommendations and opinions, and of acts of the EP and of the EC intended to produce legal effects vis-a-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-a-vis third parties.

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Article 263 (4)- standing

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~Any natural or legal person

~against act addressed to that person

~Of direct and individual concern

~Does not entail implementing measures.

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Article 263 (6)

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~Proceedings must be instituted within two months of the publication of the measure or its notification to the plaintiff, or in absence thereof. the day on which it came to knowledge of latter

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Four main Elements

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1. The types of act that are subject to review

2.The bodies that may bring an action for review

3. The time within which an action may be brought

4.The grounds on which such an action may be based.

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Reviewable Acts

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Under Art 263 Three types of act are reviewable

1.Legislative Acts

2.Regulatory Acts

3. Acts

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Legislation Acts

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~Acts 289(3) defines legislative acts as legal acts 'adopted by legislative procedure.'

Regulations Decisions Directives

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Regulatory Acts

Inuit and Others v EP and Council

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~It must be held that the meaning of 'regulatory act' for purposes of the 4th paragraph of Art 263 TFEY must be understood as covering all acts of general applications apart from legislative acts.

~~~ recommendations, opinions and resolutions

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Acts

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In Inuit 'acts' were held by the ECJ to encompass any act addressed to a natural or legal person and any act whether legislative or regulatory, which is of direct and individual concern to them.(including those which require implementing measures.

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Reviewable Acts must produce Legal Effects

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Re European Road Transport Agreement(22/70)~Council resolutions may be 'acts'~Measure was a Council resolution setting out the position to be taken by the Council in the preparation of the road transport agreement. Commission sought to challenge this resolution, since it considered the matter lay outside the Council's sphere of competence. The actions was declared admissible.

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Reviewable Acts Must Produce Legal Effects

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Letters sent by the Commission (that are not decisions) Can be reviewable 'acts'

~Re Noordwijks Cement Accord (c 8-11/66)

~France v Commission (Re pensions Fund Communication) c-57/95)

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Types of Locus Standi

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~Broad Locus Standi ensures adequate control of the legislature.

~Narrow Locus Standi ensures that where an applicant is wholly unconnected they should not be able to challenge validity. As this would reduce legal certainty and effect the courts workload.

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Locus Standi: Who may bring an action?

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~Privileged

~Semi-privileged

~Non-privileged

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Who may bring an action?

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Under art 263- can challenge any binding act

~Member States

~The European Parliament

~The Council

~The Commission

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Semi- Privileged Applicants

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Confined to reviewing acts of institutions that are necessary for the protection of their prerogatives.

~European Central Bank

~Court of Auditors

~The Committee of Regions

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Non-privileged

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~A natural or legal person is entitle to challenged

a.An act addressed to that person, or which is of direct and individual concern to them

b.A regulatory act which does not entail implementing measures.

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Direct Concern

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A measure will be of direct concern where it:

~Directly affects the legal situation of the applicant

~Leaves no discretion to the addressees of the measure

~Who are entrusted with its implementation

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NV Intl Fruit Company v Commission (41-44/70)

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Community adopted reg which affected the importation of apples during a set period of time.

~Com decides to issue licences on the basis of info from MS's about the previous weeks need for licences.

~"The measure whereby the Com decides on the issues of the import licences thus directly affects the legal position of the parties concerned.

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Municipality of Differdange v Commission (222/83)

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Com authorised Luxembourg to grant aid to steel firms conditional on them reducing capacity. Municipality argued direct concern due to a subsequent reduction of tax.

~"Decisions cannot be regarded as being of direct and individual concern to the municipalities w/ which the undertakings affected, by virtue of the location of their factories, are connected."

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Individual Concern

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~Previous legislation was willing to look beyond the form of the measure to its substance

~Current legislation is more formalistic

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Individual Concern

Plaumann & Co v Commission (25/62)

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Comm refused request of the German Govt to suspend the collection of duties on clementine's.

~Can claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. Held: clementines can be practiced by any person at any time.to Decision.

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The Plaumann Test

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~Applicants can only be individually concerned by a decision addressed to another if they are differentiated from all other persons, and by reason of these distinguishing features singled out in the same way as the initial addressee.

~

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Problems with Plaumann

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~Limited number of traders engaged in the activity, The fact that people 'could' do it doesn't mean they will.

~Only applies retrospectively because then groups can be defined

~The test seems to be applied from future ill-defined date rather than from the date the application was made.

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Open and Closed Categories

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~An open category is regarded as one where the membership is fixed at the time of the decision

~A closed is one in which it is fixed.

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Problems with Open and Closed Categories

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~Ignores the practical realties of people joining groups

~Any decision with a future impact becomes unchallengeable.

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Individual Concern: Regulations and Directives

Calpak (789-790/79)

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An applicant can claim to be individually concerned by a legal act that takes the form of a regulation or a directive

-A closed and definable group easily identified by the Commission

-Abstract terminology test

-Held: ecause the regulation used abstract terminology the applicants could not show individual concern.

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Codorniu (C-309/89)

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~A Calpak 'True regulation'

~Differentiated itself from all other traders due its trademarking of the word cremant.

*Liberalized Calpak but stayed true to Plaumann

* Still very restrictive

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The Lisbon Treaty

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~ECJ reluctant to conclude a provision termed 'legislative act' will be of individual concern. As Delegated acts defined as non-legislative acts of general application- may be difficult for applicants to prove they are of individual concern under rigarous Plaumann test

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Individual Concern

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~The ECJ has taken a more liberal approach in three key areas:

*Anti-Dumping

*Competition

*State Aids

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Anti- Dumping

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Anti- dumping regulations prevent people outside the EU flooding the market with goods at low prices.

~Must be a regulation. Not a decision

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Examples of Anti-Dumping

Timex (264/82)

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The firm that initiated the complain about dumping

~~Unhappy with the resulting regulation

Allied Corporation (239& 275/82)

Producers of the product subject to anti-dumping. ~~Producers and exporters charged with dumping would be individually concerned.

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Extramet

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Extramet (C-358/89)

~Importer of the product against to which the anti-dumping measure is imposed.

~A more lenient application of Plaumann?

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Competition

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~Any natural or legal person who claimed to have a legitimate interest, could make an application to the Commission, putting forward evidence of a breach of Art's. 101 & 102.

~Metro (case 26/76)- A competitor challenging a decision by the commission that was not addressed to them.

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State Aid

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Prevent competition from being distorted through govt subsidies, giving it an unfair advantage over competitors.

* COFAZ (169/84)- Analogous w/Metro and Timex. Applicants have standing if their position on the market was significantly affected by the State Aid.

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Liberal Approach?

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Anti-dumping, competition law and state aid all have much more liberal approaches to individual concern.

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Individual Concern: Reform

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UPA(Case C-50/00P)

Jego Quere (Case C-263/02)

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UPA (C-50/00 P) Advocate General Jacobs

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102(1) The court's fundamental assumption that the possibility for an individual applicant to trigger a reference for a preliminary ruling provides full effective judicial protection against general measures is open to serious objections:

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UPA Limitations

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~Applicanthasno right to decide whether a reference is made,

~Which measures are referred forreview or what grounds of invalidity are raised and thus no right of access tothe Court of Justice;

~The national court cannot itself grantthe desired remedy to declare the general measure in issue invalid;

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UPA Problems

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~denial of justice if impossible for applicant to challenge a general measure indirectly.

~e.g. where no challengeable implementing measures or where the applicant would have to break the law in order to be able to challenge ensuing sanctions);

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Evaluations

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UPA- Legal certainty pleads in favour of allowing a general measure to be reviewed as soon as possible and not only after implementing measures have been adopted;

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Comparing 234 EC and 230 EC

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Indirect challenges to general measures through references on validity under Art 234 ECF present a number of a procedural disadvantages in comparison to direct challenges under Art 230 EC before the Court of FIrst instance as regards for e.g the participation of the institution(s) which adopted the measure, the delays & costs involved, the award of interim measures or the possibility of 3rd party intervention.

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Solution?

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Recognise applicant is individually concerned by a Community measure where the measure has, is liable to have, a substantial adverse effect on his interests.

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The Solution has following advantages:

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~ applicants granted a true right of direct access to a court which can grant remedy, cases of possible denial of justice are avoided, & judicial protection is improved in various ways.

~removes anomaly under current case-law that the greater the number of persons affected the less likely it is that effective judicial review is available

~complex & unpredictable rules on standing replaced by simpler test which shifts the emphasis in cases before the Community Courts from purely formal questions of admissibility to questions of substance;

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Jego -Quere (Case C-263/02)

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~The CFI followed this line of reasoning in Jego Quere (Case T-177/01)

~The ECJ declined to follow this line of reasoning in UPA reversing Jego-Quere.

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Regulatory Acts and TOL

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The term regulatory act does not fit easily with the Lisbon classification of legal acts.

*Any legislative Act that does not have implementing measures? or

*Just regulations and decisions

Plaumann test still applies.

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Inuit Tapirit Kanatami v European Parl [2013]

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The Court decided that regulatory acts in Art 263 (4) do not include legislative acts.

~Act under challenge was EU Reg 1007/2009 Made by EU parliament & Council, & was therefore a legislative act & unchallengeable.

~Contrast, an implementing reg made by the Commission alone, filling in the details not dealt with in the Primary Regulation, which could be challenged under art 263(4) if of direct concern.

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Problem Question

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1.Is this an Act?

2.Direct Concern

~~Does it directly affect Ryan ?

~~Does measure leave discretion as to the addresses of the measures.

3.Individual Concern

~~Differentiated from all other persons (Plaumann)

~~Could anyone import.. at any time?

~~Criticisms of the Plaumann test.