Action for Annulment (Art. 263 TFEU)

• MSs, other institutions, and individuals have a right to challenge EU institutions.

• Under Art 19(1) TEU the CJEU ensures that in the interpretation and application of the Treaties the law is observed.

• Relationship to Art 267 PR:

  • If you have standing to challenge without doubt under art. 263 you may not bring a domestic challenge under art 267. (TWD v Germany [1994])

• Article 263(1) TFEU: Scope of Challenge

  • Covers all acts of EU bodies intended to produce legal effects vis-a-vis third parties, thereby excluding recommendations and opinions (as these are not binding).

  • Commission v Council (re: European Road Transport Agreement) [1971] – Commission challenged council resolution settling negotiation procedure for a conference.

    • “An action for annulment must…be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects.”

  • Schindler v Council [2018] – S lived outside UK for >15years therefore could not vote in referendum. Brought action against council for agreeing to begin negotiations with the UK. Held this was inadmissible as it was not abindign decision.

• Article 263(2)-(4) TFEU: Standing

  • 263(2): Privileged Applicants

    • May challenge any measure without meeting any type of standing requirements.

    • All major EU Institutions and MSs

    • Chernobyl [1990] – although EU Parliament not mentioned in Art 263 it was given right to challenge legislation that threatened its prerogative. (at Maastricht was made semi-privileged body, and at Lisbon was made a fully privileged body)

    • Provides four grounds for annulment:

      • Lack of competence

      • Infringement of an essential procedural requirement

      • Infringement of the Treaties or of any rule of law relating to their application

      • Misuse of powers.

  • 263(3): Semi-Privileged Applicants

    • May challenge any measure without meeting any type of standing requirements but only in so far as what they are challenging affects their prerogatives (powers)

    • Court of Auditors, ECB, and Committee of the Regions.

    • Same four grounds of annulment

  • 263(4): Non-Privileged Applicants

    • Same four grounds of annulment. Must meet standing requirements (below):

      • 1) Act addressed to that person

      • 2) An act addressed to someone else which is of direct and individual concern to them

      • 3) A regulatory act which is of direct concern to them and does not entail implementing measures.

  • 263(6): Timing

    • A challenge must be made within two months of two months of the publication of the measure, or of its notification to the plaintiff,

    • Mutual Aid v Commission [1997] – the court has no discretion over these time limits.

• Standing requirements for individuals:

  • 1) Act addressed to that person.

    • If addressed to the applicant then the applicant is presumed to have an interest in challenging it.

  • 2) An act addressed to someone else which is of direct and individual concern to them.

    • i) Individual Concern

      • Plaumann v Commission [1963] – Commission refused permission for German government to suspend custom duties on imports of clementine’s. P imported clementines. Set out test for individual concern:

        • 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 P was not individually concerned as anyone at any time may begin to import clementine’s.

      • Piraiki-Patraiki v Commission [1985] – quotas on Greek cotton exports to France. Exporter challenged. Court held again that anyone could begin to export cotton into France, and therefore this individual exporter had no peculiar attribute.

        • But, there were a closed group who were individually concerned, namely those who had already entered into contracts with France to supply cotton in excess of the quotas.

      • Economically illiterate – it is not possible for anyone to set up a new cotton importing company in three months

        • It is a very formalist test.

    • ii) Direct Concern

      • “Les Verts” v European Parliament [1986] - Green Party challenged political party funding from the Parliament.

        • Held the measures constituted a complete set of rules which are sufficient in themselves and which require no implementing provisions, therefore direct concern.

        • Key is the idea of causation.

  • 3) A regulatory act which is of direct concern to them and does not entail implementing measures.

    ...

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