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The Court of Justice of the European Union LLM EU Integration Notes
LLM EU Integration Notes
Table of Contents
2 LLM EU Integration Notes
3 Remedies Before the CJEU Introduction There are two main ways to challenge acts and obtain remedies before the CJEU, Articles 263 and 267 TFEU. These two acts, and the interaction between them have provided a catalyst for some important reforms to the way in which the CJEU operates.
Art 263 or Art 267?
From a private party's perspective, does it matter whether we bring an action under Art 267 or Art 263(4)? It appears not, if all you care about is the end goal, but there are differences:
1. Time Lag under Art 267 (though interim measures may be available)
2. Standing - virtually all countries in the EU have restrictions on standing before constitutional courts, but in any case, the EU standing requirements are probably much stricter. National systems deal with access to the court in different ways, but you also find differences within the system depending on the identity of the challenger. A preliminary challenge provides a safety net but there are rules preventing evasion of time limits, see Case C-188/92 TWD v Germany  ECR I-833. If it were not clear that the applicant would have enjoyed standing under Art. 263 TFEU, then the Court has not refused to accept such references where they involve a validity challenge: see, e.g., Case C-241/95 R Ex parte Accrington Beef  ECR I-6699.
Art 263 - Action for Annulment Why did the Treaty of Lisbon add the last part of Art 263(4)? Prior to the Treaty of Lisbon, you needed to show individual and direct concern.
Direct Concern This test requires the establishment of a direct causal relationship between the act in question and the effect it has on the applicant. The main situation where this direct causal link could be interrupted is where the addressee of the measure has discretion on how to implement it. Piraiki-Patraiki A decision authorising France to impose restrictions on the importation of cotton from Greece. Challenged by Greek producers with pending contracts, who had do show they were both directly and individually concerned. You could argue that France had some discretion, as it could theoretically opt not to use the authorisation. But on the facts, France had actually asked the commission for the authorisation, so you could tell in advance how its discretion was going to be used. The discretion was entirely theoretical, and the private parties challenging the decision were therefore directly concerned.
Individual Concern Under the Plaumann test, the applicant needs to be differentiated from all others, which is a very high barrier to standing. Plaumann Commission addressed a decision to Germany, refusing to authorise it to suspend the imposition of import duties on importation of clementines from outside the EU. The applicant was a private party, an importer of clementines. If you are not an addressee, you need to show attributes or circumstances that make it affect you that are so narrow that you are a de facto addressee. Held that a very high degree of individuality was needed, which was not satisfied here as anybody could be an importer at any time.
LLM EU Integration Notes
4 Let's be kind: the court has interpreted the text in a reasonable way, but maybe the 'all' is a bit problematic. However, it's economically really unrealistic! Being a clementine importer is not something that anyone could do!
So really, we really need something that cannot be changed, such as being an importer at a specific time in the past. Retrospective impact means that no one can 'go back', so you are differentiated. PiraikiPatraiki is an example of this retrospective impact. Toepfer Commission made a mistake, which as a result meant that if traders applied for import licence before 1st October 1963 the levy would be PS0. Toepfer and 13 others applied on 1st October because of this. 3rd October the Commission addressed a decision to Germany correcting the mistake. The decision applied not only for the future, but also retroactively. Addressee was Germany. Challenged by two groups of private parties. Firstly, those who had applied before 1st October, including Toepfer, and secondly, those who had applied afterwards. Held that Toepfer was individually concerned - had applied in past; before the decision. Other groups didn't have standing - only effected in their capacity as importers, which was an openended category. Sometimes is gets stricter, with requirements of there being a duty on the body to take them into account, such as in Buralux, and allegedly sometimes less strict. We need to take into account nonaddressees' rights. With the exception of Extramet, the supposedly 'liberal' cases are actually just applications of the Plaumann test, plus a duty to consider interests. Extramet Dumping is a form of unfair competition that involves selling in different markets at different prices, in particular exporting at a lower price than a price that is prevalent in the home market. Applicant wanted to challenge anti-dumping regulations. Applicant was an importer of calcium metals. Held to be individually concerned: The company was not a member of a closed class. But it was the main EU importer of calcium metal. The regulation could have had a very serious impact on the economic interests of this company. The emphasis was placed not on the membership of a class, but on the gravity of the effects on the interests of the applicant. Cordoniu Concerned Spanish producers of high quality sparkling wine, which had used the trademark 'Grand Cremant de Codorniu' since 1924. In 1989 Council regulation provided that the French word 'Cremant' could only be used for high quality sparkling wines produced in France and Luxembourg. Codorniu was unhappy with this, but to challenge the validity of the regulation it had to show individual and direct concern. Other Spanish producers used the word 'Cremant' - did this prevent Codorniu being directly concerned?
No, because the court did not refer to the closed category test in its judgement. The Court held that Codorniu was individually concerned because it had a specific right that had been affected by the measure. What constitutes a specific right? Has only ever been satisfied by Codorniu, despite repeated judicial reference to the specific rights test. Confined to its specific facts?
This is not obviously an application of Plaumann, and not deeply convincing reasoning. You can argue that after the adoption of the regulation, Cremant is reserved for the past holders of registered trademarks. Thus, you have a past fact situation, and you can make Plaumann work. Moreover, required to respect property rights, under the CFR, so it's a Plaumann + requirement situation.
Justification for Strict Test We have a justification, but its not accounted for in the treaty. UPA UPA was a Spanish organisation representing small agricultural businesses. Challenged a council regulation that withdrew subsidies given to olive oil producers. AG Jacobs could not have chosen a better case: No national measures on implementation were necessary, so no indirect avenue for challenging the validity of the legislation was open to UPA. Either they had standing to bring an
LLM EU Integration Notes
5 action for annulment, or got no remedy. AG Jacobs proposed a new test for individual concern. The existing case law on individual concern is deeply unsatisfactory in three aspects - references on validity are insufficient: Applicant has no right to decide whether a reference is made, Denial of justice, Legal certainty. Demonstrated that references on validity were an insufficient substitute for an action for annulment. The Court of Justice refused to follow the lead of its Advocate General, and refused to adopt his test. If there is no standing, and no national implementing measures, you have to break the law in order to challenge the regulation, which is really harsh - you could lose the validity challenge and then you're in big trouble. In the UK, this gap doesn't exist, because we have declaratory remedies (see e.g. Pretty). However, most member states don't have that, and so a gap exists. This gap puts the focus on Art 267 and on national courts to make good the problems explained above. The court says that the current strict regime is not their fault - the treaty says 'Individual Concern', so they can't do anything about it: "41. [I]t is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.
42. In that context, in accordance with the principle of sincere cooperation laid down in [Article 3(4) TFEU], national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act. ...
45. While it is, admittedly, possible to envisage a system of judicial review of the legality of Community measures of general application different from that established by the founding Treaty and never amended as to its principles, it is for the Member States, if necessary, in accordance with Article 48 EU, to reform the system currently in force". Jego-Quere The applicants, a French fishing company, sought the annulment of Articles 3(d) and 5 of Commission Regulation 1162/2001 establishing measures for the recovery of the stock of hake. Court of First Instance agrees with AG Jacobs in UPA - good argument based on fundamental rights:
47. ... [T]he procedures provided for in, on the one hand, Article 267 TFEU and, on the other hand, Article [268 TFEU] and the second paragraph of Article [340 TFEU] can no longer be regarded, in the light of Articles 6 and 13 of the ECHR and of Article 47 of the Charter of Fundamental Rights, as guaranteeing persons the right to an effective remedy enabling them to contest the legality of Community measures of general application which directly affect their legal situation. ...
In the aftermath of this event, and particularly in the negotiation of the constitutional treaty, the addendum to Art 263 was discussed. This is why we have the 'no implementing measures' clause in Article 263(4) - it is there to plug a gap when the applicant is unable to achieve redress of grievance in their national courts. This seems to say that UPA was right, and Jego Quere was wrong.
The Change After Lisbon What do we mean by a Regulatory Act (Art 263(4))? This was defined by Inuit and Microban. We tend to look at the legislative procedure, which makes for some strange bedfellows. There are a number of questions: Is the democratic legitimacy element important? Is there even any democratic legitimacy to talk about? The focus on Ordinary Legislative Procedure (CoDecision) might be misplaced. Is there a difference between direct concern and not implementing measures?
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