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European Law Week Five Notes - Challenges to Community Acts & Community Liability Reading: Craig and de Burca chapters 14 and 15
?Review of Legality: Access
= Clear that the EC develops policy through regulations, directives & decisions ? any developed legal system must have a mechanism for testing the legality of such measures. Below is [?] concerned with the access to justice & review of legality by the C courts.
= There are numerous ways in which C norms can be challenged, but the principal Treaty provision = Article 230:
= 4 broad conditions have to be satisfied before an act can be successfully challenged:
1.) Act has to be a kind which is open to challenge at all;
2.) Institution or the person making the challenge has to have the standing to do so;
3.) There must be illegality of a type mentioned in Article 230(1); &
4.) The challenge must be brought within the time limit indicated in Article 230(5).
= The judicial interpretation of Article 230 has been problematic, particularly the extent to which private individuals have the standing to contest the legality of C acts ? extremely difficult for individuals to challenge the legality of C actions directly before the C courts.
= Also possible for the validity of C actions to be challenged indirectly via Article 234. Interrelationship between the 2 Articles = important. C courts have defended their narrow interpretation of standing for direct actions by arguing that the Treaty provides a complete system of legal protection through a combination of both articles, but there are real difficulties with this hypothesis. REVIEWABLE ACTS Article 230: The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the European Parliament intended to produce legal effects vis-a-vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The Court of Justice shall have jurisdiction under the same conditions in actions brought by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives. Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. 1
= Article 230(1) allows the Court to review the legality of acts, other than recommendations &
opinions, which are taken by the institutions listed in Article 230(1) ? [?] clearly covers regulations, decisions & directives, which are listed in Article 249. ECJ has however held that this list isn't exhaustive & other acts which are sui generis can also be reviewed, provided that they have binding force or produce legal effects.
= General principle = a reviewable act will have legal effect until it is set aside by one of the Courts & the challenge must be brought within the time limit of Article 230(5).
= Only exception = where the act has been tainted by particularly serious illegality & is deemed to be non-existent. In these cases, the normal time limits for challenge don't apply (so the act can't be clocked in legality with the passage of time), such acts don't have any provisional legal effects & non-existent acts aren't actually susceptible to annulment, because there is no 'act' to annul. However, a judicial finding that an act is non-existent will, however, have the same effect in practice as if it had been annulled.
= Have been particularly difficult cases concerning the reviewability of acts, where the challenged Community action is designed to directly implement a Security Council resolution: E.g. See Kadi (2005), below STANDING FOR PRIVILEGED APPLICANTS ? ARTICLE 230(2)
= Article 230(2) states that an action may be brought by a MS, the EP, the Council or the Commission. Appears that these As are always allowed to bring an action, even where the decision is addressed to some other person or body. EC law doesn't oblige a MS to bring an action under Article 230 or 232 for the benefit of one of its citizens, although EC law doesn't preclude national law from containing such an obligation.
= EP wasn't initially accorded any formal privileged status prior to the TEU, but the Nice Treaty added EP to the list of privileged As. The Court of Auditors & the European Central Bank are covered by Article 230(3) & only have standing to defend their own prerogatives. STANDING FOR NON-PRIVILEGED APPLICANTS ? ARTICLE 230(4)
= Standing for non-privileged As = governed by Article 230(4) (ex 173(2) EC prior to TEU &
ex 173(4) post TEU).
= Article 230(4) allows non-privileged As to seek review in 3 types of case:
1.) An addressee of a decision can challenge it before the ECJ or the CFI.
2.) Where the decision is addressed to another person & the A claims that it is of direct &
individual concern to him.
3.) Where the decision is in the form of a regulation & A claims that it is of direct &
individual concern to him.
= On the face of Article 230, the Article doesn't allow any challenge by non-privileged As to directives. Nonetheless has been held that the mere fact that the measure is a directive will 2
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