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Challenges To Eu Acts And Liability Of The Union Notes

Updated Challenges To Eu Acts And Liability Of The Union Notes Notes

European Law Notes

European Law

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Challenges to EU Acts and Liability of the Union Notes

What is judicial review?


Judicial review is a type of court proceedings in which a judge reviews the lawfulness of a decision made or action taken by a public body, or in some jurisdictions, of legislative action.

  • The judge has the power to invalidate the challenged act

Any competent system of judicial review will have to establish rules relating to: standing; which acts can be challenged; the grounds of review; and the intensity of the review


Judicial review performs a number of important functions: (i) protect the rule of law; (ii) ensure the accountability of EU institutions; (iii) protect fundamental rights in accordance with Article 47 of the Charter; and (iv) justify the supremacy of EU law

However standing requirements are important in limiting judicial review: (i) they avoid the courts becoming a political forum (Harlow); (ii) prevent overflow; and (iii) prevent speculative claims

What is the system of judicial review of EU acts?

Types of Act Subject to Review

Distinction must be drawn between:

  1. Member States’ Acts

    • Member States can act in two different capacities

      1. Legislation on Their Own Behalf – when Member States act on their own behalf (under their own competences), if the acts are within the scope of EU law then they are challengeable for compatibility with EU law

      2. Legislation to Fulfil EU Obligations – where Member States act as agents of the EU (transposing rules adopted by EU institutions) these rules are taking action on behalf of the EU

  2. EU Institutions Acts

    • EU institutions are empowered to make legally binding acts which have effect for third parties (the Member States, citizens and economic operators)

    • IN the Treaties, we find two categories of legally binding EU act:

      1. Article 288 TFEU – Regulations, Directives and Decisions

      2. Articles 289-291 TFEU – further distinction can be drawn between:

        1. Legislative ActsArticle 289(3) says that “Legal acts adopted by legislative procedure shall constitute legislative acts”

        2. Non-Legislative Acts –

          • Article 290 TFEU – non-legislative acts of genera application supplementing or amening certain non-essential elements of a legislative act (delegated acts) adopted by the Commission

          • Article 291 TFEU – implementing acts adopted by the Commission (or the Council).

NOTE: the Commission is not a legislative institution, and so if we know an act was adopted by the Commission, we know that it is a non-legislative act under either Article 290 or Article 291 TFEU

Mechanism for Review

The relevant mechanism for review depends on drawing the above distinction again:

  1. Member States’ Acts

    • In taking action in pursuing EU law, Member States are implementing, applying and enforcing EU rules

      • This process involves Member States performing an obligation under EU law so their conduct cannot be challenged for incompatibility with EU law, unless the validity of the EU rules are challenged before a national court

        • In such a case, a question will be referred to the CJEU under Article 267 TFEU

  2. EU Institutions Acts

    • Article 267 TFEU – the case is reaching the CJEU indirectly as a reference from a national court (indirect action)

    • Article 263 TFEU – the case is reaching the CJEU directly, the action starting there (direct action)

What does Article 267 TFEU say?


Article 267 TFEU provides that:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

  1. the interpretation of the Treaties;

  2. the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgement, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against which whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court

NOTE: the obligation to bring a preliminary reference only arises if there is no judicial remedy under national law

Scope of National Courts’ Powers

  • Due to concerns as to the uniform application of EU law, the CJEU concluded that national courts do not have the competence to invalidate EU acts (Foto-Frost)

    • However, when national courts are confronted with a challenge to the validity of an EU act, the national court must undertake an initial review of the EU act’s validity

      • In the event that the court finds the grounds for invalidity are unfounded, the court can reject these and find the act to be completely valid

      • If there are doubts as to the measure’s validity, though, the court has to make a reference

        • In IATA, the CJEU was very clear that if the national court considers one or more of the arguments for invalidity to be well founded, then it is incumbent upon the court to stay proceedings and make a reference to the CJEU (regardless of whether it is a court of first or last instance)

CJEU or General Court?

Article 256(1) TFEU and Article 51 Protocol (No 3) on the Statute of the CJEU:

  • Actions brought by the Member States and the EU institutions are reserved by the CJEU

  • The General Court hears cases brought by natural and legal persons (although an individual can appeal from the General Court to the CJEU)

Preliminary references thus always go to the CJEU

What does article 263 TFEU say?


Five conditions must be satisfied before an act can be successfully challenged under Article 263 TFEU:

  1. The relevant body must be amenable to review (Article 263(1) TFEU)

  2. The act has to be of a kind which is open to challenge (Article 263(1) TFEU)

  3. The institution of person making the challenge must have standing

  4. There must be illegality of the requisite type (Article 263(2) TFEU)

  5. The challenge must be brought within the ...

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