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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 i. 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 ii. 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)
o IN the Treaties, we find two categories of legally binding EU act:
i. Article 288 TFEU - Regulations, Directives and Decisions ii. Articles 289-291 TFEU - further distinction can be drawn between: 1. Legislative Acts - Article 289(3) says that "Legal acts adopted by legislative procedure shall constitute legislative acts"
2. Non-Legislative Acts -
o Article 290 TFEU - non-legislative acts of genera application supplementing or amening certain nonessential 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)
o 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:
(a) the interpretation of the Treaties;
(b) 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)
o 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
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.
5. The act has to be of a kind which is open to challenge (Article 263(1) TFEU)
The institution of person making the challenge must have standing
There must be illegality of the requisite type (Article 263(2) TFEU)
The challenge must be brought within the time limit (Article 263(6) TFEU)
Judicial review under Article 263 is referred to as an annulment proceeding.
NOTE: there are not subsections in Article 263 - the ones here are for ease of analysis
Which bodies are subject to review?
Article 263(1) establishes that the following bodies are amenable to review
The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank,
other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-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-à-vis third parties.
Article 263(5) stipulates that:
Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.
Which acts are subject to review?
Per Article 263(1), the CJEU can review the legality of acts, other than recommendations and opinions, taken by the institutions listed in that Article.
This clearly includes Regulations, Decisions and Directives as listed in Article 288
The ECJ has held that this list is not exhaustive, and that there are other acts which sui generis can be reviewed provided that they have binding force and produce legal effects
Commission v Council - the CJEU held that a Resolution was intended to have binding legal effect and thus was reviewable
The question as to whether or not an act is reviewable is one of substance and not form -
the challenged measure must be final and not preparatory
Facts: IBM sough annulment of a Commission letter notifying of the fact that the Commission had initiated competition proceedings against it.
The Commission objected that the impugned letter was not challengeable under (then) Article 173
Held: The applicant failed, and the letter was not reviewable
The letter was merely the initiation of the competition procedure, a preparatory step leading to the real decision at a later state
The statement of objections did not, on its own, alter IBM's legal position, although it might indicate that it was in danger of having its position changed in the future (in the form of a fine)
o The form which an act takes is, in principle, immaterial
- what matters is that the measure is legally binding on a person.
The general principle is that a reviewable act will have legal effect until it is set aside by the
CJEU/General Court (Commission v BASF AG) and the challenge must be brought within the time limit specified in Article 263(6)
BUT: there is an exception to this - where acts are tainted by particularly serious illegality, they are deemed to be non-existent
This means that (a) the normal time limits do not apply; (b) the acts do not have any provisional legal effects, and (c) the acts are not subject to annulment as there is nothing to annul
NOTE: a judicial finding of non-existence will have the same effect in practice as annulment
Limitations on Review
There are two important limitations to be aware of:
1. The CJEU cannot review he validity or proportionality of operations by the police or law enforcement agencies, or the exercise of responsibilities of Member Striates with regard to the maintenance of law and order, and the safeguarding of internal security.
2. The CJEU has no jurisdiction over Common Foreign and Security Policy (CFSP) acts
BUT: this is subject to two exceptions itself
What are the available grounds of review?
Article 263(2) TFEU established four grounds for review:
1. Lack of Competence
2. Infringement of an Essential Procedural Requirement 3. Infringement of the Treaties or Any Rule of Law Relating to Their Application
4. Misuse of Powers
NOTE: these same grounds of review are relevant for review under Article 267
Lack of Competence
Under this ground of review, the CJEU asks whether or not there is a power in the Treaty which grants the EU institution the power to do the relevant
The relevant case law here will be Tobacco Advertising and the like
NOTE: this ground of review is used rarely. This is because Article 114 TFEU is the key competence and it is applied fairly liberally.
Infringement of an Essential Procedural Requirement
There are three important procedural requirements that might have been breached:
1. The Right to Be Heard
For this right (which is included in the Charter) to be engaged, it does not need to be shown that the decision would have been different, but simply that such a possibility cannot be totally ruled out, since it would have been better able to defend itself had there been no procedural error (Foshan Shunde Yongjian
2. Consultation and Participation
Where a duty to consult is provided by the Treaty or EU legislation, it will be enforced through the courts (Roquette Frères SA v Council)
The CJEU has consistently resisted claims to procedural rights such as a right to participate or to be consulted in the making of Union legislation, unless this is expressly provided for by a Treaty Article or other EU norm (Atlanta AG v Commission)
3. The Duty to Give Reasons
Article 296 TFEU imposes a duty to provide reasons for all legal acts, breach of which constitutes a violation of an essential procedural requirement for the purposes of review.
The general principle is that the duty to give reasons must show in a clear and unequivocal manner the reasoning of the author of the act,
thereby enabling the persons concerned to:
ascertain the reasons for it
so that they can defend their rights and ascertain whether or not the measure is well founded;
and also to enable the CJEU to exercise its power of review Infringement of the Treaties or Any Rule of Law Relating to Their Application
(See below, there is more to this ground of review than the others)
Misuse of Power
Misuse of power covers the adoption by an EU institution of a measure with the exclusive or main purpose of achieving an end other than that stated, or avoiding specifically prescribed procedure by the Treaty for dealing with the circumstances of this type of case
It is easy for this ground to be confused with lack of competence - the difference is that misuse of powers applies mainly to the Commission's delegated and implementing acts (the Commission will have been delegated a power, but they use this power incorrectly)
In Fedesa, the CJEU identified two situations in which misuse of powers can be relied upon:
1. Whether the Commission was achieving an end other than the one stated by the legal provision which constitutes the source of the Commission's legal empowerment
2. Where the EU act that is being challenged was adopted in a way so as to evade a procedure that was specifically prescribed by the Treaty
This head of review is rarely used, but has been successfully utilised
Giufridda v Council
Facts: The applicant sought the annulment of a decision appointing Martino to a higher grade in the Community service, pursuant to a competition in which he and Martino were two contestants for the post
He claimed that the competition was in reality an exercise to appoint
Martino to the job, the rationale of this being that Martino had already been performing duties associated with the higher grade
Held: The Court quashed the appointment
He pursuit of such a specific objective was contrary to the aims of the recruitment procedure and therefore was a misuse of power
The CJEU has also identified where misuse of a power will not apply
Inuit (NOTE: this is different to the other Inuit case)
o Facts: The applicants challenged the Commission's Regulations adopted under the legislative regulation challenged in the previous case
Inuit claimed that there was a misused of power as the Commission had used its powers for a different objective to the one which they were conferred the power in order to achieve.
o Held: The plea was rejected
The CJEU said, in essence, that the applicants were pleading the ground incorrectly
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