European Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB EU law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best European Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest resul...
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2 ways to challenge EU acts
Direct (Art 263 TFEU)
Indirect (Art 267 TFEU)
If C can’t challenge the measure directly under Art 263, could seek to challenge the implementing measures by way of preliminary reference under Art 267 only where:
C wouldn’t have standing under Art 267
TWD Textilwerke: Comm. held aid given by German govt.to TWDincompatible w/free market & had to be repaid; decision addressed to govt. which informed TWD it could challenge it under Art 263but TWDchose to challenge under 267; ECJ: no indirect challenge possible b/cTWDwas informed it could challenge under 263 but failed to do so in the specified time limit. It was ‘obvious’ P would have had standing under Art 263
Not clear whether C would have standing under Art 267
Eurotunnel SA v Seafrance [1997]: C could challenge provisions of Dir. addressed to MS under Art 267, if it was unclear whether he would have been granted standing under Art 263. TWD distinguished.
Direct Review
5 conditions
Body amenable to JR
Act of the type that can be challenged
Institution/person has standing
Illegality one of the 4 grounds of review in 263(2)
Challenge brought within applicable time limits
Body amenable to JR(Art 263(1))
Council, Commission, ECB – all acts, incl. legislative acts, other than recommendations & opinions
EP, European Council, other EU bodies, agencies etc. – only acts intended to produce legal effects on TPs
Acts open to review
Pre-Lisbon
Decisions – Cs to whom they’re addressed/Cs directly & individually concerned
Regulations – individuals directly & individually concerned (even ‘true’ regulation)
Directives – little, if any, possibility, since MS had large margin of discretion
Post Lisbon
Acts addressed to C/ of direct & individual concern to C
Regulatory acts of direct concern to C not entailing implementing measures
Meaning of “regulatory acts” not defined in Treaty - travaux preparatoire referred to non-legislative acts of gen. application (as opposed to acts of individual application). B/c under Lisbon legal acts are divided into
Legislative acts (adopted through legislative procedure)
Delegated acts
Implementing acts
Conclusion: “regulatory acts” = all non legislative acts (delegated & implemented) of general application. Remains to be seen how strictly court will interpret this category.
Regulations – no implementing measures, C must show direct concern
e.g. Jego Querre would now be likely to have standing
Directives – have implementing measures, so Lisbon relaxation won’t apply (can still challenge under Art 267); concerns of AG Jacobs remain unresolved
Decisions – 3 situations
decision addressed to C (often competition law) automatic standing
decision addressed to TP as legislative/regulatory act w/no implementing measures C must show direct concern
decision addressed to TP as legislative/regulatory act w/implementing measures no standing
decision addressed to TP as an act of individual application likely no standing, since not a “regulatory act” under Lisbon
Sui generis acts w/binding force & legal effect
Key: substance, not form + challenged measure must be final, not preparatory
Limitations
Validity & PP of police & law agencies/exercise of MS resp. for maintenance of law & order + internal security
Common foreign & security policy/w some exceptions
Standing
Privileged & quasi privileged Cs (Art 263(2)-(3))
MS, EP, Council, Commission - all actions for JR
Court of auditors, ECB – only to safeguard own prerogatives
European Council – possibly, quasi privileged status
Non privileged Cs
Any natural legal person
addressee of decision
act is of direct & individual concern
regulatory act of direct concern (can’t include implementing measures!)
Direct Concern
Causation – direct link b/w the act & loss/damage to C
Question: whether institution has discretion yes: chain of causation likely to be broken (high threshold, since resp. is mostly shared b/w MS & Comm. institutions)
PiraikiPitraiki– exporters seeking to challenge Comm.’s decision allowing France to continue applying a restriction to cotton imports had direct concern b/c there was previously no more than theoretical possibility that France will continue w/regime & Comm.’s act legalised it (direct link)
International Fruit Company– importers seeking to challenge Comm.’s Reg. setting up a system of apple import licences had direct concern b/c MS had no discretion in implementing it.
Legal nature of C’s interest – measure adversely affected C’s legal position
Chalmers: direct concern hasn’t been the main obstacle to standing pre-Lisbon but may become pretty much the sole test post Lisbon if large proportion of measures is qualified as regulatory acts.
Individual Concern
Plaumann’s formula – if C isn’t the addressee of decision, he’s only individually concerned if affected by reason of attributes peculiar to him or by reason of circumstances which distinguish him from others in the same way as the addressee.
Plaumann v Commission–C sought to challenge Commission’s decision addressed to Germany refusing its request to lower import duty on mandarins. ECJ: C not individually concerned b/c affected by commercial activity which can be practised at any time by any person.
Craig & DB’s criticisms
Pragmatic – economically unrealistic application of the test, since the number of firms pursuing a particular trade depends on supply & demand and, even if there are incentives for entering the market, new entries might not occur during the application of the contested decision.
Conceptual – standing should be judged at the time when application for JR is lodged, not on the basis of some undefined future date.
Hartley’s “open & closed categories”
Decision in Plaumann is correct, since C wasn’t a member of a closed category
Open – membership defined at the time of decision = no individual concern
Closed –...
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European Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB EU law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best European Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest resul...
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