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Jr & Standing Notes

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This is an extract of our Jr & Standing document, which we sell as part of our European Law Notes collection written by the top tier of Oxford students.

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EU Law

Judicial Review & Standing

2 ways to challenge EU acts (1) Direct (Art 263 TFEU) (2) 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: a) C wouldn't have standing under Art 267 o 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 b) Not clear whether C would have standing under Art 267 o 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

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5 conditions

1. Body amenable to JR

2. Act of the type that can be challenged

3. Institution/person has standing

4. Illegality one of the 4 grounds of review in 263(2)

5. Challenge brought within applicable time limits Body amenable to JR(Art 263(1))

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Council, Commission, ECB - all acts, incl. legislative acts, other than recommendations & opinions

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EP, European Council, other EU bodies, agencies etc. - only acts intended to produce legal effects on TPs Acts open to review (i) 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 (ii) 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 a. Legislative acts (adopted through legislative procedure) b. Delegated acts c. 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. a. Regulations - no implementing measures, C must show direct concern

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e.g. Jego Querre would now be likely to have standing b. Directives - have implementing measures, so Lisbon relaxation won't apply (can still challenge under Art 267); concerns of AG Jacobs remain unresolved c. Decisions - 3 situations a) decision addressed to C (often competition law) ? automatic standing b) decision addressed to TP as legislative/regulatory act w/no implementing measures ? C must show direct concern c) decision addressed to TP as legislative/regulatory act w/implementing measures
? no standing d) 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

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Limitations

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