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Judicial Review Notes

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JUDICIAL REVIEW OF EU ACTS The European Ombudsman: Art. 288 TFEU sets up a European Ombudsen to hear complaints from any individual or company residing in the EU concerning maladministration by the EU institutions. When the ombudsman establishes maladministration, he refers the case to the relevant EU body, which as three months to respond. The ombudsman then forwards a report to the EP and the institution concerned. Judicial review Member States' acts

Before national courts
- preliminary ruling references to the Court of Justice of the EU Article 267 TFEU

EU acts

Direct actions Before the General Court and the Court of Justice Article 263 TFEU

Indirect actions Before national courts preliminary ruling references to the Court of Justice of the EU Article 267 TFEU

GROUNDS FOR JUDICIAL REVIEW OF EU ACTS Art. 263 TFEU: ECJ's jurisdiction to review legality of acts:
? Bodies subject to review: ECJ can review: "legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions."
? ECJ can review acts of the European Parliament, European Council, and acts of "bodies, offices, or agencies of the Union" which are "intended to produce legal effects vis-a-vis third parties."
? Grounds of review: "lack of competence, infringement of an essential procedural requirement, infringement of the Treaties, or of any rule of law relating to their application, or misuse of powers." Lack of competence: breach of the principle of conferral --- e.g. Tobacco Advertising I --- review on this ground has generally been unsuccessful; ECJ mostly will not strike down acts for lack of competence. Infringement of an essential procedural requirement: these include:
? Right to be heard: if an EU act (e.g. a decision) has an adverse/significant impact on C's interests.
? Consultation and participation a duty to consult provided for in Treaties / legislation will be enforced.
? Duty to give reasons: set out in Art. 296 TFEU; reasons must be given for all legal acts. For legislation, EU must disclose the essential object, but no need to go into every point of fact / law. ECJ may demand greater particularity of reasons when a measure is of an individual nature (e.g. decision).

Infringement of the Treaties or any rule of law relating to their application : the ambiguity of the phrase "any rule of law relating to their application" has given the ECJ scope to justify the imposition of GPs of EU law (and now Charter rights) as grounds of review. Specific grounds of review here:
? Infringement of any provisions of the Treaties or other EU legislation.?

Fundamental rights (now under the Charter) e.g. Kadi and Al Barakaat, Digital Rights Ireland. General principle: (i) proportionality in Atlanta, Bela Muhle; (ii) legal certainty and legitimate expectations in Mulder; (iii) equality and non-discrimination in Ruckdeschel, Mangold; (iv) transparency. Mangold and Seda show the ECJ's creativity in developing GPs as grounds of review.

Misuse of Power: covers adoption by an EU institution of a measure with the main / exclusive purpose of achieving an end other than that stated, or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of a given case. Outline of JR procedure
? Art. 263: in addition to giving the ECJ authority to conduct JR, it also establishes standing rules (below) and the time limit for bringing an Art. 263 claim (two months from the publication of the measure, its notification to C, or the day on which it came to C's knowledge).
? Art 264: if an action for JR is well founded, the ECJ shall declare the challenged act void.?

Art. 266: EU institution whose act is declared void must take steps to comply with ECJ's judgment. Art. 265: gives the ECJ power to review a failure to act by the EU institutions. STANDING

Art.263(2)-(3): Standing for privileged and quasi-privileged applicants:
? Privileged applicants: automatically hold standing, even where act is addressed to another body /
person --- these include: Member States, European Parliament, the Council, and the Commission.
? Quasi-privileged applicants: automatic standing "for the purpose of protecting their own prerogatives." Include: European Central Bank, the Court of Auditor, and Committee of Regions. Art. 263(4): Standing for non-privileged applicants: natural/legal persons can bring an action where:
?????An act is addressed to him (rarely happens)
?????An act is of direct and individual concern to him
?????A regulatory act which is of direct concern and does not entail implementing measures DIRECT CONCERN: Two requirements to establish direct concern:
? Act must directly concern C's legal situation (requires a causal link);Act must leave no discretion to the addressee of the act (i.e. body entrusted with its implementation): o International Fruit [1972]: MS had no discretion in implementing Commission decisions giving licences to apple importers. ECJ: lack of discretion meant Cs were directly concerned. o Directives always require implementation by MS, so can never be of direct concern to individuals

INDIVIDUAL CONCERN:

Plaumann test: Plaumann is still the leading case for individual concern
? Plaumann [1963]: Commission addressed a Decision to Germany (on import duties for clementines from non-MS). C was an importer of clementines who contested the legality of the decision. ECJ: o "Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed." o C did not have standing --- he is distinguished as an importer of clementines i.e. "by reason of a commercial activity which may at any time be practiced by any person." No factor to distinguish C in the same way as the addressee (i.e. Germany). Problems with the Plaumann test:
? Craig: it can be criticised on pragmatic grounds --- it is economically unrealistic in that, while in theory anyone can enter a market and practice a trade, in reality it is very difficult --- and on conceptual grounds --- if C cannot be considered individually concerned since the activity could be carried out by anyone at any time, it is impossible for an application to succeed, since it could always be argued that others might engage in the trade in the future (unless decision was retrospective).
? Hartley: C in Plaumann was a member of an open category of applicant (membership not fixed at the time of the decision) so there was no individual concern. If C had been in a closed category (membership fixed at time of decision) he may have succeeded. The practical problem with this test is that it ignores structural conditioning of the market which prevents any notional future traders just entering. To regard any category (even a very limited one) as open just because others might undertake the trade in future means that any decision with future impact becomes unchallengeable. Abstract terminology test: The Plaumann test was adapted in Calpak to apply to legislative acts (Plaumann concerned a decision of the Commission):
? Calpak [1980]: Regulation ended financial aid for producers of preserved fruit. ECJ: they lacked standing for JR. Although EU acts can generate the necessary individual concern, the court must look to "whether the measure is of general application," i.e. whether it applies to "objectively determined situations and produces legal effects with regard to categories of persons described in a generalised and abstract manner." Individuals must show a challenged act is, in substance, a decision addressed to them and not an act of general application. If it is of general application, it makes no difference that "it is possible to determine the number or even the identity of producers." o The test is problematic as it is always possible for the EU institutions to draft an act in language which indicates general application, so denying standing to individuals altogether. In effect Calpak still looked at the form and not substance of the act.
? The ECJ has since accepted than an act of general application can have individual concern. o Codorniu [1994]: C challenged a regulation stipulating the word 'cremant' could only be applied to sparkling wines made in France. C (Spanish producer) owned a trademark including the word. ECJ: C was individually concerned. Although it is a legislative measure of general application to wine traders "that does not prevent it from being of individual concern to some of them" under Plaumann C is individually concerned if "it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from others."

Although Cordorniu was seen by Arnull as a hopeful indicator that the ECJ was moving towards "a test for standing based on adverse impact, judged on the facts of the case" this was not, in fact, realised
--- the ECJ in practice applied the Plaumann test to acts as well as decisions in a restrictive fashion; Cordorniu was an exceptional case in that C was not differentiated by practicing a trade (not enough under Plaumann) but by owning a trademark. Enchelmaier: Cordoniu shows C will only have individual concern where an EU act impairs a proprietary right (e.g. C's trademark). Greenpeace shows that the Plaumann test also applies to NGOs
? Greenpeace [1995]: Greenpeace challenged a Commission decision providing funds for the construction of a coal-fired power plant on the Canary Islands. G argued its special interest in the protection of the environment gave it individual concern Court of First Instance: rejected G's argument that the Plaumann test should be replaced with a test of whether C had suffered, or would potentially suffer, loss or detriment. This was rejected. Plaumann applies to NGOs as well as individuals and G cannot satisfy the test --- an association will only have standing where its individual members have standing; not satisfied here. Grand Chamber: confirmed CFI's judgment. o Case can be criticised in that it makes it extremely hard for NGOs, representing interests of others in a broad fashion (e.g. 'diffuse' interests like environmental protection) to have standing. Faculty reading list: C is only "individually concerned" when the act in question individualises that person in the same way as an addressee of a decision. What characterises a decision addressed to an individual is that it takes account of the characteristics of that person. It follows that an individual is individually concerned where law-maker took the applicant into account when adopting the act , or ought to have done so. CRITICISM IN THE EU COURTS AG Jacob's reform attempt: AG Jacobs opinion in UPA; CFI seem to follow this in Jego-Quere; ECJ dismiss AG Jacobs in UPA; ECJ dismissed CFI decision in Jego Quere . Plaumann was challenged by AG Jacobs in UPA [2002]: C (farmers) sought to annul a Regulation which amended the common organisation of the olive oil market. CFI: dismissed the application because Cs were not individually concerned under Plaumann. AG Jacobs:
? ECJ argues Cs have effective judicial protection under the Treaties because they provide a comprehensive mechanism for legal protection --- i.e. Cs will can use Art. 267 (preliminary ref.) to challenge the validity of EU acts, as well as Art. 263. However, this is flawed because: o Art. 267 does not confer a right to make a reference: rather it is for national courts to decide (both in terms of making the reference and in framing the question). o Can deny justice: in cases where it is difficult / impossible for C to challenge an act before a national court --- i.e. for EU acts without national implementing measures, there is no measure that can form the basis for an action in a national court, thus C's only recourse is to violate the EU law provision and wait for proceedings to be brought against him. o National courts themselves can't grant a remedy: following Foto Frost they can assess validity and then make a reference to the ECJ.

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