Judicial Review Notes

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.

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-à-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 participationa 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 Mühle; (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):

  • 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.

  • 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:

• “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.”

• 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...

Buy the full version of these notes or essay plans and more in our European Law Notes.