#17338 - Action For Annulment - GDL EU Law

MSs, other institutions, and individuals have a right to challenge EU institutions.

Under Art 19(1) TEU the CJEU ensures that in the interpretation and application of the Treaties the law is observed.

Relationship to Art 267 PR:

• If you have standing to challenge without doubt under art. 263 you may not bring a domestic challenge under art 267. (TWD v Germany [1994])

Article 263(1) TFEU: Scope of Challenge

• Covers all acts of EU bodies intended to produce legal effects vis-a-vis third parties, thereby excluding recommendations and opinions (as these are not binding).

• Commission v Council (re: European Road Transport Agreement) [1971] – Commission challenged council resolution settling negotiation procedure for a conference.

  • “An action for annulment must…be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects.”

• Schindler v Council [2018] – S lived outside UK for >15years therefore could not vote in referendum. Brought action against council for agreeing to begin negotiations with the UK. Held this was inadmissible as it was not abindign decision.

Article 263(2)-(4) TFEU: Standing

• 263(2): Privileged Applicants

  • May challenge any measure without meeting any type of standing requirements.

  • All major EU Institutions and MSs

  • Chernobyl [1990] – although EU Parliament not mentioned in Art 263 it was given right to challenge legislation that threatened its prerogative. (at Maastricht was made semi-privileged body, and at Lisbon was made a fully privileged body)

  • Provides four grounds for annulment:

    • Lack of competence

    • Infringement of an essential procedural requirement

    • Infringement of the Treaties or of any rule of law relating to their application

    • Misuse of powers.

• 263(3): Semi-Privileged Applicants

  • May challenge any measure without meeting any type of standing requirements but only in so far as what they are challenging affects their prerogatives (powers)

  • Court of Auditors, ECB, and Committee of the Regions.

  • Same four grounds of annulment

• 263(4): Non-Privileged Applicants

  • Same four grounds of annulment. Must meet standing requirements (below):

    • 1) Act addressed to that person

    • 2) An act addressed to someone else which is of direct and individual concern to them

    • 3) A regulatory act which is of direct concern to them and does not entail implementing measures.

• 263(6): Timing

  • A challenge must be made within two months of two months of the publication of the measure, or of its notification to the plaintiff,

  • Mutual Aid v Commission [1997] – the court has no discretion over these time limits.

Standing requirements for individuals:

• 1) Act addressed to that person.

  • If addressed to the applicant then the applicant is presumed to have an interest in challenging it.

• 2) An act addressed to someone else which is of direct and individual concern to them.

  • i) Individual Concern

    • Plaumann v Commission [1963] – Commission refused permission for German government to suspend custom duties on imports of clementine’s. P imported clementines. Set out test for individual concern:

      • 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.”

      • Held P was not individually concerned as anyone at any time may begin to import clementine’s.

    • Piraiki-Patraiki v Commission [1985] – quotas on Greek cotton exports to France. Exporter challenged. Court held again that anyone could begin to export cotton into France, and therefore this individual exporter had no peculiar attribute.

      • But, there were a closed group who were individually concerned, namely those who had already entered into contracts with France to supply cotton in excess of the quotas.

    • Economically illiterate – it is not possible for anyone to set up a new cotton importing company in three months

      • It is a very formalist test.

  • ii) Direct Concern

    • “Les Verts” v European Parliament [1986] - Green Party challenged political party funding from the Parliament.

      • Held the measures constituted a complete set of rules which are sufficient in themselves and which require no implementing provisions, therefore direct concern.

      • Key is the idea of causation.

• 3) A regulatory act which is of direct concern to them and does not entail implementing measures.

  • Innovation at Lisbon. Attempt to liberalise after criticism.

  • Plauman would have been able to challenge under this

  • Microban [2011] - Commission banned a chemical that Microban produced. Successfully challenged under this Article

    • Must directly affect the legal situation of the individual

    • MS takes no steps in implementing the measure.

  • NB note no ref to individual concern (the strictest requirement)

  • Inuit [2013] – Canadian Inuit organisation challenged a regulation of Parliament and Council on seal products.

    • Held that this regulation was not a regulatory act.

    • Legislative acts are not regulatory acts (legislative acts being those adopted by ordinary legislative procedure)

    • Therefore required to meet Plaumann test for direct and individual concern.

Over time the court has become more liberal, relaxing its requirements for standing for applicants seeking annulment.

• This is particularly true in the areas of:

  • Anti-dumping law: Timex Corporation [1985]

  • Competition law: Metro-SB-Grossmaerkte [1977]

  • State aid: COFAZ [1986]

• Codorniu SA v Council [1994] – measure to geographically protect the term cremente. Codorniu had been using the term since 1924.

  • Court held that the length for which Codorniu had been using this trademark made them different and therefore they were individually concerned.

  • This was the last judgement handed down by the ECJ in an application by private individual before jurisdiction moved to the general court of first instance

  • Was this a message being sent to the general court? If so never received as individual concern test has been strictly applied since.

• Buralux v Council [1996] – return to a strict approach. Council legalized French legislation prohibiting the import of household waste.

  • The fact that the applicants were the only operators transporting waste from Germany to France was not sufficient to differentiate them from any other operator.

There have been calls for reform, most notably: UPA v Council [2002]

• Opinion of AG Jacobs

  • We should remove Plaumann test. The restrictions are too narrow.

  • Instead a person should be considered individually concerned where:

    • “a measure has or is liable to have a substantial adverse effect on his interests.”

  • Advantages of this approach

    • Increased...