#14634 - Annulment Action - GDL EU Law

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Treaty Basis

Art 265 TFEU = the MS may bring an action where institutions of the EU fail to act

Art 263 TFEU = CoJ has jurisdiction to review the legality of EU acts:

• Lack of competence

• Infringement of an essential procedural requirement; infringe of the treaties; infringement of any rule of law; misuse of powers

The EC Treaty provided annulment action against a ‘decision’ whereas Lisbon provided against an ‘act’. However in reality this change just reflects case-law – in the Codorniu case regulations were reviewed. Yet recognition in the treaties reflects the move towards greater accountability & transparency in the reforms.

• A Arnull: annulment action as filling in gaps in the EU’s judicial review systems

What is an act?

• Commission v Council (re: European Road Transport Agreement): any act intended to have legal effects

• Corporation v Commission: look to the “substance” of an act – any act capable of changing the legal interests of an applicant

• Reynolds Tobacco: the decision to bring legal action does not of itself count as an act

Who can bring an action?

1. Privileged Applicants:

   1. Unlimited rights to apply

   2. No procedural requirements

   3. Commission; EP; MS

      1. Dynamic development of EP’s status: originally no mention of its status in treaty of Rome as its decision-making powers were very limited & it wasn’t directly elected

      2. E P v Council (Comitology) application by EP where not found to be an applicant

      3. EP v Council (Chernobyl) EP recognised as semi-privileged Applicant

      4. Treaty of Nice recognised EP

2. Semi-Privileged Applicants:

   1. Challenge any act but only for the purpose of protecting their own prerogatives

   2. ECB; Committee of the Regions; Court of Auditors

3. Unprivileged Applicants:

   1. ‘Natural persons’ may challenge EU act which is addressed to them & also an act not addressed to them where it is of directly concern

   2. Increased by Treaty of Lisbon – prior excluded regulations as these had “general application” Producteurs de Fruit – terminology ‘decision’ rather than ‘act’

      1. Old law: Calpak v Commission very narrow interpretation of regulation which affected only 38 processors as ‘general’

   3. Salamander AG applicants may challenge directives only where it “affects the applicants directly and individually”

   4. ‘Individual concern’:

      1. Plaumann individual concern only where a decision affects them by reason of certain attributes which are peculiar to them or differentiated from all other persons

      2. Piraiki-Patraiki closed group of applicants as they already had contracts

   5. ‘Direct concern’:

      1. Les Verts act of direct concern where there is no discretion as to how the decision is to apply

      2. Other more liberal approaches – anti-dumping law (Timex) & competition law (Metro-SB)

   6. Liberalisation: Cordorniu use of TM over a long time meant that a provision was “general” could be considered “individual”

   7. Restriction: Buralux the fact that the class could be quantified does not mean standing will apply if it is in an objective factual situation – there must be a unique factual situation. France v Comafrica redress may be sought in a national JR of transposed provisions

   • Call for liberalisation: Union de Pequenos Agriculturos it doesn’t matter how an individual is affected in relation to other measures, but...