#16775 - Challenges To Eu Acts - European Human Rights Law

Challenges to EU Acts

Art 263

• The CJEU shall review the legality of legislative acts, of Council, Commission, and ECB acts, and of acts of the EP and European Council intended to produce legal effects vis-à-vis third parties.

• It has jurisdiction where an action is brought by a member state, the EP, the Council or the Commission on ground of lack of competence, infringement of an essential procedural requirement, infringement of the treaties or any rule of law relating to their application, or misuse of powers. Rule of law = general principle, and treaties include Charter

• Any natural legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. (263 paragraph 4)

• Proceedings shall be instituted within two months of the publication of the measure, or its notification to the plaintiff, or in the absence therefor, when it became known to them.

Art 264

- If the action is well founded, the CJEU will declare it void.

Non-privileged applicants

Most applicants for annulment must use the non-privileged route found in Art 263(4). The efficacy of this route is qualified by the standing rules which carefully confine the ability of non-privileged applicants, commonly private parties, to bring their case before the Court.

Since the entering into force of the Lisbon Treaty, there are three distinct types of action available to the natural and legal person.

1. A challenge to an Act addressed to the individual applicant

2. A challenge to an Act which is of direct and individual concern to the applicant

3. A challenge to a regulatory act which is of direct concern to the applicant and does not entail implementing measures.

However, and applicant who does not fit within any of these boundaries may still rely on proceedings before a national court coupled with the Art 267 preliminary reference procedure.

What does it mean to be of direct concern?

International Fruit Company v Commission

The Community adopted a regulation which limited the import of apples from third countries. The regulation allowed for a system of import licenses, which were granted to the extent to which the Community market allowed. Under this system, a Member State notified the commission, at the end of each week, of the quantities for which import licenses were requested during the preceding week. The Commission then decided to issue of licenses in the light of this information. The challenge was to a regulations applying this scheme.

Held, that the issue of or refusal to issue licenses must be bound up with this decision.

Municipality of Differdange v Commission

The Commission authorised Luxembourg to grant aid to steel firms, on the ground they undertook reductions in capacity. The applicant municipality argued that it was directly and individually concerned by the Decision, because the reduction in production capacity and closure of factories would lead to a reduction in local taxes.

Held, the decision was only of indirect concern, as it had left the national authorities a sufficient margin of discretion as to its manner of implementation.

What does it mean to be of individual concern?

Plaumann

Plaumann was a German importer of oranges, and was importing them from third world countries, so had to pay a customs duty of 13 percent. The German govt asked the Commission to lower it to 10%, which the Commission refused, and it was this refusal which became the basis of Plaumann’s challenge.

Held, although the decision being addressed to Germany did not prevent locus standi, Plaumann was not directly concerned as the decision did not affect them by reason of certain attributes which are peculiar to them, nor were they differentiated from all other persons by reason of some circumstance. Selling oranges could be done by anyone at any time.

‘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.’

Cordoniu

Cordoniu, a Spanish producer of sparkling wines, sought to annul a provision in a Directive, laying down general rules for the description and presentation of sparkling wines. The measure reserved the term cremant for certain quality sparkling wines manufactured in France and Luxembourg. It was explained in the recitals to the Regulation that this protected traditional descriptions used in those two countries. Cordoniu has held and, since 1924, had used the Spanish trademark Gran Cremant de Cordoniu to designate one of its wines. It wished to challenge the regulation. The Council objected to the admissibility of the application.

Judgement:

As we have seen, the general applicability of a measure is not called into question by the fact one can determine the exact number of persons it applied to at any one time, as long as it is established that it applies to them by virtue of an objective legal or factual situation defined by the measure in question.

The Directive is regulatory and legislative, however, the individual applicant may have locus standi still if it is of individual concern to them. Cordoniu were able to meet this bar as the law prevented them from using their trademark ‘cremant’. This was viewed to be as affecting them by virtue of certain attributes which are peculiar to them.

How consistent is this case with Plaumann- the fact that anyone could at any point start a wine business with the name crémant. Gran Cremant de Merseyside?

Is environmental law different?

Greenpace v Commission

Greenpeace applied on the basis of a decision which gave Spain money to build energy plants on Canary Islands. They argued that to deny this would be to create a legal vacuum in ensuring compliance with Community environmental legislation, since in this area interests are by their very nature common and shared, and that rights relating to those interests would likely apply to a lot of people, so there could never be a closed class of applicants.

Judgement:

Where the specific situation of the applicant wasn’t taken into account in the adoption of the act, which concerns him in a general and abstract fashion, and like any other person in the situation, the applicant is not individually concerned by the act.

The decision to fund power stations can only affect the environmental rights indirectly.

The Court stated that the parties would be able to bring proceedings in a national court, so is able to say that the principle of effective judicial protection is not violated.

The restrictive approach vindicated

UPA

Applicant, the union of pequenos agricultores, contests regulations aiming to establish a common market for oils and fats.

Judgement:

Argument on effective judicial protection : The system established by treaties is a complete system of remedies. Under that system, where persons fail to meet the criteria of being addressed to, direct or individual concern, they are able to indirectly plead invalidity of acts before Union courts under art 184 or by going to the national court, who makes a reference for preliminary ruling.

It is therefore for the member states to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection. This is in accordance with the principle of sincere co-operation, established in Art 4(3) of the treaty.

The Treaty provision detailing qualifications for judicial control of EU institutions must be interpreted in light of the principle of effective judicial protection. Any default is on the Member States to change.

AG Jacobs opinion

Argument: Proceedings before national courts are not, however, capable of guaranteeing that individuals seeking to challenge validity of Union measures are granted fully effective judicial protection. Why?

1. National Courts cannot declare measures invalid

2. Remedies at national level are uncertain, as NC may refuse to refer qs, and even though final appeal must refer, the appeals system is liable to produce long delays. NCs may err, essentially- JS: Kobler liability? The defining of the question may limit the range of community measures which an applicant has sought to challenge.

3. Difficult for individuals to challenge in National Courts Community measures which do not require implementing measures. Individuals cannot be required to breach the law in order to gain access to justice.

4. Proceedings in the national courts, with the additional stage of reference, are likely to involve substantial extra delays and costs, plus ability to give interim relief is discretionary, and applies only to one nation- applicant may need to bring multiple proceedings.

Solution: Offers a new type of individual concern: substantial adverse affect. Advantages:

1. Only way to avoid certain cases where there might be a lack of judicial protection.

2. Would considerably improve judicial protection- would allow those directly and adversely affected by Community measures are never without a remedy.

3. Would provide clarity- is this really true? JS: an advantage of the present situation is that it gives clear guidance- if you were involved in decision, you may bring an action.

4. Would move proceeding from being decided on substance rather than...