#17724 - Challenges To Eu Acts And Liability Of The Union Notes - European Law

Challenges to EU Acts and Liability of the Union Notes

What is judicial review?

Definition

Judicial review is a type of court proceedings in which a judge reviews the lawfulness of a decision made or action taken by a public body, or in some jurisdictions, of legislative action.

• The judge has the power to invalidate the challenged act

Any competent system of judicial review will have to establish rules relating to: standing; which acts can be challenged; the grounds of review; and the intensity of the review

Importance

Judicial review performs a number of important functions: (i) protect the rule of law; (ii) ensure the accountability of EU institutions; (iii) protect fundamental rights in accordance with Article 47 of the Charter; and (iv) justify the supremacy of EU law

However standing requirements are important in limiting judicial review: (i) they avoid the courts becoming a political forum (Harlow); (ii) prevent overflow; and (iii) prevent speculative claims

What is the system of judicial review of EU acts?

Types of Act Subject to Review

Distinction must be drawn between:

1. Member States’ Acts

   • Member States can act in two different capacities

     1. Legislation on Their Own Behalf – when Member States act on their own behalf (under their own competences), if the acts are within the scope of EU law then they are challengeable for compatibility with EU law

     2. Legislation to Fulfil EU Obligations – where Member States act as agents of the EU (transposing rules adopted by EU institutions) these rules are taking action on behalf of the EU

2. EU Institutions Acts

   • EU institutions are empowered to make legally binding acts which have effect for third parties (the Member States, citizens and economic operators)

   • IN the Treaties, we find two categories of legally binding EU act:

     1. Article 288 TFEU – Regulations, Directives and Decisions

     2. Articles 289-291 TFEU – further distinction can be drawn between:

        1. Legislative Acts – Article 289(3) says that “Legal acts adopted by legislative procedure shall constitute legislative acts”

        2. Non-Legislative Acts –

           • Article 290 TFEU – non-legislative acts of genera application supplementing or amening certain non-essential elements of a legislative act (delegated acts) adopted by the Commission

           • Article 291 TFEU – implementing acts adopted by the Commission (or the Council).

NOTE: the Commission is not a legislative institution, and so if we know an act was adopted by the Commission, we know that it is a non-legislative act under either Article 290 or Article 291 TFEU

Mechanism for Review

The relevant mechanism for review depends on drawing the above distinction again:

1. Member States’ Acts

   • In taking action in pursuing EU law, Member States are implementing, applying and enforcing EU rules

     • This process involves Member States performing an obligation under EU law so their conduct cannot be challenged for incompatibility with EU law, unless the validity of the EU rules are challenged before a national court

       • In such a case, a question will be referred to the CJEU under Article 267 TFEU

2. EU Institutions Acts

   • Article 267 TFEU – the case is reaching the CJEU indirectly as a reference from a national court (indirect action)

   • Article 263 TFEU – the case is reaching the CJEU directly, the action starting there (direct action)

What does Article 267 TFEU say?

Definition

Article 267 TFEU provides that:

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

1. the interpretation of the Treaties;

2. the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgement, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against which whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court

NOTE: the obligation to bring a preliminary reference only arises if there is no judicial remedy under national law

Scope of National Courts’ Powers

• Due to concerns as to the uniform application of EU law, the CJEU concluded that national courts do not have the competence to invalidate EU acts (Foto-Frost)

  • However, when national courts are confronted with a challenge to the validity of an EU act, the national court must undertake an initial review of the EU act’s validity

    • In the event that the court finds the grounds for invalidity are unfounded, the court can reject these and find the act to be completely valid

    • If there are doubts as to the measure’s validity, though, the court has to make a reference

      • In IATA, the CJEU was very clear that if the national court considers one or more of the arguments for invalidity to be well founded, then it is incumbent upon the court to stay proceedings and make a reference to the CJEU (regardless of whether it is a court of first or last instance)

CJEU or General Court?

Article 256(1) TFEU and Article 51 Protocol (No 3) on the Statute of the CJEU:

• Actions brought by the Member States and the EU institutions are reserved by the CJEU

• The General Court hears cases brought by natural and legal persons (although an individual can appeal from the General Court to the CJEU)

Preliminary references thus always go to the CJEU

What does article 263 TFEU say?

Definitions

Five conditions must be satisfied before an act can be successfully challenged under Article 263 TFEU:

1. The relevant body must be amenable to review (Article 263(1) TFEU)

2. The act has to be of a kind which is open to challenge (Article 263(1) TFEU)

3. The institution of person making the challenge must have standing

4. There must be illegality of the requisite type (Article 263(2) TFEU)

5. The challenge must be brought within the time limit (Article 263(6) TFEU)

Judicial review under Article 263 is referred to as an annulment proceeding.

NOTE: there are not subsections in Article 263 – the ones here are for ease of analysis

Which bodies are subject to review?

General

Article 263(1) establishes that the following bodies are amenable to review

The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.

Article 263(5) stipulates that:

Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.

Which acts are subject to review?

General

Per Article 263(1), the CJEU can review the legality of acts, other than recommendations and opinions, taken by the institutions listed in that Article.

• This clearly includes Regulations, Decisions and Directives as listed in Article 288 TFEU

The ECJ has held that this list is not exhaustive, and that there are other acts which sui generis can be reviewed provided that they have binding force and produce legal effects

• Commission v Council – the CJEU held that a Resolution was intended to have binding legal effect and thus was reviewable

The question as to whether or not an act is reviewable is one of substance and not form – the challenged measure must be final and not preparatory

• IBM

  • Facts: IBM sough annulment of a Commission letter notifying of the fact that the Commission had initiated competition proceedings against it.

    • The Commission objected that the impugned letter was not challengeable under (then) Article 173

  • Held: The applicant failed, and the letter was not reviewable

    • The letter was merely the initiation of the competition procedure, a preparatory step leading to the real decision at a later state

      • The statement of objections did not, on its own, alter IBM’s legal position, although it might indicate that it was in danger of having its position changed in the future (in the form of a fine)

        • The form which an act takes is, in principle, immaterial – what matters is that the measure is legally binding on a person.

Non-Existent Acts

The general principle is that a reviewable act will have legal effect until it is set aside by the CJEU/General Court (Commission v BASF AG) and the challenge must be brought within the time limit specified in Article 263(6)

• BUT: there is an exception to this – where acts are tainted by particularly serious illegality, they are deemed to be non-existent

  • This means that (a) the normal time limits do not apply; (b) the acts do not have any provisional legal effects, and (c) the acts are not subject to annulment as there is nothing to annul

    • NOTE: a judicial finding of non-existence will have the same effect in practice as annulment

Limitations on Review

There are two important limitations to be aware of:

1. The CJEU cannot review he validity or proportionality of operations by the police or law enforcement agencies, or the exercise of responsibilities of Member Striates with regard to the maintenance of law and order, and the safeguarding of internal...