Action for annulment notes


Craig/de Burca

Any developed legal system must have a mechanism for testing the legality of such measures. The principle treaty measure is A263 TFEU. Five conditions must be established before an act can be successfully challenged. The relevant body must be amenable to judicial review, the act has to be of the kind that is open to challenge, the institution or person making the challenge must have standing to do so, there must be illegality of the type mentioned in A263(2) and the challenge must be brought within the time limit of A263(6). Before TFEU it was hard to challenge. 

Can also challenge validity indirectly via A267 TFEU. The relationship between direct challenge is important. The Courts defended their narrow interpretation of standing for direct actions by arguing that the treaty provided a complete system of legal protection through a combination of A263 and 267. There are difficulties with this hypothesis. 

A263(1) bodies subject to review- novelty of the Lisbon Treaty is the explicit inclusion of the European Council and EU bodies, offices or agencies ameniable to judicial review. A263(5) says that acts setting up such EU bodies etc may lay down specific conditions and arrangments concerning actions brought by natural and legal persons against acts of the bodies. The nature of such conditions remains to be seen. 

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A263(1) acts subject to review- covers regulations, decisions and directives which are listed in A288 TFEU. ECJ has held this list isnt exhaustive, and other acts which are sui generis can be reviewed, providing they have binding force and legal effects. Test of reviewable-ness is of substance, not form. Reviewable act will have legal affect until set aside by court and challenge must be brought in time limit under A263(6). Exception where there is a serious illegality and deemed to be non existent, for these the time limit doesnt apply, act has no provisional legal effects and are not susceptible to annulment as technically theres no act. 

Limitations on review- freedom, security and justice- normal principles of judicial review apply to this are, subject to the fact that the CJEU cannot review validity of proportionality of operations by the police or exercise of responsibilities of MS with regard to maintainence of law and order or of international security. Common and foreign security policy- general principle is that the union courts have no jurisdiction over these acts. There are two exceptions- can if they think it is encrouching on competence under TFEU. Can rule on proceedings brought in accordance with A263(4) to review legality of decisions providing for restrictive measures on natural or legal persons.

A263(2) and (3)- EU law doesnt let MS bring an action for one of its citizens under A263 or 265. 

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A263(2) states action may be brought by MS, EP and the Council or the Commission. Court of Auditors, European Central Bank and Committee of Regions are under A263(3) so they only have standing to defend their own prerogatives. European Council doesnt have claimant status. 

A263(4) standing for non priviledged applicants. Can bring in three situations. Where a decision is addressed to them. Where an act is of direct and individual concern to the natural or legal person. Where there is a regulatory act, which does not need implementing measures, in which the claimant must show direct concern, but need not be individual. Plaumann test- 'persons other than those to whom the 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 those factors distinguishes themselves individually just as in the case of the person addressed.' Effectively prevented all direct actions by private parties. Conceptual terms make it almost impossible to succeed. 

Open category- where the membership is not fixed at time of decision. Closed- where it is fixed. 

A230(4) stated that a decision addressed to another person might be of individual concern to the applicant, and that an act in the form of a regulation may in reality be a decision that was of..

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direct and individual concern to the applicant. 

Reform of individual concern- A263(4) provides that it isnt required in relation to regulatory acts that do not need implementing measures. In UPA AG Jacobs said that standing should be accorded when the contested measure has a substantial adverse affect on the applicant. ECJ declined to follow this. The criteria would not be realised even when it was apparent that the national rules did not allow the individual to contest the validity of a measure without having contravened it. 

Regulatory acts- regulatory acts are not legislative acts (ones done by the legislative procedure). 

Implementing measures- A263(4)- implementing measures can be construed narrowly or broadly. Telefonica is the leading case on the subject. Broad interpretation was used here. Regulations are directly applicable. Dont need implementing measures. Directives require implementing measures. 

Summary- the fact that the applicant operates a trade which could be engaged in by any other person normally serves to deny individual concern and it is this which often makes it impossible for applicants to succeed. Interest groups will not be in a better position than the individual. 

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Plaumann can exceptionally be interpreted more favourably to the applicant.This may be shown where it can be shown that the challenged measure either infringed a right specific to the applicant or was in breach of a duty owed to the applicant. It will be rare for a claim to be allowed merely because of factual injury. Clear from UPA, Jego, and Innuit that the EU were not willing to use AG Jacobs more liberal test. 

A267- indirect challenge to legality- allows national courts to refer to the CJEU questions concerning the valiity. Individuals will often be affected by EU measures through their application in national courts. The court is more likely to be receptive to actions under A267 where the applicant would not have known of the relevant measure in time to challenge under A267. AG Jacobs pointed out issues with this. National courts are precluded from invalidating measures, and hence applicant has to proceed to ECJ and the most a national court can provide is interim relief. A legal system may have great judicial review but doesnt reallly matter if cant be accessed due to narrow standing. But it is in line with domestic ones. May not want more liberal test due to increased work load. 

A265 Failure to act- reviewable omissions- act must be one which has legal effects. Requires applicant to show there is an obligation to act. Existence of wide discretionary powers of the Commission will normally preclude this. 

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Requires the applicant to call upon the institution to act, to say when it came into existence and its content. No time limit to challenge but must be reasonable. Taken to have been an omission at the end of a two month period. Priviledged applicants are MS and other EU institutions. Non priviledged are natural and legal persons. Direct and individually concerned test. 

A277 plea of illegality- can only challenge acts of general application. Substance of measure. Simmenthal. Private parties can use A277 but not if they couldve used A263 instead. MS can invoke A277 even if they didnt contest measure under time limit in A263. 

Review of illegality- grounds of review- Four grounds given in A263: lack of competence, infringement of an essential procedural requirement, infringement of the treaty or any rule of law relating to its application or misuse of power. Same grounds are relevant for actions under A267. Union courts have used the heads of review in A263 to develop general principles of law, which function as principles of administrative legality, drawing on concepts found in national legal systems. These include fundamental rights, proportionality, legitimate expectations, non discrimination, transparency and more recently precautionary principles. Dividing lines are not absolute. Principles can be used as interpretative guides when construing treaty provisions and EU legislation. Can be the reason why a national law is found to be in violation of EU law. 

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Lack of competence- EU institutions must be able to point to a power within the treaty which authorises their action. If cannot it will be void for lack of competence. This is used rarely. 

Infringement of an essential procedural requirement- Union courts have imposed a right to be heard as a general principle of EU law. Claimant doesnt have to show commissions decision would have been different but that such a possibility cannot be ruled out. Where a duty to consult is provided for by the Treaty or Union legislation, it will be enforced through the courts. A296 imposes a duty to give reasons, breach of which constitutes a violation of essential procedural requirements for the purpose of review. Duty to give reasons must show in a clear and unequivocal manner the reasoning of the author of the act, enabling a person to ascertain reasons for it so they can defend their rights. Dont need to go into every point of fact and law. 

Policy rationale- makes process much more transparent. Helps ensure rationale for the action has been thought through. Facilitates judicial review by seeing if decisions were disproportionate.

Infringement of the treaty or any rule of law relating to its application- A2 TEU provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and human rights. Union courts cannot invalidate primary treaty articles. 

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Proportionality- most fully developed in German law. A version of the principle is enshrined in A5(4). Can be used to challenge EU action and MS action that falls within the sphere of EU law. Normally three stages- 1) whether measure was suitable to achieve the desired end 2) where it was necessary to achieve the desired end and 3) whether the measure imposed a burden on the individual that was excessive in relation to the objective sought. 

Most common type is when an individual argues that the policy choices made by the administration are disproportionate. May apply the principle less intensively and will overturn the policy choice only if it is manifestly disproportionate. Most cases come from Common Agricultural Policy. 

Challenge to EU action- where an individual argues that her rights have been unduly restricted by union action. Courts are likley to engage in vigourous scruitiny. Where the attack is that a penalty imposed is excessive the court is likely to be reasonably searching. 

Challenge to MS's action- ECJ may pass the application of proportionality back to the national courts subject to conditions or guidelines. Been criticised as it has been said they scruitinise more intensely to MS than Union action. Court has tended to review more intensively over time. 

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Intensity of review depends on how seriously it takes the MS's argument that measures were necessary to protect something. EU courts have been willing to interpret proportionality in the light of MS's values, even if they differ from other states. Can involve the balancing of social and economic values. 

Legal certainty and legitimate expectations- actual retrospectivity- applies to events that have already been concluded. Cant plan life around them. May damage commercial transactions. Court sometimes upholds them where they are necessary to ensure market stability. Need to have pressing union objective though. Apparent retrospectivity- where legislative acts are applied to events which occured in the past but havent definitely been concluded. Problematic. Courts base decisions on legitimate expectations. Public interest may override legitimate expectation. 

Non discrimination- universally recognised principles, but can be problematic in application. Directives have permitted specific exceptions to the general non discrimination principle. 

Transparency- meetings in public, provision of information and right to access documents. More important after Maastricht Treaty. European Council adopted an overall policy of transparency in 2006. Commission launched European Transparency Initiative in 2005. European Ombudsman has been central to the development of openness and transparency. 

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Exceptions that are mandatory- access prohibited where disclosure would undermine the relevant interest, with no provision allowing on grounds of public interest. Transparency has evolved to become a general principle of Union law. Post Lisbon it remains to be seen how the Treaty provisions dealing with transparency are dealt with politically and legally. 

Precautionary principle- risk regulation is an important part of the EU's activities. EU courts have elevated this to a general principle of EU law. Dont have to wait for risk to materialise to take action, in public health, safety, environment etc. Used to review legality.

Misuse of power- final review ground in A263. Adoption by an EU institution of a measure with the exclusive purpose achieving an end other than that stated, or evading a procedure specifically prescribed by the treaty for dealing with the circumstances of the case. Giuffrida v Council. 

Intensity of review- judicial review entails challenge to law, fact and discretion. EC Courts establish the meaning of the disputed term and if the challenge interpretation is at variance with this it will be annuled. The standard of judicial review for fact and discretion is different. Review should be confined to examining whether the exercise of discretion was viatated by a manifest error, misuse of power, or clear excess in the bounds of discretion. Light touch test. In fact and discretion the applicant must still show the error, but in some areas such as risk regualation...

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competition and fundamental rights, this test is applied with more rigour. The varying intensity of judicial review is also evident in relation to the application of general principles of law such as proportionality and non discrimination. 

Consequences of illegality and invalidity- Under A263 the court shall declare the act void but the illegality may only effect part of the measure. CJEU can state that certain effects of the act declared void shall be considered definitive. A266 complements this by stating that the institution whose act has been declared void must take the necessary measures to comply with the judgement. Doesnt require the commission to reexamine identical or similar decisions addressed to persons other than the applicant. Nullity is retroactive. ECJ held the scope of an annulment could not go further than sought by the applicants. The retroactive effect of nullity can cause problems, especially where a regulation thats been relied on by many and maybe the basis of other legal measures. The effect of a preliminary rulin is that the ruling defines the legal position as it must have been understood from the time when the EU norm came into force. 

Summary- general principles function as an aid to interpretation and grounds of judicial review. Charter of Fundamental Human Rights in now formally binding under Lisbon Treaty. The fact it contains rights such as access to documents reinforces the recognition of such principles by the EU courts and legislation. 

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