Judicial Review

Judicial Review - member state/other institutions/individuals can bring direct action in the European court for:

-Actions for annulment (Art 263) TFEU - EU institutions have acted outside of their powers (so they can try and get a particular act/measure held to be invalid). So JR essentially reviews the legality of acts. This is the main action under JR. 

-Actions for damages (Art 320 TFEU) - if it is felt that the EU institution has done something/ enacted a measure that has had a negative effect on a company or individual. It is difficult to succeed on an action under Art 340, conditions are very hard to satisy.

-Disputes with employees

Remember: Each EU institution has a limited competence and must carry out its functions in the way specified in the Treaty and according to general principles of Union law (Art 13(1) and (2) TEU). 

Art 263 TFEU (actions for annulment):

-Provides a means of questioning and controlling the legality of binding acts of EU institutions.

-Offers legal protection to those who are adversely affected by instruments that are/may be in fact illegal

--> But many actions for annulment fail!!

Article 263 para 1 TFEU

-Legislative acts, acts of Council, of Commission and of European Central Bank, other than recommendations and opinions

-Acts of European Parliament and of European Council intended to produce legal effects vis a vis third parties

-Acts of bodies, offices or agencies of Union intended to produce legal effects vis a vis third parties

Article 263 para 4 TFEU

-Regulatory acts

Case 22/70 Commission v Council (ERTA) [1971] - an action for annulment is available against all measures adopted by the institutions which are intended to have legal binding force (as long as they affect someone's legal rights). 

Locus standi (Art 263 (paras 2-4)

-Privileged applicants (Art 263 (para 2))
(Member States, the European Parliament, the Council and the Commission)

-Semi-privileged applicants (Art 263 para 3)
(European Central Bank, Committee of the Regions, Court of Auditors)

-Non-privileged applicants (Art 263 (para 4))
(Natural and legal persons)

-All Member States

-European Parliament (only became privileged applicant since the Treaty of Nice)

-Council

-Commission

-Called privileged applicants because they can challenge any legally binding act, automatic right to challenge, don't need to justify interest in bringing annulment proceedings (they are exempt from any rules on standing)

-Case 41/83 Italy v Commission (Re BT) [1985] Italy is a member state therefore it has the ability to challenge any legally binding act. 

-European Central Bank

-Committee of the Regions

-Court of Auditors

-Semi-privileged applicants can challenge any legally binding acts 'for the purpose of protecting their prerogatives' (means that they are trying to protect the role that they have been given to play by the treaties) (slightly more restricted than privileged applicants)

-Case C-70/88 Parliament v Council (Chernobyl) [1970]

-Most applications stem from this group

-'Any natural or legal persons may ... 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' (Art 263 (4))

-Main issue is the high admissibility threshold (if individuals can challenge anything, can bring 100s of cases and may open floodgates)

Category 1

'an act addressed to that person'

An applicant to whom an act is addressed can challenge its legality

Case 27/76 United Brands v Commission [1978]  - example: a decision taken by the Commission in competition actions

The act must affect the applicant DIRECTLY, without any intervening act.

Two criteria must be fulfilled:
-The act must directly affect legal position & rights of individual - need to show existence of direct causal link between challenged EU act and impact on individual (Joined Cases 41-44/70 NV International Fruit Company v Commission [1971])
-No discretionary power (margin of discretion) is vested by EU acts in national authorities. Act concerned shouldnt be giving discretion to anyone else which might break that chain of causation from the act to the company (Cases 41-44/70 International Fruit Company v Commission [1971]; Case 222/83 Municipality of Differdange v Commission [1984]). After all, individual can challenge act on national level). 

Example: Suppose the Commission imposes a specific quota on the quantity of sugar which importers can import from outside the EU... the sugar importers will be directly concerned by the act. 
But what if: The Commission addresses a Decision to Member States permitting them to impose a quota on sugar imports... the sugar importers will NOT be directly affected by the Commission's Decision; it is the MS who will actually impose the quota --> the DISCRETION given to the MS will be a intervening act

-'Plaumann test' - '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 [...] distinguishes them individually just as in the case of the person addressed' (Case 25/62 Plaumann v Commission [1963])

-Test reiterated in Case T-49/07 Sofiane Fahas v Council [2010] para 33 and Case C-583/11P Inuit Tapiriit Kanatami v European Parliament & Council [2014])

What sort of attributes will distinguish an applicant individually?
-They are part of a limited and identifiable group - a "closed class" (Joined Cases 106 & 107/63 Toepfer v Commission [1965]
-BUT: if measure affects all individuals in similar manner, measure cannot be said to be of individual concern (Case T-351/09 Acetificio Marcello de Nigris Sri v Commission [2011] ECR II-216)
Note: Do not trust the type of act (eg Regulation, Directive or Decision) adopted!
'The test for distinguishing between a regulation and a decision is whether or not the measure is of general application. A measure is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged generally and in the abstract.’ Case T‑18/10 Inuit Tapiriit Kanatami v European Parliament & Council [2012] All ER (EC) 183 para 63
 A measure which is legislative in nature (in that it applies to all traders concerned in general) may, however, be of individual concern to some of them (Case C-309/89 Codorniu SA v Council [1994] ECR I-1853)

Criticisms
-Test unduly restrictive (see e.g. Advocate General Jacob’s opinion in Case C-50/00 Union de Pequeños Agricultores v Council [2002] ECR I-6681 and General Court in Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-02365)
Yet –
Member States have not changed the Treaty though given the opportunity with the Treaty of Lisbon
CJEU acknowledges that there must be some form of effective judicial remedy, but it cannot go beyond the wording of the Article (C-263/02P Jégo Quéré v Commission [2004] ECR I-3425 and Case C-583/11P Inuit Tapiriit Kanatami v European Parliament and Council [2014] 1 CMLR 54 para 98).
After all, it may still be possible to use national remedies (Case T-351/09 Acetificio Marcello de Nigris Sri v Commission [2011] ECR II

'A regulatory act which is of direct concern to them and does not entail implementing measures'.
Definition of regulatory act = 'the meaning of “regulatory act” for the purposes of the fourth paragraph of Article 263 TFEU must be understood as covering all acts of general application apart from legislative acts.’ Case T‑18/10 Inuit Tapiriit Kanatami v European Parliament and Council [2012] All ER (EC) 183 para 56 and confirmed in Case C-583/11P Inuit Tapiriit Kanatami v European Parliament and Council [2014] 1 CMLR 54.

‘a legislative act or a regulatory act according to the TFEU is based on the criterion of the procedure, legislative or not, which led to its adoption.’ Case T‑18/10 Inuit Tapiriit Kanatami v European Parliament and Council [2012] All ER (EC) 183 para 65 
Examples:
-acts adopted under the comitology  procedure (Case T-262/10 Microban v European Commission [2011] ECR II-7697)
-delegated acts adopted (Article 290 TFEU)
-implementing acts by Commission or by the Council (Article 291(2) TFEU)

Criteria
-Direct concern
-No implementing measures – why? if there are implementing measures by the State, then individual can challenge the implementing measure on the national level  (C-274/12 Telefonica SA v Commission (CJEU 19 December 2013) or If there are implementing measures by the EU, then individual can challenge the implementing measure by using Article 263 TFEU coupled with an incidental plea of illegality (Art 277 TFEU)

Based on breach of principle of conferral

Based on breach of principle of institutional balance 

•Case C-327/91 France v Commission [1994] ECR I-3641 •Case C-156/03 P-R Commission v Laboratoires Servier [2003] ECR I-6575

Failure to use the correct procedure

Failure to provide reasons for adoption of EU act

Case 138/79 SA Roquette Frères v Council [1980] ECR 3333

Case 17/74 Transocean Marine Paint Association v Commission [1974] ECR 1063

Legal certainty

Principle of proportionality

Legitimate expectations

Principle of non-retroactivity

Joined Cases C-402/05P & C-415/05P Kadi and Al Barakaat v Council [2008] ECR I-6351

Use of powers for purpose other than that for which they were granted

Case 105/75 Giuffrida v Council [1976]

An action under Article 263 TFEU must be commenced within 2 months

This is measured:

a)          from the date of publication in the Official Journal for regulations and directives;

b)         from the date of notification if it is a decision addressed to the applicant;

c)          or if neither of those applies, the date when the measure came to the applicant’s attention.

Joined Cases C-478-482/11 Gbagbo (ECJ 23 April 2013)

By Art 264 TFEU, if invalidity proved, court instructed to declare act to be void

By Article 266 TFEU, institutions whose actions have been declared void or whose failure to act has been declared contrary to Treaty shall take necessary measures to comply with judgment within a reasonable period (Case 13/83 European Parliament v Council [1985] ECR 1513)

If failure to comply, possibility to start an action for damages (i.e. EU non-contractual liability under Article 340 TFEU)

1. Identify the act that can be challenged (Art 263 (1) TFEU

2. Standing

  (a) privileged applicants (Art 263(2) TFEU)
  (b) semi-privileged applicants (Art 263(3) TFEU)
  (c) non-privileged applicants (Art 263(4) TFEU)
   -decision addressed to applicant
   -[legislative act] of direct & individual concern to applicant
   -non-regulatory act of direct concern to applicant & does not require implementing measures

3. Time Limit (Art 263(6) TFEU)

4. Grounds for challenge (Art 263(2) TFEU)

5. Effects of successful challenge - Art 264 TFEU