The action for annulment

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  • Judicial review and the rule of law
  • Article 263 TFEU: direct action for annulment
  • Relationship between action for annulment and preliminary rulings procedure.

The following categories of annulment action are currently reserved to the Court of Justice- 

  • actions brought by MS against all acts of the Council and the European Parliament acting jointly, all acts of the European Parliament, most of the acts of the Council and a small category of the acts of the Commission. 
  • Actions for annulment brought by an institution against the European Parliament, the Council, both those institutions acting jointly, the Commission and the European Central Bank. 

All other categories of annulment are dealt with at first instance by the General court-

  • Actions brough by MS against certain acts of the Council, nearly all acts of the Commission, and all acts of the ECB, the European Council and bodies, offices, and agencies of the Union
  • actions brought by an institution against the European Council and bodies, offices, and agencies of the union
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Action for annulment

  • actions brought by natural and legal persons (individuals and companies)
  • actions brought by the Committee of the Regions. 

Reviewable acts (A263 TFEU 1st para)-

  • legislative acts
  • acts of the Council, of the Commission, and of the European Central Bank, other than recommendations or opinions.
  • acts of the European Parliament and of the European Council intended to produce the legal effects vis a vis third parties. 
  • acts of bodies, offices, or agencies of the Union intended to produce legal effects vis a vis third parties. 

Legislative acts- distingushed by the procedure which act is adopted- A289(3) TFEU: legislative acts are 'legal acts adopted by legislative procedure.' 

The ordinary legislative procedure (A294 TFEU) EP and Council

Special legislative procedures: where acts are adopted by the EP or the Council with the... 

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Action for annulment

participation of the other (A289(2) TFEU). 

Cant challenge something without binding force. Can challenge regulations, directives, and decisions even if not legislative if adopted by Council or Bank etc. Need to have a distinct change in legal position. 

Acts of the Council, of the Commission, and of the European Central Bank, other than recommendations and opinions- C22/70 Commisson v Council (ERTA) 1971- 'A263 treats as acts open to review by the Court all measures adopted by the institutions which are intended to have legal force... an action for annulment must therefore be available in the case of all measures adopted by the institutions, whatever their nature or form, which intended to have legal effects.' Power struggle over who should take part in deciding ERTA. Commission challenged Council proceedings. 

C60/81 IBM v Commission 1981- only measures whose legal effects are 'binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position' could be the subject of an action for annulment. Very tight and stricter than ERTA. 

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Action for annulment

C131/03- P Reynolds Tobacco v Commission 2006- cigarette manufacturer think of smuggling cigarettes into EU. Didnt satisfy the IBM test. Bringing proceedings makes no difference to legal rights- no change until judgement. 

Acts of the European Parliament, the European Council, and bodies, offices, or agencies of the Union intended to produce legal effects vis a vis third parties- (set up by legislation to enact EU policies)- Bodies, offices, and agencies of the Union include: the Office for Harmonisation in the Internal Market (OHIM),  the EU Agency for Fundamental Rights, the European Institute for Gender Equality, the European Environment Agency, the European Medicines Agency and the European Chemicals Agency. 

C294/83 Les Verts v Parliament 1986. 

Grounds of review- when the Union has adopted an adverse measure, can you challenge it under A263? 

  • Lack of competence (Union didnt have authority)
  • Breach of an essential procedural requirement (failure to consult a body when necessary) 
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Action for annulment

C378/00 Commission v European Parliament and Council 2003

C27/00 and C122/00 Omega Air and Others 2002. 

The four of them overlap and courts dont mind too much. A296 TFEU- legal acts must state reasons they are based on. 

  • Infringement of the Treaty or of any rule of law relating to its application- general principles, wide ground, could take in the over 3. 
  • Misuse of powers- difficult to establish, concerned with measures purpose, not just content, need to show purposes were different.  R v Sec of State ex parte British American Tabacoo C491/01 2002- 'taken with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.' 

Time limits (A263, sixth paragraph)- proceedings must be brought within two months: of the publication of the measure in the journal, or of its notification of the plaintiff or in the absense thereof, of the day on which it came to the notice of the claimant. 

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Action for annulment

The effects of annulment- 

  • Articles 264 and 266 TFEU
  • A judgement declaring an act void takes effect erga omnes (with regard to the whole world) and ex tunc (from the beginning.) Means it has always been invalid. May end up in a legal vacuum if it is void and not retrospective. Courts can tell institution what to do it found void.
  • A264 TFEU 2nd para: 'The Court of Justice shall, if it considers this necessary, state of which the effects of the act which it has declared void shall be considered as definitive.' May keep some parts of the act. May have to make a new measure which cant be retrospective- legal certainty. Exceptional cases- permitted when aim can only be done by this. 

May lead to compensation claims.

Capacity to bring proceedings- 

  • The MS, the EP, the Council and the Commission automatically have standing (privileged applicants) 
  • The Courts of Auditors, the ECB and Committee of the Regions (semi privileged applicants) 
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Action for annulment

  • Natural (people) and legal persons (companies or regional authorities) (non privileged applicants) 

Regions are not member states.

A non privileged applicant may challenge-

  • an act addressed to him
  • an act which is of direct and individual concern to him
  • a regulatory act which is of direct concern to him and does not entail implementing measures. 

Direct concern- C18/10 Inuit 2011- 'for an individual to be directly concerned by a European Union measure, first, that measure must directly affect the legal situation of that individual and secondly, there must be no discretion left to the addressees of that measure who are responsible for its implementation, that implementation being purely automatic.' Effect measure will have on them must be sustantially certain at the moment the act is adopted. 

Direct concern- link between adopted measure and applicant. Look at third party actions. 

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Action for annulment

C69/69 Alcan v Commission 1970

C11/82 Piraiki Patraiki v Commission 1985- 'the possibility that the French Republic might decide not to make use of the authorisation granted to it by the Commission decision was entirely theoretical, since there could be no doubt as to the intention of the French authorities as to apply the decision.' 

Individual concern- the Plaumann formula, as articulated in Inuit- 'in order for a contested act to be of individual concern to natural or legal persons... the act must affect those persons by reason of certain attributes peculiar to them by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee of a decision.' 

Closed classes- conceptually closed- C11/82 Piraiki Patraiki- not necessarily individually concerned. 

C209/94 P Buralux v Council 1996

C142/00 P Commission v Nederlandse Antillen

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Action for annulment

Specific rights- never been defined but maybe property rights - C309/89 Cordorniu v Council 1994

Procedural participation- where applicant has participated in involvement and adoption of the act. 125 and 152/96 Boehringer v Council 1999/2002- 'a persons procedural participation will confer individual concern on him if- but only if- he enjoys specific procedural guarantees under the legal basis of the act.' Believe decision to be incorrect and in a special position due to being involved in the procedure. Voluntary involvement doesnt count- cant just have anyone individually concerned. 

Restrictive nature of individual concern- major obstacle of the bringing of annulment proceedings- C585/93 Greenpeace v Commission 1995

Interest in bringing proceedings- Not in Treaty and for non privileged applicants. Applicant must show they have an interest in annulment- effect his legal situation. Must be happening for the duration of the case. May simply say no need to make a decision. C239/12 P Abdulrahim v Council and Commission 2013- general rule

C480/93 and 483/93 Antillean Rice Mills v Commission 1995.

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Action for annulment

C145/95 Proderec v Commission 1997

Regulatory acts of direct concern to the applicant which do not entail implementing measures- right to fair trial and remedy- can seek relief in national courts and may go to ECJ. Only can go to national court if you have national action against national measure. C50/00 Union de Pequenos Agricultores v Council 2002- 'a person should be regarded as individually concerned by a measure 'where, by reason of his particular circumstances, the measure has or is liable to have, a substantial adverse effect on his interests.'- this is a broader test. 

C177/01 Jego Quere v Commission 2002. 

UPA judgement- should the appellant be accorded standing 'on the sole ground that, in the alleged absense of any legal remedy before the national courts, the right to effective judicial protection requires it?' 

National court remedies- enshrined in A19(1) TEU- UPA- it was the responsibility of the MS 'to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.' 

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Action for annulment

UPA- national courts were required 'so far as possible, to interpret and apply, national procedural rules governing the exercise of rights of action' in a way that enabled claimants to challenge national measures applying to Union acts of general application. 

If reform of the system is considered desirable that is a matter for MS. Not for EU to change. Convention on Future of Europe was being made as judgement amendment to annulment A263 TFEU- non privliged applicants can challenge regulation acts without individual concern. 

What is a regulatory act? Should be able to challenge without breaking the law. Non privileged and dont have to show individual concern. C18/10 Inuit 2011- 'all acts of general application apart from legislative acts.' Formal criteria, about procedure.

So a regulatory act- must be of general application and must not be legislative. Not a Treaty definition.

Why exclude legislative? Legislative has greater democratic legitimacy, Parliament is intimately involved in ordinary legislative procedure. 

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Action for annulment

Thrown back to individual concern if cant go off regulatory act. C583/11 Inuit. 

C262/10 Microban v Commission 2011- (antimicrobial and antibacterial protection) 'the fourth paragraph of A263 TFEU (regulatory) pursues an objective of opening up the conditions for bringing direct actions.' 

C96/10 Rutgers v European Chemicals Agency 2013. 

When are implementing measures entailed? 

C274/12 Telefonica v Commssion 2013

C132/12 P Stichting Woonpunt- does the contested act define 'the specific and actual consequences' it has for the applicant? 

Relationship with direct concern? Needs some precision, if it does has no implementing measures. 

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