Remedies in European Courts

Remedies in European Courts

1. Remedies againt EU law

• A legal system based on the rule of law must have a mechanism for checking the legality of measures so as to avoid abuses of arbitary powers against individual.
• The EU has adopted the rule of law. Subjects can challenge legality of EU law through judicial review.
• Review must be done through European Courts - national courts cannot declare EU law void on grounds of going against R of L.
  
• Central provision for review is Art 263 TFEU: clearly shows EU treaties adopt formal approach to R of L (if can be shown EU law went against enumeration principle or infringed essential procedural requirement it can be repealed)
  

2. 1st condition: must be legally binding to be reviewable

• Which acts cant be judically reviewed? Art 263 (1) sets out which acts can be challenged in judicial revue proceedings.
  

• Will the Acts have to be mentioned in Art 288 or will other legal instruments potentially be reviewable? Question Arose in ERTA (a case, yes they have annoying names in this module.. there's no point learning the whole title, examiners are just going to have to **** it up.) - all measures brought about by institutions intended to have legal force are treated as reviewable. But no R of L control mechanism for 'recommendations and opinions' as they're not intended to have legal force.
  

3. 2nd condition: must be ground for review

• Not every reason sufficent for judicial revue. 4 grounds mentioned in Art 263(2):
  • 1. lack of competence
  • 2. Infringement of essential procedural requirement
  • 3. Infringement of EU law
  • 4. Misuse of power

• Lack of Comp: EU not sovereign so doesnt enjoy complete competence. Powers enumerated and therefore limited. We know Union has extensively intepreted its powers, especially general ones under 114 and 352 TFEU. Member states therefore have interest in limiting its powers..
  
• Member states who have been outvoted in Council may challenge act by arguing Council not entitled to adopt act to begin with. Most famously: Tobacco Advertising Case.
• Infringement of procedural req: formal dimension of law. Act only binding if adopted…