4 - Privileged Plaintiffs

Question 1

What will be mentioned in this lecture? (5)

Answer 1

1/ scope of judicial review/reviewable acts under Art. 263

2/ privileged and semi-privileged applicants (Art. 263(2)(3))

3/ 2 months period (Art. 263(6))

4/ failure to act (Art. 265)

5/ interim proceedings (Arts. 278, 279)

Question 2

How can EU law be enforced against EU institutions? (3)

Answer 2

1/ action for annulment (Art. 263)

2/ action for failure to act (Art. 265)

3/ interim proceedings (Arts. 278, 279)

Question 3

What does Art. 278 TFEU cover?

Answer 3

Suspensory effect

Question 4

What does Art. 279 TFEU cover?

Answer 4

Interim measures

Question 5

Overview of the challenging of EU acts? (3)

Answer 5

1/ only ECJ can invalidate EU acts

2/ actions for annulment are against an EU institution

3/ there are 5 primary paths to contest legality of acts of the institutions

Question 6

What are the 5 primary paths to contest legality of acts of the institutions?

Answer 6

1/ action for annulment (Art. 263)

2/ action for failure to act (Art. 265)

3/ plea of illegality (Art. 277, in conjunction with Art. 263)

4/ action for damages (Art. 268 with Art. 340)

5/ PR procedure (Art. 267(1)(b))

Question 7

Who are privileged applicants in action for annulment according to Art. 263(2)? (4)

Answer 7

1/ MS

2/ EC

3/ EP

4/ Council

Question 8

Why are some applicants ‘privileged’?

Answer 8

Bc their EU status is deemed as directly affected

Question 9

Who are semi-privileged applicants in actions for annulment according to Art. 263(3)? (3)

Answer 9

1/ Court of Auditors

2/ ECB

3. Committee of the Regions

Question 10

What does it mean to be ‘semi-privileged’?

Answer 10

Can bring an action solely for the purpose of protecting their prerogatives

Question 11

What is the nature of an action for annulment?

Answer 11

Judicial review of legality

Question 12

Scope for judicial review in actions for annulment? (3)

Answer 12

1/ scope for judicial review not usually defined, will depend on the margin of discretion

2/ if large discretion: plausibility review, only concerned with manifest error, ‘wide margin of appreciation’

3/ if limited discretion: more intense review, less room for error

Question 13

What is the ‘discretion’ of the political EU institutions? (3)

Answer 13

1/ depends on institution + subject-matter

2/ mostly large discretion in context of EU legislative acts due to political compromises typical in legislation

3/ for complex economic appraisals of the Commission, most likely ‘manifest error of assessment’

Question 14

Based on rule of law, what does modern definition of judicial function include? (3)

Answer 14

1/ power to annul executive and/or legislative acts

2/ power to remedy public wrongs

3/ power to adjudicate legal disputes

Question 15

How extensive should judicial review of legislative and regulatory acts be? (4)

Answer 15

1/ substantive vs procedural review

2/ procedural review limited to whether legislative/executive procedures have been followed (e.g. Art. 269)

3/ substantive review includes review of merit/substance of act to assess against rights or freedoms guaranteed by an act of a higher legal authority

4/ often, mix of both to ensure a minimum of institutional balance to protect minority and individual rights

Question 16

What are the grounds for action for annulment? (4)

Answer 16

1/ lack of competence (procedural review)

2/ infringement of an essential procedural requirement (procedural review)

3/ infringement of the Treaties or any rule of law relating to their application (substantive-type of review)

4/ misuse of power (procedural review)

Question 17

What type of review is carried out on the ground of infringement of the Treaties or any rule of law relating to their application? (2)

Answer 17

1/ substantive-type of review

2/ assesses proportionality of EU act in accordance with Art. 5(4) TEU (pcple of proportionality)

Question 18

Considerations on proportionality and substantive review of EU acts? (5)

Answer 18

1/ EU institutions have wide margin of appreciation when EU act concerns legislative or executive discretion

2/ strict proportionality tripartite test is seldom carried out (suitable, necessary, proportionate)

3/ most often, mixed proportionality and balancing test

4/ in essence, EU act must be manifestly inappropriate to be considered disproportionate

5/ therefore, low (relaxed) standard of review , esp. when applied by ECJ assessing FR violations by EU acts (e.g. Kadi, 2008)

Question 19

Which acts are reviewable in an action for annulment? (5)

Answer 19

1/ secondary and tertiary EU legal acts

2/ EU acts, i.e. acts of the EP, Council, EC, ECB (but not recommendations or opinions)

3/ since Lisbon, also acts of the European Council and acts of EU bodies, offices and agencies

4/ only binding acts

5/ label of the act is not decisive, one must look at the substantive objective of the act

Question 20

When is an act considered binding? (2)

Answer 20

1/ when it defines the legal position of a person or entity

2/ when it is intended to have legal effects

Question 21

What is the deadline for contesting EU acts? (2)

Answer 21

1/ 2 months

2/ very strict (e.g. Tobacco Products)

Question 22

Which acts are excluded from action for annulment? (3)

Answer 22

1/ preparatory acts

2/ acts of MS, even when acting collectively and giving appearance of EU act (e.g. Bangladesh, NF)

3/ primary EU law

Question 23

Considerations on privileged status of certain applicants? (3)

Answer 23

1/ ‘MS’ means only central gvt is privileged (so difference with concept of MS for infringement actions under Art. 258)

2/ MS can vote yes in Council but still pursue subsequent annulment action (e.g. Italy v Council, 1979)

3/ EP can vote yes but still pursue a subsequent annulment action (e.g. Schengen Borders Code, 2012)

Question 24

What did France raise in National Farmer’s Union case (2002)?

Answer 24

FR raised invalidity of EC Decisions as an affirmative defence in national proceeding

Question 25

What was the question referred in National Farmer’s Union?

Answer 25

Whether MS (privileged applicant) can challenge validity (legality) of an EU act on basis of ‘significant changes in the factual or legal situation’ occurring after expiry of 2-month period in Art. 263

Question 26

What did ECJ find with respect to questioning validity of EU acts in a MS court? (3)

Answer 26

1/ parties can challenge validity of an EU act after expiration of time-limit for bringing annulment proceeding (2 months) if uncertain that applicant had standing to challenge the EU act in an annulment proceeding

2/ but in this case, FR was addressee of Commission Decisions so could have challenged => FR cannot plead invalidity of EU law for which it did not bring action for annulment within time-limit

3/ time-limit is necessary to ensure legal certainty

Question 27

What did ECJ find in Family Reunification case (2006)? (2)

Answer 27

1/ EP sought annulment of Council Dir. bc MS could apply national legislation derogating from some basic rules of the Dir.

2/ ECJ: MS margin of appreciation and partial annulment does not foreclose judicial review

Question 28

What did ECJ find in Schengen Borders Code case (2012)? (3)

Answer 28

1/ EP contested Council Decision, arguing it should have been adopted by OLP and not Reg. implementing powers

2/ however, in adoption procedure, EP had opportunity to oppose EC proposal for Council Decision (but EP did not oppose)

3/ ECJ: regulatory procedure with EP scrutiny is not substitute for judicial review by ECJ => action for annulment admissible

Question 29

General considerations on action for failure to act? (6)

Answer 29

1/ rarely used procedure

2/ can only be used if the institution does not act

3/ therefore, Art. 265 is inapplicable if institution acts incorrectly or incompletely (e.g/ Deutscher Komponistenverband v Commission)

4/ unwritten rule: failure to act requires an obligation to act

5/ defendant institution must 1st be called upon to act

6/ defendant institution has 2 months to define its position before action can be brought

Question 30

What did ECJ find in Transport Policy case (1985)? (3)

Answer 30

1/ EP asserted Council failure to act regarding establishment of the framework for a common transport policy

2/ ECJ: action for failure to act requires a legal obligation to adopt a specific act

3/ ECJ: an enforcement proceeding cannot be brought for the failure to fulfil a gnl obligation

Question 31

What are the consequences of Art. 263? (3)

Answer 31

1/ temporal effects of Art. 264 apply

2/ act is declared void, effects are ex tunc (from outset) and erga omnes (toward all)

3/ ECJ may limit effects in time (e.g. Schengen Borders Code)

Question 32

What are the consequences of both Arts. 263 and 265 action? (3)

Answer 32

1/ obligation in Art. 266 applies

2/ institution must take necessary measures to comply with ECJ judgment

3/ obligation to make good any damage which may arise from Art. 340 TFEU is not affected

Question 33

General considerations on Arts. 278 and 279 TFEU? (3)

Answer 33

1/ legal actions under these Arts. must be brought within context of a pending proceeding before the ECJ

2/ objective of Art. 278 is to maintain status quo until ECJ final ruling + avoid irreparable harm during interim period

3/ penalties can be added under Art. 279 as incentive to compel immediate compliance with ordered suspensory effect

Question 34

What are cases in which the suspensory effect of a contested EU act was requested? (2)

Answer 34

1/ Biotech Interim Measure (2000): NL invoked conflict of Dir. with fundamental ethical policy pursued by NL

2/ Czech Republic v Poland (2021): CZ contested granting by POL of operating license for mining activities

Question 35

What are the conditions for the granting of interim measures? (3)

Answer 35

1/ interim relief is justified prima facie in fact and in law

2/ interim relief is urgent and will allow to avoid serious and irreparable harm before decision in the main action

3/ weighing of the interests involved

Question 36

Considerations on interim measures per Art. 279? (2)

Answer 36

1/ Art. 279 permits application for lump sum and/or periodic penalties during interim period before final ruling

2/ applies to Art. 258, 259, 267 procedures

Question 37

In which cases were Art. 279 applications filed? (2)

Answer 37

1/ Czech Republic v Poland (2021): POL did not suspend mining activities so CZ filed Art. 279 application, which was granted

2/ Commission v Poland (2021): POL pleaded national laws made it impossible to comply with interim ruling, which the ECJ rejected => ECJ ordered POL to pay periodic penalty payment