Art 263 TFEU: Action for Annulment (Judicial Review)

Question 1

What jurisdiction does the ECJ have?

Answer 1

The ECJ has the jurisdiction to review legislative acts of EU institutions (Art 263)

Question 2

Art 263 TFEU distinguishes between 3 types of applicants, what are these?

Answer 2

paragraph 2:
privileged applicants (i.e., MS, the EP, Council and Commission) - they can always bring an action for judicial review

paragraph 3:
Semi-Privileged applicants (Court of Auditors, the ECB, and the Committee of the Regions) - they are partly privileged because they may solely bring review proceedings ‘for the purpose of protecting their prerogatives’

paragraph 4:
Non-Privileged applicants (i.e., legal and natural persons) - can bring action for judicial review, but they are subject to more stringent conditions in terms of satisfying the legal standing requirement.

Question 3

Time Limit (Art 263(1) TFEU)

Answer 3

• Claims must be made within 2 months after the act was addressed/ a regulation was enacted, etc.
• otherwise, they will be dismissed

Question 4

1. Is there a reviewable act? (Art 263(1) TFEU)

Answer 4

the act in question must be from the EU institutions, and it does not cover international agreements made by MS on their own - this is outside the scope of the ECJ’s jurisdiction.

per ERTA, ‘the court has embraced a wide teleological definition of which acts may be reviewed.

Question 5

2. Are there any legitimate grounds of review the applicant can rely on?

Answer 5

Art 263(2) TFEU cites:
1. “Lack of competence’
2. ‘Infringement of an essential procedural requirement’,
3. ‘Infringement of the Treaties or any rule of law relating to their application’
4. ‘Misuse of powers’

Question 6

3. Does the applicant have legal standing before the ECJ?

Answer 6

• Privileged applicants always have standing.
• Semi-privileged applicants can bring standing to protect their prerogatives.

Non-privileged applicants can challenge:
- An act addressed to the applicant
- An act addressed to another person, but it is of the applicant’s direct and individual concern
- A regulatory act which is of direct concern (Microban v Commission 2011) and does not need implementing measures

Question 7

What would you also need to consider?

Answer 7

• direct concern; and
• individual concern
  for non-privileged applicants.

Question 8

What is direct concern?

Answer 8

• This requires that the measure to be challenged directly effects the applicant’s legal position and leaves no discretion to the addressee of the measure.
• There must be a direct link between the measure being challenged and the damage or loss to the applicant. The measure must affect an interest which is legally protected.
• See Case C-486/01 P Front National v European Parliament (2001) ECRI-6289

Question 9

Direct Concern: Case 222/83 Municipality of Differdange v Commission (1984] ECR 2889:

Answer 9

o the Commission authorised the Luxembourg Government to grant aid steel firms on condition they reduced capacity.
o The applicant argued that they were directly and individually concerned.
o The ECJ held that as “the contested Decision left the national authority and the undertakings concerned such a margin of discretion with regard to the manner of its implementation and in particular the choice of factories to be closed, the Decision could not be regarded as being of direct and individual concern to the applicant.

Question 10

Individual Concern - Where the applicant is singled out in some way

Answer 10

Where the act is not specifically addressed to the applicant land is not a regulatory matter that does not entail implementing measures) the applicant must prove individual concern.

Question 11

Cases involving decisions addressed to another -

Answer 11

• Case 25/62 Plaumann & Co v Commission (1963] ECR 1-95:
  o The plaintiff brought an annulment action seeking a declaration of invalidity in respect of a Commission decision that refused the German state’s application to have duties on clementines imported from non-member states suspended.
  o The applicant was an imported of clementines.
  o However, the Commission’s Decision was addressed to the German authorities not the applicants.
  o Therefore, to be entitled to bring an action the applicant had to show that the decision was of direct and individual concern to them.
• The ECJ held that Article 263 TFEU did not define the scope or limits of the expression ‘of direct and individual concern’.
• Since the right of individuals to challenge Community acts could not be interpreted in a restrictive manner, that phrase and the purpose of the test required a broad interpretation.

Question 12

Despite this statement the Court did in fact adopt a restrictive test of what is meant by “Individual concern’ - what is this

Answer 12

• “Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by a 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 these factors distinguishes them individually just as in the case of the person addressed.” (Case 25/62 Plaumann V Commission (19631 ECR 95 at 107)
• Since the importation of clementines was an economic activity in which anyone could engage, the applicant was part of an open category of trader and was not individually concerned by the decision.
• The annulment action was not admissible.
• Thus, an applicant can only be individually concerned by a decision addressed to another ‘if they are in some way differentiated from all other persons, and by reason of these distinguishing features singled out in the same way as the initial addressee.

Question 13

Post the Plaumann case there exists 2 different categories of applicant:

Answer 13

• A member of an open category where membership is not fixed at the time of the decision and
• A closed category where membership is fixed.
• Plaumann was considered an open category (namely anyone who was/wished to trade in clementines) because he practiced a commercial activity that could be carried on by any person at the time.
• De Burca is very critical of the open-ended category as to regard any category as open merely because others might notionally undertake the trade leads to a bizarre result since any decision with a future impact would be unchallengeable because the category would be regarded as open.

Question 14

Closed category?

Answer 14

• Case 11/82 Piraiki-Patreikiv Commission (1985) ECR 2017:
  o Seven Greek cotton traders wished to challenge a Commission Decision addressed to the French and Greek Governments which authorised France to impose a temporary restriction (14 months) on the importation of Greek cotton.
  o The ECJ held similar to the reasoning in Plaumann, that the exportation of cotton can be carried out by any undertaking.
  o However, it did accept the argument that these traders who had entered into contracts with French customers before the restriction was imposed which were due to be performed during the restriction period were distinguishable from any other parties and so were individually concerned within the meaning of Article 263 TFEU.
• Case C-152/88 Sofrimport v Commission (1990) ECRI-22477 applied the same reasoning in relation to fruit-traders.