Article 236 Flashcards
Overview of Article 263
Provides a judicial review mechanism to different groups of potential applicants.
The applicants can be institutional but also individuals.
Combines individual redress and objective, general redress.
Note: The language used in the article is confusing.
The scope of 263 is significant: The most significant mechanism for review in terms of institutional actors holding each other accountable.
What are the bodies that are subject to review?
The Council
The commission
The European Central Bank
The European Parliament
The European Council
What acts are open to challenge?
Legislative acts.
Acts of the council/commission/ECB.
Acts of the European Parliament/Council intended to produce legal effects vis-à-vis third parties.
What acts are not opened to challenge
Recommendations and opinions
Individuals who have standing
Member states
The European Parliament
The council/commission
Any natural or legal person with whom the act has a direct or individual concern.
Backrground
Aim of 263
Aim: To allow for the direct control of the legality of legally binding acts of the Union and its agencies, institutions, bodies and offices
5 conditions that must be satisfied in order to be reviewable under 263
The body must be amenable to judicial review.
The act has to be of a kind open to challenge.
The institution or person making the challenge must have standing.
There must be illegality of a type outlined in Article 263(2).
The challenge was brought within a time limit of 2 months.
The list of bodies subject to review
263(1) lists the acts that are subject to review:
Acts of:
Council.
Commission.
European Central Bank.
(Other than recommendations and opinions)
Acts of:
Parliament
European Council
Bodies, offices or agencies of the Union
Which are intended to produce legal effects vis a vis third parties.
What are acts?
Not defined in treaties but CJEU say under 288 TFEu but the list is not exhaustive
State cases that define the law on acts
Comission v COuncil
IBM v COmission
Asko Chimie v COmisison
Comission v COuncil
Case C-22/70 Commission v Council p.48-55
Facts: The member States acting through the Council adopted a Resolution to co-ordinate the approach to negotiations for a European road transport agency.
The Commission sought to challenge the Resolution.
Member states argued that this was not a document intended to have legal effect and it was not legally binding.
Issue: Whether a proposal adopted in the context of a negotiation between member states and the council was an act subject to review under 263.
Held: The Commission is entitled to make proposals and negotiate and the council is tasked with concluding the agreement
The list under 288 TFEU is exhaustive.
The important thing was whether the measure was binding or intended to be so.
An action for annulment must be available in the case of all measures adopted by the institutions, whatever their form and whether or not they are intended to have legal effects
The fact that a resolution is not on the list of Article 288 TFEU does not mean that it is excluded from Article 263.
Must look at:
The form of the instrument.
The subject matter.
The style and substance of the document.
Conclusion: The document was created by the parties to be no more than an illustration.
It did not create any rights, it just outlined potential procedures and did not impose legal obligations.
It did not change anyone’s legal position: It did not have legal effect.
Result: Not subject to Article 263 proceedings.
IBM v Comission
Facts: IBM sought to annul proceedings in relation to allegations concerning anti-competitive behaviour.
The Commission had initiated against it by way of a letter noting its intention to proceed.
IBM sought to invoke Article 263, but the commission argued that the letter was not an act that could be challenged under Article 263.
Issue: Is the letter an act subject to review under 263?
Held:
Substance over Form:
The reviewability of a measure is determined by its substance, not its form.
The way a measure is presented (e.g., as a letter, communication, or opinion) is immaterial in principle.
What matters is whether it produces binding legal effects.
Criteria for Reviewable Acts:
A measure is reviewable under Article 263 TFEU if it:
Has binding legal effects.
Affects the legal interests of the applicant.
Alters their legal position.
Provisional/Interim Measures:
Preparatory acts/provisional measures or interim/interlocutory stages are generally not open to direct challenge under Article 263.
Only the final decision is subject to judicial review.
Exception for Reviewable Interim Acts:
An interim step may be challenged if:
It bears all the legal characteristics of a final act (binding effects and change in legal position), and
It is the culmination of a special procedure distinct from the one leading to the final decision on the substance.
Legal Defects in Interim Acts:
Even if interim steps themselves are not reviewable, any legal defects in them can be raised in an action against the final decision.
These defects can impact the lawfulness of the final measure.
Look at:
The substance of the measure.
Whether the measure is capable of having a binding legal effect.
Conclusion: The letter by the commission was just a correspondence, it was not intended to have a legal effect.
Only a final decision by the Commission is reviewable under Article 263.
The letter has no legal impact as it doesn’t alter IBM’s position.
Akzo Chemie v Commission
Facts: The plaintiff was under investigation by the commission for a competition law infringement.
An allegation was made against them, and as part of the investigation, the commission released certain business documents to the person who made the complaint.
The plaintiff sought to rely on Article 263 that the documents were confidential and choosing to release them infringed their right to confidentiality.
Commission Argument: It was an interim step in the process of the proceedings and there was no final decision.
Issue: Whether a step taken in the context of an investigation prior to a final decision was a legal act such that it could be challenged under 263.
Held:
Test: Whether or not the step taken had materially altered the plaintiff’s position.
By choosing to allow for the disclosure, there had been a breach of confidentiality rights that could not be reversed.
In those circumstances, there was a definite and negative impact on rights that could be reviewed under Article 263.
Conclusion: The interim measure had a definite legal impact and altered the defendant’s legal position such that it should be capable of review under Article 263.
When will Eu law be considered non law
State case
BAsf
BASF
Not all mistakes make an EU act invalid.
Only huge, obvious, and serious errors, ones that go against the core values of EU law. make the act a complete non-law.
Examples:
Infringement of an essential procedural requirement:
No statement of reasons.
Improper authentication of an act.
No consultation.
No right to be heard.
Infringement of Treaties or rule of law in their application
Misuse/abuse of power, i.e. exercising a power to evade the applicability of the Treaty or procedural requirements
Applciants who have standing
State case
Deutche post
Deutche post
Held:
263(2): Privileged Applicants
Member states
The parliament
The council
The commission
Do not have to satisfy pre-conditions to have standing.
Have unlimited standing to make a challenge under 263.
Rationale: Because they challenge things that are of universal interest/in the public interest.
263(3): Semi-privileged Applicants
Court of auditors
The ECB
The Committee of the Regions
Their standing is not unlimited.
Must establish that the measure they are challenging infringes their competencies/powers afforded to them by EU law/their prerogatives.
Defensive: Ensure that another institution is not encroaching on its powers.
263(4): Non-privileged applicants/ Natural Persons
Can bring an action in 3 types of cases:
Against an act addressed to them.
Against an act of direct and individual concern to them.
Against a regulatory act of direct concern to them and does not entail implementing measures.
Note: Regulatory act is not defined in the treaties.
Direct concern
Explai. and state cases
Must directly affect the legal situation of the applicant.
Leaves no discretion to the addressee who is entrusted with its implementation.
The implementation must automatically and directly result from EU rules.
Note: The individual will often be named.
NZ international
Boyle v comisison
Differdage v commisison
NZ international
Facts: The EC adopted a Regulation which limited the import of apples from outside the EU.
The applicant challenged this on the basis that they were directly concerned.
The commission alone made the decision, and the member state then issues the license but doesn’t have the discretion to accept/deny the license.
The member state’s role was only to collect data.
Held: There is an individual concern where the measure is directly effective and binding.
It must directly impact the position of the individual by materially altering their position.
There was no need for the member state to commit further action because it was a regulation and thus automatically binding.
Criteria:
There must be a direct link between the act of the European institution and the damage suffered by the applicant.
The material alteration of the applicant’s position must directly flow from the EU.
The measure must adversely impact the applicant’s position.
Conclusion: The regulation directly impacted the position of the applicants.
There was individual concern.
Boyle v Commission
Held:
Test: Does it directly affect the legal position of the applicant such that it has a negative impact on their position/activity?
Does it leave no discretion on the addressee as to how it is applied?
Does it require any implementing measures?
Differdagr v comission
Facts: The Commission authorised Luxembourg to grant aid to steel firms on the basis of reductions to production capacity.
The local municipality argued it was directly and individually concerned by this measure because of the tax implications
Held: The decision was addressed to Luxembourg but does not identify the establishments in which production was to be reduced or terminated, nor the factories to be closed.
The decision was left to the national authorities and there was a margin of discretion regarding implementation.
Conclusion: No direct/individual concern to the municipalities that sought to challenge it.
Individual concern
Explain and state cases
Requires someone to establish where the measure is not directly addressed to them, that they are nevertheless impacted.
Plaumann
Boyle
Calpack
Plaumann
Facts: The German government requested the Commission to authorise the suspension of taxes on clementines imported from outside the Union.
That was refused in a decision addressed to the government by the commission.
The applicant was an importer who contested the legality of the decision.
Issue: The addressee of the decision was Germany.
Whether the importer can be someone who is individually concerned.
Held: Persons other than those to whom a decision is addressed may only claim to be individually concerned 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 by these factors distinguishes them individually just as in the case of the person addressed.
Criteria:
The individual must establish that they have certain aspects that set them apart/differentiate them from all others.
They must be so distinctively and personally impacted that they might as well have been personally named.
Note: This is a high threshold to satisfy when not actually named.
Boyle
Facts: Concerned a challenge by a group of Irish fishermen on a Commission decision to introduce new criteria for funding under the European fishing policy.
It directly impacted them as individuals and this would change the way they would go about their business.
Issue: The decision was addressed to member states and they were not individually named.
Should Plaumann apply?
Held: Their claim was successful as the shipping vessels that they owned were named in the decision.
These circumstances distinguished them from all other fishermen.
Conclusion: They were a group of persons that at the time the decision was adopted, the Commission intended to identify.
Therefore they were individually concerned and directly identified.
Calpak
Facts: The applicants produced William pears and complained that the calculation of production aid to them was void.
The previous calculation was based on an average over 3 years; the new method was based on 1 year in which there had been a peculiarly low yield.
Held: A measure which limits production aid for all producers in respect of a given product to a particular and uniform percentage as measured against a certain period is a measure of general application.
The measure was not directly tailored to an individual/class.
In this case, the measure applies to objectively determined situations and produces legal effects for categories of persons described in a general and abstract manner.
The measure cannot be called into question by the mere fact it is possible to identify particular persons.
A measure that applies generally to all producers based on objective criteria is considered a measure of general application, even if specific individuals can be identified as affected.
Boyle v Calpak
Boyle: The individuals were individually concerned because their vessels were named.
They were owners of the particular vessel and not just fishermen, that way they could be singled out.
Calpak: The individuals cannot be singled out as the provision applies to all pear producers and no aspect individualises them.
Liberalisation? State cases
UPA
Comisison v France
UPA
Facts: An association of farmers (UPA) sought to annul a regulation which amended the common organisation of the olive market.
The UPA claimed it was denied effective judicial protection because it limited its capacity to seek judicial review
Opinion of AG Jacobs: Criticised the Plaumann test and how it effectively excluded large waves of individuals.
The only satisfactory conclusion is to recognise that an applicant is individually concerned where the measure has a substantial adverse effect on their interest.
Held: CJEU didn’t follow the AG’s opinion.
Reaffirmed the Plaumann test.
Comission v France
Held:
GC: Suggsted that Plaumann should be overturned.
Test: If the measure in question affects the applicant’s legal position in a manner that is both definite and immediate by restricting their rights/imposing obligations on them, then the measure should be subject to a 263 challenge.
If a measure clearly and immediately affects a person’s legal rights or duties, it can be challenged under Article 263.
CJEU: Overturned the GC decision.
The issue with overturning Plaumann: It is impossible to entirely overturn Plaumann without amendment to treaties.
Lisbon treaty reform
Individual concern is not required in relation to a regulatory act that is of direct concern and doesn’t entail implementing measures where an applicant relies on Article 263(4).
Whats a regulatory act
Chalmers- non legislative act
Affirmed by CJEU in inuit
Inuit
Non legilative act,
seal was a regulation and this was not a regulatory act
Reaffirmed by micro ban
Implementing measure state case
Implementing Measure:
C-274/12 Telefonica p. 27-35
Held: Implementing measures with regard to the particular applicant not whether such measures are required generally
The contested decision merely declared the challenged tax scheme invalid, the consequences were for MS law: an implementing measure.
The EU said the tax scheme was wrong, but what happened next (like fixing the tax rules) was up to the country’s own laws to figure out and put into place.
Types of Illegality
Lack of competence
Infringement of an essential procedural requirement
Infringement of the Treaties or of any rule of law relating to their application
Misuse of Powers
Rights of process
Lack of competence
State case
Concerns situations where the EU is acting beyond the scope of EU law.
The EU is required to act within measures only to the extent where they have consent from member states to legislate/enact rules.
The boundaries for acts of the EU are provided for in the treaties and it is necessary for the union to ensure that their activity falls within that scope.
Example: If the EU wanted to become active in criminal law and determine offences, this would be contrary to EU law on the basis of lack of competence.
If they made a decision on a criminal offence within competition law, only part of the measure may be voided on the basis that it lacks competence.
Germany and others v comisison
Germany and others v comisison
Facts: Concerned a commission decision on a competition measure.
There was a challenge that this decision was made without competence.
Held: The parts of the decision that were made without competence were struck off but the remainder remained good law.
Infringement of an essential procedural requirement who comments on this and what do they say
Schermers
Non essential vEssential
Non essential
Verbal decision rather than a written decision.
An act that does not correctly state its legal basis.
A decision containing an error in regard to its date.
A council directive where no reference has been made to a proposal by the commission.
Essential
Regulation adopted without consultation with the European Parliament.
A commission decision on the exemption/introducing the requirement of notifications between companies without allowing the company the right to be heard.
A breach of the Commission’s duty to provide reasons.
A regulation in breach of the duty to provide reasons and on an incorrect legal basis.
Infringement of treaty or RoL explain
Example: If Article 267 was subsequently undermined by a regulation that limits the ability to make a preliminary reference.
Misuse of powers state case and explain
C-18/35 Joined cases Gortman v Commission
Held: If it appears that the basis of objective relevant and consistent facts have been taken for purposes other than those that have been stated.
Get the conclusion we want but do it in a way that hides true reasons.
They’re saying one thing, but secretly doing it for another reason, to get the outcome they want without being honest about why.
Rights of process
If infringes on the right to:
Defence
Hearing
Good administration
Then it is a breach and a type of illegality.
