Chapter 10 Flashcards
What is the judicial review and which article regulates it?
Art.263 TFEU, it allows a court to annul a legislative or executive act.
The Court may review the legality of acts adopted by:
- the Council
- the Commission
- the ECB
- Union agencies (external effects)
What is Art.263(1) TFEU about?
It is about whose acts can be challenged and which acts can be reviewed.
The Court is allowed to review:
- legislative acts adopted by the EP or CM
- executive acts adopted by any institutions except the Court of Auditors
The Court is not allowed to review acts adopted by MS as they cannot be attributed to any Union institution
The Court cannot review recommendations, opinions and acts which have no external effect
What is Art.263(2) about?
The four grounds for legitimate review:
1) Lack of competence: ultra vires review, any action that goes beyond Union’s competences should be void
2) Infringement of an essential procedural requirement: not all procedural infringements will lead to the annulment of the act
3) Misuse of power: an institution pursuing objectives that are different from those that define the relevant competence
4) Infringement of the Treaties or any rule of law relating to them: review acts in light of written and unwritten principles of Union law (subsidiarity and proportionality principles)
What are the test for an act to be proportional?
1) Suitability: whether the European measure os suitable to achieve the given objective
2) Necessity: whether the act represents the least restrictive means of achieving the objective
3) Proportionality in a strict sense: whether the burden imposed on the individual is excessive
What are the three types of applicants for judicial review?
- Paragraph 2: privileged applicants (MS, the EP, CM and Comm), which can always bring an action for judicial review.
- Paragraph 3: semi-privileged applicants (Court of Auditors, the ECB and the Committee of the Regions), which may solely bring review proceedings ‘for the purpose of protecting their prerogatives’.
- Paragraph 4: non-privileged applicants (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.
What is the Plaumann test?
It is a test to challenge the act if they show that the effect of that act is peculiar to them (direct and individual concern)
What is the Plea of Illegality?
It is an indirect measure of judicial review, while contesting the legality of a rule or an act, collateral also another Union act is illegal.
Inuit II with no time limit and no demonstration of direct and individual concern.
What is the Bergaderm doctrine?
The Union’s wrongful action will be put under test to determine whether it is liable for damages or not.
The Union is liable for
- acts which confers individuals rights
- breach is sufficiently serious
- and caused damage
What are the two articles which regulate the infringement procedure against MS?
Art.258 TFEU in which the two applicants are the Commission and the MS
Art.259 TFEU in which the two applicants are two MS
Describe Art.258 TFEU
It allows the Commission to take legal action against a MS for failing to fulfil its obligations under EU law.
The Commission may send a FORMAL NOTICE, outlining the alleged infringement and requesting the MS to provide explanation within a time limit
If the MS fails to address concerns of comply with EU law and fails to explain it to the Commission
The Commission will give a REASONED OPINION and the matter will go to Court, which will determine if the MS has breached EU obligations
If the ECJ finds a violation (the MS failed at least twice to comply), there could be financial penalties (Art.260 TFEU)
A prior breach by another MS doesn’t justify a breach of Union law
What is Art.265 TFEU about?
It is about a Union’s institutions failure to act which may be brought against any Union institution except for the ECB and the Court of Auditors.
It could be brought by a MS, a private party or another Union institution or body.
The failure to act requires the existence of an obligation to act where the Union had the duty to act and not the right.
In which article are preliminary rulings?
Art.267 TFEU which allows national courts within the EU to seek guidance from the ECJ on mattes of EU law, when there is no clear interpretation, they can refer to the ECJ.
Describe Art.267 paragraphs 1-2-3
Art.267(1) TFEU: the preliminary ruling are limited to Union law, the Court is not entitled to interpret national law, it regards only the validity and interpretation of Union law.
Art.267(2) TFEU: it is about any court and tribunal. Any court at any stage of the judicial procedure, may request a preliminary ruling. But the question has to be necessary in order to deliver the judgement and to better define the limits of EU law, there is a presumption of relevance.
Art.267(3) TFEU: all national courts have an obligation to refer preliminary questions when they are in doubt on the validity of a Union act, but when the answer is clear, there is no need to raise the question.
ACTE CLAIR
Are preliminary questions binding upon everyone?
No, they are only binding on the court which requested the ruling
