EU - Judicial Review

Question 0

Art. 263(2) TFEU

Answer 0

1. Privileged applicants are deemed to have sufficient locus standi, and include:
   - Commission
   - Council
   - Parliament
   - all MS
2. Privileged applicants may mount a challenge on the grounds of:
   - lack of competence
   - infringement of essential procedural requirement
   - infringement of the Treaty/other laws
   - misuse of powers

Question 1

Art. 263(1) TFEU

Answer 1

ECJ may review:

• binding acts of EU institutions
• acts of European P intended to produce legal effects between third parties

Question 2

Art. 263(3) TFEU

Answer 2

1. Semi-privileged applicants include:
   - ECB
   - Committee of the Regions
2. Semi-privileged applicants may bring actions on the same grounds as privileged applicants where the challenge relates to their perogatives

Question 3

Art. 263(4) TFEU

Answer 3

1. Non-privileged applicants must demonstrate locus standi, and include:
   - private individuals
   - private companies
2. Non-privileged applicants may challenge acts on the same grounds as privileged applicants, provided they:
   - are addressed against them personally, e.g. decision
   - are of direct and individual concern to them, e.g. directive
   - are of direct concern to them and do not entail implementing measures, e.g. regulation

Question 4

Plaumann v Commision

Answer 4

Individual concern requires group to be differentiated from all others by reason of certain attributes peculiar to them or certain circumstances affecting them individually. Membership of a class, e.g. clementine importer, is not sufficient, as it is not exclusive - anyone may join (not a fixed, closed class)

Question 5

Toepfer v Commission

Answer 5

A fixed, closed class is one where circumstances are so restrictive that no-one else may join, e.g. importer affected by a particular retrospective action by EU

Question 6

Metro v Commission

Answer 6

Need for ‘individual concern’ is reduced in case of competition law. Non-privileged applicants may challenge EU institutions where a request to determine breach of competition law is not complied with

Question 7

Timex v Council and Commission

Answer 7

Locus standi requirement for individuals relaxed in the case of anti-dumping. Anti-dumping regulations may be challenged without need for party to be specifically named, provided it is clear that the regulation address the individual by reference to the circumstances

Question 8

COFAZ

Answer 8

Where an undertaking has played a role in the complaints procedure that is the subject of the contested decision, e.g. state aid, it will have sufficient locus standi; this relaxes the normal requirement for ‘individual concern’ (affirming Metro and Timex)

Question 9

Jégo-Quéré

Answer 9

1. Regulations with general application are not incapable of challenge by individuals, since access to judicial remedies is a fundamental component of EU law (Les Vertes)
2. Where no natnal remedy exists, individual concern will be relaxed, and person will have sufficient standing to challenge EU acts directly under Art. 263 TFEU

N.B. This decision was overturned on appeal, and the Plaumann test was reaffirmed as correct

Question 10

Reasons why Art. 263 TFEU is so restrictive

Answer 10

1. ECJ is deliberately forcing the use of Art. 267 TFEU so as to assert its supremacy as a court of appeal (Rasmussen)
2. Framework of Treaty dictates a restrictive approach (Harding)
3. ECJ does no wish to become bogged down in minutiae of substantive claims, which form the basis of most JR challenges by individuals (Craig)

Question 11

International Fruit Company

Answer 11

‘Direct concern’ will only be found where EU law gives national authorities no discretion in how or to whom to apply the legislation

Question 12

Salamander v European Parliament

Answer 12

Directives are generally indirect means of legislating, so cannot normally be challenged as there is a lack of ‘direct concern’
- UNLESS the directive leaves no room for discretion from MS

Question 13

R v SoS for Health ex parte British American Tobacco

Answer 13

Where a directive cannot be challenged directly by the individual under Art. 263, he may bring a case before the UK courts for JR; they will then refer matter to ECJ via PR framework. This method may be adopted even if there are no implementing measures for the directive already in place

Question 14

Commission v Council (ERTA)

Answer 14

Resolutions of the council may also be challenged under Art. 263 TFEU, provided it produces legal effects

Question 15

Group of the European Right v Parliament

Answer 15

Acts of European Parliament relating to its internal functioning, e.g. setting up investigative committees, are not capable of challenge; only acts capable of producing legal effects vis-à-vis third parties may be challenged (Les Vertes; Art. 263(1) TFEU)

Question 16

Les Vertes v European Parliament

Answer 16

Acts of EP may only be challenged where they produce legal effects vis-à-vis third parties

N.B. This decision predates the revision of the Treaty, which now incorporates this exclusion (Art. 263(1))

Question 17

Germany and others v Commission (Migrant Policy)

Answer 17

There must be a direct link between legal base in Treaty and power exercised, otherwise an act will be deemed ultra vires

Question 18

Germany v Parliament and Council (Tobacco Advertising)

Answer 18

A legal base cannot be derived from the Treaty where there is an express prohibition against it, as this goes against Art. 5 TEU, namely that the EU’s powers are limited to those specifically conferred upon it in the Treaties

Question 19

UK v Council (Working Time Directive)

Answer 19

Where the act can be validly interpreted as falling within the scope of a particular legal base, e.g. QMV, it will not be deemed invalid merely by the existence of another legal base, i.e. unanimity

Question 20

Roquette Frères v Council

Answer 20

Infringements of essential procedural requirements, e.g. consultation of the Parliament, will render a measure void

Question 21

Nold v Commission

Answer 21

Measures that breach the fundamental rights enshrined in EU law and ECJ jurisprudence will be struck down, but this is unlikely to help in purely commercial situations, where commercial uncertainty is the very essence of economic activity

Question 22

Guiffrida v Council

Answer 22

An act that misuses the power of an EU institution, e.g. contriving to legitimise a particular outcome, will be rendered void