EU PUBLIC LAW 2

Question 1

Article 263 TFEU

Answer 1

o S.1 gives us that court of justice has jurisdiction for judicial review
o 2,3,4 deal with who can bring an action for judicial review – who can request an annulment of an act
o 5 shows these acts are also subject to judicial review
o 6 – significant – gives time limit for judicial review
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Question 2

Case 22/70 Commission v Council [1971]

Answer 2

 Question was whether resolution was reviewable as it is not a legislative act
 Court held resolution was intended to hold binding legal effect on the parties and therefore susceptible to judicial review

Question 3

Case 60/81 IBM v Commission [1981]

Answer 3

confirmed the sentiment in commission v council [1971] - resolutions reviewable

Question 4

BASF AG v Commission [1992]

Answer 4

 Any act will continue to have legal effect until it is set aside
- Unless non existent acts- acts so tainted by illegality that it does not lawfully exist then it wont have any effects even before it is set aside
o No validly completed copy of the signed act could be found
o So no proof of existence of final form of the act
 Non-existent act

Question 5

les verts v european parliament

Answer 5

first found act of parliament is reviewable - was not originally reviewable because did not used to have legislative power

Question 6

International fruit company

Answer 6

direct concern - quota on apple imports -

Question 7

Case 25/62 Plauman and co v commission [1963]

Answer 7

individual concern - issue must not concern anyone else except the claimant - very narrow test

Question 8

Cases 106 and 107/63 Alfred Toepfer KG v Commision

Answer 8

o Applicant demonstrated was in closed class because had applied for a license at the time that the decision on licenses was taken – another party could not apply for a license retrospectively – identifiable number of parties already applied when decision was made on licenses and therefore were individually concerned

Question 9

piraiki-Patriaki

Answer 9

pending contcat - Concerned imports of cotton into Greece.
Some of the applicants were able to establish standing as had pending contracts with regard to the cotton that was being imported

Question 10

Sofrimport (goods in transit)

Answer 10

there were goods in transit at time of the decision - this gives rise to individual concern

Question 11

Codorníu SA v Council of the European Union

Answer 11

concerns trademarks - individual concern - had already trademarked a word that was then banned from being used

Question 12

Stichting Greenpeace Council (Greenpeace International) and Others v. Commission [1998]

Answer 12

o Court looked at direct concern and said it did not directly affect the residents and was a decision of the state to build it
o On individual concern they brought forward environmental impact – court said they were not affected in a way that distinguished them from other parties – i.e. no individual concern
o More people adversely affected – harder it is to establish individual concern
o Would have to go through other avenue such as member state
- no standing in europe

Question 13

Extramet case

Answer 13

criticism of the test for direct and individual concern - in UPA case Jacobs proposed that individual concern should be recognised for an applicant ‘where the measure has, or is liable to have, a substantial adverse effect on his interests’

Question 14

Jégo-Quéré v. Commission

Answer 14

general court following Jacobs - Applied more relaxed test which expanded rights of natural/legal persons - short lived - ECJ in UPA case follows

Question 15

Inuit Pairiit Kanatami and others v parliament and council

Answer 15

o Answered what is a regulatory act
 ‘A regulatory act is an act ‘of general application apart from legislative acts’ (para 56).
as confirmed in Microban v commission case - no standing to challenge a legislative act which is adopted according to the legislative process of the EU

Question 16

Germany v Parliament and council [2000]

Answer 16

every act must have clear legal basis or be out of scope of powers - Germany arguing here EU had gone beyond scope of powers becuase it was a harmonisation measure relating to public health

Question 17

Commission of the European Communities v council of the European communities

Answer 17

Judicial review case – question whether council had competency to make decision on how to approach negotiations on an international agreement (intended to be binding so reviewable) - question of competency arose

Question 18

Tobacco advertising directive case

Answer 18

beyond competence of internal market powers - measure must improve functioning of internal market - restrained the powers of EU legislation

Question 19

Portugal v council [1996]

Answer 19

if an objective can be read to fall within a particular power then the court has tended to allow it - Human rights in trade agreement - unclear if had competency - court will read competencies where it can

Question 20

Roguette Freres v council of the european communities [1980]

Answer 20

infringment of an essential procedural requirement - obligation to consult parliament under article 43 of treaty that was not complied with

Question 21

Transocean Marien paint Association [1974]

Answer 21

Any infringement of the treaties is a ground for standing - general principles of EU law developed by court - court will ensure the interpretation and applicaiton of treaties that the law is observed

Question 22

Unectef v Heylens [1987]

Answer 22

duty to give reasons - belgian football coach qualifications not accepted by France - found reasons must be given

Question 23

British American Tabbacco v imperial tobacco [2002]

Answer 23

Although subsidiarity has been referred to as a grounds for challenge – it has not been successful to date

Question 24

Guiffrida [1976]

Answer 24

Misuse of Powers - recruitment process by European commission -  Court agreed and quashed the appointment – should select best candidate not find candidate then make a recruitment process in order to promote them
 Basis for annulment

Question 25

BEUC v Commission [1994]

Answer 25

Court not always precise regarding specific ground for review -  On face it was contrary to EU completion law –
* Decision was justified by commission as it was permitted as a matter of UK policy
 Court annulled commission’s decision not to investigate
* As it was an “error of law”
o Did not specify the nature of the error

Question 26

Union de Pequenos Agricoltores v Council.

Answer 26

relationship between the remedies - the treaty has established a complete system of legal remedies and procdures - designed to ensure judcial review of the legality of acts of institutions

Question 27

Universitat Hamburg v Hauptzollamt Hamburg-Kherwieder [1983]

Answer 27

Shows can use national court in order to challenge legality EU acts even though university of hamburg would not have had standing in EU courts or challenge under art 263

Question 28

Acte Clair” doctrine - Case C-283/81 CILFIT [1982]

Answer 28

states that if a judgment or rule of law is clear enough, then a member state has no duty to refer a question for preliminary ruling to the Court of Justice of the European Union.

Question 29

Foglia v Novellow [1980]

Answer 29

-existence of genuine dispute - ECJ Said there was no genuine dispute and both parties wanted the same thing so refused to give ruling

Question 30

Lourenco Dias [1992]

Answer 30

Declined to answer question as it was not relevant to dispute

Question 31

Costa v ENEL + Roquette Freres (2 different cases)

Answer 31

These cases showed that court may tease out a question if possible

Question 32

Simmenthal Spa v commission [1979]

Answer 32

o Art 277 – plea of illegality