Judicial powers: competences and procedures

Question 1

Article 263 TFEU

Answer 1

Under Art 263 TFEU the courts can carry out judicial review and declare a law void (264 TFEU).

Question 2

Four requirements for judicial review

Answer 2

existence of a reviewable act, legitimate grounds for review, standing, and indirect review.

Question 3

Reviewable acts

Answer 3

There is a negative list of acts that cannot be reviewed: the treaties as these are collective actions of MS’s, recommendations or opinions (as they do not make legal effect vis-a-vis third parties), other acts not intended to have legal effects. This was enforced in ERTA.

Question 4

Grounds for review

Answer 4

lack of competence, infringement of procedure, misuse of powers, infringement of treaties or rule of law.

Question 5

Grounds for review reasons

Answer 5

Ultra vires reviews are employed due to doctrine of conferral; procedural review is if e.g. an institution is left out (ERTA) or reasons not stated; misuse of powers is to prevent powers being used for something they were not conferred for; judicial review for subverting rule of law allows ECJ to interpolate general principles of EU law and adds substantive dimension (Sytraval and Brink’s).

Question 6

Proportionality in infringement of the rule of law

Answer 6

Proportionality is found in the latter ground of review and codified in 5(4) TEU which looks at the suitability, necessity and strict proportionality of an action (Kadi).

Question 7

Standing

Answer 7

Standing is set out in Art 263 with privileged applicants (MS, EP, Council, Commission), semi privileged (Auditors, ECB, Committee of the Regions), and non privileged (legal or natural persons).
Rome allowed standing to all persons but the requirement that the act must be a decision was too high a wall. Codorniu deleted this word and extended it to regulations and directives as long as there was direct and individual concern. This initially required affecting the legal position of the applicant (Les Verts), but became something that affected them due to their peculiarities differentiating them from other individuals (Plaumann, authority, upheld in UPA).

Question 8

The Plaumann test

Answer 8

an act of general application had to affect ‘them by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee of a decision’

Question 9

Criticism of Plaumann

Answer 9

The Plaumann test has been excessively criticised for being far too restrictive, especially in an institution whose democratic credentials are dubious. AG Jacobs in UPA tried to reformulate the test, proposing a ‘substantial adverse effect’ on an individual to have standing but this was rejected by the court.
Jugo Quere, in a court of first instance judgment, relaxed the Plaumann requirements and allowed a group of fishermen who were not individually affected by the law in question to challenge it, although the ECJ rejected this.
This shows the internal judicial disagreement between the EU courts.

Question 10

Art 263(4) TFEU

Answer 10

Art 263(4) codifies all this ECJ case law (Plaumann, Codorniu); decisions addressed can be automatically challenged, regulations and all other acts need to prove direct concern. The threshold for proof is high; you must be in a closed class (codifying Plaumann).

Question 11

Indirect review

Answer 11

EU law can be indirectly reviewed through pleas of illegality (277 TFEU). Where one proceeding is already taking place, the individual can plea against the prosecuting act. It subverts the two month time limit and allowed individuals to challenge generally applicable acts.

Question 12

Preliminary rulings for law review

Answer 12

A review can also be done through a preliminary ruling but this is complementary only (Les Verts). The ECJ still maintains a hermeneutic monopoly of acts (Foto-Frost) and this is based only on the national courts, which can reject an application to the ECJ.

Question 13

Requirements for indirect review

Answer 13

Indirect review can be borought to any act (Grimaldi) on any grouds (even outside 263(3)) by anyone at any time. However this can only be done where national courts have jurisdiction (if no implementing laws are present, no review can be done (Jego Quere)) and the courts decide whether or not to do the review (out of the applicant’s hands).

Question 14

ECJ remedial powers

Answer 14

The ECJ has remedial powers under 268 TFEU subject to 340 TFEU. Any institution can have an action brought against them if they have caused damaged (Werhahn Hansamuhle v Council) by anyone subject to a 5 year limitation period.

Question 15

Schoppenstedt test to Bergaderm test

Answer 15

The test was reformed from Schoppenstedt (where damages were only recoverable for breach of ‘superior rule’ of Union law) in Bergaderm and now requires that the rule of law must have intended to confer rights, the breach must be sufficiently serious and there must be a causal link. There is now no difference between legislative and administrative acts. The ECJ cannot be liable for lawfully caused damages (FIAMM v Council and Commission).

Question 16

Enforcement actions

Answer 16

Enforcement actions can be brought against states for breaches of EU law and is subject to procedural requirements in Art 258 TFEU. The breach can be by any branch (Commission v Italy 00), regional govts (Commission v Germany) and even nationals (Buy Irish).

Question 17

Justifications to breaches

Answer 17

Breaches of one state do not justify another (Commission v Luxembourg & Belgium). Budgetary constraints are not a defence (Commission v Italy). Force Majeure (act of God) are acceptable.

Question 18

ECJ jurisdiction over national laws

Answer 18

ECJ may only declare national laws incompatible (France v Commission). EU may use financial sanctions to punish Member States (260(2) TFEU) only when the MS ignores the courts.

Question 19

Which institutions can be liable?

Answer 19

Failures to act can be brought against any institution except for the Auditors and ECJ. There is no distinction between types of applicants. The procedure is found in Art 265. Where there is a right to act but not a duty, there will be no breach of failure to act (Parliament v Council (Common Transport Policy)). Where a failure has been found the court will make the institution act.

Question 20

Preliminary rulings

Answer 20

European judiciary runs on federal co-operatism due to lack of extensive federal court system. National courts are not subordinated but they are bound by preliminary rulings.

Question 21

Requesting a preliminary ruling

Answer 21

Requesting a preliminary ruling is voluntary (267 TFEU). National courts only ask questions regarding the interpretation of treaties or validity of acts so that ECJ retains hermeneutic monopoly of EU law.
Distinction between application and interpretation hard to see as ECJ not competent to apply law.

Question 22

ECJ response to a preliminary ruling question

Answer 22

The ECJ leaves to the courts how to apply the law, the ECJ just say how it should be interpreted (Da Costa v Netherlands Inland Revenue). The ECJ often oversteps the ‘interpretation’ (Sunday Trading).

Question 23

Article 267(2)

Answer 23

Art 267(2) defines the competence of national courts to ask preliminary questions: it must be a court or tribunal (wide reading as in Dorsch Consult, court must be established by law, permanent, compulsory jurisdiction, inter partes procedure, applies rules of law and is independent, the last criterion being controlling as in Cartesio). Private law courts are allowed (Broekmeulun). Higher courts should not restrict lower courts to ask questions (Rheinmuhlen).

Question 24

Necessities of a preliminary ruling

Answer 24

The court must ask questions necessary to answer the case, and the ECJ will not criticise the grounds (Costa v ENEL). The courts will reject a preliminary ruling reference where there is no genuine dispute (Foglia v Novello (No 1)) as the ECJ is only concerned with the administration of justice (Foglia No 2).

Question 25

Obligation to refer a question

Answer 25

There is an obligation to refer questions where there is no judicial remedy for the decision at hand (Costa v ENEL). There is no need to refer a question where a similar one has been asked before (Da Costa). This is the acte clair principle and was clarified in CILFIT to cover points of law regardless of facts and only relieves obligation where the answer is so obvious as to leave no reasonable doubt.

Question 26

Are preliminary rulings binding?

Answer 26

A preliminary ruling is binding on the courts to use the interpretation (Benedetti v Munari). This makes a de facto hierarchy of courts which is not widely accepted. Denkavit stated that the ECJ merely clarifies law and does not modify it.

Question 27

Retroactivity of preliminary rulings

Answer 27

Preliminary rulings may have retroactive effects (Kuhne & Heitz) as they make rulings ex nunc.