Judicial Review Flashcards
What is the difference between Art 263 and Art 267?
263: Direct route for an individual to bring a claim to the court (Challenging the EU measure)
267: Indirect route, preliminary reference procedure (individual will make a challenge before a national court and say the legal basis, i.e. EU act, is invalid)
What is the content of Art 263?
- Sets out which acts the Court may review, includes legislative acts
- Privileged applicants, including member states, parliament, commission and council
- Semi-privileged applicants, auditors and central bank
- Non-privileged applicants, may only bring a claim where the act is addressed to them and is of direct and individual concern OR there is a regulatory act of direct concern that does not entail implementing measures
How does an individual show direct concern?
International Fruit Company v Commission, a measure is of direct concern where it directly affects the legal situation of the applicant and leaves no discretion to the addressees of the measure
How was individual concern defined by the court in Plaumann?
If a decision affects them by reason of certain attributes peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed
Why was there no individual concern in Plaumann and why was this different in Codorníu?
Plaumann- Being a fruit importer was a commercial activity open to any person to practice at any time
Codorníu- C had registered the trademark to use the word cremant years before, restricting this to only France and Luxembourg would prevent them from being able to use this and was therefore of individual concern
What was the opinion of AG Jacobs in UPA?
AG JACOBS: A person should have individual concern where by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests
* Felt the preliminary refernece procedure was inadequate since it is costly and time consuming
* Relies on the member state actually taking action and going to last court of instance, HOWEVER consider Foto Frost in which any national courts must make a reference if they think the EU law could be invalid
* The procedure requires EU law to have implementing measures, therefore where there are none the individual will have to breach the law to argue the law invalid and get justice
* It is the national court that makes the question, not the private party
How did the court of first instance adopt the opinion of AG Jacobs?
JEGO-QUERE v COMMISSION
* A person is regarded as individually concerned if the measure affects his legal position in a manner which is both definite and immediate by restricting his rights or by imposing obligations on him
How did the court of justice rule in UPA?
- Applicant had no standing
- Rejected the test laid down by AG Jacobs and referred back to the Plaumann test
- It is for the member states to provide a system of remedies and procedures that ensure respect for the right to effective judical protection
What happened in the BAT and Imperial Tobacco case?
- Reaffirmed and complied with the decision in UPA
- The opportunity of individuals to plead invalidity of an act before national courts is no conditional upon it being the subject of implementing measures in national law
How has the Lisbon Treaty changed standing?
Individual concern no longer needed in relation to a regulatory act that is of direct concern and does not entail implementing measures
How has the court interpreted the meaning of ‘regulatory act’ and ‘implementing measures’?
Inuit v Parliament & Council
* Restricted the scope of regulatory act
* Said it was clear from the proposed constitution provision that Art 263 was based on that it was not intended for this to include legislative acts
Telefonica
* Broad interpretation of implementing measures
* Assessed by reference to the position of the person pleading the right to bring proceedings, reference should be made exclusively to the subject matter of the action
What was the decision in Microban?
Claimant was found to have standing because the act was a regulatory one that did not require implementing measures
* The measure was a prohibition, given wide construction of implementing measures likely means it will mostly be limited to these cases
What did the CJEU argue about remedies in EU law in the UPA case?
- There was a complete system of remedies in EU law because of Art 263, 267 and 277
- It was for the member states to establish a complete system of legal remedies which give effective judicial protection
- The CJEU could not change the meaning of individual concern even if they wanted because they were bound by the wording of the Treaty
What is Art 277 and how does this work?
Plea of Illegality
* Concerns a situation where an EU institution has adopted one measure and then adopts a second measure to help implement this
* The private applicant can challenge the second measure for which they have standing and plea that the first measure is invalid by Art 277
What is the gap in protection that is left by the current law?
- Both Art 267 and 277 require implementing measures (267 if by a member state / national authority and 267 and 277 if by an EU institution)
- If a regulatory act with no implementing measures then protection can arise by Art 263(4)
- Where there is a legislative act without implementing measures there is no option. Would have to show direct and individual concern, NO PROTECTION
What are the issues with placing the responsibility on member states to make remedies complete?
- Places the emphasis on the preliminary reference procedure, which has the issues of cost, time and uncertainty
- Is there an obligation on member states to do this in the first place? EU law did not intend to create new remedies under Art 19 TEU
- What if national law does not regulate such remedies?
Could Art 340 TFEU make the system of remedies complete?
In cases of non-contractual liability the union shall make good any damage cuased by its institutions or by its servants in performance of their duty
* Jego-Quere, made clear this is not a comprehensive form of review (i.e. part of judicial review) but is simply only about compensating where there is a sufficiently serious breach of rules
How does Art 340 operate and what must be shown to satisfy it?
Jurisdiction for non-contractual liability given by Art 268
Conditions to satisfy laid down in the case of Bergaderm:
1. Institution or service
2. Infringes a superior rule of law intended to confer rights on an individual
3. Sufficiently serious breach (i.e. manifest and grave disregard for the limits of discretion)
4. Direct causal link (Safa Nicu, actual and certain damage that flows sufficiently directly)
Is the gap (legislative acts without implementing measures) justified?
JUSTIFIED: These acts have greater democratic legitimacy therefore should be harder to challenge as otherwise it could simply be a way for powerful groups to challenge rules, argument of efficicency
UNJUSTIFIED: May argue there is democratic deficency, e.g. low-turn out and lobbying for laws, judicial review therefore needed for greater protection
Depends on whether we think the EU is a democratic institution and therefore what the purpose of judicial review should be
What are some possible reforms for remedies?
- Allow all acts to be challeneged before the General Court
- AG Jacobs argued for a more deferential standard of review, giving a significant margin of appreciation for the legislator
- HOWEVER, consider that de-centralization is key to EU law
What are the grounds for review under Art 263(2)?
- Lack of competence
- Infringement of an essential procedural requirement
- Infringement of the Treaties or of ny rule of law relating to their application
- Misuse of powers
