Judicial Review Flashcards
ERTA (Scope of Judicial Review)
A measure will be reviewable not merely when it is a formal legal act but, notwithstanding its form, when it is intended to produce legal effects
IBM (Scope of Judicial Review)
The court said that to determine what an ‘act’ is within the meaning of 263 it is necessary to look at their substance. They went on to say that “Any measure the legal effects of which are binding on and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 263”
Sunzest (Scope of Judicial Review)
There will be no definitive position if the institution does not have the competence to adopt the act
Commission v Netherlands (Scope of Judicial Review)
An act is likely only to be considered definitive if the language is both reasonably imperative and alters the institutions position – restating an existing position is not reviewable. Indicating no more than an intention to follow a particular line of conduct is also not reviewable
Commission v Council (Scope of Judicial Review)
The court is more likely to find an act reviewable if it brings to an end or suspends some decision-making procedure.
Safe Countries of Origin (Grounds of Review)
Lack of competence where - An EU institution will be found to have acted illegally if it has exceeded the legal powers granted to it. In creating a list of safe countries of origin for refugees the Council was acting contrary to the Treaty, as a Directive was already in place for this purpose
Boyle (Grounds of Review)
Lack of competence where institutions formally exceed their powers where the Commission has granted them to them
Tetra Laval (Grounds of Review)
Manifest Error of Assessment and Abuse of Power - CJEU recognised that the Commission has a margin of discretion with regard to economic matters, but that doesn’t mean they cannot be reviewed by the courts. The courts must establish that the evidence being relied on is factually accurate, reliable and consistent and also that the evidence is relevant and that none has been excluded
- A distinction is therefore drawn between the assessment of the institution (not reviewable) and the grounds for the assessment (reviewable)
Sermes (Grounds of Review)
Misuse of power arises if “on the basis of objective, relevant and consistent indications to have been adopted to achieve purposes other than those for which it was intended”
Kadi (Grounds of Review)
Rights of Process - Kadi was on a list of individuals who supposedly had contact with Al Qaeda that was legitimised under a Regulation. Kadi challenged the Regulation, claiming that due process had been ignored – he had been given no opportunity to make a case as to why he should not be on the list, nor to challenge the grounds for placing him on the list. The court said that the EU authority responsible should have made Kadi aware of the grounds for him being on the list, as this was necessary for him to defend his rights, and would also put the Community judicature in a position in which it may carry out a review of the lawfulness of the authority in question
Al Jubail (Grounds of Review)
Rights of Process - There is a category where a party is not named in a measure but nevertheless has standing under Article 263(4), and that is where a measure directly or individually concerned an undertaking, then that undertaking would be entitled to a hearing
Holland Malt (Grounds of Review)
Rights of process have in recent years been subsumed within a new right, which is that of observance of the principle of sound administration. Observance of the principle requires diligent and impartial investigation by the Commission of the measure at issue. This imposes a duty of care on the institutions, which has both a substantive and procedural element. Substantively, the Commission must act in good faith and at the very least must be able to show the basis for its decisions and how this relates to the information provided to it. Procedurally, EU institutions must be proactive in gathering information
Ruckdeschel (Grounds of Review)
General duty of non-discrimination. there is a general duty that like cases be treated alike
Heinrich (Grounds of Review)
Legal Certainty “Community rules enable those concerned to know precisely the extent of the obligations which are imposed on them. Individuals must be able to ascertain what their rights and obligations are”
Fedesa (Grounds of Review)
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