Judicial Review

Question 1

Parliament v Council

Answer 1

¥ cases where parliament is the legislator along with council, in past parliament was a legislator in some areas and parliament could put forward their views. But the council did not have to follow through with what parliament said. In cases where parliament has been bypassed by council, parliament can bring a challenge and try and safeguard its role in the system.

Question 2

ERTA [1971]

Answer 2

Meeting of legislative body, EU council adopted provisions, the council undertook on behalf of MS a certain course of action in regard to negotiations. EU commission argued the process in treaty fell within union competencies so EU commission should have drafted the negotiations. However, the council pre empted the commission.

The Commission challenged the “proceedings” of the Council arguing that they bound the attitude of MSs in the subsequent negotiations with third countries
CJEU:
‘Action for annulment … available in the case of all measures adopted by the institutions, whatever their nature and form, which are intended to have legal effects.’

Question 3

IBM v Commission [1981]

Answer 3

Commission started investigations against IBM for possible abuse of its position in market, the EU prevented this. Before its final decision the Commission was obliged to send a letter (statement of objections) to IBM and give it time to reply to these objections. IBM challenges the statement of objections. It highlights the main legal challenges against the company. IBM has to respond, if response is adequate they made decide to stop or continue the proceedings. CJEU held: an act is renewable if it is intended to protect legal effects.
Legal effects = appreciable change of the legal position of the parties.
The term ‘legal effects’ means that the act must bring about a distinct change in the legal position of the applicant - a change to their rights and obligations. (Statement of objections simply a preparatory act- Not the culmination of the administrative process)

Question 4

Parliament v Council and Commission (Bangladesh Aid) [1993]

Answer 4

Meeting where MS representatives where they tried to further send aid to Bangladesh. EU parliament challenged decisions because it should have involved the EU parliament. The CJEU said yes they met in council and took a decision but they used opportunity of MS representatives being together, it was not a decision of EU it was a decision of MS. Therefore, it was not an act of the institutions, even though It looks like it so it is not reviewable.

Question 5

European Parliament v Council (‘Chernobyl’) [1990]

Answer 5

The Council chose a legislative procedure (consultation) that had the effect of reducing the involvement of the Parliament. The Parliament brought an action Against the Act of the Council.
CJEU: Even though the Parliament was not specifically mentioned (at the time) in Art. 263 it would be incompatible with the institutional balance of the Treaty to be possible to breach the prerogatives of the Parliament without that institution being able to have access to the remedies provided in the Treaty (in order to protect its prerogatives).

Question 6

Dreyfus v Commission [1998

Answer 6

main authority for clarification of the direct concern doctrine.
Direct concern exists where it directly affects the legal situation of the individual and leaves no discretion to the addresses. It then flows automatically, there is nothing in between which breaks causual links between existence and legal change of the applicant. ‘… for a person to be directly concerned by a [Union] measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from [Union] rules without the application of other intermediate rules.’

Question 7

Dreyfus v Commission [1998]

Answer 7

‘… for a person to be directly concerned by a [Union] measure, the latter must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from [Union] rules without the application of other intermediate rules.’

Question 8

Plaumann v Commission [1963]

Answer 8

‘Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are 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’.

Question 9

Piraiki-Patraiki v Commission [1982]

Answer 9

– applicants were members of a fixed and closed class of persons, which was ascertainable at the date of adoption of the measure. When new members are subjected to measures whereby they are subject not to the full rights of EU member states but in a transitional phase. In order for member states authorities to extend the period. French authority asked if they could extend period of limitation. EU commission said such an extension would be lawful under the rules. The French authorities said no causality here, the French asked a hypothetical situation, and the commission said it would then be lawful, there was no legal change. Courts said the decision of the courts did not compel French authorities to ask in this situation and it was only hypothetical because the French only asked for permission to extend the period of limitation.

Question 10

Confédération Nationale des Producteurs de Fruits et Légumes v Council [1962]

Answer 10

the essential characteristics of a decision arise from the limitation of the persons to whom it is addressed, whereas a regulation, being essentially of a legislative nature, is applicable not to a limited number of persons … but to categories of persons viewed abstractly and in their entirety.’
No discretion on MS how implementation should take place
However, where the category of the persons to whom the measure in the form of a regulation applies is a fixed and closed class, the Court is more likely to find that the measure is in fact a decision:

Question 11

International Fruit Co [1971]

Answer 11

Regulation establishing the rules for granting or refusing import licences for apples into the EC; adopted in response to applications for such licences in the previous week; held in truth to be a bundle of decisions.

Question 12

Extramet [1991]

Answer 12

‘… although in the light of the criteria set out in … [Article 263], regulations imposing anti-dumping duties are in fact, as regards their nature and their scope, of a legislative character, inasmuch as they apply to all the traders concerned, taken as a whole, their provisions may nonetheless be of individual concern to certain traders.
It follows that measures imposing anti-dumping duties may, without losing their character as regulations, be of individual concern in certain circumstances to certain traders …’

Question 13

European Environmental Bureau (EEB) and Others v Commission [2005]

Answer 13

’34. The Court finds that, contrary to the Commission’s submission, although the fourth paragraph of Article 230 EC makes no express provision regarding the admissibility of actions brought by private persons for the annulment of a directive, that fact in itself is not sufficient for such actions to be declared inadmissible…. The Community institutions cannot exclude, merely by the choice of the form of the act in question, the judicial protection afforded to individuals under that provision of the Treaty.

35. Likewise, the Commission is incorrect in maintaining that the legislative nature of the contested act precludes its being challenged through an action for annulment brought by individuals. It follows from the case-law that, in certain circumstances, even a legislative act applying to the generality of traders concerned may be of direct and individual concern to some of them…’

Question 14

Metro [1977]

Answer 14

M complained to the Commission, which then started proceedings against a competitor. M had locus standi to challenge the decision addressed to the competitor.

Question 15

Japanese Ball Bearings [1979

Answer 15

(anti-dumping). Regulation applied to any importers of ball bearings although four existing importers were named in the Reg. Held: the named importers were individually concerned.

Question 16

Allied Corporation [1984]

Answer 16

similar, but parties not named. But they helped in the Commission’s anti-dumping investigation - held individually concerned.

Question 17

Codorniu

Answer 17

Special attributes arising from trademark. Does not fit with Hartley’s model.

Post-Codorniu cases suggest the evolution of a new approach to grant locus standi in cases where there has been what Craig and de Búrca describe as ‘an infringement of rights’ – as in Codorniu - or a breach of duty’ – see:

Question 18

Associazione Nazionale Bieticoltori v Council [1998]

Answer 18

‘It should be pointed out… that an application for annulment lodged by an association may be admissible in three types of situation, namely:

(a) where a legislative provision expressly confers a range of procedural powers on trade associations; [or]
(b) where the association represents the interests of undertakings having locus standi to seek the annulment of the provision in question; [or]
(c) where the association is distinguished because its own interests as an association are affected, in particular because its position as a negotiator has been affected by the measure whose annulment is sought’.

Question 19

Greenpeace v Commission [1998]

Answer 19

‘In the present case … the Commission did not, prior to the adoption of the contested decision, initiate any procedure in which Greenpeace participated; nor was Greenpeace in any way the interlocutor of the Commission with regard to the adoption of the basic Decision…’

Question 20

Plaumann v. Commission [1963]

Answer 20

Importer of fruits from EU, there was an import duty imposed to these imports so had to prove direct and individual concern. Were they direct concern? Yes, there was causality. The courts said: for an applicant to be individual concerned they have to show:

1) Certain characteristics
2) That distinguishes them from other traders in the same situation

Therefore, Plaumann had to show certain characteristics that are different from other fruit importers
However, plaumann could not show how they were any different from any other fruit importers. The courts said this special attributes should not just be from existing clementine importers but future clementine importers. This does not fit well with the doctrine

'...if that decision affects them by reason of certain attributes which are 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'.
The applicant must be a Member of a “closed class”: a class that has certain attributes

Question 21

Timex v Council and the Commission

Answer 21

manufacturer of watches in EU, they were huge in the EU. There was then an influx of cheap watches produces, watches which were heavily subsidised. They lobbied EU and provided evidence to support a proposal to regulate the regulation and council adopted this, but Timex did not think that the regulation went far enough. The regulation refers specifically to Timex mentioning its role so timex being referred to specifically, this could be considered as the addressee of the regulation so Timex was individually concerned so could bring a challenge.

Question 22

Codorniu v Council

Answer 22

regulation that limited the use of the term to specific fizzy wines produced in specific regions. They wanted to challenge the regulation but did they have direct concern? Yes because they had to change their product, what about individual concern? What characteristics can you show that distinguishes you from other wine companies. They said that this term was protected by a trademark in Spain, and trademarks are not fully distinguished in EU, therefore Codorniu showed a distinguishing factor from other wine users. It was able to pass this hurdle giving new authority, they later actually lost.

Question 23

Unión de Pequeños Agricultores (UPA)

Answer 23

famer union try to challenge a regulation which changed conditions of trading of olive oil in EU. The general courts tried to give a wider interpretation but felt limited so case was appealed. UPA, there was not another way to bring an action at national level that would trigger process of preliminary reference so the only avenue for protecting their interests was a direction action against the courts. Therefore, they said what distinguishes them is that there is no other avenue to challenge to protect their rights. EUCJ said no, thus there is still a narrow definition.

Question 24

Associazione Nazionale Bieticoltori v Council

Answer 24

Can an association be directly and individually concerned?
Only under “special circumstances

a. where a legislative provision expressly confers a range of procedural powers on trade associations;
b. where the association represents the interests of undertakings having locus standi to seek the annulment of the provision in question;
c. where the association is distinguished because its own interests as an association are affected, in particular because its position as a negotiator has been affected by the measure whose annulment is sought

Question 25

Unión de Pequeños Agricultores (UPA) v Council [2002]

Answer 25

advocated a new approach based on effective judicial protection. The AG argued that, notwithstanding the test for individual concern in Article 263 TFEU , the question of locus standi must be determined independently where that individual would be otherwise denied their fundamental right to effective judicial protection (Art 47 of the Charter of Fundamental Rights) owing to the difficulty of challenging the act indirectly through proceedings in national courts (Article 267 TFEU) or where locus standi under Article 263 TFEU fails to be determined independently of the availability of such an indirect challenge. On this basis the only solution is to change the case law on individual concern.

Question 26

Jégo-Quéré v Commission [2004]

Answer 26

UPA may be regarded as simply an example of judicial restraint consistent with the approach to conferred powers in Tobacco Advertising. But the Court’s aim is more subtle: to recognise the limits of its own jurisdiction whilst, in paras 41-42, shifting the burden to the Member States who are responsible for ensuring an adequate system of legal remedies in order to guarantee effective protection for individuals in the national courts (see Lecture 16). This is consistent with Article 47 of the Charter and Articles 6 and 13 ECHR

Question 27

Test-Achats

Answer 27

¬ parties said that premiums for insurances for men are lower because men don’t live as long as woman, therefore the risk of insurer is taken for longer period of time. Therefore, is situation comparable. Court held despite imperially proven evidence, the relevant provision can be annulled.

Question 28

Società ‘Eridania’ Zuccherifici Nazionali v Commission [1969]

Answer 28

Took action against commission which provided state aid (this in principle is not allowed but might be given the green light by commission) this is the exception of the rule because commission gave green light. Here lawful subsidy, this was challenged by competitor, a competitor receives subsidies, they argued that they were directly and individually concerned. They did not pass the Ploumans test so they failed. They then brought an action for article 365, the EUCJ said these two articles do not establish paraleell remedy pathways, for example if you lose one you cannot bring the other, so they lost the action for annulment so cannot say that the EU were under an obligation. Court of Justice: Art. 265 does not introduce a parallel remedy to 263

Question 29

Simmenthal v Commission [1979]

Answer 29

APPLICANT WANTED TO CHALLENEGe decision of EU commission, they brought challenge based on article 263, one suplimentary challenge was that this act was based on a regulation passed by the council (act of general application). One of this decision was challenged by Simmenthal, through article , through 277 they challenged legality of the legislation, they could under 263 challenge the legislation directly under Ploughmans but this is difficult. They managed to bring a claim on the matrix, article 277 is not independent.

Question 30

Adams v Commission

Answer 30

in competition law, Adams was a whistle blower, he provided evidence against employer against EU competition rules, based on evidence the EU commission was able to start investigations, but in course the EU commission shared documents with the company, in this evidence it was possible to identify the identity of the whistle-blower. Some of the documents were then shared with company so company can prepare case and through this process they identified Adams, they brought a claim that whistleblowing activity was against contract and it was a criminal law. Held: the sharing of documents with company started all this, EUCJ had some of the blame, there was significant consequences which arose out of violations of EU law, even the administrative assepect.