Judicial Review

Question 1

What does Judicial Review examine:

Answer 1

• 2 Articles: Article 263 TFEU and Article 265 TFEU
• types of acts that may be challenged
• types of failure to act that may be challenged
• grounds upon which they may be challenged
• rules governing who can challenge
  (more difficult to challenge an EU law [Plaumann] than a member state or institution

Question 2

Which article is responsible for reviewing binding acts of the EU in order to ensure accountability of the institutions?

Answer 2

Article 263 TFEU; also defines who is eligible to initiate proceedings against an act

Question 3

What type of acts are reviewable?

Answer 3

Any act of the EU that is legally binding (i.e. not a recommendation or opinion), and produces legal effects (causes a change to the legal position to some person or organisation)

Question 4

Explain IBM v Commission

Answer 4

A letter sent to IBM by the commission did nothing to change their legal position so was not judicially reviewable

Question 5

What is Locus Standi?

Answer 5

The ability to challenge an act

Question 6

Three types of applicants that have Locus Standi?

Answer 6

Privileged applicants; CJEU (as stated in Art 263(2))
Semi Privileged applicants
Non privileged applicants; private individuals (Plaumann formula)

Question 7

Why is it important that the European Parliament now has privileged access status?

Answer 7

Increases its influence and power within the EU

Question 8

Which 3 conditions allow non privileged applicants to be able to challenge an act?

Answer 8

1) Concerns an act addressed to that person
2) Concerns an act addressed to another person which is of direct and individual concern to the applicant
3) Concerns a regulatory act which is of direct concern to the applicant and does not entail implementing measures

Question 9

Which case established individual concern?

Answer 9

Plaumann v Commission (1963)

Question 10

Explain Plaumann (1963)

Answer 10

German govt instructed commission to lift an import duty on clementines going into Germany.
Plaumann, a clementine importer challenged the Commission’s decision addressed to the German govt.
-
ECJ decided that people would only be individually concerned if the decision affected them “by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from other people (case had to show uniqueness)

Hence Plaumann was rejected as anyone could import clementines. Needed to be part of a fixed, closed class.

Question 11

Example of a case possessing a ‘special right’ in a fixed, closed class which could challenge act?

Answer 11

Codorniu v council (1994)
Spanish producer of spanish wine and trademark owner of “Gran Crémant” challenged a council regulation recerving the term ‘crémant to French and Luxembourg sparkling wines as it was considered to be of individual concern to the applicant (intellectual property right)

Question 12

Exceptions to the general rule of individual concern?

Answer 12

• Anti dumping
• Competition (Metro v Commission)
• State aid

Question 13

What does direct concern mean (requirement for appeal against an act) ? (Brasserie du Pechêur v Germany)

Answer 13

Must be a causal link between the act under review and the infliction of harm on the applicant and the interest affected by the measure must be legal in nature: it must be affect his/her legal position directly.

Question 14

How has the Plaumann test been modified?

Answer 14

Individual concern is now where the measure has or is liable to have a substantial adverse effect on an individual’s interests