Judicial Review by the CJEU Flashcards
Governing provision for the action for annulment
Art 263 TFEU
ERTA
Art 263 TFEU: ‘Acts’
Measures adopted by the institutions that are intended to have legal effects
IBM v Commission
Art 263 TFEU: ‘Acts’
To have legal effects the act must bring about a distinct change in the legal position of the applicant
Legal position= rights and obligations
Bangladesh Aid
Art 263 TFEU: ‘of the institutions, bodies and agencies of the EU’
Agreement between national government ministers made to provide aid to Bangladesh in the break of a Council meeting
Held this was not an act of the council- the ministers were not acting in their capacity as members of the council
In determining if an act is one of an institution etc the CJEU will look at the substance of the measure rather than the form.
Time limit to institute proceedings under Art 263 TFEU
within 2 months of the publication of the measure, or its notification to the plaintiff, of the day on which to came to the knowledge of the plaintiff’
Locus Standi: Privileged Applicants
A Member State,
the European Parliament,
Council,
the Commission
Have unlimited, automatic legal standing to review proceedings or challenge the legality of reviewable acts
Locus Standi: Semi-Priveledged Applicants
Court of Auditors
European Central Bank
Committee of the Regions
Actions must be brought for the purpose of protecting their prerogatives
e.g their role, position, competencies within the EU legal order.
Locus Standi: Non-Priveledged Applicants
‘Any natural or legal person’
Act must be addressed to them, or be of direct and individual concern to them.
A regulatory act of direct concern must not entail implementing measures
The Dreyfus Test
Locus Standi: Non-Priveledged Applicants
Direct Concern
Union measure must directly affect the legal situation of the individual
Must leave no discretion to the addresses of the measures entrusted with implementing it
Plaumann v Commission
Locus Standi: Non-Priveledged Applicants
Individual Concern
Must demonstrate characteristics that set them apart from other natural legal persons in the same situation
Must be a member if a ‘closed class’ of persons
International Fruit Co
Locus Standi: Non-Priveledged Applicants
Individual Concern
If a category of persons to whom a regulation applies is a closed class, court is more likely to find measure is actually a decision:
Regulation establishing rules for granting/refusing import licences for apples into the EU
Was held to be in truth a bundle of decisions in response to previous applications for such licenses.
European Environment Bureau v Commission
Locus Standi: Non-Priveledged Applicants
Individual Concern
The mere form of a measure is not enough to exclude judicial protection
In certain circumstances directives and regulations may be of direct and individual concern
Inuit Tapiriit
Locus Standi: Non-Priveledged Applicants
Regulatory Act
Encompasses only non-legislative acts i.e delegated acts of general application
Greenprace
Group Locus Standi Test
Procedural powers
Induvidual concern
Negotiating role before EU institutions
4 Grounds for JR
- Lack of competence
- Infringement of an essential procedural requirement
- Infringement of the treaties or any rule of law relating to their application
- Misuse of powers
Spain v Commission
Grounds for JR: Infringement of a right of process
Duty to provide reasons: Reasons need be no more detailed than required for that purpose
Consten and Grundig
Grounds for JR: Infringement of a right of process
Right to a hearing
Encompasses obligation on the institution to make its case known to the party concerned, and the right of that party to reply
Does not encompass right to be notified of the final position the administration intends to adopt
Holland Malt
Grounds for JR: Infringement of a right of process
The principle of sound administration
Institutions must act in good faith:
Give due consideration to all arguments, show the basis for the decision, be proactive in procuring information
Institutions must exercise powers within a reasonable period of time
Reasonableness will be assessed in relation to the particular circumstances of each case e.g background, complexity
Branco
Grounds for JR: Infringement of the treaties or any rule of law relating to their application
Must conform to
Procedural requirements:
Legitimate expectations
Will be created by precise, unconditional, consistent assurances .
Expectation would be created in the mind of an ordinary and prudent trader (objective)
Must have the legal competence to do what they say they are going to do
Fedesa
Grounds for JR: Infringement of the treaties or any rule of law relating to their application
Must conform to
Procedural requirements:
Proportionality
- suitable
- necessary
- excessive effect
Institutions actions must be manifestly inappropriate
Art 8 Protocol No 2
Grounds for JR: Infringement of the treaties or any rule of law relating to their application
Must conform to
Procedural requirements:
Subsidiarity
gives specific route for JR if national parliament’s pre-legislative opinions are not followed
Tetra Level
Grounds for JR: Misuse of Powers (manifest error of assessment)
Court will look at whether the outcome is plausible based on the evidence provided Evidence must be: 1. accurate 2. reliable 3. consistent 4. sufficiently complete
Sermes
Grounds for JR: Misuse of powers
Has the power been adapted to achieve purposes other than what it was intended?
Based on objective, relevant and consistent indications
Test is subjective
Provisions governing the outcome of a successful applications
Art 264, 266 TFEU
