nothing Flashcards
What are the 4 steps of annulment?
1) is the act a reviewable act?
2) what is the substantive ground for annulment?
3) Does the applicant have legal standing (locus standi)
4) Has the claim been brought within the time limit?
What is the Article which anchors the annulment procedure?
Article 263 TFEU
The EU legal order adheres to the rule of law and so it is possible for Member States, organisations, business and individuals to challenge the legality of EU law. The main procedure for doing so is______?
Art 263 TFEU “action for annulment”
What is the aim of Art 263 TFEu ?
to have a provision or instrument of EU law declared invalid and annulled by the COJ
What court do direct actions for annulment brought by
1) Member States and
2) companies or individuals
go?
- Court of Justice
- General Court
What is the primary reason for making the threshold so high for private parties to directly challenge provisions of EU law?
due to the preliminary reference procedure as an alternative route in Art 267
What does Article 263(1) TFEU provide for?
It determines the reviewability of the act providing precisely of which legal acts the validity can be reviewed
Under Article 263(1) - the review ability of the act- what are the 4 legal acts that can be validly reviewed?
1) Legislative acts can be reviewed
2) Acts intended to produce legal effect vis a vis third parties
3) the act must be legally binding
4) the form of the instrument is irrelevant: a substantive test
1) Legislative acts can be reviewed
2) Acts intended to produce legal effect vis a vis third parties
3) the act must be legally binding
4) the form of the instrument is irrelevant: a substantive tes
what do these come under?
Under Article 263(1) - the review ability of the act- what are the 4 legal acts that can be validly reviewed?
Any act of the EU other than what can be reviewed?
recommendations and opinions
Any act of the EU, other than recommendations and opinions(as they are not binding) can be reviewed. Before the Lisbon Treaty this was restricted only to those Acts found where?
in Art 288 TFEU
under the review ability of an act the precise type of the act or name of instrument does not matter as the Court will assess whether the measure in substance is a legal act which is binding on third parties
What case supports this?
ERTA
Concerned a resolution adopted by the Council of Ministers to participate in the European Road Transport Agreement
HELD:
The COJ held that the list in what is now TFEU Art 288 is not exhaustive and Acts can be binding without falling into those categories. The resolution was a valid act outside the list
under the review ability of an act the precise type of the act or name of instrument does not matter as the Court will assess whether the measure in substance is a legal act which is binding on third parties
What case supports this?
under the review ability of an act the precise type of the act or name of instrument does not matter as the Court will assess whether the measure in substance is a legal act which is binding on third parties
This was established in ERTA
(European Road Transport Agreement)
Concerned a resolution adopted by the Council of Ministers to participate in the European Road Transport Agreement
HELD:
The COJ held that the list in what is now TFEU Art 288 is not exhaustive and Acts can be binding without falling into those categories. The resolution was a valid act outside the list
Reviewable Act
-it is true that the review ability of an act will be assessed by the Court
a measure adopted by the Court of Auditors was reviewable in which case?
Maurissen and Others
Reviewable Act
-it is true that the review ability of an act will be assessed by the Court
measures adopted by the European Parliament intending to have legal effects vis a vis third parties was reviewable in which case?
Les Verts
Why can’t Treaty articles themselves not be challenged?
as a court cannot review Member States acts including those that are unilateral or international agreements
What is the substantive ground for annulment under?
article 263(2)
Under Article 263; the substantive ground for annulment; what does the claimant have to establish?
that they are reliant on one of the grounds for annulment included in article 263
What are the 4 grounds for annulment?
1) lack of competence
2) infringement of an essential procedural requirement
3) infringement of the Treaties or of any rules relating to their application
4) misses of powers
What does a lack of competence mean?
under grounds for annulment
this means that the EU did not have the competence to adopt the act. This ground therefore operationalises the principle of conferral in practise; namely that the EU can only act in those areas where the MS have conferred powers to it
What can the ground of lack of competence be used to review?
the implementing acts of one of the EU institutions to determine whether they have acted outside the scope of the powers delegated to them (art 290 and 291 TFEU)
by whom is the ground for annulment, lack of competence, commonly brought by?
Member States to guard the pinrciple of conferral
Most commonly, Member States use the ground of lack of competence to guard the principle of conferral; what is the most famous case?
Tobacco Advertising
Most commonly, Member States use the ground of lack of competence to guard the principle of conferral; the most famous case is Tobacco Advertising
discuss
this case concerned a directive effectively banning all non-trade advertising on tobacco products on the basis of Art 114. Germany objecting claiming the measure went beyond the scope of Art 114, argued it was ultra vires and should be withdrawn.
HELD:
The Directive was annuled
-Art 114 may validity impact on the protection of public health
-Art 114 TFEU does NOT provide a general power to regulate the internal market; measures must genuinely have their objective set on improving market conditions and must remove existing or future obstacles to interstate trade
-So long as the above 2 requirement are met, even if public health is a decisive factor in the enactment of the measure, the measure will not be ultra vires.
-The Directive in this case was more about public health as could not be justified under the improvements to the internal market and its exhaustive list
this case concerned a directive effectively banning all non-trade advertising on tobacco products on the basis of Art 114. Germany objecting claiming the measure went beyond the scope of Art 114, argued it was ultra vires and should be withdrawn.
HELD:
The Directive was annuled
-Art 114 may validity impact on the protection of public health
-Art 114 TFEU does NOT provide a general power to regulate the internal market; measures must genuinely have their objective set on improving market conditions and must remove existing or future obstacles to interstate trade
-So long as the above 2 requirement are met, even if public health is a decisive factor in the enactment of the measure, the measure will not be ultra vires.
-The Directive in this case was more about public health as could not be justified under the improvements to the internal market and its exhaustive list
Most commonly, Member States use the ground of lack of competence to guard the principle of conferral; the most famous case is Tobacco Advertising
discuss
following the annulment of the tobacco advertising directive; thus came Tobacco advertising 2000. What was the result?
the directive was upheld as the ban was more defined applying only to certain areas. Therefore could not be annulled on the basis of lack of competence
what is the infringement of an essential procedural requirement as a ground for annulment?
this is the procedural dimension of the adoption of EU acts; such as that one of the EU institutions has to be consulted before the act can be adopted
Under the infringement of an essential procedural requirement; not every breach of a procedural requirement is ground for annulment, what is the threshold? give an example
it has to be an essential procedural requirement such as that the Union may have adopted an act based on the wrong voting arrangement within one institution
What is the broadest ground for review?
an infringement of the Treaties or any rule related to their application
an infringement of the Treaties or any rule related to their application, is the broadest ground for review; this includes the review of what ? (3)
1) compliance with the Treaties
2) compliance with general principles of law and fundamental rights
3) Charter of Fundamental Rights has been given the same status as the Treaties
What has the European Court used the ground of ‘an infringement of the Treaties or any rule related to their application’ as?
as a constitutional gate to import a range of unwritten principles into the Union legal order such as
1) principles of legal certainty and legitimate expectations and
2) the principle of proportionality
What is the proportionality principles?
Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties
What is the most far reaching ground for review?
the proportionality principle/ an infringement of the treaties or any rule related to their application
the proportionality principle/ an infringement of the treaties or any rule related to their application is the most far reaching ground for review; the test is tripartite what is this?
1) suitability review:
-is the European measure suitable o achieve a given objective
2) Necessity test
this is more demanding as the Union will have to show that the act adopted represents the least restrictive means to achieve an objective
3) Even the least restrictive means to achieve a public policy might disproportionality interfere with EU fundamental rights
Under the proportionality principle/ an infringement of the treaties or any rule related to their application, the tripartite test is hard to satisfy however how is it still rare that the court find a Union measure to be a disproporitionate interference with fundamental rights
the Court has given the Union a wide margin of appreciation and so the legality of a discretionary Union act willl only be affected if the measure is manifestly inappropriate
Under the proportionality principle/ an infringement of the treaties or any rule related to their application, the tripartite test is hard to satisfy however the Court has given the Union a wide margin of appreciation and so the legality of a discretionary Union act willl only be affected if the measure is manifestly inappropriate which means is it still rare that the court find a Union measure to be a disproporitionate interference with fundamental rights; what case demonstrates this?
Kadi
Under the proportionality principle/ an infringement of the treaties or any rule related to their application, the tripartite test is hard to satisfy however the Court has given the Union a wide margin of appreciation and so the legality of a discretionary Union act willl only be affected if the measure is manifestly inappropriate which means is it still rare that the court find a Union measure to be a disproporitionate interference with fundamental rights;
the case of Kadi demonstrates where a manifestly inappropriate measure was used
discuss
In the fight against international terrorism, the Union adopted a regulation freezing the assets of people suspected to be associated with Al-Quiad
The Applicant alleged that the Union act disproportionally restricted his right to property.
HELD:
In this case a fair balance between public interest and the interest of the individual had not been struck and so the Union act would have to be annulled
In the fight against international terrorism, the Union adopted a regulation freezing the assets of people suspected to be associated with Al-Quiad
The Applicant alleged that the Union act disproportionally restricted his right to property.
HELD:
In this case a fair balance between public interest and the interest of the individual had not been struck and so the Union act would have to be annulled
Under the proportionality principle/ an infringement of the treaties or any rule related to their application, the tripartite test is hard to satisfy however the Court has given the Union a wide margin of appreciation and so the legality of a discretionary Union act willl only be affected if the measure is manifestly inappropriate which means is it still rare that the court find a Union measure to be a disproporitionate interference with fundamental rights;
the case of Kadi demonstrates where a manifestly inappropriate measure was used
discuss
What ground of annulment is an exceptional category and there may not be many cases in which it can be relied on?
misuse of powers
Under the ground of misuse of powers, what do claimants have to establish?
that an EU act has been adopted for another purpose than what it was meant for- an ulterior motive which constituted an abuse of power
under which ground for review must claimants establish that an EU act has been adopted for another purpose than what it was meant for- an ulterior motive which constituted an abuse of power?
under misuse of powers
which case held that misuse of powers must be proved on the basis of objective, relevant and consistent sources of information?
Gutman
The case of Gutmanheld that misuse of powers must be proved on the basis of objective, relevant and consistent sources of information. what did this case regard?
the alleged transferring of an official to safeguard their reputation subject to a disciplinary measure.
the alleged transferring of an official to safeguard their reputation subject to a disciplinary measure.
The case of Gutmanheld that misuse of powers must be proved on the basis of objective, relevant and consistent sources of information. what did this case regard?
Under Locus Standi, what are the 3 categories of claimants?
1) privileged applicants (commission, council of ministers, european parliament, all member states)
2) semi privileged applicants (European Central Bank, Court of Auditors, Committee of the Regions)
3) non-privileged applicants (private individuals)
what do privileged applicants under locus standi have to show?
Do not have to show they have standing to bring an action for annulment. These actions will usually go to the Court of Justice
what do semi privileged applicants under locus standi have to establish?
They have to establish that they are protecting their prerogatives by bringing an action for annulment.
- Not very difficult to satisfy
- Similar to the breach of an essential procedural requirement
non privileged applicants under locus standi have to establish under Article 263(4) that they fall within one of three cateogories. What are these
They must show they fall within one of these three categories:
1) the EU act has to be addressed to them
2) if the act is addressed to another person which is of direct and individual concern to the applicant or
3) they are directly concerned by an EU act which is a regulatory (non legislative) act that does not entail implementing measures (regulations are directly applicable)
The previous system of establishing locus standi under Art 230 what was an issue?
it was very strict and heavily restricted the type of EU act which could be challenged
The previous system under Art 230 was very strict and heavily restricted the type of EU act which could be challenged. How is the new post-Lisbon?
The new post-Lisbon system is broader because of the use of ‘act’ instead of ‘decision’ as this opens up the possibilities of a wide range of EU acts which could be challenged.
How has Article 263(4) widened the scope of judicial review by an individual?
through regulatory acts only needing to be of direct concern; removing the need for an applicant to demonstrate individual concern
what case demonstrates that the old system restricted individuals to challenge only those acts equivalent to a decision?
International Fruit Company Case
International Fruit Company Case demonstrates that the old system restricted individuals to challenge only those acts equivalent to a decision
discuss
It was held that if a regulation could be regarded as equivalent to a decision then it could be challenged ,but that ordinarily regulations have general application and so cannot be challenged by an individual as it would be difficult to establish individual concern where it applies to everyone equally
Which case relaxted the rules on whether regulations with general application could be challenged by individuals following International Fruit Case
Cordorniu
Cordinui relaxted the rules on whether regulations with general application could be challenged by individuals following International Fruit Case
discuss
Private parties could challenge a single provision within any legal act even generally applicable legislative acts like regulations or directives so long as they could demonstrates ‘direct and individual concern’
what is a main concern for the need to establish individual and direct concern as developed by the COJ?
the COJ have developed a very narrow definition which can be criticised on the basis this it is against the principle of effective judicial protection
Why is the criticism that the COJ have developed a very narrow definition which can be criticised on the basis this it is against the principle of effective judicial protection not completely worrying and justified by the courts?
the court has always taken the position that Art 263 operates in combination with Art 267 TFEU which provides an indirect way to challenge the validity of EU law through the preliminary reference procedure.
What are the most common examples of an act addressed to the person?
decisions taken by the commission in the field of competition law these will be addressed to certain companies who are alleged to have acted in breach of the competition provisions
What does direct concern mean?
that the EU act musthave had a direct impact on the legal position of the applicant (e.g the private party cannot do something it once could)
When is an EU act not of direct concern?
where an EU act requires a further implementing measure either by another EU institution or by the Member States, the EU act is not of direct concern to the applicant
(commentators have argued that directives can never be of direct concern to individuals as they requires an implementing act)
Where can a directive be of direct concern?
where the EU act leaves absolutely no discretion to the EU body or Member States that are supposed to implement it, then the measure will still be of direct concern
What case demonstrates that where an EU act requires further implementing measures it will not have direct concern?
Eridana
Eridana demonstrates that where an EU act requires further implementing measures it will not have direct concern?
this concerned the granting of aid by the Commission, however the decision as to who was given the aid was made by the Italian Government.
HELD:
There was no direct concern to the applicant as there was further discretion applied by a Member State
this concerned the granting of aid by the Commission, however the decision as to who was given the aid was made by the Italian Government.
HELD:
There was no direct concern to the applicant as there was further discretion applied by a Member State
Eridana demonstrates that where an EU act requires further implementing measures it will not have direct concern?
Under direct concern, there must be a direct casual link; if there is an intervening act this would break this casual link between the act and applicant and would break locus standi
What case demonstrates this?
UNICME and Others
Under direct concern, there must be a direct casual link; if there is an intervening act this would break this casual link between the act and applicant and would break locus standi
this is demonstrates by UNICME and Others
discuss
A council regulation made the importing of Japanese motorcycles subject to the issue of a licence from the Italian government. UNICME attempted to challenge this regulation.
HELD:
as the decision was not addressed to them , the applicant had to show that they were directly and individually concerned by the regulation. The COJ held that the applicants were not directly concerned because the Italian Government had discretion over the grant of import licences. It was not the regulation which directly concerned the applicants, but any subsequent refusal by the Italian government
A council regulation made the importing of Japanese motorcycles subject to the issue of a licence from the Italian government. UNICME attempted to challenge this regulation.
HELD:
as the decision was not addressed to them , the applicant had to show that they were directly and individually concerned by the regulation. The COJ held that the applicants were not directly concerned because the Italian Government had discretion over the grant of import licences. It was not the regulation which directly concerned the applicants, but any subsequent refusal by the Italian government
Under direct concern, there must be a direct casual link; if there is an intervening act this would break this casual link between the act and applicant and would break locus standi
this is demonstrates by UNICME and Others
discuss
The meaning of regulatory acts has not always been clear given post Lisbon Treaty change making regulatory acts (which have no implementing measures) only of direct concern
what case was this considered in?
Inuit Taparit Kanatami 2013
The meaning of regulatory acts has not always been clear given post Lisbon Treaty change making regulatory acts (which have no implementing measures) only of direct concern
this was considered in Inuit Taparit Kanatami 2013
discuss
The case concerned an EU regulation regarding the import and sale of seal products in the EU. A group of seal hunters, and those involved in the processing of seal products sought the EU regulation to be annulled. They claimed that the regulation was a regulatory act and therefore that they only needed to establish direct concern.
HELD:
the court decided that the proper definition of a regulatory act is that of a non legislative act that has general application; the regulation in question did not satisfy this test due to its legislative nature.
Therefore the claimants would need to satisfy the general standing test, which included individual concern, they were unable to do so
This led to the first case where the test of regulatory act was satisfied - Microban International
The case concerned an EU regulation regarding the import and sale of seal products in the EU. A group of seal hunters, and those involved in the processing of seal products sought the EU regulation to be annulled. They claimed that the regulation was a regulatory act and therefore that they only needed to establish direct concern.
HELD:
the court decided that the proper definition of a regulatory act is that of a non legislative act that has general application; the regulation in question did not satisfy this test due to its legislative nature.
Therefore the claimants would need to satisfy the general standing test, which included individual concern, they were unable to do so
This led to the first case where the test of regulatory act was satisfied - Microban International
The meaning of regulatory acts has not always been clear given post Lisbon Treaty change making regulatory acts (which have no implementing measures) only of direct concern
this was considered in Inuit Taparit Kanatami 2013
discuss
The case of Taparit Kanatami 2013 led to the first case where the test of regulatory act was satisfied
whichh case?
Microban International
The case of Taparit Kanatami 2013 led to the first case where the test of regulatory act was satisfied in Microban International
discuss
Case concerned an American company which objected to the Commission decision that triclosan could no longer be used to manufacture plastics which could come into contact with food.
The test in the Seal product case (Taparit Kanatami) was used, that a regulatory act was a non-legislative one which had general application.
HELD:
The General Court held that the commission decision satisfied the test as it was non-legislative in nature and was also of general application (applied to everyone) ; as it was a ban it also did not require implementing measures. The company bringing the case was able to show direct concern and therefore was granted locus standi
Case concerned an American company which objected to the Commission decision that triclosan could no longer be used to manufacture plastics which could come into contact with food.
The test in the Seal product case (Taparit Kanatami) was used, that a regulatory act was a non-legislative one which had general application.
HELD:
The General Court held that the commission decision satisfied the test as it was non-legislative in nature and was also of general application (applied to everyone) ; as it was a ban it also did not require implementing measures. The company bringing the case was able to show direct concern and therefore was granted locus standi
The case of Taparit Kanatami 2013 led to the first case where the test of regulatory act was satisfied in Microban International
discuss
Someone able to show that the Act in question is a regulatory act which does not require further implementation will only have to show direct concern and not individual concern as with other acts
Where does the definition of individual concern come from?
Plaumann
the definition of individual concern comes from Plaumann
discuss
This was a decision aimed at the German Government instructing them to lift an import duty on clementines goes into Germany. Plaumann claimed direct and individual concern with the decision addressed to the German Government.
HELD:
They would 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 all other persons.
This was a decision aimed at the German Government instructing them to lift an import duty on clementines goes into Germany. Plaumann claimed direct and individual conner with the decision addressed to the German Government.
HELD:
They would 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 all other persons.
the definition of individual concern comes from Plaumann
discuss
Under individual concern, the court have made it extremely difficult for non privileged applicants to show they are individually concerned
what are the two ways applicants can succeed?
1) either the applicant must have certain attributes which are peculiar to them or
2) they must be in circumstances in which they are differentiated from all other persons in such a way that the measure is effectively addressed to them
Under individual concern, there are only two ways for non-privelleged applicants to show they are individually concerned
1) either the applicant must have certain attributes which are peculiar to them or
2) they must be in circumstances in which they are differentiated from all other persons in such a way that the measure is effectively
In what case was this test modified slightly ?
Toepfer
Under individual concern, there are only two ways for non-privelleged applicants to show they are individually concerned
1) either the applicant must have certain attributes which are peculiar to them or
2) they must be in circumstances in which they are differentiated from all other persons in such a way that the measure is effectively
Toeffer modified slightly this test how?
someone can satisfy the Plaumann test by showing they are a part of the fixed, closed class.
What happened in the case of Toepfer which modified slightly the test under individual concern
1) either the applicant must have certain attributes which are peculiar to them or
2) they must be in circumstances in which they are differentiated from all other persons in such a way that the measure is effectively
In this case the applicants had applied for a license on the 1st October to import grain into Germany. The duty on this import was zero, but the German Government asked the Commission for permission to increase the duty. The Commission agreed, and added that in order to do this, all applications made on the 1st October would be rejected. The applicant challenged this decision
HELD:
COJ held that they had standing because they were not just an importer as in the other cases, but because they were part of a fixed, closed class, as those who applied on 1st October. This went beyond importers in Plaumann, but meant they were also a group that could be specifically defined, and it would be impossible for anyone else to join
In this case the applicants had applied for a license on the 1st October to import grain into Germany. The duty on this import was zero, but the German Government asked the Commission for permission to increase the duty. The Commission agreed, and added that in order to do this, all applications made on the 1st October would be rejected. The applicant challenged this decision
HELD:
COJ held that they had standing because they were not just an importer as in the other cases, but because they were part of a fixed, closed class, as those who applied on 1st October. This went beyond importers in Plaumann, but meant they were also a group that could be specifically defined, and it would be impossible for anyone else to join
What happened in the case of Toepfer which modified slightly the test under individual concern
1) either the applicant must have certain attributes which are peculiar to them or
2) they must be in circumstances in which they are differentiated from all other persons in such a way that the measure is effectively
What case established that many importers do not satisfy the test for individual concern?
Terres Rouges
The case of Terres Rouges established that many importers do not satisfy the test for individual concern
discuss
the fixed, closed class was defined, no one can join and no one can leave this class. Many importers do not satisfy this test, as in theory anyone can import, even in this case where the company had over 70% monopoly
the fixed, closed class was defined, no one can join and no one can leave this class. Many importers do not satisfy this test, as in theory anyone can import, even in this case where the company had over 70% monopoly
The case of Terres Rouges established that many importers do not satisfy the test for individual concern
discuss
IN practise, what is the only way that a non-privelleged indidvual can establish individual concern?
if they can show that the EU knew precisely which parties would be affected by a certain EU act
The fact that parties have to be part of a closed group was considered in which case?
Piraki Patraiki
The fact that parties have to be part of a closed group was considered in Piraiki Patrakiki
discuss
Greek manufacturers claimed that exports of cotton to France should not be limited as they had entered contracts to export cotton that were not carried out when the Commission took a decision.
HELD:
the COJ held that the exporter with the contract was individually concerned as it was part of a close group and annulled the decision where it was concerned; however the exporter without a contract, despite being directly concerned, was found not to be individually concerned
Greek manufacturers claimed that exports of cotton to France should not be limited as they had entered contracts to export cotton that were not carried out when the Commission took a decision.
HELD:
the COJ held that the exporter with the contract was individually concerned as it was part of a close group and annulled the decision where it was concerned; however the exporter without a contract, despite being directly concerned, was found not to be individually concerned
The fact that parties have to be part of a closed group was considered in Piraiki Patrakiki
discuss
What case under individual concern allows for non privileged applicants to show that they had certain attributes which made them different from everyone else?
cordorniu
Cororniu successfully relied on the allowance for privileged applicants to show that they had certain attributes which made them different from everyone else
discuss the case
Case concerned a registered trade mark for sparkling wine. On the facts although the regulation prevented all manufacturers the right to use the word cremate, the contested provision prevented the applicant from using its graphic trade mark
However, the general consensus is that this was an exceptional case which has not been followed in later cases
Case concerned a registered trade mark for sparkling wine. On the facts although the regulation prevented all manufacturers the right to use the word cremate, the contested provision prevented the applicant from using its graphic trade mark
However, the general consensus is that this was an exceptional case which has not been followed in later cases
Cororniu successfully relied on the allowance for privileged applicants to show that they had certain attributes which made them different from everyone else
discuss the case
Where the measure complained of was adopted as a result of proceedings which the applicant was involved, the COJ has been prepared to rule that the applicant is individually concerned even though the act may not be specifically directed at the applicant. This is most likely where the measure concerns competition policy
as in which case?
Metro SB Grossmarkte
Where the measure complained of was adopted as a result of proceedings which the applicant was involved, the COJ has been prepared to rule that the applicant is individually concerned even though the act may not be specifically directed at the applicant. This is most likely where the measure concerns competition policy
as in Metro SB Grossmarkte
discuss
the applicant sought to challenge a decision addressed to another company regarding the distribution system.
HELD
The Court ruled that since the applicant was entitled to request the commission to investigate an infringement of competition rules, the applicant is equally entitled to institute proceedings in order to protect its legitimate interests. The court concluded that the applicant was individually concerned
the applicant sought to challenge a decision addressed to another company regarding the distribution system.
HELD
The Court ruled that since the applicant was entitled to request the commission to investigate an infringement of competition rules, the applicant is equally entitled to institute proceedings in order to protect its legitimate interests. The court concluded that the applicant was individually concerned
Where the measure complained of was adopted as a result of proceedings which the applicant was involved, the COJ has been prepared to rule that the applicant is individually concerned even though the act may not be specifically directed at the applicant. This is most likely where the measure concerns competition policy
as in Metro SB Grossmarkte
discuss
Where has the most serious criticism came from in regards to a plea for reform of the UPA and Lisbon Treaty?
advocate general jacobs in Union de Pequenos Agricultores
the most serious criticism in regards to a plea for reform of the UPA and Lisbon Treaty came from Advocate General Jacobs in what text?
Union de Pequenos Agricultores
the most serious criticism in regards to a plea for reform of the UPA and Lisbon Treaty came from Advocate General Jacobs in Union de Pequenos Agricultores; what was the main focus of criticism?
on the Court’s reliance on the preliminary reference procedure in Art 267 as an effective alternative to Art 263
the most serious criticism in regards to a plea for reform of the UPA and Lisbon Treaty came from Advocate General Jacobs in Union de Pequenos Agricultores; the main focus of criticism was on the Court’s reliance on the preliminary reference procedure in Art 267 as an effective alternative to Art 263
What are the 3 reasons he gives as to why the preliminary reference procedure would not necessarily provide effective judicial protection to applicants who wanted to challeneg the validity of EU law?
1) individuals would firstly have to breach the law to be able to get to the national court
2) there is no individual right to get a preliminary reference procedure to Luxembourg; this is a decision for the Court to make
3) the preliminary reference procedure takes very long
although the COJ has become much more efficient in recent years, it still takes a year and a half before the preliminary reference returns to the national court which according to Advocate GJ is not an effective judicial protection
What does advocate general jacobs in response to the inefficiency of the courts reliance on Art 267 suggest?
hat instead the test should be whether the EU act had a substantial adverse impact on the interests of the applicant; in such cases non privileged applicants should have standing
Why did the COJ disagree with AG Jacobs criticism in UPA?
held that if it accepted the proposed new test, it would effectively re write the Treaty which is something for the Member States to do
In what case did the court resist criticism from the general court which had proposed to follow AG Jacob’s test?
Jego Quere
after the treaty of lisbon it was unclear how broadly the scope fo the principle of regulatory acts should be interpreted; what case did the COJ clarify this?
Innuit
after the treaty of lisbon it was unclear how broadly the scope fo the principle of regulatory acts should be interpreted; the COJ clarified this in Innuit
discuss case
Case involved a challenge by seal product traders to a Union regulation which almost completely banned the marketing of such in the internal market
As the Union act was adopted under the ordinary legislative procedure, the question arose as t whether interested private parties could challenge this.
HELD: as the regulation was made as a legislative act, adopted on the basis of Art 114 TFEU, under the ordinary legislative procedure, ti was not a regulatory act under Art 263(4)
Case involved a challenge by seal product traders to a Union regulation which almost completely banned the marketing of such in the internal market
As the Union act was adopted under the ordinary legislative procedure, the question arose as t whether interested private parties could challenge this.
HELD: as the regulation was made as a legislative act, adopted on the basis of Art 114 TFEU, under the ordinary legislative procedure, ti was not a regulatory act under Art 263(4)
after the treaty of lisbon it was unclear how broadly the scope fo the principle of regulatory acts should be interpreted; the COJ clarified this in Innuit
discuss case
Article 263(4) still requires applicants to show that the regulatory act did not entail implementing measures; this is interpreted broadly as seen in which case?
Telefonica
Article 263(4) still requires applicants to show that the regulatory act did not entail implementing measures; this is interpreted broadly as seen in telefonica discuss case
Telefonica was a large Spanish telephone operator who had benefited from some of the aid under the scheme which was declared incompatible by the Commission and faced the prospect of having to give it back to the Spanish State. They filed for annulment
HELD:
dismissed action as inadmissible as the decision was a measure that did in fact require implementing measures and so telefonica had to show it was directly and individually concerned by the Decision under the Plaumann test
They failed to meet the condition of being individual concerned by the decision
Although it was found to be a regulatory act, it did entail implementing measures and so action was dismissed
Telefonica was a large Spanish telephone operator who had benefited from some of the aid under the scheme which was declared incompatible by the Commission and faced the prospect of having to give it back to the Spanish State. They filed for annulment
HELD:
dismissed action as inadmissible as the decision was a measure that did in fact require implementing measures and so telefonica had to show it was directly and individually concerned by the Decision under the Plaumann test
They failed to meet the condition of being individual concerned by the decision
Although it was found to be a regulatory act, it did entail implementing measures and so action was dismissed
Article 263(4) still requires applicants to show that the regulatory act did not entail implementing measures; this is interpreted broadly as seen in telefonica discuss case
What is the time limit for annulment?
2 months
If the EU act has not been published when does the date start from?
the moment the applicant is aware of its adoption of the EU act
In practise why do applicants effectively have two months and two weeks to bring proceedings for an action of annulment?
because of the rules of procedure of the COJ
What is the justification for this short time period?
legal certainty as the EU, Member States and private parties should know as soon as possible whether EU law is valid
Where does the time limit of 2 months not apply?
to indirect challenges under Article 267 TFEU
What case reflects that where a party could certaintly have challenged an EU act under the annulment procedure, it cannot wait until the time limit has expired and then try to challenge the validity through the preliminary reference procedure:?
TWD Textilwerke
