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?