Public Enforcement: Art 263

Question 1

For Action for Annulment, what are the 5 key questions to ask?

Answer 1

1. Is there an ‘Act’?
2. What is the Act?
   - – Is it Regulatory?
3. Challenge raised within 2 months?
4. Who has standing to bring a challenge?
   - – Privileged
   - – Semi-privileged
   - – Non-privileged
5. Challenge on what grounds?

Question 2

For Action for Annulment, explain standing.

Answer 2

• Privileged

• – No additional requirements
• – E.g. EP, Council

• Semi-privileged

• – Can challenge if protecting their prerogatives
• – E.g. Court of Auditors, ECB, Committee of Regions

• Non-privileged

• – Any natural/legal person
• – Act needs to be of direct and individual concern OR of direct concern if Regulatory Act

Question 3

For Action for Annulment, how can a non-privileged entity raise a challenge?

Answer 3

• Of direct/individual concern
• Requirements are hard to fulfil
• If Regulatory Act, of direct concern

Question 4

How to prove that case is of direct and individual concern?

Answer 4

• Plaumann test: Individual standing = Act addresses C particularly
• Int’l Fruit: Act shown to affect person’s legal situation
• Salamander AG v Parliament and Council: Decision lies with the court

Question 5

Requirements for standing are hard to fulfil

Answer 5

• Asocarne v Council: Directive taken to affect all other EU economic agents in same sector as C
• Digital Rights: Directive taken to affect so many other people, hard to prove direct and individual concern

Question 6

Regulatory Act must be of direct concern to applicant

Answer 6

• Inuit Tapiriit Kanami: Not directly affected because Directive on selling seal products, not hunting
• Microban International: Directly involved in what act concerned

Question 7

For Action for Annulment, explain how an act is defined.

Answer 7

• European Road Transport Agreement: ‘Act’ is intended to produce legal effect
• IBM: Legal effect = Distinct change in someone’s legal position
• Tobacco Holdings: Changes in legal position due to starting a case against an Act are not counted

Question 8

For Action for Annulment, list the possible grounds for action.

Answer 8

1. Going beyond competence/ultra vires
2. Procedural problems
3. Infringement of implementation of Treaty provisions/Fundamental Rights
4. Misuse of powers

Question 9

Test for Regulatory Act:

1. Act not passed through ordinary legislative proceedings
2. No implementation measures required (i.e. rule applies automatically, with no need for intermediate rules)

Answer 9

Inuit Tapiriit Kanami