Review of EU Institutions

Question 1

What are the two ways which you can review EU decisions?

Answer 1

• directly

- indirectly

Question 2

Where is the authority for direct challenge?

Answer 2

ART 263 of the Treaty of the Formation of the European Union

Question 3

What 5 conditions does the TFEU art 263?

Answer 3

1) body must be amenable to JR
2) Act open to challenge
3) Institution or person has standing
4) Grounds of review met
5) Challenge within time limit

Question 4

Bodies subject to review?

Answer 4

• Council
• Commission
• European Bank
• European Parliament
• other bodies intending to produce legal effects for 3rd parties

Question 5

What is the authority for what bodies are subject to review?

Answer 5

Art 263 (1) TFEU

Question 6

What sort of Acts are subject to review?

Answer 6

• Legalist of articles and recomodendations/ opinions taken by the institutions
• includes: regulations, decisions, directives and any other measures meant to have binding legal effects

Question 7

What is the authority for the ECJ being able to review any measure intending on having legal effect?

Answer 7

Commission v Council 2009

Question 8

How to determine with an act is within the meaning of Art 263?

Answer 8

By looking at its substance rather than form it took (Commission v Council 2009)

Question 9

What are the two types of applicants in these cases?

Answer 9

• Privileged applicants

- Non- privileged applicants

Question 10

Where is the authority for who counts as privileged applicants?

Answer 10

Art 263 (2)-(3)

Question 11

Who does Art 263 (2)-(3) say count as privileged applicants?

Answer 11

• Member States
• European Parliament
• The Council
• The Commission

Question 12

Who does Art 263 (2) - (3) say has standing to defend their prerogative?

Answer 12

• Court of Auditors
• ECB
• Committee of the Regions

Question 13

Where is the authority for who are non- priviledged applicants?

Answer 13

art 263 (4)

Question 14

Who does Art 263(4) say are non priviledged applicants?

Answer 14

Any Natural or legal person under certain conditions

Question 15

What are the conditions upon natural and legal persons that Art 263(4) lays down?

Answer 15

1) Must be the addressee of a decision
2) Act must be of direct and individual concern
3) Regulatory: the act must have direct concern for the person without any implementing measure.

Question 16

Difference between showing standing for legislative and regulatory acts?

• Non- priviledged applicants

Answer 16

• Legislative: direct and individual concern

- Regulatory : just direct concern

Question 17

When will direct concern be shown and if met be a ground for challenge?

Answer 17

• effects legal situation of applicant
• no direction in implementation
• must be automatic
• must result directly from EU without intermediate rules
• Craig and De Burca

Question 18

Where is the test for individual concern to be found?

Answer 18

Plaumann v Commission 1963

Question 19

What were the facts of Plaumann v Commission 1963?

Answer 19

German gov wanted to suspend duties on clementines
- EU said no
- Refusal addressed to Gov
- Business wanted to challenge decision
- If addresses at another then needed to establish individual concern
-

Question 20

What was the test of Plaumann v Commission (1963)

Answer 20

• Had to identify very closely to addressee

- have to be different from everyone else and be affected distinctly

Question 21

Is individual concern still a necessity?

Answer 21

No. Art 263 amended so do not always need to establish individual concern.

Question 22

What did the Lisborn alter regarding standing?

Answer 22

No individual concern needed when

• regulatory act
• direct concern
• no implementing measures

Question 23

What counts as a regulatory act?

Answer 23

• not legislative (regulation, directive, directive)

- broad interpretation for implementing measure so hard to show regulatory act.

Question 24

So is it easy challenge a decision of European institutions?

Answer 24

No, very high hurdles. Very hard.
Hard to establish standing.
Better to go to UK courts, hope for reference to ECJ

Question 25

Where are the grounds of review laid out for the ECJ?

Answer 25

Art 263

Question 26

What does Art 263 say the grounds of review are?

Answer 26

• lack of competence
• infringement of essential procedural requirement
• infringement of treaty
• misuse of power

Question 27

What are some examples of essential procedural requirements?

Answer 27

• right to be heard
• consultation and participation
• cut to give reasons

Question 28

What might fall under infringement of a treaty ground of review?

Answer 28

• proportionality

- legitimate expectations

Question 29

Where does there exist another ground of Review?

Answer 29

Art 41 Charter of Fundamental Freedoms

Question 30

What is the ground of review laid out in Art 41 of the Charter f Fundamental Freedoms?

Answer 30

Right to good administration so could be ground of review

Question 31

So is it easy to directly challenge EU institutions?

Answer 31

No, lots of stringent tests

Question 32

Where is the authority for indirect challenges?

Answer 32

Art 267 TFEU

Question 33

What does indirect challenge refer to?

Answer 33

When you make a claim in domestic court and theres EUa application so they need to make a reference

Question 34

Duty on domestic courts to clarify meaning of treaties when unsure

Answer 34

Factortame

Question 35

Interpretation of validity and acts of EU institutions?

Answer 35

Kept in hands of ECJ to keep uniformity

Question 36

Which is the main way for individuals to challenge decisions of EU institutions?

Answer 36

Indirect

Question 37

What case was it decided that the individual concern test doesn’t deny judicial remedy due to presence of preliminary reference

Answer 37

P Union de Pequenos Agricultores 2002