Review of legality Flashcards
Article (direct challenge of legality of EU act)
Art 263 TFEU
Which acts can be reviewed?
- intended to produce legal effects vis-à-vis third parties
- e.g measure by parliament, a decision by the Commission to close a file on a complaint, acts by the Council (but not by members of the Council as representatives of their MS)
negative acts (refusal to do something)
- based on the nature of the request
- e.g. refusal to withdraw legislation depends on legislation
grounds
- lack of competence (wrong or inadequate legal base)
- infringement of an essential procedural requirement (most commonly used, encompasses both formally laid down rules and informal rules of fairness)
- infringement of the Treaties or an rule relating to their application (wide range including proportionality and subisdiarity, but may be justified by benefits for the internal market)
- misuse of power (rare)
privileged applicants
MS, EP, Council, Commission
semi-prvileged applicants
Court of Auditors, European Central Bank, Committee of the Regions for the purpose of protecting their prerogatives
Locus standi of non-privileged applicants
- condition: present legal interest of the applicant (future only if harm/prejudice is unavoidable)
- acts is addressed to the applicant or
- act is of direct and individual concern to the applicant or
- regulatory act with no implementing measure is of direct concern to the applicant
criteria for direct concern
- directly affects legal situation (possible exception: infringement of fundamental rights)
- certainty that implementing measures affecting the applicant will be taken by the addressee (not necessarily an obligation on the addressee)
criteria for individual concern
Plaumann test
- exclusive concern
- applicant needs to be singled out in the same way the addressee of the act is singled out
- applicant/s need to be a closed group of people who were affected by the act in a specific way
criticism of the Plaumann test
- an act that affects many is more difficult to challenge than one that affects few
- legislative measure without implementing mesures can often only be broken rather than challenged directly
types of relevant legal acts
- legislative act
- non-legislative act: act of specific application, act of general application (with or without implementing measures)
- regulatory acts without implementing measures: general application, directly affect persons’ legal situation
regulatory acts without implementing measures
- general application
- directly affect persons’ legal situation –> must have direct effect
- any implementing measures count, even when national authorities have no discretion in how to implement
failure to act proceedings - article, locus standi, scope
- Art 265 TFEU
- privileged applicants: institutions and bodies, MS
- non-privileged applicants: same rules as Art 263
- scope: limited because institutions usually have power rather than duty to act –> discretion (only need to adopt a position)
indirect challenge
- Art 2777 TFEU
- proceedings against an implementing measure which call into question the validity of the Union measures that is implemented
examples of proceedings that may be dependent in the validity of another Union act (can lead to indirect challenge)
- challenge of implementing measure
- preliminary ruling procedure
- infringement action against MS
- action regarding the validity of a contract
