Review Of Legality

Question 0

Art 263 TFEU

Answer 0

Provides the mechanism for a direct challenge to the legality of union acts

There types of act are reviewable:
Legislative acts
Acts
Regulatory acts

Question 1

What is Judicial review?

Answer 1

One of the fundamental means by which the actions of any legislature can be controlled
-enables the court to consider whether a legally binding measure violates procedural or substantive rules of law and should be rendered inapplicable

Question 2

Art 263 (1)

Answer 2

• The CJEU will review the legality of legislative acts of : council, Commission of Central European bank, European Central Bank, European Parliament and European council intended to produce legal effects vis a vis third parties
• also review legality of acts of bodies, offices or agencies of the union intended to produce legal affects vis a vis third parties.

Question 3

Art 263 (4)

Answer 3

• any natural or legal person may, under the conditions laid down, institute proceedings against an act addressed to that person or which is of direct and individual concern to them and against a regulatory act which is of direct concern to them and does not entail implementing measures

Question 4

Art 263 (6)

Answer 4

Proceedings in this article shall be instituted within 2 months of the publication of the measures or of its notification to the plaintiff or in the absence of the day on which it came to the knowledge of the latter

Question 5

Four main elements of judicial review

Answer 5

1) the types of act that are subject to review (legislative act, regulatory act and acts)
2) the bodies that may bring an action for review (priv, semi priv and non priv)
3) the time within which an action may be brought
4) the grounds on which such an action may be based

Question 6

Legislative acts

Answer 6

Art 289(3) – legal acts adopt by legislative procedure

Question 7

Regulatory acts

Answer 7

Established in “Inuit Kanatami v European Parliament and council” - regularity acts must be understood as covering acts of general application apart rotor on legislative acts
-recommendations, opinions and resolutions

Question 8

Acts

Answer 8

• “Inuit case”
• held by ECJ to encompass any act that addressed a natural or legal person and any fact whether legislative or regulatory which is of direct and individual concern to them and which require implementing measures

Question 9

Commission v Council (Re European road transport agreement)

“Reviewable acts must produce legal effects”

Answer 9

• council resolutions may be acts
• measure was council resolution setting out the position to be taken by the council in preparation of road transport agreement
• commission sought to challenge this resolution since it considered the matter lay outside the councils sphere of competence
• action declared admissible

Question 10

What can be a reviewable act?

Answer 10

Letters sent out by the commission that are not decisions can be reviewable acts
- France v commission (Re pension funds communication)

Question 11

Locus standi - who can bring an action?

Answer 11

Privileged – challenge any binding act under art 263 : member states, European Parliament, the council, the commission art265(1)

Semi privileged – confined to reviewing acts of institutions that are necessary for the protection of their prerogatives : committee of the regions, court of auditors, the European Central Bank

Non privileged– art265(3) a natural or legal person entitled to challenge:
A) an act addressed to that person or which is of direct and individual concern to them
B) a regulatory act which is of direct concern to them and does not entail implementing measures

Question 12

Broad v narrow locus standi

Answer 12

Broad: ensures adequate control of the legislature

Narrow: ensures that where an applicant is wholly unconnected they should not be able to challenge validity
- this would reduce legal certainty and effect the courts workload

Question 13

What is a direct concern?

Answer 13

A measure will be of direct concern if it:
A) directly effects the legal situation of the applicant
B) leaves no discretion to the addressees of the measure
C) who are entrusted with its implementation

Question 14

What is individual concern?

-Plaumann Case and test

Answer 14

Plaumann – commission refused the request of the German government to suspend the collection of duties on Clementine’s
- applicant failed because they carried out a commercial activity that can be practiced by any person at any time.

Plaumann Test – applicants can only be individually concerned by a decision addressed to another if they are differentiated from all other persons and by reasons of these distinguishing features singled out in the same way as the initial addressee

Question 15

Problems with Plaumann

Answer 15

• limit number of traders - just because they can also do the commercial activity doesn’t mean they will
• only applies retrospectively because then groups can be defined
• the test seems to be applied from some future badly defined date rather than from the date the application was made

Question 16

Individual concern : regulations and directives (Calpak)

Answer 16

An applicant can claim to be individually concerned by a legal act that takes the form of a regulation or a directive

• closed definable group easily identified by the commission
• abstract terminology test
• because regulation used abstract terminology the applicants could not show individual concern

Question 17

Codorniu case

Answer 17

Differentiated itself from all other traders due to its trademarking of the word cremant

• liberalized Calpak but stayed true to Plaumann
• still very restrictive

Question 18

ECJ’s more liberal approach in individual concern (a,c,s)

Answer 18

Anti dumping – prevent people from outside of EU to flood market with goods at low prices (regulation not decision)

• Timex case– initiated the complaint about dumping
• Allied Corporation – producers who were subject to anti dumping were individually concerned

Competition – any natural or legal person with a legit interest could make an application to commission putting forward evidence of breach of art 101 and 102
- metro case – competitor challenging a decision by the commission not addressed to them

State aid - prevent competition from being distorted through government subsidies giving it an unfair advantage over competitors
-COFAZ – applicants have standing if their position on the market was significantly affected by the state aid

Question 19

Individual concern : attempted reform 2 cases

Answer 19

UPA

Jego-Quere case

Area is bad and unuseful

Question 20

UPA

Answer 20

Advocate general Jacobs opinion– looks at it and says it’s all wrong how can we not have people have legal standing and judicial review being so ineffective?

• ECJ says if you can’t get remedy under 263 then they can bring one under art 267 - prelim ruling
• BUT : they can’t because individual can’t go to court to say they want it brought under 267 that is up to the national court to decide - fault in line of reasoning
• no guarantee that there is access to justice - National court doesn’t have power to strike down cases only ECJ can do that on an act of EU law
• denial of justice for applicant to challenge indirectly - to get it to court you would have to do something illegal to bring it to attention of the courts
• legal certainty
• delays and cost involved - should be able to have immediate and effect remedy, need standing, interim measures (ie EU law put you out of business?)

Adverse impact test previously upheld by the general court was rejected by the ECJ
- rejected to follow this line of reasoning which reversed Jego Quere

Question 21

Jego Quere

Answer 21

• test remains of individual concern
• court of first instance follows UPA and reject Plaumann
• ECJ rejected UPA line of reasoning and reverted back - all the reform went out the window

Question 22

Satisfactory solution by advocate general Jacobs in UPA

Answer 22

To recognize that an applicant is individually concerned by a community measure where the measure has or is liable to have a substantial adverse effect on his interests. That solution has the following advantages:

• applicants are granted a true right of direct access to a court which can grant a remedy cases of possible denial of justice are avoided and judicial protection is improved in various ways
• removes idea that the more people that is affected the less likely it is that effective judicial review is available
• the increasingly complex and unpredictable rules on standing are replaced by a much simpler test which would shift the emphasis in a cases before the community courts from purely formal questions of admissibility to questions of substance

Question 23

Post Lisbon

Answer 23

Plaumann still applies

Question 24

Inuit Kanatami v Euro parliament

Answer 24

Decided that regulatory acts in art 263(4) do not include legislative acts
-individual cannot challenge - only ones that can challenge are privileged and semi priv (if affected jurisdiction) applicants

Question 25

Decision = act
Directly concern Ryan? Maybe - difficult area of law to apply; might be directly effected but don’t know how ECJ will decide - likely they would say no (from case law) but only importer of Pokemon cards
Aria is directly effected by this, but r not addressed in decision therefore hard to provide that he was directly effected
-is he diff from other persons in Plaumann test? - only other importer but ECJ said anyone could be Pokemon card seller at anytime but wouldn’t be able to demonstrate individual concern
-difficult too apply area of law

Answer 25

Criticisms of Plaumann test:

• r should be able to have remedy - under AGJ - legal certainty
• limitations of area of law

Question 26

How to answer problem question

Answer 26

Is it an act
Direct concern
Does it affect person concerned?
Does measure leave discretion as to the addressees of the measure?

Individual concern
Differentiated from all other persons? (Plaumann)
Could anyone import Pokemon a cards at any time?
Criticisms of Plaumann test