2. Action for annulment Flashcards
Legal basis
Article 263, 264 and 266 TFEU
What is the objective of the procedure?
The objective of this procedure is to protect the individuals, the institutions, the MS against unlawful acts.
This action enables the Court to review the legality of acts producing legal effect and adopted by the European institutions, bodies, offices or agencies. In case of illegality, the act is void.
Who is involved / which acts are targeted?
1) Before Lisbon Acts of:
• the Council
• the Council and of the European Parliament (codecision); But the OLP as you know now is also a co-decision of the Council and the EP they are exactly on the same level.
• the Commission
• the ECB
• the EIB (art. 237(b) and (c))
• the European Parliament which have legal effect vis-à-vis third parties
NOT
- of the CJEU (not against its own judgments but
against its decisions as an employer; art. 236 CE)
- Not acts of the European Council nor of the organs created by the TEU !!!
2) Article 263 TFEU (After Lisbon)
The acts:
- legislative acts - an act adopted by the OLP or an
SLP
- of the Council
- of the Commission
- of the ECB
- of the EIB (article 271 b et c TFEU)
- of the European Parliament, of the European
Council, of the bodies or agencies of the EU which
have legal effects vis-à-vis third parties.
What does “EP which have legal effect vis-a-vis third parties” mean?
o the acts which are reviewable are reviewable if they have legal effects.
o C-294/83 Les Verts: the Court accepted the legal personality of the EP, on the condition that the act of concern of the EP has legal effects on third parties - a sole internal act is not sufficient –> recognition of the EP as an institution with powers.
- the passive legitimation = the acts of the EP could be attacked in an action for annulment
- the active legitimation = possibility for some organ, institution to be the applicant
How has the GC filled the gap with other organs of the EU in the annulment procedures?
Article 230 TFEU (nowadays 263) did not target the organs of the EU.
Court has filled the gap:
- C-370/89 SGEEM v. EIB:
this case is taken not from the case law about annulment but about damages. In the Treaty, it is written (art.240) that you can bring an action for damages against the institutions of the EU, but the EIB is not an institution. The Court said: it would be against the intent of the authors that the EC would escape to its responsibility. - T-411/06 Sogelma v. European Agency for Reconstruction: The GC decided that in fact, the judgment Les Verts was a sort of general principle. The EC as a whole and all those participating to the architecture of the EU community cannot escape their responsibility.
- T-117/08 Italy v. European Economic and Social Committee:
Once again the GC said of the general principle: everybody in the EC should be controlled in terms of legality.
Which acts are targeted today in annulment procedure?
Article 263: The acts: - legislative acts - an act adopted by the OLP or an SLP - of the Council - of the Commission - of the ECB - of the EIB (article 271 b et c TFEU) - of the European Parliament, of the European Council, of the bodies or agencies of the EU which have legal effects vis-à-vis third parties.
The simplified revision procedure in Art. 48 §6 TEU, where the Treaty can be modified but by a decision of the EU Council could be attacked in an action for annulment because the decision comes from the EU Council!
NOT THE ACTS OF THE MS
- Art. 48 TEU: the revision which is decided by the MS. It cannot be attacked in an action for annulment.
- §1-5 it is coming from a decision of the MS. Always be aware that only an EU act may be attacked in an action for annulment before a EU court!
Can you bring an action for annulment against acts established in Art. 48 TEU paras 1-5?
NO - §1-5 it is coming from a decision of the MS. Always be aware that only an EU act may be attacked in an action for annulment before a EU court!
Can you bring an action for annulment against acts established in Art.48 para 6 TEU?
YES- The simplified revision procedure in §6, where the Treaty can be modified but by a decision of the EU Council could be attacked in an action for annulment because the decision comes from the EU Council!
Can you bring an action against Council for an act of COREPER?
YES - C-626 and 659/15 Commission v. Council (COREPER)
The Council says no that’s not me, its COREPER and it’s not in the list. It is not an agency not a body it has no legal personality but the Court is looking at the substance.
The Court said that the decision (the act of the COREPER) had legal effects which went beyond the preparation of a decision of the council or the execution of the decision of the Council. In this case – it is the only one I know – the Court considered that act from which the author was the COREPER could be the object of an action for annulment.
Can you bring an action for annulment against a Delegation of the EU?
T-395/11 ELTI v. Delegation of the EU in Montenegro
The delegation of the EU in Montenegro does not have the legal personality.
To attack an action for annulment of somebody this somebody has to have the legal personality.
In these cases the Court says you have to attack the institution to which the act of the delegation in this case is imputable; This act was imputable to the commission
Can you bring an action for annulment against a decision of appointing an AG?
NO - important point is to make the distinction
between the Council on one side
and
the representatives of the MS (not COREPER, no, the Governments = the ministers of the 27 MS).
When it’s a decision of the governments, it cannot be controlled by the court. That’s not an author of an act listed in art. 263 TFEU.
C-424/20P(R) Representatives of the Member States v. Sharpston: That’s an intergovernmental meeting and its precisely said in the Treaties that the judges and the AG’s are appointed by the governments of the MS.
–> inadmissible
Can you bring an action for annulment against a decision of a meeting, where the Commission was present and the Commission was appointed to coordinate the operation, sending money to a non-EU country?
NO - important point is to make the distinction
between the Council on one side
and
the representatives of the MS.
When it’s a decision of the governments, it cannot be controlled by the court. That’s not an author of an act listed in art. 263 TFEU.
C-181 and 248/91 European Parliament v. Council and Commission: The Court decided is not the decision of the Council or the Commission. It is a decision of the 12 governments of the European Community.
Can you bring an action for annulment against a decision with Turkey to block the refugees on Turkish soil to prevent them to come to the EU?
NO - important point is to make the distinction
between the Council on one side
and
the representatives of the MS.
When it’s a decision of the governments, it cannot be controlled by the court. That’s not an author of an act listed in art. 263 TFEU.
T-192 and 257/16 NF-NM v. European Council: GC said the decisions were by the representatives of the MS
Can you bring an action for annulment against a decision of Eurogroup?
NO - important point is to make the distinction
between the Council on one side
and
the representatives of the MS.
When it’s a decision of the governments, it cannot be controlled by the court. That’s not an author of an act listed in art. 263 TFEU.
Chrysostomides: the Eurogroup is not an author the act of which can be attacked in an action for annulment. That’s an intergovernmental body.
Can you bring an action of annulment against acts of the European Food Safety Authority?
YES - important point is to make the distinction
between the Council on one side
and
the representatives of the MS.
When it’s a decision of the governments, it cannot be controlled by the court. That’s not an author of an act listed in art. 263 TFEU.
Hautala and Tweedale:
an action of annulment against acts of the European Food Safety Authority and because it has a legal personality, that’s a body or an agency of the EU and so, these actions have been declared of course admissible.
Can you bring an action of annulment against a national decision for dismissal of a governor of a national central bank?
Rimsevics and ECB v. Latvia:
Latvia had decided to suspend mister Rimsevics from his office, his duty as governor of the central bank of Latvia.
Action for annulment because that’s the competence of the ECB.
This was to obtain the annulment of a decision, of a NATIONAL DECISION
That’s the only case where you can bring a European action for annulment against a national act. Remember: the only possibility!
Which acts can be challenged?
- Existing acts
- Acts having binding legal effect
- whatever their form and nature
Which acts cannot be challenged?
- Abstentions
- Confirmatory acts
- purely political acts, resolutions, declarations of intent
- Internal instructions and guidelines of the institutions, administrative circularise, communications
- purely executive acts
- Preparatory acts
- acts of contractual nature
Is it possible to challenge acts which are supplementing or amending the existing act?
No - only the existing acts can be challenged
Iran Insurance Cy v. Council: All the future and hypothetical acts cannot be attacked by an action of annulment, you may only act for annulment of an existing act.
Organisation of Modjahedines of Iran v. Council:
the court has allowed the applicant to redirect his action against the new act
Can you bring an action for annulment against the Commission which took the decisions to bring judicial proceedings in the USA?
NO - acts having binding legal effect means acts which are changing something in your legal position.
- Reynolds v. Commission : Court said it does not change your legal position.
Can you bring an action for annulment against the OLAF to give information to prosecutors in Italy.
NO
- Commission v. Violetti: the court decided it has no binding legal effect.
Can you bring an action for annulment against the decision of the EU to open the negotiations after having received the letter of the British government to withdraw?
NO, because there is no binding legal effect.
- Schindler v. Council
this decision of the European Council does not have any legal effect on you. It does not reduce your rights, it’s not a confirmation of the notification of the British government, it does not have to be confirmed.
