6. objection of illegality

Question 1

legal basis

Answer 1

Art. 277 TFEU
The act which is the object of the procedure is generally the legal basis of the act under review in the main proceedings.

Question 2

is the objection of illegality an autonomous procedure

Answer 2

NO
• The objection of illegality is not an independent right of action

o the objective of illegality is an incident in a main proceeding. You cannot raise an objection of illegality if the main action is not admissible. In fact, you also depend on the main proceedings.

• The act object of the objection of illegality is generally the legal basis of the act under review in the main proceedings

• BUT the OBJECTION of illegality can only be raised in so far as the act could not have been directly attacked by the applicant on the basis of art. 263 TFEU
–> also the same rule in preliminary reference on validity (TWD)

! See preliminary rulings on validity of EU law (TWD case-law) in reality, it is objection of legality of an act of EU raised before a national judge

Question 3

what needs to be demonstrated in the objection of illegality?

Answer 3

You’ll have to demonstrate that there’s a ground for illegality, for invalidity, for non-consistency with a higher ranking rule.
The ground are the same as for the action for annulment.
Four possible reasons:
(1) competence,
(2) violation of an essential procedural requirement,
(3) violation of the Treaty or of European law in general, and
(4) misuse of powers.

Question 4

three procedures to review the legality, the validity or the consistency with a higher ranking rule

Answer 4

1. Direct action: action for annulment Art. 263 TFEU
2. Indirect action: preliminary reference on the validity of a European act, Art. 267
3. the objection of illegality Art. 277

Question 5

which acts are concerned?

Answer 5

“an act of general application”

• -> Lisbon Treaty taking over the extension of case-law:
• Simmenthal: invitation having similar effects as Regulation
• HFB v. Commission: Guidelines of the Commission
• C-542 Simpson: appointment of the judges as having essential procedural requirements (public interest)

Question 6

who can raise plea of illegality?

Answer 6

Art. 277: “any party” meaning MS, institutions, individuals.
Applicants, defendants, intervening parties in any proceedings.
However, limitation in case TWD: if the applicant in the main proceedings could without any doubt have challenged the act under art. 263(4) TFEU, it is not possible to raise an objection of illegality against this act.
–> exception MS (Spain v. Commission)

Question 7

Can a MS that had not challenged the act under art. 263(TFEU) raise an objection of illegality against this act?

Answer 7

Art. 277 says any party can bring objection of illegality.
However, this is not so if the person had without any doubt the possibility to challenge the act under Art. 263(4). If this is the case, it is not possible to raise objection of illegality.

However, MS have always right to introduce and action for annulment.
Spain vs. Commission C-442/04: CJ stated that the MS have always the right to bring objection of illegality against an act even if they have not brought annulment procedure against the act.

In this respect, the CJEU could distinguish depending on whether the objection of illegality raised by a MS relates to an act of GENERAL APPLICATION or to an act of which the MS is THE ADDRESSEE (alone or with other MS).

• so an act which would be addressed to one Member State or to all Member States, no objection of illegality, they have to bring an action for annulment.
• e.g. National farmers Union case: France should have brought action for annulment in order to bring objection of illegality against an act of general application on ending the ban of UK meat

Question 8

what is the time limit for bringing objection of illegality

Answer 8

Objection of illegality can be raised notwithstanding the expiry of the two-months period laid down in art. 263 TFEU and after this expiry
o you do not have this time limitation of two months + 10 days applicable for the action for annulment
o but provided for if you are a natural or legal person - you don’t have the possibility, without any doubt to bring an action for annulment.

Question 9

Effect of the judgment

Answer 9

• Declaration of inapplicability {the act still exists (relative (inter partes) effect of the res iudicata principle), the act is not void} - The act in the EU Law still exists (in the European legal order), but of course, even if it is not an act which is void, the institution which is the author of this act cannot apply it anymore.
• Art. 266 TFEU (by way of analogy): The institution has to withdraw or modify the act declared inapplicable
• Art. 264 TFEU: By way of analogy, the CJEU applies this art. to the declaration of inapplicability: the court shall state which of the effects of the act which it has declared void, shall be considered as definitive.

Question 10

Which is the competent court?

Answer 10

The court that is dealing with the main proceedings

Question 11

Similarities and differences between annulment procedure, preliminary reference on the validity, and the objection of illegality

Answer 11

Similarities:
1. the source of these procedures (the cause) is the supposed illegality of an act of an institution or the supposed non-consistency of an act of an institution with a higher-ranking rule.

2. Second common point, the objective of the procedure: to set aside the illegal, invalid or the non-consistency with higher ranking rules of the act in question.
3. If the source is the same, if the objective is the same, the grounds will be the same. That is to say that the arguments to demonstrate the illegality, the invalidity, the non-consistency with high-ranking rules, the arguments will be the same.
4. monopoly of CJEU
5. legality, the invalidity or the non-consistency with a higher-ranking rule has to be appreciated at the moment of the adoption of the act, not at the moment of the procedure.
6. the objective can never be the annulment or the declaration of inapplicability or the declaration of invalidity of primary law. The primary law cannot be attacked one of these procedures.

Three differences:
1. annulment is a direct action, preliminary reference of invalidity is an indirect action, objection of illegality is an incident in an existing procedure.

2. the effects: in one case, the act is void, in another case it is declared invalid, in third case inapplicable but in reality, it is of course exactly the same. Except that when it is declared inapplicable, it is accepted inter partes, not erga omnes. But practically, this act cannot be applied anymore + the application of 264 and 66 by way of analogy.
3. Most important too is the time limitation. To bring an action for annulment you have two months and 10 days.