7. Appeals Flashcards
General description of the system
In EU law, there are three levels: specialised court, GC, CJ –> three tier legal system. However, since there is no specialised courts at the moment, it is basically a two-tier system
- There is no appeal possible against the judgments of the Court of Justice
- There is a possibility to appeal before Court of Justice against General Court’s decisions - Art. 256 (1 al. 2) TFEU
- There is a possibility to appeal before the General Court against specialised court’s decisions (not existing at the moment) Art. 256 (2) and 257 (3) TFEU
- but only on points of law
- decision of General Court on appeal of a decision of a specialised court can be ALSO subject to review before the Court of Justice
- -> so points of law + review Art. 256(2) al 2 TFEU + Art. 62 Statute
- -> however, the subject to review is only on certain conditions
Conditions on GC decision of specialised courts decision subjecting to review in Court of Justice
- serious risk of the unity or consistency of Union law (Art. 256 (2) al 2 TFEU)
- Can be only proposed by the First Advocate General
- within one month of the delivery of the decision of AG to appeal
- if the court decides within that month to review the decision
which acts are concerned
A decision of the General Court or of a specialised court:
- which ends a proceeding, decides partly on the merits of the case or disposes of a procedural issue.
The appeal cannot change the subject-matter of the case presented before the first instance court. When you are in appeal, you have to demonstrate that the decision is legally erroneous, and you may not form a plea which has not been raised before the lower court.
This means the case has to remain the same - you cannot present an argument that has not been presented before.
Of course, you may contest all legal conclusion that have been drawn by the General Court:
- Case C-47/10 P Austria v. ScheuchenrFleisch a.o. para 123-24: plea of inadmissibility
The opponent stays the same as in the first case, however, the appeal is also an action against the decision.
which grounds can be invoked to justify an appeal?
a. « on points of law only » (art. 256 § 1, al. 2 TFEU) you may not dispute the decision on points of facts, except
o distortion of essential elements of evidence or
o obvious material error in the findings of fact
also, legal characterisation of the facts is possible (e.g. dominant abuse
and
b. « lack of competence », or (art. 58 al. 1 of the Statute of the Court of Justice) - not misuse of powers, but three examples that are included in the procedure of annulment and preliminary reference for validity
c. « breach of procedure » has effected interests of the applicant = it has to have had impact on the consequences on the interest of the party. If it is only theoretical hypothetical with no real consequence, there is no basis.
Art. 58 para 2: excludes some appeals regarding only the costs of the party that was ordered to pay - no possibility of appeal against a judgment if it is only about the costs of the procedure
d. « infringement of Union law » generally speaking
+ plea of public interest can be raised of their own motion by the ECJ or the parties and for the first time during the appeal procedure
Can you appeal on decision regarding the costs that the party was ordered to pay?
NO - Art. 58 para 2: excludes some appeals regarding only the costs of the party that was ordered to pay - no possibility of appeal against a judgment if it is only about the costs of the procedure
What does “manifest error” mean?
You may not dispute the conclusion of the lower court on the points of facts, except if there has been a manifest error.
This means that the findings of General court are substantially erroneous and it is so evident that it does not need further analysis. You have to demonstrate that there is an error of law in the first judgment.
C-164/98 P DIR International film: CFI made reasoning based on quotation of the Commission which was inaccurate
C-204/00 P Aalborg Portland: GC made a manifest error based on the document of the Commission, which was in the center of the discussion
Superabundant argument
When there is a plea against of ground of legal points of the decision of the General Court that did not in fact have influence in the decision (=superabundant argument) there is no possibility to base the appeal on this.
Who can act
Art. 56 al 2 and 3 of Statute
- « any party which has been unsuccessful, in whole or in part, in its submissions » and which would benefit from the reversal of the contested decision (cross-appeal)
- Interveners in the case, when the contested decision directly affects them
- Member States and institutions of the Union which did not intervene in the proceedings before the court of first instance (except in staff cases)
Specific elements of the procedure
- Time limit : 2 months + 10 days from notification of contested decision
- Written procedure: see direct challenges (but the reply and rejoinder can only be submitted in cases provided for by article 175 RPC)
- Oral procedure: Only upon motivated request by the parties to the case
- No suspensory effect so for ex. A fine must be paid even though there is an appeal procedure.
- Simplified procedure article 58 bis Statute
You are a company condemned by the Commission to a fine, because you have infringed the rules of competition law. You have been found guilty of abuse of a dominant decision. You have the right to bring an appeal before the GC. Can you suspend the payment of the fine?
No, here is no suspensory effect from this. You have to pay the fine.
If you are right in the end, the fine will be reimbursed to you with interest.
There is a possibility to ask a suspension, but this must be done through a special procedure. But no automatic effect of suspension.
Effects on the judgment on appeal
- Appeal dismissed
a. with substitutions
b. without substitutions
- e.g. FIAMM: legal error of General court when accepting the existence of no-fault liability in EU law. CJ rejected. However, since there were no unusual and special damage, the decision of GC was nonetheless good - appeal dismissed. - Appeal well-founded
a. and returned back to the first court
b. and the appellate court decides itself on the case, when there is no further analysis needed anymore.
