Action for annulment Flashcards
What article governs actions for annulment
Art 263 TFEU
What can be challenged in an action for annulment
ALL measures intended to have legal effect (confirmed by ERTA): legislative acts, acts of the union bodies, NOT recommendations or opinions
When does a non-privileged applicant have standing?
Where the measure is of DIRECT and INDIVIDUAL concern, or is addressed directly to them. For regulatory measures, only DIRECT concern is needed
What is the test for DIRECT concern?
Test from Les Verts. 1. Nature of interest - must be LEGAL. 2. Causation: Direct link between the measure and the damage (where there is no discretion left to the MS). “A complete set of rules, sufficient in itself, requiring no implementing measures”
Grounds for annulment
- Lack of legal competence (eg where one institution acts when it should have been another or exceeds their delegated powers). 2. Infringement of an essential procedural requirement (eg where consultation is required or where reasons must be given). 3. Infringement of a treaty or a rule of law. 4. Misuse of power (subjective and difficult to prove)
What are the four steps we must take in our problem question in answering a question on annulment
- Is is a reviewable measure, 2. does the party have standing, 3. does the party have grounds, 4. Is it within the time limit
Definition of action for annulment
Process whereby acts of the Union can be judicially reviewed. Governed by Article 263 TFEU
A case where an individual could not take an action for annulment because they had no legal interest
Front national
The three types of standing/applicant for an action for annulment are:
Privileged: MSs, Pment, Commn, Ccl; Semi-privileged: Auditors, bank; Non-privileged: Individuals
A case that shows that where a measure allows discretion to the MS but it is clear that the MS will not use that discretion, an individual has standing for an annulment action under the DIRECT concern test
Piraki Patraiki
Time limit for an annulment action
2 months from publication of measure or of its notification to the plaintiff
What happened in the KFC (Campina) case?
Company applied to join a scheme which allowed for tax breaks. Membership was automatic if you fulfilled certain criteria (which they did). The scheme was declared illegal by the EU - existing members could remain, but no new members allowed. KFC had DIRECT standing for an action for annulment because they were the ONLY individual affected by the rule (the only company which had applied but not been accepted yet before the measure).
Test for INDIVIDUAL concern
Plaumann: Individual must be affected because of attributes unique to them. Certain attributes which are peculiar to them and/or circs in which they are differentiated from all other persons
Which case shows that an action for annulment is not available where potential action is only notified and therefore doesn’t have legal effect
IBM case (letter notifying action)
What is a “regulatory act” for the purposes of standing in an Art 263 action?
We don’t know yet, need some case law, but ECJ is likely to adopt a wide test - possibly distinguishing between “legislative acts” which are adopted through the legislative procedure and “non-legislative” acts (delegated and implementing acts)
