judicial review process Flashcards
(11 cards)
judicial review
bringing a case for the review of the legality of a measure of EU law directly before the CJEU
(direct action)
-mainly competition law as this is the only area that is adminstered by the EU institutions
key treaty articles
2 main provisions which allow direct challenged to CJEU
-article 263 TFEU- sets out the framework for challening the legality of institutional action (when an institution has done something)
(sets out procedure for whether to annul an EU measure)
remedies are provided under article 264 TFEU
- aticle 265 TFEU- sets out framework for challenging the legality of instittuional inaction
remedies under article 266 TFEU (institutions at fault can be compelled to take measures to comply)
additional but indirect provisions to challenge the legality of measures adopted by an EU institution
-preliminary reference procedure- article 267 TFEU
-the plea of illegality- article 277 TFEU (procedural right to challange an act of general application adopted by an agency before the CJEU in any proceedings in which that act is as issue)
challangeable acts
lists of acts challengeable under article 263 set out in paragraph 1-
-legislative acts
- act of the council
-of the commission and of the European central bank
-acts of the European Parliament and of the European Council intended to produce legal effect vis a vis third parties
-acts of bodies, offices or agencies of the union intended to produce legal effects vis a vis third parties
- the CJEU is empowered to review only binding legal acts
- the CJEU is empowered to review the acts of all the principal EU institutions
- the CJEU can review acts of bodies, offices, or agencies (that adopt an act with binding effect)
standing under article 262
locus standi-establishes which parties have the right to bring legal proceedings under this system
-standing rules set out in para 2-4
3 types of applicants-
- privileged (MS, EU institutions (parliament, council or commission)
-semi privileged (ECB and the court of auditors)
-non privileged (individuals- natural and legal persons)- includes companies
the entitlements of challenges
-pivileged- entitled to challenege all types of legal act under article 263 (legally binding)
-semi-privileged- entitled to challenge all types of EU acts only so for the purpose of protecting their prerogatives
-non privileged (individuals)- basic position that they are entitled to challenge:
-first when an act addressed to the applicant
-second, an act which is of direct and individual concern to the applicant
-third, any regulatory act of direct concern to the applicant and which does not entail implementing measures
- act addressed to an indivual
-where an act is addressed to an individual, the person can seek JR of the relevant act
-applies to legal acts called decisions which address the individual or state
- direct and individual concern
-for any other act (other than regulatory acts)- parties have to meet the test of having a direct and individual concern in the matter
-direct interest- where there is a direct link between the EU act that is being challaneged and the damage or loss that the applicant has suffered (international Fruit)
- if the community measure left some room for the implementing MS to exercuse their discretion before the individual was affected this may break the chain of causation (individual is not directly effected)
-applicants legal interest must be affected by the measure
-individual concern
- Plaumann v commission test (restrictive)- an act effects them by 1. reason of certain attributes which are peculiar to them or 2. by reason of circumstances in which they are differentiated from all other persons
(here clementine importer was not individually concerned as was not peculiar to them because anyone was entitled to set up in this line of business-need to show that only you could be doing this business)
-piraiki- patraiki v commission- where the only ones already enetered into a contract so was closed and could claim
-signs of a more liberal approach-
-anti dumping cases EXtramet industrie SA v Council- allowed a challenge
-unsuccessful attempt to liberalise access to JR in jego-quere et cie
-CJEU confirmed Plaumann test in Union de Peguenos agricultores
discussion on plaumann test
negative- criticized for being overly restrictive and specifically for failing to secure adequate access to judicial remedies
- the fact that the applicant operates a trade that could be enagegd in by any other person will normally serve to deny individual concern “this makes it almost impossible for most applicants to succeed”- craig and Burca
-need for a shift to a more liberal test for standing proposed by advocate general jacobs, however cases such as Jego Quere and Kanatami show the courts are not willing to do so
-the conditions for non privileged applicants “have been so narrowly interpreted by the European Court of Justice for over forty years that private parties have rarely been able to [satisfy the criteria]”- Albors Llorens
-in regards to strict interpretation meaning most actions by privat parties fail- “this is an anomalous and deeply unsatisfactory result”- all quotes Albors Llorens
“the action for annulment occupies a central position in the system of judicial review allowed by the treaty”
“in many cases, the European Court suggested that applicant could turn to alternative avenues- such as the system or preliminary rulings” (e.g Ascocarne 1994)
“however, this is a flawed argument”
-preliminary rulings not as beneficial as direct actions through JR
Advocate General Jacobs in Extramet case and UPA case “an action for annulment is more beneficial not only because it involves a full exchange of pleasings but also- as a result of the short time limits laid down in article 230(5) EC- in terms of legal certainty”- Albors LLorens
-“access to judicial review by means of a preliminary reference is not guaranteed, as it is ultimately the national court which decides whether to make a reference”- Albors (find case of not referring)
-Albors “it is submitted that the test proposed by Advocate General Jacobs offered significnat advantages”
- regulatory acts of direct concern to the individual
-created by the Lisbon Treaty
-allows individuals to challenge regulatory acts- which are of direct concern to the applicant and do not entail implementing measures
-problem in defining regulatory acts
-inuit Tapiriit v council commission- defined regulatory act as acts of general application other than legislative acts
(implementing acts or delegated legislation that is of general application)- secondary legislation
-argument that similar to other legal systems in that there is limited to no remedies against parliamentary laws as although has access to claim of secondary legislation, limited right to invalidate primary legislation (limited remedy)
discussion
Fisher- “accountability is often held to be synonymous with a set of particular porcesses such as ministerial responsibility and judicial review”
upholds the rule of law- provides an avenue for individuals, member states and institutions of the EU to reviews the legality of institution acts
this esures that they are acting within the powers granted to them by EU. this prevent them from exceeding their authority and holds them accountable on the same leve of all other bodies of the EU
A V Dicey in 1885, who broke it down into three concepts:- No man is above the law and everyone, whatever his condition or rank is, is subject to the ordinary laws of the land.
