Judicial Review rules Flashcards
(12 cards)
grounds for review
CJEU hearing a case, standards it uses to review
-set out in article 262 para 2
-identified as- lack of competence, infringement of an essential procedural requirement, infringement of this treaty or of any rule of law relating to its application, or misuse or powers
- ground of lack of competence
-does the institutions have the power to take the act?
-principle of conferral- EU institutions or agencies only have the power to adopt legal acts where they are exercising powers conferred by the EU treaties
-also might be alternative legal procedures which would be more appropriate
-where there are 2 possible legal bases for measure, the court will examine what might be considered predominant purpose of the measure in question (test that determines the correct measure)- commission v council
- breach of an essential procedural requirement
-union court generally recognise a right to be heard (hearing) in situations where a sanction is to be applied or in any situation adversely affecting a individual interest
-duty to consult (consultation procedure) may be provided for by the treaty or by individual legislation, if so will be enforced through the courts
(both important procedures)
-however the courts have not been prepared to imply any such duty unless it was expressly provided for (cautious about the duty to consult)
-another duty- Article 11 TEU of the new lisbon treaty places a duty on institutions to put in place appropriate means to allow citizens to make known and publicly exchange their views in ares of union action
-article 296 TFEU- creates a duty to give reasons in relation to legal acts
- infringement of the EU Treaty or of any rule relating to its application
-widest ground for reviews
-not only includes positive rules but general principles of EU law and fundamental rights
-general principles- proportionality, subsidiarity, non-discrimination, legal certainty and legitimate expctations, fundamental rights
a. proportionality
(used to acess the validity of administrative action)
artiicle 5 TEU para 4-
-the content and form of union action shall not exceed what is necessary to achieve the objectives of the treaties
-reflected R v Fedesa- EU wanted to regulate hormone to create similar conditions of supply across the EU, this would improve confidence in the market and increase consumption of the product
-proportionality principle defined as the prohibitory measures are appropriate and necessary in order to
achieve the objectives legitimately pursued by the legislation in question;were there is a choice between several approriate measures recourse must be had to the least onerous and the disadvantages caused must not be disproportionate to the aims pursued
-proportionality can be applied in different levels of intensity
-fedesa- low intensity (only when measures are manifestly inappropriate)
-MS actions- stricter intensity
b. subsidiarity
article 5(3)- definition-
- where the EU has taken legal action could it have been sufficiently achieved by the member states or better at union level?
- courts have not yet invalidayed a measure on this bases
-the courts generally adopt a deferential approach- UK v council 1996
(simply examined whether the commission has made the case that EU action was necessary in general terms to achieve a given objective)
c. non discrimination
- illustrated by isoglucose case 1978
-a regulation governing refunds for producers in the contenct of agriculture had to be interpreted in such a way that it did not discriminate between different producers of the same type of product
d. legal certainty and legitimate expectations
-legal certainty- this principle requires that the law be clear and its consequences reasonably foreseeable- prevents retroactive laws and requires publication of laws
-legitimate expectations- onvolves the case where a union institution or agency make a represenation and it would cause loss if the union body were to act inconsistently
zaninotto 3 conditions for making a claim in relation to legitimate expectations-
1. the union body must have made a clear, consistent and undonditional assertion
2. the assurance must create a legitimate expectation
3. the assurance must comply with applicable rules
irish farmers case- no legitimate expectations as wasnt legitimate to assume it would continue
e. fundamental rights
article 6(1) TEU- the charter of fundamental rights of the EU has the same legal value as the treaties
-fundamental rights can also be used to assess the legality of EU action
Test Achats case- art 21 and 23 of charter were used to invalidate provisions of a directive on insurance which permitted unisex insurance policies
time limits and consequences of annulment
-challenge must be within the time limit
-time limit set down in art 263 para 6 (in general 2 months)
-this is in accordance with legal certainty
individuals who have standing and do not challanege within the time limits-
-may be disbarred from raising the question of the validity of the measure in other proceedings (e.g preliminary reference)- Textilwerker
-plea of illegality article 277- allows the plea of illegality to be made in any other proceeding of the court on the basis of the grounds laid out in article 263 (not subject to time limit)- available in respect of measures of general application
-normally will be employed under a preliminary reference wherre the applicant is challenging a particular derivative measure and wishes to contest the legality of any measure on which it was based
-but not available when they have standing and failed to challeneg within the time limits- Hauptzollamt
f. misuse of powers
exemplified by bock v commission 1971
- the use of a lawful power for purposes other than those it was intended for
conseuqences of annulment
-the offending measure is declared void under terms of article 264
-means the decision is retroactively and erga omnes null (no longer binding on anyone)
-article 264(2) has a discretion is necessary to state which of the effects of the act it has declared void shall be considerd as definitive
-sometimes necessary to delay voiding a measure- european parliament v council
-principle of legal certainty guides the court in this respect
article 266 TFEU requires institutions to take necessary measures to comply with the ECJs ruling- commission v assidoman
