Legal Foundations of European Union Law II Tutorials Karima Amellal

2 Relevant judicial procedures I.Remedies for direct challenge to the legality of acts 1. Action for annulment, Art. 263 TFEU 2. Action for failure to act, Art. 265 TFEU 3. Infringement Procedure, Art. 258, 259 TFEU II. Preliminary Ruling, Art. 267 TFEU

Question 1 A.Admissibility I. Jurisdiction of the Court European Court of Justice has jurisdiction in actions brought by: – Member State – European Parliament – Council – Commission, Art. 263 (2) TFEU – Court of Auditors, European Central Bank and Committee of Regions, Art. 263 (3) TFEU 3

General Court: has jurisdiction to hear and determine at first instance in actions brought by a natural or legal person, Art. 256 (1) TFEU

There has to be a reviewable act Art. 263 (1) TFEU: The Court can review the legality of acts, other than recommendations and opinions, taken by the institutions in Art. 263 (1) TFEU provided that they are intended to produce legal effects 5 II. Subject matter

Mumbai Fashion Shoes is challenging an anti- dumping regulation adopted by the Council According to Art. 288 (2) TFEU a regulation shall be binding in its entirety and directly applicable in all Member States Thus, the regulation produces legal effects and constitutes a challengeable act

Applicants: Who can bring an action for annulment? Privileged applicants (Art. 263 (2) TFEU):  Member States  European Parliament  Council  Commission → Always allowed to bring an action, even where decision is addressed to other person or body/ no proof of interest in bringing action necessary 7 III. Identity of the Parties

Semi- privileged applicants (Art. 263 (3) TFEU):  Court of Auditors  European Central Bank  Committee for the Regions →They must clearly show which of their prerogatives should have been respected and in what way the prerogative in question has been infringed 8

Non- privileged applicants (Art. 263 (4) TFEU):  Natural or legal persons →They must fulfill the conditions laid down in Art. 263 (4) TFEU

Defendants: Against which institution can an action for annulment be brought? Art. 263 (1) TFEU: against the institution, which adopted the challenged act Anti- dumping regulation was adopted by the Council of the EU

For non-privileged applicants in Art. 263 (4) TFEU: Act addressed to that person If the contested act is not addressed to the applicant: – it has to be of direct and individual concern to the applicant or – represent a regulatory act which is of direct concern to the applicant and does not entail implementing measures 11 IV. Standing

Is the anti- dumping regulation addressed to Mumbai Fashion Shoes? No: The anti-dumping regulation is a provision of general application, which applies to all economic entities concerned → Mumbai Fashion Shoes ≠ addressee

1.Direct concern Is the anti- dumping regulation of direct concern to Mumbai Fashion Shoes? A legal act is of direct concern when it directly affects the applicants legal situation and the Member States have no discretion when implementing the act. An anti- dumping regulation is of direct concern to the producers and importers as it obliges the Member States’ customs authority to levy the duty imposed without leaving them any discretion. 13

2. Individual concern Is the anti- dumping regulation of individual concern to Mumbai Fashion Shoes? Plaumann- Test: Plaumann- Test: An act not addressed to a natural or legal person will be of individual concern to them if it “affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed by the act”. 14

Does Mumbai Fashion Shoes have attributes which are peculiar to it and which differentiate it from all other persons?

The fact that the applicant operates a trade which could be engaged in at any time by any other person is not sufficient Mumbai Fashion Shoes would only be individually concerned if it were identified in the regulation or if its prices were used in calculating the dumping margin The Commission had used information about Mumbai Fashion Shoes trading activities with a view to determining the duties 16

Therefore: Mumbai Fashion Shoes is directly and individually concerned and established sufficient standing.

Listed in Art. 263 (2) TFEU:  lack of competence  infringement of an essential procedural requirement  infringement of the Treaties or any rule of law relating to their application  misuse of power Mumbai Fashion Shoes claims that the duties imposed are not justifiable. It thus doubts their compatibility with superior EU law. Infringement of the Treaties (+) 18 V. Grounds for annulment

VI. Form of order VII. Limitation periods, Art. 263 (6) TFEU Mumbai Fashion Shoes must institute annulment proceedings within two months of the publication of the measure 19

VIII. Consequences The action is admissible. If the action is well- founded, the General Court will declare the contested anti- dumping regulation void.

1.Direct concern As interested competitors the French and Italian companies are directly affected by the Commission’s decision: → The Commission’s refusal prevents national customs authorities from levying the duty imposed on Indian leather shoes. National authorities have no legal discretion. 21 Question 2

Does the refusal affect them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons? The French and Italian companies’ initial complaint was the basis for the Commission to open an anti- dumping investigation Especially, if they were heard during the investigating procedure, and if their observations determined the outcome of that procedure Individual concern