European actions

Exceptions to jurisdiction – art. 275 and 276 TFEU Art. 275 TFEU: all acts adopted under the Common foreign and security policy, with the exception of decisions establishing restrictive measures against individuals Art. 276 TFEU: validity or proportionality of police or other law enforcement operations in a Member State, or excercise of responsibilities necessary for maintaining public order and safeguarding internal security

Infringement actions against Member States – articles 258 and 259 TFEU Breaches of European law by a Member State Applicants: the Commission or another Member State Procedure: Administrative stage: the Commission sends a letter of formal notice. If the State doesn’t comply, the Commission delivers a reasoned opinion to the Member States and the latter can submit its observations. Judicial stage: the Commission goes before the Court of Justice.

Infringement actions against Member States – articles 258 and 259 TFEU Object: any violation of EU law Subject: the State – any organ of the State, legislative, executive and judiciary, regions and local authorities.

Financial sanctions – art. 260 TFEU The Court can only declare the existence of a breach, and that certain national laws or practices are incompatible with European law. It remains with the competenceof the Member States to remove national law or practices that are incompatible with European law. If the State fails to comply with the judgement of the Court, the Commission may bring a second case before the Court, applying for a lump sum or penalty payment. Only if the State fails to transpose a directive, the Commission can apply for financial sanctions during the first action.

Actions against the Union – I. Failure to act – article 265 TFEU An action for failure to act can be brought against any Union institution or body, with the exception of the Court of Auditors and the Court of Justice It can be brought by another Union institution or body, a Member State and a private party.

Actions against the Union – I. Failure to act – article 265 TFEU Procedurale stages: administrative (the Union body must first be called upon to act), then judicial, after two months. Inactions: all inactions that consist in a breach on an obligation to act. The existence of institutional discretion excludes an obligation to act, and the possibility of an action against the failure to act Consequences of an established failure to act: the institution is required to take the necessary measures to comply with the judgment of the Court of Justice.

Actions against the Union – II Actions against the Union – II. Judicial review (action for annulment – article 263 TFEU) Reviewable acts: an action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects (ERTA case). Ground for review: lack of competence; infringement of an essential procedural requirement; infringement of the Treaties or any rule of law relating to their application; misuse of powers.

Actions against the Union – II Actions against the Union – II. Judicial review (action for annulment – article 263 TFEU) Proportionality as a ground for review: suitability, necessity and strict proportionality of a Union act. Kadi is an example of a disproportionate Union act, an act that disproportionately interferes with fundamental rights Time for the application. Two months from publication or notification, depending on the kind of act involved

Actions against the Union – II Actions against the Union – II. Judicial review (action for annulment – article 263 TFEU) Legal standing before the Court Privileged applicants: Member States, European Parliament, Council, Commission. They are ex officio deemed to be affected by the adoption of a Union act Semi-privileged applicants: Court of Auditors, European Central Bank, Committee of the Regions. They may bring actions solely for the purpose of protecting their prerogatives. Non-privileged applicants: natural or legal persons. They must demonstrate that the Union act affects them specifically.

Actions against the Union – II Actions against the Union – II. Judicial review (action for annulment – article 263 TFEU) Legal standing of natural and legal persons in the Rome Treaty «Any natural or legal person may… institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or decision addressed to another person, is of direct and individual concern to the applicant». Critics: this limitation of private party standing (as interpreted by the Court in Plaumann, 1963) is an illiberal limitation of an individual fundamental right to judicial review (art. 47 EU Charter of fundamental rights).

Actions against the Union – II Actions against the Union – II. Judicial review (action for annulment – article 263 TFEU) Legal standing of natural and legal persons in the Lisbon Treaty «Any natural or legal person may… institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures». Regulatory acts: Inuit I, 2010-2011. All acts of general application apart from legislative acts.

Actions against the Union – III. Damages (article 340 TFEU) The Union shall make good any damage caused by its institutions or by its servants in the performance of their duties. The proceedings can be brought against any Union action or inaction that is claimed to have caused damage, within a five-year period. The right to reparation exists when three conditions are met (the same as State liability): A) the rule of law infringed must be intended to confer rights on individuals; B) the breach must be sufficiently serious; C) there must be a direct causal link between the breach of the obligation and the damage sustained by the injured parties.