LECTURE No 7 - THE EUROPEAN UNION’s JUDICIAL SYSTEM II (actions)

LECTURE No 7 - THE EUROPEAN UNION’s JUDICIAL SYSTEM II (actions)
ErasMUS

Review of legality – Article 263 TFEU
The EU develops policy through regulations, directives, and decisions. Any developed legal system must have a mechanism for testing the legality of such measures. There are a number of ways in which EU norms can be challenged, but the principal Treaty provision is Article 263 TFEU. Five conditions must be satisfied before an act can successfully be challenged. a) The relevant body must be amenable to judicial review, b) the act has to be of a kind which is open to challenge, c) the institution or person making the challenge must have standing to do so, d) there must be illegality of a type mentioned in Article 263(2), and e) the challenge must be brought within the time limit indicated in Article 263(6).

Direct challenge to the legality of EU acts (1)
The CJEU generally is responsible for the surveillance of actions of the Member States and measures taken by the Union’s actors. Article 263 TFEU provides the possibility of bringing an action for annulment against the acts of EU institutions, bodies and agencies. Article 263(1) TFEU defines the bodies that are amenable to review. The CJEU shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties.

Furthermore, the CJEU shall review the legality of acts of bodies, ofﬁces or agencies of the Union intended to produce legal effects vis-à-vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds a) of lack of competence, b) infringement of an essential procedural requirement, c) infringement of the Treaties or of any rule of law relating to their application, or d) misuse of powers. The Court shall also have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives.

The proceedings provided for in Article 263 TFEU shall be instituted within two months of the publication of the measure, or of its notiﬁcation to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. Article 263 TFEU covers acts of the Council and Commission, including legislative acts, and acts of the European Central Bank, other than recommendations and opinions. It also covers acts of the European Parliament, European Council, and EU bodies, offices, or agencies intended to produce legal effects against third parties. Regulations, decisions and directives mentioned in Article 288 TFEU constitute acts that have binding legal effects to third parties, but also and other acts which are sui generis can also be reviewed, provided that they have binding force or produce legal effects.

The general principle is that a reviewable act will have legal effect until it is set aside by the CJEU or the General Court, and the challenge must be brought within the time limit specified in Article 263(6) TFEU. The exception is where acts are tainted by particularly serious illegality, and are deemed to be ‘non-existent’. A judicial finding that an act is non-existent have the same effect in practice as if it had been annulled. There are three consequences: a) the normal time limits for challenge do not apply, since the act cannot be cloaked with legality by the passage of time, b) such acts do not have any provisional legal effects and c) non-existent acts are not actually susceptible to annulment, because there is no ‘act’ to annul.

Article 263 (4) TFEU has been revised in view of actions brought by natural or legal persons. These persons are entitled to institute proceedings no only against an act addressed to that person or an act which is of direct and individual concern to them, but also against a regulatory measure. Article 263(4) TFEU states that 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.

Legal standing to bring an action – Privileged applicants (1)
Concerning legal standing, meaning the capacity to bring an action before the CJEU. Privileged applicants are the Member States, the Council, the Commission and since the Nice Treaty the European Parliament. Their legal standing is given under article 263 (2) TFEU. These applicants are always allowed to bring an action, even where the decision is addressed to some other person or body. EU law does not oblige a Member State to bring an action under Article 263 or 265 TFEU for the benefit of one of its citizens, although EU law does not preclude national law from containing such an obligation.

Legal standing to bring an action – Privileged applicants (2)
The Court of Auditors, the European Central Bank (ECB), and the Committee of the Regions are covered by Article 263(3) TFEU, so that they have standing only to defend their own prerogatives. These EU Institutions are quasi-privileged or partially privileged applicants who are entitled to seek judicial review under article 263 (3) TFEU. Before the Nice Treaty, the European Parliament was also considered as partially privileged applicant.

Legal standing to bring an action – Non-privileged applicants (1)
Article 263(4) TFEU allows a natural or legal person to bring an action in three types of case. The first is straightforward: the addressee of a decision can challenge it before the Court or General Court. The second is where the act is of direct and individual concern to the natural or legal person or persons, the assumption being that the person or persons are not the immediate addressees of the act. The third type of case is where there is a regulatory act, which does not entail implementing measures, in which case the claimant must show direct concern, but does not need to prove individual concern.

An act is specifically addressed to the applicant when It intends to produce legal effects in relation to him. A person have also the right to institute proceedings against a decision that is in fact delivered to another person when the case is of direct and individual concern to the applicant. A measure will be of direct concern where it directly affects the legal situation of the applicant and leaves no discretion to the addressees of the measure, who are entrusted with its implementation. This implementation must be automatic and result from EU rules without the application of other intermediate rules.

Applicants must prove individual concern under Article 263(4) TFEU in relation to an act addressed to another person, unless it is a regulatory act that does not entail implementing measures. Applicants can only be individually concerned by a decision addressed to another person if they are in some way differentiated from all other persons, and by reason of these distinguishing features singled out in the same way as the initial addressee. Also a decision is of individual concern if procedural rights were conferred on the applicant who participated in the procedure resulting in the adoption of the contested decision.

Natural or legal persons may claim that a contested provision is of individual concern to them when 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 as in the case of the person addressed. The landmark decision from 1963 has been the Plaumann case (25/62). In regulatory acts, when there is no need for the adoption of implementing measures, natural or legal persons have only the obligation to claim that the contested act is of direct concern to them and they must not fufil the criterion of individual concern.

Limitations of review – Area of Freedom, Security, and Justice
Prior to the Lisbon Treaty the CJEU had only limited power to review the legality of acts under what was the Third Pillar dealing with Police and Judicial Cooperation in Criminal Matters. The Lisbon Treaty has now brought the provisions concerning the Area of Freedom, Security, and Justice within the main fabric of the Treaty. The normal principles of judicial review apply to this area, subject to the caveat that the CJEU cannot review the validity or proportionality of operations by the police or law enforcement agencies, or the exercise of responsibilities of Member States with regard to the maintenance of law and order, and the safeguarding of internal security.

Limitations of review - Common Foreign and Security Policy
The rules pertaining to the Common Foreign and Security Policy (CFSP) are distinct. The general principle is that the Union Courts have no jurisdiction over CFSP acts. This is subject to two exceptions. First, the CJEU has jurisdiction to monitor compliance with Article 40 TEU, which provides in essence that exercise of power under the CFSP shall not encroach on competences under the TFEU, and vice versa. Secondly, the Union Courts can also rule on proceedings, brought in accordance with Article 263(4) TFEU, to review the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the TEU, which is concerned with the CFSP.

Grounds of review (1) If the applicant has standing and is within the time limits for bringing an action before the Court, it will still have to show why the union act should be annulled or declared invalid. Direct judicial review through Article 263 TFEU is designed to ensure that decision-making is legally accountable. There are four possible ground of review (article 263 (2) TFEU : lack of competence infringement of an essential procedural requirement infringement of the Treaty or any rule of law relating to its application misuse of power

Grounds of review (2) In any event the fault must exist at the time of the adoption of the act concerned. The Union Courts have used the heads of review in Article 263 as the framework through which to develop general principles of law, which function as principles of administrative legality, drawing on concepts found within national legal systems. These include fundamental rights, proportionality, legitimate expectations, non-discrimination, transparency, and more recently the precautionary principle. The dividing line between these principles is far from absolute: there are certain principles, such as the right to a fair hearing, which some might classify as fundamental rights, while others would characterize them as principles of administrative legality.

Grounds of review (3) - lack of competence
A plea based on the lack of competence may concern a) the “collective powers” of the Union, b) the “institutional powers” of its organs or c) the general capacity to act. The EU institutions must be able to point to a power within the Treaty which authorizes their action. If they cannot do so then the act will be declared void for lack of competence. A claimant may therefore argue that the EU lacked competence in the sense that, for example, it acted under the heading of exclusive competence, which would mean that Member States could not take any legally binding act in that area, whereas it should have proceeded via shared competence.

Grounds of review (4) - Infringement of an Essential Procedural Requirement
A complaint alleging an infringement of essential procedural requirements covers all procedural rules that had to be complied with during the implementation of the act concerned. For an example, the right to be heard constitutes an essential procedural requirement and was imposed as a general rule of EU law, irrespective of whether this was specified in the relevant Treaty Article, regulation, directive, or decision. It cannot be excluded or restricted by any legislative provision, and the principle must be protected where there is no specific EU legislation and where legislation exists, but does not take sufficient account of the principle. The claimant does not have to show that the Commission’s decision would have been different, but simply that such a possibility cannot be totally ruled out, since it would have been better able to defend itself had there been no procedural error.

Furthermore, in any case, the infringement of an essential procedural requirement requires an ex officio examination concerning provisions on the participation and consultation of the Member States or other EU institutions. Where a duty to consult is provided by the Treaty or Union legislation it will be enforced through the courts. The CJEU has, however, consistently resisted claims to procedural rights, such as a right to participate or be consulted, in the making of Union legislation, unless this is expressly provided by a Treaty Article or another EU norm.

Article 11 TEU, which was introduced by the Lisbon Treaty, provides that: 1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. 3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent. 4. Not less than one million citizens who are nationals of a signiﬁcant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

Also, article 296 TFEU imposes a duty to provide reasons, breach of which constitutes a violation of an essential procedural requirement for the purposes of review. It imposes a duty to give reasons not only for administrative decisions, but for all legal acts, including legislative, delegated, and implementing acts. There are a number of policy rationales for the duty to provide reasons. From the perspective of affected parties, it renders the decision-making process more transparent, so that they can know why a measure has been adopted. From the perspective of the decision-maker, an obligation to give reasons helps to ensure that the rationale for the action has been thought through. From the perspective of the CJEU, the existence of reasons facilitates judicial review by, for example, enabling the Court to determine whether a decision was disproportionate.

The duty to give reasons must show in a clear manner the reasoning of the author of the act, thereby enabling the persons concerned to ascertain the reasons for it so that they can defend their rights and ascertain whether or not the measure is well-founded, and also enable the Court to exercise its power of review. The more particular content of the obligation to give reasons will vary depending on the nature of the measure. Where it is of a general legislative nature it will be necessary for the EU authority to show the reasoning which led to its adoption, but it will not be necessary for it to go into every point of fact and law. The Court may demand greater particularity where the measure challenged is of an individual, rather than legislative, nature.

Grounds of review (9) - Infringement of the treaty
Infringement of the Treaty includes all provisions of the constitutive treaties, as amended, and any other provision implementing EU law. This ground of review has provided the foundation for the development of the principles of judicial review. General principles function as interpretative guides in relation to primary Treaty Articles and other Union acts. The general principles also operate as grounds of review. The Union Courts cannot invalidate primary Treaty Articles. They can, however, annul other EU acts, and breach of a general principle is ground for annulment. The principles can also be used against national measures that fall within the scope of EU law. Breach of a general principle may also form the basis for a damages action.

Grounds of review (10) – Misuse of power
Misuse of power is the final ground of review mentioned in Article 263 TFEU. The concept covers adoption by an EU institution of a measure with the exclusive or main purpose of achieving an end other than that stated, or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. The claim that there has been a misuse of power is justified if the act was adopted for grounds differing from the purpose specified in that act.

Consequences of Illegality and Invalidity (1)
Where the addressee has not challenged a decision within the time limits in Article 263 TFEU, it is definitive as against that person. Article 264 TFEU provides that if the action under Article 263 is well founded, the Court shall declare the act void, although it may find that the illegality affects only part of the measure. The Court has power, if it considers it necessary, to state that certain effects of the act declared void shall be considered definitive. Article 266 TFEU complements this by stating that the institution whose act has been declared void or whose failure to act has been declared contrary to the Treaty must take the necessary measures to comply with the judgment. This may involve eradicating the effects of the measure declared void and/or refraining from adopting an identical measure.

Consequences of Illegality and Invalidity (2)
The general principle of EU law is that nullity is retroactive: once the act is annulled under Article 263 it is void ab initio. Such a ruling has an effect erga omnes. In general terms, it is only annulment of lawmaking measures that can produce genuine erga omnes effects, affecting the public at large. The principle of retroactive nullity can cause hardship, particularly where the measure is a regulation that has been relied on by many, which may be the basis of later measures. This is the rationale for Article 264(2) TFEU, which allows the Court to qualify the extent of the nullity.

Failure to act (1) – Article 265 TFEU
An action for a wrongful failure to act is provided in Article 265 TFEU. In certain circumstances positive duties are placed by EU law upon the EU institutions to act. They are under a duty to realise some Treaty objectives and secondary legislation often places duties upon the institutions. The conditions for bringing an action if an institution fails to act in such circumstances are set out in Article 265 TFEU. Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice to have the infringement established. This Article shall apply, under the same conditions, to bodies, ofﬁ ces and agencies of the Union which fail to act.

Failure to act (2) Article 265 TFEU requires the applicant to show that there was an obligation to act and also to call upon the institution to act, since it may not be easy, in the context of an omission, to say when it came into existence and its content. The omission will have taken place at the end of the first two-month period and its content is defined by the terms of the request. The Treaties do not specify any time limit within which the procedure for failure to act should be initiated. The Court has, however, specified that this procedure must be initiated within a reasonable time. Once the request to act has been made, the institution has a period of two months within which to define its position. If it has not done this, the applicant has a further two months within which to bring the action under Article 265 TFEU.

Failure to act (3) Article 265 TFEU, like Article 263 TFEU, draws a distinction between privileged and non-privileged applicants. Privileged applicants are identified in Article 265(1) TFEU: the Member States and other institutions of the EU. Non-privileged applicants are covered by Article 265(3) TFEU, which allows a natural or legal person to complain of a failure to address an act, other than a recommendation or an opinion, to that person. An applicant must show that is of direct and individual concern of the omisision.

Plea of illegality (1) – Article 277 TFEU
As article 277 TFEU states “notwithstanding the expiry of the period laid down in Article 263, sixth paragraph, any party may, in proceedings in which an act of general application adopted by an institution, body, ofﬁce or agency of the Union is at issue, plead the grounds speciﬁed in Article 263, second paragraph, in order to invoke before the Court of Justice of the European Union the inapplicability of that act”. An individual may wish, in the course of proceedings initiated for a different reason, to call into question the legality of some other measure. Thus, for example, the applicant may challenge a decision which is of direct and individual concern, in the course of which it wishes to raise the legality of a regulation on which the decision is based. The plea of illegality cannot be brought as an independent action but can only be invoked in the context of proceedings brought under some other provisions of the Treaties.

Plea of illegality (2) Article 277 TFEU can only be used to challenge acts of general application. The most common form of such acts would be regulations or directives made pursuant to either Article 289 or 290 TFEU, but might also include generic decisions. Article 277 TFEU does not constitute an independent cause of action and cannot be used in proceedings before a national court. The most common usage of Article 277 TFEU is an additional, incidental challenge in an annulment action brought under Article 263 TFEU. There must, moreover, be some real connection between the individual decision which is the subject matter of the action and the general measure the legality of which is being contested.

Plea of illegality (3) While Article 277 TFEU allows the applicant incidentally to raise the illegality of a regulation outside the time limits in Article 263 TFEU, the applicant must still be within those time limits in relation to the primary challenge to the decision that is of direct and individual concern. As a summary, the applicant must still meet the time limit for the principal action. Private parties can use Article 277 TFEU, subject to the qualification that they cannot do so if it is clear that the act could have been challenged via Article 263 TFEU as in substance a decision in relation to which the applicant is directly and individually concerned. A Member State can invoke Article 277 TFEU even if it did not contest the measure within the time limit under Article 263 TFEU. Member States are privileged applicants, so they can always challenge EU acts.

Damage actions (1) - Article 340 (2) TFEU
In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties. Article 340 (2) TFEU is the Treaty Article that governs damages actions against the EU. Three conditions must be met for the institutions to incur liability: a) the conduct of the institution must infringe a rule of law intended to confer rights on individuals, b) the breach of EU law must be sufﬁciently serious and c) there must be a direct causal link between the breach by the EU institution and the damage sustained by the applicant.

Damage actions (2) The non-contractual liability of the Union presupposes at the very least the unlawful nature of the act alleged to be the cause of the damage. An individual must prove not only breach of a superior rule of law for the protection of the individual, but also that the breach was flagrant. The case law shows that three differing types of norms can, in principle, qualify as superior rules of law for the protection of the individual. A) Treaty provisions. B) A second ground of claim is that a regulation is in breach of a hierarchically superior regulation. C) A third ground is that the Union legislation is held to infringe general principles of law such as proportionality, legal certainty, or legitimate expectations, although the duty to give reasons does not qualify in this respect.

Damage actions (3) It is not necessary for a claimant to show arbitrariness as a pre-condition of liability, but he have the obligation to show the serious breach. Under Article 340(2) TFEU the seriousness of the breach will be dependent upon factors such as: the relative clarity of the rule which has been breached, the measure of discretion left to the relevant authorities, whether the error of law was excusable or not, and whether the breach was intentional or voluntary.

Damage actions (4) The existence of a serious breach requires attention to the very factors identified in cases. The nature of the discretion residing with the EU will inevitably impact on the success of any damages action: the broader and more complex the discretion, the more difficult will it be for the claimant to show the serious breach. The mere fact that the general aim being pursued by the EU is legitimate should not serve to shield it from liability, if it can be shown that there was a serious breach in the manner of attaining this end.

Damage actions (5) Where however the EU institution has considerably reduced or no discretion, the mere infringement of EU law may be sufficient to establish the existence of the sufficiently serious breach. Furthermore, the individual will have to show that the injury was actually sustained. The general objective when awarding compensation for loss in the context of non-contractual liability is to place the victim in the situation that would have pertained if the wrong had not been committed. Losses will be recoverable only if they are certain and specific, proven and quantifiable.

Damage actions (6) Furthermore, the Court held in Kampffmeyer case that it is possible to maintain an action ‘for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed’. The rationale was that it might be necessary to pursue an action immediately in order to prevent even greater damage. It is well known that the legal concept of ‘damage’ covers both a material loss stricto sensu, that is to say, a reduction in a person’s assets, and also the loss of an increase in those assets which would have occurred if the harmful act had not taken place.

Damage actions (7) The applicant must also prove that there is a causal link between the breach and the resultant harm. So, the applicant must show not only that EU action caused the loss, but also that the chain of causation has not been broken. It is not entirely clear what conduct by the individual will break the chain of causation. Negligence, or contributory negligence, will suffice either to defeat the claim or to reduce the award of damages. Also, the chain of causation can be severed by third parties, such as by an independent act of a Member State. In any case, there must a sufﬁcient proximity between the illegal act and the loss suffered.

LECTURE No 7 - THE EUROPEAN UNION’s JUDICIAL SYSTEM II (actions)

Similar presentations

Presentation on theme: "LECTURE No 7 - THE EUROPEAN UNION’s JUDICIAL SYSTEM II (actions)"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

LECTURE No 7 - THE EUROPEAN UNION’s JUDICIAL SYSTEM II (actions)

Similar presentations

Presentation on theme: "LECTURE No 7 - THE EUROPEAN UNION’s JUDICIAL SYSTEM II (actions)"— Presentation transcript:

Similar presentations

About project

Feedback