Art 263 - Summary European Union Law PDF

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Art 263 Judicial Review Weinstein: people cannot discover what is going on in our government through litigation, how can they control Principle Art263(1) CJEU has authority to review legality of legislative acts (other than recs and opinions) of Council, Commission and ECB, and acts of EP and EC int...

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Art 263 – Judicial Review Weinstein: “if people cannot discover what is going on in our government through litigation, how can they control officials?” Case/Provision Principle Art263(1) CJEU has authority to review legality of legislative acts (other than recs and opinions) of Council, Commission and ECB, and acts of EP and EC intended to produce legal effects via-a-vis third parties Calpak / IBM “Legislative Act” – includes regulations, directives and decisions made by OLP. The choice of form cannot alter the nature of a measure. Any act which has binding force or produces legal effects. Grounds for Lack of competence (tobacco directive) Infringement of essential procedure (EG Annulment technical things like failure to give reasons – Roquette) Infringement of treaty or rule of law (EG breach of General Principles) Misuse of power – evasion of procedure prescribed by treaty or adoption of union act for purpose other than those stated (Guiffrida). Priveleged Always allowed to bring an action, even where Applicants (2) the decision is addressed to some other person or body. SemiPrivileged Applicants (3)

Have standing only to defend their own prerogatives. European Council: Is listed in the bodies amenable to review, it is not however listed among either privileged or quasi-privileged applicants. i.e. Novelty of the Lisbon Treaty is the explicit inclusion of EU council as amenable to judicial review

Non-Privileged Applicants (4)

natural or legal person to bring an action where; - The act is addressed to that person - The act is of direct and individual concern to the natural of legal person(s), and the act is not immediate addressed to them. - Regulatory act, which does not entail implementing measures, and is of direct concern.

Consequence

Court will review the substance of the challenged measure. Cannot be preparatory (IBM), must be final. Art 263 cannot be used to review acts of MS.

Evolution of the EP: • Before Maastricht: Non-privileged • Comitology + Chernobyl: Quasi-privileged • Nice treaty: privileged. There is an asymmetry in article 263 that applies to EC but not other institutions. • European Council can only bring a failure to act under article 265 to the Court. Odd to allow 265 but not 263 - what if it wants to start a procedure of annulment under article 263? ECJ might try to interpret A263 as they used to for EP to enable EC to defend its prerogatives and justify this on ground that it is necessary to safeguard the institutional balance under the Treaty. Has been a very hard test for individuals to satisfy Koch has criticised the standing test for being a barrier to justice and that, particularly under old law, if direct access were not afforded to an affected party, a national measure was absent to challenge and the only route to review would be to break the law. • Has standing improved much/still true?

Direct Concern – directly affects the legal situation of the applicant and leaves no discretion to the addressee of the measure, who are entrusted with its implementation. Case/Provision Principle Dreyfus Implementation must be automatic and a result from EU rules without the application of other intermediate rules. Sony Court said the regulation directly effects the legal situation of Sony and left UK with no discretion as to what to do with the task of implementing it. Error in classifying invalidated a certificate issued to Sony by the UK (legal situation changed directly by regulation adopted by EU). Test for direct concern was passed. International Clear from the Reg that the decision on the grant Fruit of import licences is a matter for the commission, provision says commission alone is competent to assess economic situation to justify grant, Art makes it clear national authorities enjoy no discretion. Measure whereby comm decides thus directly effects legal position of parties concerned, falls within standing/is admissible. Municipality of Comm authorised Lux to grant certain aids to Differdange undertakings names in measure, provided that they reduce their production capacity by a certain amount. Does not specify the establishments which must be reduced or factories which must be closed. Contested decision left to NAs and undertakings concerned a margin of discretion with regard to implementation and choice of factories to be closed. No individual and direct concern.

Consequence Can be difficult to determine whether there is some autonomous exercise of will between the original decision and implementation (Salamander case). If a decision leaves sufficient room for discretion it will not be of direct concern.

As Above

As Above

Individual Concern Case/Provision Principle Plaumann Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision 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 Calpak and the Art173(now 263) empowers individuals to Abstract contest any decision which is of direct and Terminology individual concern. Objective of provision is to Test prevent Comm institutions from choosing form of a regulation to exclude an application by an individual which is of D and I concern to him. Choice of form cannot change nature of measure.

Consequence

A189(now 288) distinguished reg and decision based on whether measure is of general application or not. Provision in this case was clearly one of general application, applies objectively and in a generalised and abstract manner. Not Direct and Individual concern.

Plaumann and Decisions – Pragmatic and Conceptual Difficulties

The test stipulates that applicants can only be individually concerned by a decision addressed to another 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. In Plaumann applicant failed because it practiced commercial activity that could be carried out by any person at any time. This reasoning can be criticized on: - Pragmatic terms: the application of the test is economically unrealistic (supply and demand) - Conceptual terms: It is literally impossible for an applicant to succeed, except in a very limited category of retrospective cases.

Plaumann and Regulations – Pragmatic and Conceptual Difficulties

Abstract terminology test said look behind form to determine substance but ECJ seemed to look behind form to form. True regulation (Calpak) – applied to ‘objectively determined situations and produces legal effects with regards to categories of persons described in a general and abstract manner’. However very easy to draft any act in this way, if ECJ then conclude it is a true reg, applicant won’t be individual/directly concerned

Plaumann – Regulations, Directives and the Lisbon Treaty

When Lisbon Treaty introduced, no longer makes any mention of regulation might be disguised as directive of I and D concern so CJ can look behind

PPG

Claims must be lodged within 2 months and the clock begins to run regardless of where the act is published (hard print or internet). ‘neither the Spanish State nor the autonomous communities of which it is composed have adopted measures to implement the contested regulation’. Nothing to challenge before domestic courts. Unable to show individual concern.

UPA

Problems with “open and closed category” distinction; An open category: is one where the membership is not fixed at the time of decision. A closed category: is one, which is thus fixed. There are however practical and conceptual problems with this reasoning: • Practical terms: The language of open categories is used to rule out standing for any applicant, even if there is only a very limited number presently engaged in that trade, on the ground that others might undertake the trade thereafter. • Conceptual terms: to regard any category as open merely because others might notionally undertake the trade, leads to bizarre results, since any decision with a future impact would be unchallengeable because the category would be regarded as open. The fact that others MIGHT acquire these attributes later, by joining that trade, does not mean they are presently part of that category. Purpose of allowing such a challenge was to prevent institutions from immunizing matters from attack by form i.e. rationale for challenging a regulation where it was in reality a decision. AT Test defeated this. Codorniu case looked promising as said true reg might still be of individual concern, however Plaumann test still applied and so failed on trade-operation. Arnull – laudable hope that Codo might lead to test for standing based on adverse impact, judged on the facts of the case, was therefore not realised. Structure of TFEU in addition to lack of provision makes difficult. Test for a legislative act under TFEU is legalistic, not substantive (court will look to whether it was made with OLP). There are requirements to pass a delegated act, so the consequence of reclassifying a legislative act as delegated (or VV) would inevitably condemn it invalid, since it would not have been enacted by proper procedure or subject to proper conditions. Difficult to petition courts to look at substance of measure across the categories of legal act. It will not always be possible for small businesses to know the impact of a measure upon them within the timeframe, let alone if others are equally effected. AG Jacobs suggested should be able to challenge if “substantially adversely affected by a particular piece of legislation” – applicant gets no say in 267 and national court cannot declare measure invalid itself, denial of justice in cases where impossible for C to challenge indirectly, legal certainty = hear sooner. However,r Court ignored and applied Plaumann.

Jaego Quere

Lisbon Treaty

Agreed with AG Jacobs’ “substantial adverse”; -applicants granted a true right of direct access to a court which can grant a remedy, cases of possible denial of justice are avoided, and judicial protection is improved; -removes anomaly in case law that the greater number of persons affected, less likely JR. -increasingly complex & unpredictable rules on standing are replaced by simpler test which would shift emphasis in ECJ cases from purely formal questions to admissibility questions of substance. -such a reinterpretation is in line with general tendency of case law to extend scope of judicial protection in response to growth in institution powers (EG in ERTA or Chernobyl).

Individual concern is not required in relation to a regulatory act that is of direct concern and does not entail implementing measures.

I.Concerned by EU ,measure of general application that directly concerns him if measure affects his legal position in a manner which is definite and immediate, by restricting his rights or imposing obligations on him Quickly reversed. If reform is to happen, it must come from MS (did in the Lisbon treaty reform). The ECJ in UPA said nothing about the practical consequences of a more liberal test under article 263, but there is a sense that it was concerned with possible workload problems. It is of course true that a very strict test for standing may be less demanding on the Court’s time. This however comes dangerously close to reductionism, since it says no more than that if a court declines to hear a case it will save more judicial resources than if the case had been heard. Questions arose; • What is a ‘regulatory act’? • What are ‘implementing measures’?

Regulatory Acts requiring no further implementation Case/Provision Principle Inuit v Legislative act within the meaning of the TFEU is Commission one enacted by legislative procedure (can be R, D or D). Can delegate power to the commission to adopt non-legislative acts (can be R, D or D, normally R), these are “delegated acts”. Can also be “implementing acts”. CJEU – “regulatory acts” does not cover legislative acts. “Treaty provides a complete system of legal protection, based on a combination of Art 263 and 267” and this is compatible with Art 47 of the Charter that was not intended to alter the preexisting regime of judicial review. Telefonica Even if there is a regulatory act, if there are deemed to be implementing measures then the exception will not apply and clt will have to satisfy Plaumann and individual concern. Broad interpretation of concept.

Consequence Supposedly allows natural and legal persons to bring, under less stringent conditions, actions for annulment of ‘acts of general application, other than legislative acts’. Could be a legislative act that applies to a very narrow group of applicants, which is de facto a closed group, but no one could challenge the measure because would not come within reformed standing provision. Would hence have to try to show individual concern and would fail.

Broader the meaning given to implementing act, narrower the scope for the exception in 263(4). Regulations and Decisions should be okay, but directives not likely. Potential problem with regs/decisions is if they lead to some modification of national rules in order to meet obligations and these modifications are treated as implementing measures therefore precluding applicant from taking advantage of A263(4). Would vary state to state as would depend on MS legal system, not the EU regulatory act itself.

Questions: Does the procedure set out in the two treaties allow CJEU to argue there is a complete system of legal remedies available to challenge EU law? Do the rules ultimately protect EU law / are they necessary to prevent arbitrary challenges being made to frustrate the authority of EU law? Or do the rules limit too excessively?...