EU and Judicial Review Essay PDF

Preview

Summary

The preliminary ruling procedure is an essential element of the EU legal order that has facilitated significant developments in EU law. However, it is not an appeal system but a forum for judicial dialogue between the European courts. The effectiveness of the procedure is subject to a generous judic...

Description

Judicial review is the direct challenge of the legality of European Union acts. It provides a framework to analyse the legality of the acts and decisions of the institutions of the European Union.1 In addition it protects the rights of those who are subject to and affected by the instruments of the European Union. 2 A claim for annulment of EU regulations are subject to multiple TFEU articles.

Article 263 TFEU lays out a way in which a judicial claim can be pursued; known as an action for annulment.3 Acts of the European Commission, European Parliament, European Council and Council of Ministers are subject to Article 263 TFEU. 4 The CJEU will review the legality of legislative acts made by the Council of Ministers, European Council and the European Central Bank and the acts or opinions of the European Council and European Parliament.5 The CJEU therefore has jurisdiction over actions on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. 6 Any natural or legal person may, under the conditions laid down in the Article 263 TFEU, bring proceedings against an act which are 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.7 In order for a judicial review claim to be addressed by the Court of Justice of the European Union (CJEU), the act must be reviewable and open for challenging, the claim must be brought to the court within the legal limit laid out in Article 263(6) TFEU, which is two months, there must be a procedural or substantive illegality as laid out in Article 263(2) TFEU and the claimant must have legal standing.8

The act must be reviewable to be reviewed for annulment, which according to Article 288 TFEU includes regulations, decisions and directions, however, this list is non-

1 Ewan Kirk, ‘EU Law’ (6th edn, Pearson, 2019) 65 2 ibid 3 Article 263 TFEU 4 Paul Craig and Grainne De Burca ‘EU Law: Text, Cases and Materials’ (7th edn, Oxford University Press, 2020) 560 5 ibid 6 ibid 7 Ibid 563 8 Article 263(2)(6) TFEU

exhaustive.9 The CJEU has made it clear that an ‘action of annulment…available in the case of all measures adopted by the institutions, whatever their nature and form, which are intended to have legal effects’.10 This means that any action or decision made by any EU institution that was intended to have a legal effect, may be brought forth for an action of annulment.

According to Article 263 TFEU, the institution bringing forth the challenge and action for annulment must have legal standing. 11 This is understood to be settled into three categories; privileged applicants, semi-privileged applicants and non-privileged applicants. Privileged applicants, under Article 263(2) TFEU, include the Member States of the European Union, the Council of Ministers, the European Commission and the European Parliament.12 Privileged applicants may bring an action for annulment without the need to illustrate any particular interest on the issue as the locus standi is automatic.13 Semi-privileged applicants, under Article 263(3) TFEU, include the Court of Auditors, the European Central Bank and the Committee of the Regions.14 Unlike privileged applicants, semi-privileged can only bring an action for annulment forth to the CJEU for the purpose of protecting their prerogatives. 15 Under Article 263(4) TFEU, non-privileged applicants is understood to be ‘any natural or legal person’ who may bring forward an action of annulment if an act is of ‘direct and individual concern to them’ or a regulatory act is of ‘direct concern to them that does not entail implementing measures’. 16 The requirement that the claimant is to have been addressed by the act in question or has direct and individual concern, has always been the case even prior to the Lisbon Treaty. This is not the case for the third scenario laid out by Article 263(4) TFEU. The Lisbon Treaty introduced the regulatory acts scenario which undoubtedly paved the way for non-privileged applicants such as businesses, to have access to justice when they have been illegally affected by a regulatory act. A regulatory act is an act of delegated legislation, one that is not mentioned in Article 289 TFEU.17 9 Article 288 TFEU 10 Case 22/70 Commission v Council ‘ERTA’ 11 Article 263 TFEU 12 Article 263(2) TFEU 13 Ewan Kirk, ‘EU Law’ (6th edn, Pearson, 2019) 69 14 Article 263(3) TFEU 15 Ewan Kirk, ‘EU Law’ (6th edn, Pearson, 2019) 70 16 Article 263(4) TFEU 17 Article 289 TFEU

The Chocolate Factory LTD would be seen as a non-privileged applicant as they fulfil the description of ‘any natural or legal person’ under Article 263(4) TFEU. Nonprivileged applicants must comply with the four admissibility criteria before presenting the claim to the CJEU. Article 263(1) states that the regulation challenged must be able to be reviewed and Article 263(2) demands the regulation be under the four grounds for review. The claim must be under the time limit laid out in Article 263(3) and fulfil the tests for locus standi in Article 263(4).

It is now required to ascertain whether the Chocolate Factory LTD has been directly affected by the regulation adopted by the EU and if that regulation is of individual concern to them. This is because the regulation was not directly addressed to them. For this, a test was established in Dreyfus [1998] which requires a direct link between the regulation and the damage caused to the claimant. 18 Evidentially, the Chocolate Factory LTD is directly affected by the regulation as it provoked a complete cease in trading and all elements of the business. As the regulation was approved by more than one EU institution, it becomes more difficult to challenge. The factory must show they have individual concern with the regulation. The test laid out in Plaumann v Commission [1963] requires the claimant to distinguish “certain attributes which are peculiar to them or by any reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually”.19 This means that the claimant cannot be one of many others in the same situation and must stand alone in their issue. Consequentially, the test requires the claimant to be a closed and fixed group at the time of adoption of the regulation. 20 As the Chocolate Factory LTD is not the only company to make chocolates containing edible gold, they would not be regarded as having individual concern. The harsh threshold to prove for locus standi test for concern limits the access to justice for non-privileged individuals which only sparked debate that the EU was restricting justice for those who do not have legal authority. Examples of this would be Jego-Quere and Cie v Commission or Union de Pequenos Agricultores v Council. 18 Dreyfus [1998] 5 WLUK 30 19 Plaumann v Commission [1963] E.C.R. 95 20 Article 263(4) TFEU

The company claims the new regulation that has been adopted by the EU is ultra vires which would mean the regulation requires legal authority but is done without it.21 If this is the case, it would mean that the European Parliament and Council of Ministers has failed to stick to the limits of governing treaties. As the European Parliament and Council of Minister hold the majority of power within the EU and Parliament’s role is to create legislation, the regulation would not constitute ultra vires. Both institutions have not acted out of the realms of their power nor misused their powers as the legislation was approved in order to protect the citizens of the member states from an evident health risk. Chocolate Factory LTD also claim the regulation is disproportionate to the aims pursued, which is evidentially not the case. Both institutions acted on the advice of European health associations who argued that gold cannot be broken down in the human body and is therefore a health hazard. By listening to the advice of industry professionals, neither institution commits a lack of competence which if committed, would give rise to a successful claim for annulment.22

The last argument of the factory is that the regulation

infringes the freedom to conduct business as guaranteed in the Charter of Fundamental Rights. Article 16(1) of the Charter of Fundamental Rights and Freedoms states that everybody has the right to the free choice of her profession. 23 It does however state that the business is to be conducted in accordance with national laws.24 As EU law is to have supremacy over national law, and the regulation has been introduced to protect EU citizens, this claim by the factory would be dismissed. Their freedom to conduct business was indeed affected by the legislation, however, this was legal as their conduct must be in line with national laws which is no longer was.

Upon reflection, it is evident that Chocolate Factory LTD would not have a successful claim for annulment of the regulation restricting edible gold as they have not satisfied

21 Paul Craig, ‘The ECJ and Ultra Vires Action: A Conceptual Analysis’ (Common Market Law Review 48, 2011) 395 22 Article 263(2) TFEU 23 Article 16(1) of the Charter of Fundamental Rights and Freedoms 24 European Union Agency for Fundamental Rights ‘Freedom to conduct a business: exploring the dimensions of a fundamental right’ (2015, Luxembourg: Publications Office of the European Union) 9

the requirements to make the claim such as the Plaumann test, nor were the reasons for their claim valid. Table of Legislation Article 16(1) Charter of Fundamental Rights and Freedoms Article 263 TFEU Article 263(2) TFEU Article 263(3) TFEU Article 263(4) TFEU Article 263(6) TFEU Article 288 TFEU Article 289 TFEU Table of Cases Case 22/70 Commission v Council ‘ERTA’ Dreyfus [1998] 5 WLUK 30 Plaumann v Commission [1963] E.C.R. 95 Secondary Sources Craig P, ‘The ECJ and Ultra Vires Action: A Conceptual Analysis’ (Common Market Law Review 48, 2011) 395 Craig P and Burca G ‘EU Law: Text, Cases and Materials’ (7th edn, Oxford University Press, 2020) 560, 563 European Union Agency for Fundamental Rights ‘Freedom to conduct a business: exploring the dimensions of a fundamental right’ (2015, Luxembourg: Publications Office of the European Union) 9 Kirk E, ‘EU Law’ (6th edn, Pearson, 2019) 65, 69, 70...