judicial protection

Action for Annulment

• Article 263 TFEU

• procedure before the Court of Justice or General Court asking ‘is this EU act unlawful?

• if the court agrees, the act is declared invalid (annulled)

• eg. asking to annul a regulation that the commission set that you think exceeded their powers

• first, the court checks if the action is admissible

admissibility requirements (4)

1. is there a reviewable act? → the act must produce legal effects, eg regulations, directives, decisions

2. does the applicant have standing? → standing = the right to bring action

3. was it brought within the time limit of 2 months?

4. is the applicant challenging an act through the correct procedure?

3 categories of applicants

1. privileged applicants → have automatic standing (don’t have to prove they are affected)

   1. Member States, European Parliament, Council, Commission

2. semi-privileged applicants → only to protect their own powers

   1. European Central Bank, Court of Auditors, Committee of the Regions

3. non-privileged applicants → have the hardest test

   1. individuals, companies

standing for individuals

1. if the act is addressed to you, standing exists

2. if the act is not addressed to you, you must prove direct & individual concern

   1. direct concern: the act directly affects you

   2. individual concern: Plaumann test → an action that affects you because of characteristics that distinguish you from everyone else, almost as if you were named → you’re one member of a big group that were affected

• lisbon made it easier → only need direct

criticisms of Plaumann

• too strict

• Jégo-Quéré & UPA criticised the restrictive standing rules

• court basically kept the Plaumann test

what is a regulatory act?

• comes from Inuit

• a regulatory act is a non-legislative act

• legislative acts still require direct & individual concern

grounds for review

• Article 263 lists 4 of them

what is a preliminary reference

• it is not an appeal

• it is a procedure where national court asks the CJEU a question about EU law

• national court applies interpretation to the facts of the case

why does preliminary reference exist?

• to ensure uniform interpretation of EU law so the internal market can function

• indirect review of the validity of EU law → because of Plaumann, individuals often can’t directly challenge EU legislation → they argue before national court about validity → if national court is unsure, they forward the question to CJEU for clarification

what questions may be referred to the CJEU?

1. interpretation → what does a law mean

2. validity → national court asks to declare an EU act as invalid (foto-frost)

foto-frost principle

• national court can say that EU law is valid, but can’t say that it is invalid

• if they think an EU act might be invalid, they must refer the question to the CJEU

which bodies can refer questions to the CJEU?

• Article 267: courts or tribunals can

• Dorsch: a court is a body that is

  • established by law

  • permanent

  • independent

  • applies rules of law

  • decides disputes

two categories of courts

1. courts whose decisions can be appealed

   1. they have discretion → they may refer, but they don’t have to

2. courts of last instance

   1. they have a duty to refer, because there is no higher national court to correct an incorrect interpretation of EU law

exceptions in preliminary references

1. if lower courts question validity of an EU act, they must refer too (even though they are not a court of last instance)

2. even a supreme court (court of last instance) does not always have to refer if

   1. the question is irrelevant → can’t affect the outcome of the case

   2. Acte éclairé: the CJEU has already answered the same question

   3. Acte clair: the answer is completely obvious (CILFIT principle)

when may the court refuse to answer a reference? (3)

• CJEU may reject a reference if

  • there is no genuine dispute

  • the factual / legal background is not explained properly

  • the questions obviously can’t help decide the case

what happens after the ruling of CJEU for a preliminary reference?

• the CJEU doesn’t decide who wins the case, it only answers the EU law question

• the case goes back to the national court who decide the dispute using the CJEU’s interpretations