Review of legality:
Article 263, basics and problems with it – aim to understand and interpret it.
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Concerns judicial review, fundamental way of citizens controlling the
legislature and legally holding the government to account.
This enables a court to consider whether a legally binding measure violates
procedural or substantive rules of law and should therefore be rendered
inapplicable. Art. 263 TFEU provides the mechanism for a direct challenge to
the legality of Union Acts.
Article 263 (1)
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The Court of Justice of the European Union 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. It shall also review the legality of acts of bodies,
offices or agencies of the Union intended to produce legal effects vis-à-vis
third parties.
o Could be the Commission, Council or Parliament – host of EU
institutions, and our ability to hold them to account.
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Article 263 (4): Any natural or legal person may, under the conditions laid
down in the first and second paragraphs, 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.
o Issue over ‘direct and individual concern’ and what it means,
discussion of the implementation of act is present here.
Regulatory acts mentioned over this.
o Had to be defined by the court.
o Problematically worded legislation
Article 263 (6): The proceedings provided for in this Article 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.
o Problematic legislation over this point, bodies bringing action for
review, time is very tight over when an action may be bought
and grounds on which it should be based.
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Reviewable Acts:
1. Legislative Acts
2. Regulatory Acts
3. Acts
Regulatory bodies:
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Inuit Tapiriit Kanatami and Others v European Parliament and Council (case
T-18/10)
– “…it must be held that the meaning of ‘regulatory act’ for the purposes
of the fourth paragraph of Article 263 TFEU must be understood as
covering all acts of general application apart from legislative acts.
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Recent case, should read this post-Lisbon. About seal traders
and a regulation which banned the profits over seal trading.
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What does ‘all acts of general application apart from legislative
acts’ mean? Means recommendations, opinions and resolutions.
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Defined what an act was separate to these two categories.
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In Inuit ‘acts’ were held by the ECJ to encompass any act
addressed to a natural or legal person and any act whether
legislative or regulatory, which is of direct and individual concern
to them (including legislative and regualtory acts which require
implementing measures).
Reviewable acts must have some legal effects and consequence
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Commission v Council (Re European Road Transport Agreement) (case
22/70)
– Council resolutions may be ‘acts’
– The measure was a Council resolution setting out the position to be
taken by the Council in the preparation of the road transport
agreement. The Commission sought to challenge this resolution, since
it considered the matter lay outside the Council’s sphere of
competence. The action was declared admissible.
– Broad interpretation of something having a legal effect, talking here
about a memorandum of understanding and European road transport,
legal effects must be pretty minimal.
– Broad interpretation of what constitutes having a legal effect.
Letters sent by the Commission (that are not decisions) can be reviewable ‘acts’.
– Re Noordwijk’s Cement Accord (cases 8-11/66)
– France v Commission (Re Pensions Fund Communication) (case C57/95)
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Again, very, very, broad interpretation of what might cause a legal
effect, interesting in this respect when contrasted to narrower legal
positions.
– Locus Standi – who may bring an action?
– Privileged, Semi Privileged and Non Privileged – have different abilities
to take their actions to court.
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Broad Locus Standi ensures adequate control of the legislature
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Narrow Locus Standi ensures that where an applicant is wholly unconnected
they should not be able to challenge validity. As this would reduce legal
certainty and affect the courts workload.
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Privileged applicants can challenge any act they choose under Article 263, they
do not have to prove individual concern: Member States, The Council, The
Commission, The European Parliament.
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Semi- privileged can bring an action under 263 if it affects their prerogatives in
any way, they are confined to reviewing acts of institutions that are necessary for
the protection of their prerogatives including, The Committee of the Regions, The
Court of Auditors and The European Central Bank.
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Non-privileged applicants is a natural or legal person is entitled to challenge an
act addressed to that person, or which is of direct and individual concern to them
and a regulatory act which is of direct concern to them and does not entail
implementing measures.
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Individual citizens have real problems challenging judicially.
Direct Concern:
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A measure will be of direct concern where it:
– Directly affects the legal situation of the applicant
– Leaves no discretion to the addressees of the measure
– Who are entrusted with its implementation
– For example say a measure was created measure because of position
as an Exeter student, but is only addressed to one of you. Discretion of
the addressee.
– Hard-line approach to direct concern here.
NV International Fruit Company v Commission (cases 41-44/70)
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The Community adopted a regulation which affected the importation of apples
during a set period of time.
– The Commission decided to issue licences on the basis of information
from MS’s about the previous weeks need for licences. Weird system.
– “The measure whereby the Commission decides on the issues of the
import licences thus directly affects the legal position of the parties
concerned.”
– Specific group that could be identified by the time limit here, could
decide people were directly concerned here. In a municipality,
Municipality of Differdange v Commission (Case 222/83)
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Commission authorised Luxembourg to grant aid to steel firms as long as they
reduced their capacity. The municipality argued direct concern due to a
subsequent reduction of tax.
– “It follows that the contested Decision left to the national authorities and
undertakings concerned such a margin of discretion with regard to
the manner of its implementation and in particular with regard to the
choice of factories to be closed, that the Decision cannot be
regarded as being of direct and individual concern to the
municipalities with which the undertakings affected, by virtue of
the location of their factories, are connected.”
– Won’t have as much tax or money as other, challenged this in court
over this – surely direct concern was applicable?
– Another hard-line approach, even though they are directly affected by
decisions outcomes, they won’t be directly concerned over ambiguities,
in terms of direct concern this is semi-difficult to prove. Direct and
individual concern.
– WHOLE AREA DOESN’T MAKE LOGICAL SENSE, DON’T WORRY
IF YOU DON’T UNDERSTAND THIS.
Individual concern:
o Previous legislation was willing to look beyond the form of the measure to its
substance (was a regulation really a decision?)
o Current legislation is more formalistic.
o Regulation may state they’re going to stop all Apple Mac products being
brought into this country, if only one person import this person, this could be
seen as individual – regulation is addressed to one person.
o Willing to go beyond previous regulation, current legislation is more
formalistic.
o Lisbon treaty made this worse.
Individual Concern:
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Plaumann & Co v Commission (Case 25/62)
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The Commission refused the request of the German Government to suspend
the collection of duties on clementine's.
– “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
and by virtue of these factors distinguishes them individually just as in
the case of the person addressed.
– In the present case the applicant is affected by the disputed Decision
as an importer of clementines, that is to say, by reason of a
commercial activity which may at any time be practiced by any
person and is not therefore such as to distinguish the applicant in
relation to the contested Decision as in the case of the
addressee.”
– Have to be able to prove you are as affected by this as the person the
decision is addressed to. Decision affects Clementine seller, but you
need to be able to distinguish yourself from anyone in this group, now
and in the future.
– Hugely hardline – terrible decision in terms of narrowness and
restrictiveness. Should have a broad understanding of locus standi,
puts decision on narrow focus.
The Plaumann Test
o Applicants can only be individually concerned by a decision
addressed to another if they are differentiated from all other
persons, and by reason of these distinguishing features singled out
in the same way as the initial addressee.
o The applicant failed because it practiced a commercial activity
that could be carried out by any person at any time.
o Such a difficult test to prove it essentially makes the claim
redundant. Effectively still the leading case 50 years on, terrible
case with huge amount of staying power.
Problems with Plaumann:
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Limited number of traders engaged in the activity, the fact that people ‘could’
do it doesn’t mean they will. Test is ridiculously narrow.
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Only applies retrospectively because then groups can be defined. Only people
in a single week can claim for example, but directives are never addressed to
citizens over a week.
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The test seems to be applied from some future ill-defined date rather than
from the date the application was made.
Open and closed categories
o An open category is regarded as one where the membership is not fixed at
the time of the decision.
o A closed category is one in which it is fixed.
o Ignores the practical realities of people joining groups.
o Any decision with a future impact becomes unchallengeable.
o Can’t ignore clementine sellers on a whim. Makes situation where any
decision that has a future impact unchallengeable.
o What kind of system can operate with judicial review unavailable to review
over something that would have a future impact?
o Basic Reading
o Craig and De Burca, Chapter 14
o Recommended Reading
o Plaumann & Co v Commission (Case 25/62)
o NV International Fruit Company v Commission (cases 41-44/70)
o Further Reading
o Balthasar, S, ‘Locus Standi Rules for Challenges to Regulatory Acts by
Private Applicants: the New Article 263(4) TFEU’ (2010) 35 ELRev 542
Critical analysis of Article 263 and how could it be changed?
Individual Concern: Regulations and Directives
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An applicant can claim to be individually concerned by a legal act that takes
the form of a regulation or a directive
– Calpak (cases 798-790/79)
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A closed and definable group easily identified by the
Commission.
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Abstract terminology test, could this group potentially affect
anyone using the abstract terminology test? Applicants could not
show individual concern here, even though it was a closed and
easily identifiable group they provided abstract test to prevent
people from showing individual concerns.
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Because the regulation used abstract terminology the applicants
could not show individual concern.
Codornui (Case C-309/89)
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A Calpak ‘true regulation’
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Differentiated itself from all other traders due its trademarking of the word
crémant (sparkling wine).
– Liberalized Calpak but stayed true to Plaumann
– Still very restrictive.
– Stated because it revolved around particular trademarked word, it
differentiated themselves from other traders. Other liberalized
circumstances. Plaumann’s still the overriding case here, have to prove
you’ve trademarked a word – high bar to set.
– The Lisbon Treaty: The ECJ may well be reluctant to conclude that a
provision termed a ‘legislative act’ will be of individual concern in the
sense demanded by the Plaumann test.
– An applicant may well face equal difficulties in convincing Union Courts
that a delegated act in the form of a regulation or directive is of
individual concern as judged by the rigorous requirements of the
Plaumann test, given that delegated acts are defined as non-legislative
acts of general application.
– LIbson Treaty can be seen as a tacit approval of the way individual
concern has been restricted; framers of treaty don’t see this as a
problematic area – inference.
– Did put in area of regulatory acts, unsure how this would work in
practice – attempt to reinvigorate.
– Continually problematic area however, ECJ has taken much more
liberal approach in three key areas: Anti-dumping, Competition and
State Aids. Total liberalization of these areas under 263 now.
– Anti-dumping regulations prevent people outside the EU flooding the
market with goods at low prices. Must be a regulation. Not a decision.
Many more people can prove individual concern over anti-dumping
rules therefore.
– Timex (case 264/82) – the firm that initiated the complaint about
dumping. Unhappy with the resulting regulation. Timex initiated
complaint over dumping and were then unhappy with the results. Went
ahead and created regulation to stop dumping
– Allied Corporation (cases 239 & 275/82) – producers of the product
subject to anti-dumping.
– Producers and exporters charged with dumping would be individually
concerned.
– Can prove individual concern here, huge departure from Plaumann
over anti-dumping.
Extramet (case C-358/89)
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Importer of the product against which the anti-dumping measure is imposed:
A more lenient application of Plaumann?
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Competition: Any natural or legal person who claimed to have a legitimate
interest, could make an application to the Commission, putting forward
evidence of a breach of Art’s. 101 & 102. Shown to have individual concern,
decision never addressed to them showing individual concern – huge
liberalization of issues. Much, much lower standard to apply in competition
law.
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Metro (case 26/76) - A competitor challenging a decision by the commission
that was not addressed to them.
State Aid:
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Prevent competition from being distorted through government subsidies,
giving it an unfair advantage over competitors.
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COFAZ (Case 169/84) – analogous with Metro and Timex. Applicants have
standing if their position on the market was significantly affected by the State
Aid.
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Very different to the way Ploughmann’s been interpreted, broad approach
happening in some areas but not others, why should they be different.
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Anti-dumping, competition law and state aid all have much more liberal
approaches to individual concern. What is driving the liberal approach?
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Cases tend to involve huge amounts of money, is this having a significant
effect on the way we approach standing.
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UPA (Case C-50/00 P)
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Jégo-Quéré (Case C-263/02) - Reform considered in these cases over
individual concern:
UPA (Case C-50/00 P) Advocate General Jacobs – very important to read
his opinion, usefully outlines all the problems with this area.
o 102 (1) The Court's fundamental assumption that the possibility for an
individual applicant to trigger a reference for a preliminary ruling provides
full and effective judicial protection against general measures is open to
serious objections:
o Under the preliminary ruling procedure the applicant has no right to decide
whether a reference is made, which measures are referred for review or
what grounds of invalidity are raised and thus no right of access to the
Court of Justice; on the other hand, the national court cannot itself grant
the desired remedy to declare the general measure in issue invalid;
o No guarantee there will be a referral to the ECJ, creating a real problem as
the access to justice becomes trickier, and we cannot prove it on that
route. Can’t necessarily rely on this from the national courts – difficulties
with stating there’s complete protection for this judicial system.
o If desperate you have to break the law, take this to the national court and
they may refer it on to the ECJ! Madness.
Idea of complete system of judicial protection is incorrect over this:
o Legal certainty pleads in favour of allowing a general measure to be
reviewed as soon as possible and not only after implementing measures
have been adopted – have to break the law for 8 years. In the interest of
legal certainty we need this to be as effective as possible. Locus standi
doesn’t seem to be the way the courts dealt with this.
o Indirect challenges to general measures through references on validity
under Article 234 EC present a number of procedural disadvantages in
comparison to direct challenges under Article 230 EC before the Court of
First Instance as regards for example the participation of the institution(s)
which adopted the measure, the delays and costs involved, the award of
interim measures or the possibility of third party intervention.
o Number of advantages of using 234 rather than 263 over the direction you
can channel these with, risk of messing issues up. Should be effective
over this, but there are issues with its methodology.
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Solution presented?
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(4) The only satisfactory solution is therefore to recognise that an applicant is
individually concerned by a Community measure where the measure has, or
is liable to have, a substantial adverse effect on his interests. That solution
has the following advantages:
– it resolves all the problems set out above: applicants are 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 in various ways;
– it also removes the anomaly under the current case-law that the
greater the number of persons affected, the less likely it is that effective
judicial review is available; - what sort of system permits this?
– the increasingly complex and unpredictable rules on standing are
replaced by a much simpler test which would shift the emphasis in
cases before the Community Courts from purely formal questions of
admissibility to questions of substance;
– Makes sense legal system should adopt this kind of system with the
advantages of direct access to a court.
Jégo-Quéré (Case C-263/02)
o Court in the first instance followed UPA’s line of reasoning, but then the ECJ
declined to recognise this following the opinion here – decision was to reject
the model rejecting far-reaching proposals and continuing with the poor
system.
o Attempts at reforms are yet to hit the mark. The Plaumann test still applies
here. Search Inuit on Westlaw for journal on this.
o The term regulatory act does not fit easily with the Lisbon classification of
legal acts.
o Any legislative Act that does not have implementing measures? Or
o Just regulations and decisions?
o Plaumann test still applies.
Inuit Tapiriit Kanatami, v European Parliament [2013] C-583/11
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The Court decided that regulatory acts in Article 263(4) do not include
legislative acts.
– The act under challenge in this case was EU Regulation 1007/2009
made by the EU Parliament and Council, and was therefore a
legislative act and unchallengeable.
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Contrast, an implementing regulation made by the Commission
alone, filling in the details not dealt with in the primary
Regulation, which could be challenged under Article 263(4) if of
direct concern.
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Limited number of acts that can be reviewed therefore, Article
263 thus becomes increasingly ineffective here; we’re forced in
a system of reliance on Article 267.
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Direct implementation of EU law here, by narrowing 263 to such
an extent they have further reinforced idea of co-operation
between national and EU courts?
Problem question:
A decision addressed to Aria has been made by the commission in order to control
the amount of Pokémon Cards imported into the EU. Ryan is the only other importer
of Pokémon Cards in the EU. He uses article 263 to challenge the legality of the act.
As he is the only other importer he claims to be individually concerned. Advise Ryan.
Plaumann case would be applicable here, although he’s the only distributor of
Pokemon cards, anyone could join this group so it’s unlikely he’ll
What case did Advocate say these things in?
Decision should be a regulatory act over this.
Act 263 applies, the decision can be reviewed.
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Is this an Act?
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Direct concern
– Does it directly affect Ryan?
– Does the measure leave discretion as to the addressees of the
measure?
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Individual concern
– Differentiated from all other persons? (Plaumann)
– Could anyone import Pokémon cards at any time?
– Criticisms of the Plaumann test