EU Administrative Justice: Grounds of Review
Article 277 - Plea of illegality
'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.' Case law: C-92/78, which in turn relied on C-9/56 If proceedings are before court of justice, party might be able to plea illegality of EU act as a defence. This is not a freestanding ground.
Substantive Grounds - Infringement of the Treaty or of any rule relating to its application
- Any infringement of the treaties and any of its provisions as amended. - General principles ○ Substantive and procedural rights ○ E.g. fundamental rights, equal treatment, non-discrimination as well as Proportionality, right to a hearing, duty to give reasons, Subsidiarity Case law: C-17/74 and C-222/86 and C-491/01
Substantive Grounds of Review:
- Lack of Competence (incorrect legal base) - Infringement of an essential procedural requirement - Infringement of the Treaty or of any rule of law relating to its application - Misuse of powers
What are the means by which to seek judicial review of the legality of acts of EU institutions?
Article 263 - Direct action for annulment Article 265 - Action for failure to act Article 267 - Preliminary ruling Article 277 - Plea of illegality
Substantive Grounds - Misuse of Powers
As in the case where a measure is adopted with an objective other than that stated, or avoiding a procedure required by the Treaty to deal with the circumstances of the case. Case law: Giuffrida v Council of Ministers of the European Communities (105/75)
Limitations on availability of Article 267 TFEU - the discretion of the court to decline to give a ruling.
C-283/81 * Existence of genuine dispute - C104/79 * Hypothetical questions * Irrelevant questions raised in dispute - C-343/90 * Insufficiently clearly expressed question - Costa v ENEL, Roquette Freres * Insufficiently clear facts - C-322/90
Substantive Grounds - Lack of competence
Doctrine of conferred powers: Article 5 - EU can only act within spirit or competence conferred by member states. If they can only act within these limits, it gives us a guide on the limits in which the EU can act. Every EU act must have a clear legal basis: see Tobacco Advertising Directive Case, C-22/70 and C-268/94
Universitat Hamburg v Hauptzollamt Hamburg-Kehrwieder (216/82)
Importance: Article 267
Union de Pequenos Agricultores v Council of the European Union (C-50/00 P)
Importance: Judicial Review Relationship between remedies - 'the Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of institutions.' Judgment of the Court, para 40.
R. (on the application of British American Tobacco (Investments) Ltd) v Secretary of State for Health (C-491/01)
Importance: Judicial Review; Substantive Grounds; Infringement of the Treaty or of any rule relating to its application
Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v Heylens (222/86)
Importance: Judicial Review; Substantive Grounds; Infringement of the Treaty or of any rule relating to its application Facts: French authorities rejected the Belgium diploma of Heylens - adverse opinion of special committee. Held: No grounds given to refuse recognition of diploma, which is in stark contrast of EU's principle of mutual recognition - the only was it would have been justified for the diploma to not have been recognised would have been for it to not have been equivalent.
Sadolin & Homblad A/S v Commission of the European Communities (17/74)
Importance: Judicial Review; Substantive Grounds; Infringement of the Treaty or of any rule relating to its application Note: Breach of natural justice - lack of hearing.
Germany v European Parliament (C-376/98)
Importance: Judicial Review; Substantive Grounds; Lack of competence Note: Classic case of judicial review - Germany directly challenged EU act on the basis that it exceeded its competencies.
Commission of the European Communities v Council of the European Communities (22/70)
Importance: Judicial Review; Substantive Grounds; Lack of competence Note: Gives us a guide on the type of acts that are reviewable, anything with binding legal effects are reviewable; in this case the court found that the council was within its competencies.
Substantive Grounds - Infringement of an essential procedural requirement
It is for the court to determine what an 'essential procedural requirement' is; examples include right to be heard, consultation and participation, duty to give reasons. Case law: Roquette Freres SA v Council of Ministers of the European Communities (138/79)
Is there overlap between the grounds?
Note that the court is not always precise regarding specific grounds; see BEUC v Commission
Availability of Article 267 and 277 TFEU? Judgement of C-188/92
TWD Textilwerke Deggendorf GmbH v Germany (C-188/92) Court was explicit that party cannot use 277 if they would have had standing to use 263 to challenge the measure under direct review. However states can use 277 to challenge act, even if they do not have the standing to do so (something to do with time period).
Article 266 — Consequences of successful challenge
The institution, body, office or entity whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union. This obligation shall not affect any obligation which may result from the application of the second paragraph of Article 340.
Article 265 - Action for failure to act
• '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 of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act. • The action shall be admissible only if the institution, body, office or agency concerned has first been called upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned has not defined its position, the action may be brought within a further period of two months. • Any natural or legal person may, under the conditions laid down in the preceding paragraphs, complain to the Court that an institution, body, office or agency of the Union has failed to address to that person any act other than a recommendation or an opinion.'
Article 267 - Preliminary ruling
• The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; • Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. • Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. • If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. This article requires proceedings in the national court, with it not obliged to refer unless court of last instance (and decision on question necessary to enable Court to give judgment) - see C-216/82.
