Judicial Controls for European Union Legal Powers

The Treaty on the Functioning of the European Union (TFEU), under Articles 263 and 267, contains two provisions that are judicial controls which ensure the legal powers of the European Union (EU) institutions are being properly exercised.[1] Article 263 TFEU concerns circumstances in which a direct action can be brought against EU institutions by an ordinary individual.[2] Whereas, under Article 267, involves indirect review by the national courts of the Member States through the preliminary review reference. Since the creation of the EU in the 1960s, EU law has had a profound effect on each Member States and citizens and these controls provide an opportunity to review the legality of an EU. However, the access that EU citizens have to justice may be viewed as limited under Articles 263 and 267 of the TFEU. This essay will examine each of these articles, which are in relation to the judicial review and preliminary review procedure, with special reference to whether there is a limited individual access.

European law, according to the precedence principle, has supremacy over national laws of the Member States; if a national law is contradictory to a piece of European law, the binding force is suspended so the EU law prevails and is applied.[3] The principle is not defined in a treaty but has developed from Court of Justice of the European Union (CJEU) in cases such as Costa v Enel [1964].[4] The national law is not repealed but there is a suspension of its binding force in all cases where there is a conflict. This is done to ensure there is uniformity of the application of European law across all Member States. This principle has a profound effect on the judicial system of each Member States but also for all citizens. The access that citizens have to review the legality of European law are contained under Articles 263 and 267 TFEU but the effectiveness may be viewed as restricted due to the nature and protection of European law which ensures that this principle is being adhered to.

Article 263 TFEU enables an action to be brought in front of the Court of Justice or General Court in circumstances where an act of the Union contains a defect in some way. In Parti Ecologiste Les Verts v EP [1986],[5] it was held that Article 263 provides an opportunity for an action to be brought into front of the Court of Justice allowing them to review the legality of the acts. If found to be illegality, then they can declare the acts in question as void.[6] This prevents Union institutions not complying with EU law requirements when they create an act. This article has a specific procedure which has two main purposes of “questioning the validity of EU institutions and forms a protection to those that are subject to the instruments”.[7] However, as will be seen through the analyse of this Article, it is difficult for an individual to be successful. This is because of the issue of admissibility, there are four requirements that need to be satisfied; failure to do this will result in the case being rejected. The four requirements include: which institutions can be subject to review, types of reviewable acts, the time limit and who is eligible to bring an action.

The original position before Article 263 was contained under Article 173 of the European Economic Community (EEC),[8] and was that only acts of the Commission and Council could be reviewed. However, through case law such as Luxembourg v EP [1991],[9] this was extended to now include Acts of the European Parliament as the Court of Justice argued that the powers of this institution have increased, it therefore should be open to review.[10] Article 263 now states that all Union institutions that have a legislative role or intended to create a legal effect by their act should be open to review. Therefore, includes the European Council, this increase has meant that an individual can challenge a more diverse range of acts.

Not every act is a reviewable act by a Union institution, meaning that the act in question by not be subject to a judicial review. Only Union acts that have an intention to create a “legal effect vis-à-vis third parties” may be subject to a review.[11] This means that if there is a legal impact on third parties than this can be reviewed. This includes a variety of acts such as a Commission Communication as in the case of French Republic v Commission [1997].[12] However, there are still areas that cannot be challenged. For example, a decision to prosecute cannot be challenged, this can be seen in P Reynolds Tobacco Holdings and Others [2006].[13] Therefore, there is a broad range of measures that can be challenged but it depends whether or not there is a legal implication.

Under para 6 of the Article 263 TFEU, there is time limit of within two months from the date that either the measure was made public, or the date that the measure was notified from the applicant or, the day that the applicant came to know of the measure that the proceeding for judicial review should be instituted. However, as seen in BASF v Commission [1994],[14] if there is a serious defect in the measure the time limits may not be apply. However, this is only done in expectational circumstances, and after two months period, the measure becomes immune from the judicial review and this time limit applies to every applicant.[15] Therefore showing the limited time and opportunity that is available for an individual to start proceeding. This reflects the

There are three categories of applicants that may apply for a judicial review under Article 263 TFEU, different rules apply depending which category an applicant falls into and this can impact how difficult an individual may find it to access justice. This is a complex and disputed feature of Article 263 TFEU as it limits the position of individual to challenge.[16]

The first category, under para 2, are referred to as privileged applicants, which includes specified Union institutions, such as the European Parliament, the Council of Ministers and the Commission, and Member States.[17] Under this category, an action can be brought against all reviewable acts that they wish and do not have to state and justify their reason for the application.[18] As seen by the Court of Justice in Regione Siciliana v Commission [2006],[19] “Member States” only includes the government authorities and anything other must be considered under the other categories.

The second category, under para 3, is referred to as semi-privileged applicants. This includes the Court of Auditors and the European Central Bank, who have more limited powers to challenge than privileged claimants, as they can only bring an action if it encroaches on their prerogatives meaning that their interests are evidently affected.[20]

Lastly, under para 4, the last category of people who can challenge the legality are referred to as a “non-privileged applicant” and there are only three circumstances in which this may happen. These are: where an act is addressed to the applicant, an act addressed to another but is of a “direct and individual concern” to the applicant and if a regulatory act has a direct concern to the applicant but does not have implementing measures.[21] Compared to the two previous categories, the opportunity to review the legitimacy of an Union’s act seems more restricted. However, these conditions have developed into a broader remedy compared to the previous version contained under Article 23 of the EC Treaty. This is because a right to challenge “an act” can include a decision but also a regulation or a directive. The act must be of a “direct and individual concern” if it does not satisfy this then there is no possible review under this article.[22]

Direct concern is a concept that the act must cause immediate and inevitable disadvantages as seen in Alcan Aluminium Raeren v Commission [1970].[23] This concept has been interpreted inconsistently by the Court of Justice reflecting the difficult there is in proving this element as different meanings have arisen.[24] Due to the extension of Acts that can now be reviewed under Article 263 TFEU this element is heavily scrutinise increasing the difficult in satisfying this requirement.[25]

Individual concern means that is must affect the applicant as seen in Plaumann v Commission [1963].[26] This is a restrictive approach that may reflect the protection of the European Union legal order and the validity of a Union measure as it does not open the floodgates to all non-privileged applicants.[27] However, it increases the challenge for individuals to access justice for a breach of their rights caused by an Union act.[28] This element has been criticised heavily, the Advocate General Jacobs in UPA v Council [2003][29] recognised the difficulties that an individual has to show how he has been affected by the instrument more than other individuals. However, the ECJ in this case followed the individual concern test, confirmed in Plaumann, and without a change in the Treaty this will unlikely change. Consequently, this strict approach has meant that there is a limited number of cases that can meet the requirements limiting the opportunities to review the legality of an EU measure.[30]

If all four requirements of admissibility are satisfied, then the application must satisfy one of four substantive grounds for review which are identified under Article 263.[31] This includes: “lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or any rule of law relating to their application, or misuse of power.”[32] If one of these specific grounds are identified in the application then a review may be possible under Article 263 TFEU. This essential covers all areas that a violation of EU law can be challenged.[33] But as seen from the above analysis there is a sufficient difficult for an individual to access a judicial review even before the grounds of review can be considered.

Bibliography

•  ‘EUR-Lex – L14548 – EN – EUR-Lex’ (Eur-lex.europa.eu, 2018) <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14548> accessed 23 November 2018
• (2018) <http://www.citycolleges.ie/wp/wp-content/uploads/European-Union-Law-Chapter-8.pdf> accessed 25 November 2018 86

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[1] Steve Peers & Marios Costa, Court of Justice of the European Union (General Chamber) Judicial Review of EU Acts after the Treaty of Lisbon (6^th September 2011 City Research Online) 1

[2] Tony Storey & Alexandra Pimor, Unlocking EU Law (5^th edn. 2018 Routledge) 79

[3] ‘EUR-Lex – L14548 – EN – EUR-Lex’ (Eur-lex.europa.eu, 2018) <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14548> accessed 23 November 2018.

[4] Case 6/64 Costa v Enel [1964]

[5] Case 294/83 Parti Ecologiste Les Verts v EP [1986]

[6] Nigel Foster, EU Law Directions (6^th edn. Oxford University Press 2018) 237

[7] Tony Storey & Alexandra Pimor, Unlocking EU Law (5^th edn. 2018 Routledge) 79

[8] Article 173 European Economic Community

[9] Case 230/81 Luxembourg v EP [1991]

[10] Nigel Foster, EU Law Directions (6^th edn. Oxford University Press 2018) 237

[11] Article 264 TFEU

[12] Case C-57/95 French Republic v Commission [1997]

[13] Case C-131/03 P Reynolds Tobacco Holdings and Others [2006]

[14] Case T-79/89 BASF v Commission [1994]

[15] Alina Kaczorowska-Ireland, European Union Law (4^th edn. 2016 Routledge) 465

[16] S. Balthasar, Locus Standi Rules for Challenges to Regulatory Acts by Private Applicants: The New Article 263(4) TFEU (2010 35 ELRev) 542

[17] John Fairhurst, Law of The European Union (11^th edn. Pearson 2006) 236

[18] Alina Kaczorowska-Ireland, European Union Law (4^th edn. 2016 Routledge) 465

[19] Case C-417/04 Regione Siciliana v Commission [2006]

[20] Alina Kaczorowska-Ireland, European Union Law (4^th edn. 2016 Routledge) 465

[21] John Fairhurst, Law of The European Union (11^th edn. Pearson 2006) 237

[22] Tony Storey & Alexandra Pimor, Unlocking EU Law (5^th edn. 2018 Routledge) 86

[23] Case 69/69 Alcan Aluminium Raeren v Commission [1970] ECR 385

[24] Tony Storey & Alexandra Pimor, Unlocking EU Law (5^th edn. 2018 Routledge) 82

[25] Nigel Foster, EU Law Directions (6^th edn. Oxford University Press 2018) 244

[26] Case 25/62 Plaumann v Commission [1963] ECR 95

[27] (2018) <http://www.citycolleges.ie/wp/wp-content/uploads/European-Union-Law-Chapter-8.pdf> accessed 25 November 2018. 86

[28] For an example of how specific it is to succeed indidivudal concern see Case C-309/89 Codorniu ECLI:EU C:1994:197

[29] Case C-50/00 Union de Pequenos Agricultores (UPA) v Council [2003] QB 893

[30] Steve Peers & Marios Costa, Court of Justice of the European Union (General Chamber) Judicial Review of EU Acts after the Treaty of Lisbon (6^th September 2011 City Research Online) 3

[31] Tony Storey & Alexandra Pimor, Unlocking EU Law (5^th edn. 2018 Routledge) 83

[32] Article 263(2) TFEU

[33] Armin Cuyvers, Judicual Protection Under EU Law: Direct Actions Armin Cuyvers 2017 DO1 10.11.1163/9789004322072_015 255