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Flashcards in Annulment Procedure Deck (64)
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1

Which Article contains the Annulment Procedure?

Article 263 TFEU provides for the Annulment Procedure.

2

What is the basic idea underlying the Annulment Procedure?

The Annulment Procedure allows the Court of Justice of the European Union to review the legality of legislative acts of;
- the Council
- the Commission
- the European Central Bank
- the European Parliament and Council that are intended to produce legal effects vis-à-vis third parties
- bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties
Note that it does not allow for reviews of recommendations and opinions (applicable to the first three).

3

What is the jurisdiction of the Court of Justice of the European Union in relation to actions for Annulment?

The court has jurisdiction in actions brought by;
- a Member State
- the European Parliament
- the Council
- the Commission
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
- misuse of powers.

The court also have jurisdiction in actions brought by;
- the court of auditors
- the european central bank
- the committee of the regions
for the purpose of;
- protecting their prerogatives

4

Who may launch an action for annulment?

Any natural or legal person (subject to the jurisdiction of the court) may bring proceedings against an act implemented by a given authority, provided;
- the act is of direct and individual concern to them – can be demonstrated through addressee
- the act is a regulatory act (of direct concern) and not entailing further implementing measures

5

Are there any time/procedural restrictions on the actions for annulment?

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.

6

What is the relationship between the EU legal order and the Rule of Law?

The EU legal order adheres to the rule of law. This means that it is possible for Member States, organisations, business and individuals to challenge the legality or the validity of EU law. The main procedure for doing so is Article 263 TFEU – the so-called “action for annulment”.

7

What is the aim of the action for annulment procedure?

To provide a mechanism whereby a particular provision or instrument of EU law can be declared invalid and be annulled by the Court of Justice.

8

How do actions brought directly by member states or eu institutions differ from those brought by individuals?

As a general rule, direct actions for annulment brought by the Member States or by one of the EU institutions are brought before the Court of Justice. Actions for annulment brought by companies or individuals go to the General Court.

9

What is the relationship between the Court of Justice of the European Union and the various national courts?

To protect the effective and uniform application of EU law, the Court of Justice is the only court which can actually annul provisions of EU law.

10

What are the various conditions claimants seeking to bring a direct action for annulment have to fulfil?

(1) The act of EU law that is challenged by the claimant has to be a reviewable act
(2) There must be a substantive ground of annulment which is included in Article 263 TFEU
(3) The claimant must have legal standing to bring an action for annulment
(4) The claim must have been brought within the time-limit

11

Why are the criteria/thresholds (particularly for standing) so strict?

One of the reasons for this high threshold is that an alternative route has been developed through the national courts through the preliminary reference procedure in Article 267 TFEU.

12

What, according to Article 263(1) TFEU, constitutes a ‘reviewable act’?

First of all, legislative acts can be reviewed. Secondly, acts of the EU institutions intended to produce legal effects vis-à-vis third parties. Thirdly, the Court can also review the validity of acts from other EU bodies which are intended to produce legal effects vis-à-vis third parties.

13

Why can’t recommendations and opinions be challenged as ‘reviewable acts’?

For an act to be reviewable it must be legally binding – it must directly create legal effects for third parties, thus purely advisory instruments like opinions and recommendations are not challengeable under Article 263 TFEU.

14

Does the precise type of act or name of the instrument matter when determining whether the act in question is reviewable?

The precise type of the act or the name of the instrument does not matter – the label of the measure is irrelevant. The Court will assess whether the measure in substance is a legal act which is binding on third parties. If this is the case, the act can be reviewed under Article 263 TFEU. See Case C-22/70, ERTA.

15

What are the substantive grounds for annulment included under Article 263 TFEU?

- Lack of competence
- Infringement of an essential procedural requirement
- Infringement of the Treaties or any rule related to their application
- Misuse of powers

16

What is a lack of competence as a ground for annulment?

This means that the EU did not actually have the competence to adopt the act.

17

What principle underpins the annulment ground – lack of competence?

The principle of conferral, the EU can only act in those areas where the Member States have conferred powers to it – acting beyond these conferred powers will lead to actions grounded by a lack of competence.

18

Who are likely to bring actions based upon a lack of competence?

Member States, after all, they could be said to be the guardians of the principle of conferral – they want to preserve the powers which they have not conferred to the EU. The most famous case brought on this ground was the Tobacco Advertising case (Case C-376/98).

19

What is an infringement of an essential procedural requirement as a ground for annulment?

An essential procedural requirement is the procedural dimension of the adoption of EU acts. A procedural requirement could be, for example, the requirement that one of the EU institutions has to be consulted before the act can be adopted. If this consultation does not occur, this would be an infringement of an essential procedural requirement.

20

Can any infringement of a procedural requirement ground an action for annulment?

No, not every breach of a procedural requirement is a ground for annulment – it has to be an essential procedural requirement.

21

What is an infringement of the Treaties or any rule related to their application as a ground for annulment?

This is the broadest ground of review. It does not only include review for compliance with the Treaties. Compliance with general principles of law and fundamental rights – you will remember that the Charter of Fundamental Rights has been given the same status as the Treaties – is included in this category.

22

What is a misuse of powers as a ground or annulment?

This is an exceptional category and there are not many cases in which this ground of review was relied on. To be able to establish that the EU has misused its powers, claimants have to establish that an EU act has been adopted for another purpose that what it was meant for – in other words, that there was an ulterior motive for the EU to adopt the act, which constituted a misuse – or abuse – of powers.

23

What is the requirement of standing?

Claimants who would like to bring an action for annulment under Article 263 TFEU have to establish that they belong to one of the categories of applicants who are entitled to bring an action under Article 263 TFEU, this is the requirement of standing – if they do not belong to one of the categories, they do not have standing and their case will be held inadmissible.

24

What are the three categories of person who have sufficient standing to launch an action for annulment?

(1) privileged applicants
(2) semi-privileged applicants
(3) non-privileged applicants

25

What requirements do privileged applicants have to satisfy to demonstrate standing?

Privileged applicants do not have to show anything to show that they have standing to bring an action for annulment. In other words, they can always start an Article 263 TFEU procedure and their standing is not dependent on the fulfilment of any conditions.

26

Who are privileged applicants?

The Member States, the European Parliament, Commission and Council are privileged applicants. Actions for annulment brought by any of these claimants will usually go to the Court of Justice.

27

What requirements do semi-privileged applicants have to satisfy to demonstrate standing?

Semi-privileged applicants have to establish that they are protecting their prerogatives by bringing an action for annulment. This is not a very difficult test to satisfy – all they have to do is to show that the EU act has affected their prerogatives under EU law.

28

What requirements do non-privileged applicants have to satisfy to demonstrate standing?

They have to show that they fall within one of three categories;
(1) the EU act has to be addressed to them
(2) the EU act has to be of direct concern to them
(3) they are directly concerned by an EU act which is a regulatory act that does not entail implementing measures.

29

Who are non-privileged applicants?

They are all other natural and legal persons, thus not those who hold privilege or semi-privilege.

30

What was the significance of the Treaty of Rome in regard to the standing of non-privileged applicants?

The choice made by the Member States by the adoption of the Treaty of Rome was to allow private parties to challenge administrative acts (such as decisions) addressed to them, but to make it very difficult for them to challenge legislative acts adopted by the EU.