An examination of judicial review and the relevant procedure under EU law and in particular articles 263, 264 and 265.
Firstly there has to be a binding piece of secondary legislation such as a regulation, directive or decision and not a recommendation or opinion as these are not binding.
A review has to be brought within two months of publication in the Official Journal or two months from when the applicant first new about the act.
There are four grounds of review:
Lack of competence (Germany v EP & Council [2000] (Tobacco advertising case))
Infringement of an essential procedural requirement (Roquette Frères v Council [1980])
Infringement of the Treaty or any rule of law relating to its application (Hautala v Council [2001])
Misuse of power (UK v Council (Re. Working Time Directive) [1996])
Locus standi for privileged applicants such as the European Council, European Commission, European Parliament and Member States is automatic.
Semi-privileged applicants such as the European Central Bank, the Court of Auditors and the Committee of Regions can also challenge legislation when it affects their prerogaative.
Challenging legislation through judicial review is much harder for non-privileged applicants as they can only challenge three types of act:
An act addressed to that person
An act of direct and individual concern
A regulatory act of direct concern with no implementing measures
The interpretation of direct and individual concern by the Court of Justice has been very problematic.
A person is only directly concerned when they are directly affected by a piece of legislation such as in Société Louis Dreyfus et Cie v. Commission [1998]. There can be no intervening discretion exercised by a Member State as was the case in Eridana v Commission [1969].
Individual concern is the most controversial area of judicial review since the case of Plaumann v Commission [1963] and the establishment of the Plaumann test. The idea of a fixed, closed class has been interpreted so narrowly as to be almost meaningless. In fact it almost only ever applies retrospectively as in the case of Alfred Toepfer v Commission [1965].
There have been attempts to ameliorate the effects of Plaumann such as the abstract terminology test of Calpak [1980] but this had little practical effect despite claiming to look behind the form to the substance of a piece of legislation. Codorniu [1994] took Calpak to its logical conclusion but unfortunately has never been followed. Attorney-General Jacobs in Unión de Pequeños Agricultores (UPA) v Council [2002] suggested an alternative test based on whether the legislation had a substantial, adverse impact on the applicant but this was rejected in that case itself as well as in Jégo-Quéré [2004].
The actual meaning of the final type of act (A regulatory act of direct concern with no implementing measures) is still unclear since the Lisbon treaty but both Inuit v EP & Council [2013] and T&L Sugars v Commission [2015] shed some light and suggest the insertion does not break new ground beyond Plaumann.
Article 264 empowers the court to annul a piece of legislation if a successful challenge is brought by an applicant.
Article 265 is the converse to article 263 and allows a challenge for failure to act. However there has to be a duty to act (European Parliament v Commission [1985]) but the legislation must have been addressed to that person (Lord Bethel v Commission [1982]). Even if the applicant is successful the institution can respond by simply defining its position.
An alternative for non-privileged applicants is to use art 267 (the preliminary reference procedure) but this has its own risks. An applicant has to break the law to bring the challenge and it is not certain that a court will make a reference to the CJEU.
Негізгі бет EU Judicial Review - Arts 263 and 265 TFEU
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