LAW 1020

13/11/19

Judicial Review
Purpose:

 Hold institutions/bodies accountable

 Gives individuals

Reviewable Acts:

 Article 263.1 – “The CJEU shall review the legality of legislative acts of the Council,
Commission and European Central Bank…”
 Any body that produces legal effect, it should be possible for them to be reviewed by the
CJEU

Locus Standi – conditions for you as an individual or company to get access to court for judicial
review (‘place to stand on’):

 Article 263 also spells out:

o Privileged applicants – very easy to get access to court if you fall under this category.
The Council, European Parliament and Commission. They can challenge any review,
which makes sense because these three institutions are involved in the legislative
process. In other words, if they think an act is illegal, they can bring a case before
the European Court of Justice. Needn’t justify an interest, there are virtually no
hurdles for them to bring a case to court.
o Semi-privileged applicants – institutions such as Court of Auditors, European Bank,
Committee of Regions – need to have a certain interest in their decision, may only
challenge acts in order to defend their prerogative. Can only bring a case if they have
a certain interest – cannot bring just any case to court as the Council, EP and
Commission can.
o Non-privileged applicants – Lisbon Treaty added special access for certain groups of
people:
 Act addressed specifically to the applicant – e.g. Microsoft or Apple have
additional fines imposed onto them by an Act can fight the decision in court
by accessing court directly. Don’t need to meet any requirements. Important
to give them a remedy because they’re directly influenced by a decision.
 General Standing Test – you feel a provision in a regulation tampers or
interferes with you, and you want access to the court. You need to fulfil a
general standing test, which shows that there is a direct and individual
concern for you in a directive or regulation.
1. First element is direct concern – you need to show there’s a
relationship between your compromised legal standing and a
regulation. See Les Vert case where the rules were of direct concern.
 2. Second element where you have to show the rule is not only of
direct concern to you, but also individual concern. Established in
Plaumann case, wherein the appellant faced certain custom duties
in importing clementines into Germany, which meant a huge profit
loss. As such, this decision was of concern to him, so he met the first
requirement (direct concern). Showing individual concern was
harder – Mr Plaumann was not part of what is considered a ‘closed
group’, i.e. anyone can decide to work in the clementine
importation business. A closed group is, for an example, if fifty
people applied for something a year ago and the deadline has
passed, if an individual wants to apply later, they cannot, which
makes the people that form that group a closed group. For the
court, Mr Plaumann is part of an open group, whereas it is required
that you’re part of a closed group (your situation is distinguished
from others).
3. Consequence in that there is a gap in protection – expressed in
opinion of Advocate General in Union de Pequenos Agricultores
case: “in my opinion, it should therefore be accepted that a person
is to be regarded as individually concerned by a Community
measure where, by reason of his particular circumstances, the
measure has, or is liable to have, a substantial adverse effect of his
interests.”
4. Lisbon Treaty attempted to remedy this concern – Regulatory Act
and No Implementing Measure Needed, Article 263(4): “any
natural or legal person may, under the conditions laid down in the
first and second paragraph, 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.” I.e. if you’re
dealing with a regulatory act, you need only show direct concern,
which is easiest to show. What is a regulatory act? The Treaty
doesn’t provide a definition. In a first step, court had to define what
is to be understood by a ‘regulatory act’ and ‘implementing
measures’.
5. Question of what a regulatory act is was addressed in Inuit case. The
court said that a regulatory act = a non-legislative act, i.e. an act
brought about under Articles 290 and 291 (delegated and
implementing acts, for example).
6. What do we understand by ‘implementing measures’? Article 263.4
TFEU, Case C-456/13 P, T & L Sugars case – sugar producers said
that EU law in this area is so detailed that there’s no discretion for
MS. As soon as a MS has to do something to give effect to EU law,
that’s considered an implementing measure.
7. Means as a non-privileged applicant, you cannot reply on the
Special Standing Test.

Grounds for Review:

- Article 263.2 TFEU sets out grounds for annulment of the EU:
 o Lack of competence (e.g. Working Time Directive)
o Infringement of an essential procedural requirement (e.g. SA Roquettee Freres v
Council)
o Infringement of Treaties or any rule of relating to their application (e.g. Block)
o Misuse of power (e.g. Gutmann). Need to show that an institution acted in bad faith,
very high threshold and this is difficult to do.

The Plea of Illegality:

- Article 277 TFEU

- Assume there is a decision against you, the problem you would have is the regulation behind
the decision. Art. 277 TFEU gives you the right and the circumstances to attack EU
regulations behind the decision and make a case that the law here is illegal.