Admissibility in EU Law: Locus Standi

Admissibility of Applicants for Annulment

• Locus standi: recognition of a legal interest in a matter, expressed in TFEU and further defined and interpreted by CJEU
• Restrictions on locus standi constitute an impediment faced by some categories of applicants, meaning no standing = no right to challenge
• 3 categories of applicants:
  • Privileged applicants
  • Semi-privileged applicants
  • Non-privileged applicants

Privileged Applicants

• Member States (MS) can bring an action of annulment even if MS didn't oppose the act during the decision-making process in CEU
• CEU
• Commission (COMM)
• European Parliament (EP)
• TFEU: no restriction on the purpose of bringing an action for annulment
• Examples of privileged applicants:
  • MS v. EU Institutions (e.g., Federal Republic of Germany v. European Parliament and Council)
  • EU institution v. EU institution (e.g., COMM v. CEU or COMM v. appointment of the High Representative)

The Commission (COMM)

• Original institution: High Authority ECSC
• Represents the general interest of the Union
• Independent body
• Consists of commissioners and a president
• Each commissioner has a portfolio (e.g., competition, energy) with a Directorate-general (civil servants)
• One member of the Commission per member state (27 in total)
• Originally 2 commissioners for the large member states
• Initiatives to limit the size of the Commission have been set aside
• Difficult to create a relevant portfolio for each commissioner

Commission Membership

• Term in office: 5 years (aligned with the electoral calendar of the European Parliament)
• MS decide who they want to suggest as their Commission member
• Hearings with candidate members before EP
• Vote of consent from EP for COMM as a body (on that basis appointed by EC)
• COMM as a body is responsible to EP; the EP can send home the whole COMM but not individual commissioners
• Special members:
  • Most Commissioners are just commissioners
  • Vice-President also known as The High Representative
  • Executive Vice-President (appointed as such by the COMM President)
  • The President

Commission President - Role

• Internal role
• External role: representing COMM (before the EP) and representing the EU
• Member of the EC
• After EP elections, EC proposes a candidate for COMM President to the EP; the EP has to elect this candidate

Commission Tasks and Responsibilities

• Promote the general interest of the EU
• Ensure and oversee the application of EU law (by MS)
• External representation
• Budgetary and management functions
• Other (coordinating) functions laid down in the Treaties
• Right of initiative in practice
• The content and timing of an initiative from COMM can often be traced back to conclusions of EC
• EC in its conclusions often makes specific requests to COMM to make use of its right of initiative

EU's Dual Executive

• EC leads the EU
• EC has the political authority, COMM has the right of initiative and a lot of expertise

Institutional Balance

• Complex institutional design:
  • need to ensure checks and balances
  • strike a balance between elected and non-elected institutions
  • balance between EU-wide interests and national interests
• EU institutions have to act within the limits of their respective powers in the context of a division of powers defined by the Treaties
• the institutional balance is maintained as long as every institution does not exceed its respective powers to the detriment of the others
• Maintaining the institutional balance is particularly important in the framework of the legislative procedure
• Strengthening role of EP throughout the history of European integration - now on equal footing with CEU

The Legislative Branch

• EP: most resembling a national parliament - directly elected
• CEU:
  • consists of 1 minister from each MS
  • But ministers are acting as much as representatives of their Member States as officers of the executive
• Voting rules set out in Art. 330 TFEU (Art. 20(3) TEU)

Enhanced Cooperation

• Acts adopted in the framework of enhanced cooperation shall bind only participating MS
• Examples of enhanced cooperation:
  • Schengen acquis
  • Applicable law to divorce (Rome III)
  • Unitary Patent
  • European Public Prosecutor

Open Method of Coordination (OMC)

• Form of 'soft' law
• Does not result in binding EU legislative measures
• Does not require EU MS to introduce or amend their laws
• OMC provides a new framework for cooperation between EU MS, whose national policies can thus be directed towards certain common objectives
• Under this intergovernmental method, MSs are evaluated by one another (peer pressure), with the COMM's role being limited to surveillance
• The EP and the CJEU play no part in the OMC process
• OMC takes place in areas which fall within the competence of EU MSs, such as employment, social protection, education, youth, and vocational training

Administrative Law

• Binding on EU and MS
• Rule of Law (RoL) principles:
  • legality
  • legal and institutional transparency
  • legal certainty
  • protection of legitimate expectations
• Proportionality of measures and decisions
• Good administration:
  • handles impartially and properly
  • access to files
  • proper reasoning and motivation
  • damages
  • language rights
  • effective judicial remedy
  • independent tribunals

Obligations of Member States

• EU law not just for EU bodies, but also for MS + enforceable at a MS level
• Also binds MS to certain standards of legal protections in order to function - without this, EU law rights wouldn’t be guaranteed or enforceable
• The principle of sincere co-operation:
  • obligation to co-operate in good faith with EU bodies and EU interests to the full implementation of EU law
  • the problem of shared EU administration and the principle of procedural autonomy → solution = principles of equivalence and effectiveness

The Principle of Sincere Co-operation

• EU and MS are required to assist each other in carrying out tasks derived from the Treaties
• Assistance should be provided in full mutual respect
• MS must take appropriate measures, both general and specific, to fulfill their obligations from the Treaties or acts of EU institutions
• MS are obligated to facilitate the achievement of the EU's tasks
• MS should avoid any measures that could jeopardize the attainment of EU's objectives

Effects of a Well-Founded Action for Annulment

• CJEU shall declare the act concerned to be void
• CJEU may state which of the effects of the act, which it has declared void, should be considered as definitive
• The institution should be required to take the necessary measures to comply with the judgment of CJEU
• Annulment does not result in imposing a fine on the EU institution which adopted the act and awarding financial compensation for applicants who were damaged
• Damages can be pursued as a separate and autonomous action brought as a parallel or a follow-up to an action for annulment

The Court of Justice of the European Union (CJEU)

• Functions and organization:
  • The CJEU structure:
    • Specialized courts
    • The General Court
    • CJEU
  • Actions and procedures before the CJEU:
    • No jurisdiction, in principle, in the field of CFSP
    • To review the validity/proportionality of operations carried out by the law enforcement services of a MS or the exercise of MS responsibilities with regard to the maintenance of law and order and safeguarding of internal security
• Distribution of work in CJEU:
  • Indirect actions - references for a preliminary ruling:
    • CJEU has jurisdiction to give preliminary rulings concerning:
      • Interpretation of treaties
      • The validity and interpretation of acts of the institutions, bodies, offices, or agencies of the EU
    • Courts or tribunals of MS can send a question to CJEU
    • CJEU takes account of a number of factors, in order to determine who can send a question, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law, and whether it is independent
    • The duty to refer on courts of last instance → “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 CJEU” (art. 267 TFEU)
    • There are exceptions for questions on interpretation, see case Cilfit in doc cases for exam EU law
    • Questions on validity of EU law always need to be referred because national courts have no jurisdiction themselves to determine the validity of acts of the EU institutions