14EU Court of Justice Jurisdiction Quiz

Annulment Procedure (EU Law)

• The action for annulment is governed by Article 263 TFEU (formerly Article 230 EC and 173 EEC)
• Article 264 TFEU governs the possible effects of an annulment judgment.

Preliminary Overview

• Direct remedy allows Member States, EU institutions and individuals to directly challenge the legality of EU acts before the Court of Justice.
• The function of the annulment process is to review the legality of EU acts, not their merits.
• This is similar to administrative jurisdictions in national systems, notably the French and Italian models.
• The procedure ensures respect for the principle of legality and that EU institutions are subject to the rule of law (Article 2 TEU).
• There is a relationship between annulment procedures and preliminary reference procedures. These are different mechanisms: direct vs indirect protection

Preliminary Overview (2)

• The jurisdiction of EU annulment actions are divided between the Court of Justice and the General Court.
• The grounds for appeal and "defects" that can lead to the annulment of EU secondary law vary.
• Time limits for submitting actions for annulment exist. Effects of submission and the final judgment vary.
• The "locus standi", or standing, of natural and legal persons is an extremely important issue—with specific aspects related to the standing of natural and legal persons

Which acts can be challenged ex Article 263 TFEU?

• The Court of Justice of the European Union (CJEU) can review legislative acts enacted jointly by the Parliament and Council at the Commission's initiative.
• Acts adopted by Council, Commission and European Central Bank (non-legislative acts) are also reviewable.
• Acts of the European Parliament and European Council (from Lisbon treaty) that produce effects vis-a-vis third parties, and
• Acts of Union bodies and organs producing legal effects vis-a-vis third parties.

Which acts can be challenged ex Article 263 TFEU (2)?

• The specific list of acts that can be challenged has changed in different Treaty versions.
• Originally, acts by the European Parliament were not appealable.
• The European Council and other Union bodies and organs were not appealable before the Lisbon Treaty changes.
• The Court of Justice has developed a substantive approach to determining appealability, examining the act's content and effects rather than its formal designation.

Which acts can be challenged ex Article 263 TFEU (3)?

• All measures with legally binding effects, capable of affecting third parties and altering legal situations, are subject to challenge.
• Non-standard acts are also challengeable in this context
• Examples include acts affecting political parties' election refunds or decisions associated with international agreements, as well as communications, resolutions and press releases from certain EU bodies/organs.

Which acts can be challenged ex Article 263 TFEU (4)?

• Only binding acts are appealable.
• Recommendations and opinions are not appealabale
• Actions as intermediate steps leading to final acts are not appealable.
• Acts that do not introduce new legal positions are not appealable.

The division of competences between the ECJ and the GC

• Jurisdiction over annulment actions is divided between the General Court (GC) and the Court of Justice (ECJ). Different cases have different jurisdictions.
• General rule: General Court is competent for first instance of annulment claims from any applicant (e.g., member states, natural and legal persons) except cases assigned to a specialized court or reserved to the ECJ by statute (i.e. Art 256 TFEU).
• ECJ has appeal jurisdiction on points of law from general court decisions.

Which are the grounds of appeal?

• Article 2(2) TEU provides the CJEU has jurisdiction over actions on grounds of lack of competence, procedural errors, infringement of EU Treaties or any rule of law, or misuse of powers.
• Case law of the CJEU has established additional grounds like non-existence, though not explicitly defined in the Treaty.

Ground of appeal: lack of competence

• Lack of competence can be internal (one institution overstepping another's authority) or external (the EU acting outside its powers)
• The EU court will address lack of competence as public policy—raising it ex officio during any phase of the proceeding.

Ground of appeal: violation of essential procedural requirements

• There is not a specific definition of essential procedural requirements within EU law.
• This requirement is instead determined when a formal requirement significantly impacts the act’s content.
• This aspect is closely tied with violations of law, making separation challenging.

Ground of appeal: violation of essential procedural requirements (2)

• Common situations: insufficient motivation for decisions, failure to properly consult relevant institutions, and decisions made on incorrect legal bases.
• Consequences of incorrect legal basis vary from being considered simply a procedural error to a more significant defect, impacting the validity of the act if the decision would have been different with a correct basis

Ground of appeal: infringement of the Treaties or of any rule of law

• EU acts must adhere to the Treaties and all rules of relevant EU law, per Article 263(2) TFEU.
• The EU courts’ case law develops general principles based on fundamental constitutional traditions in member states.
• International principles (custom or treaties) form part of EU secondary acts’ legality parameters

Ground of appeal: infringement of the Treaties or of any rule of law (2)

• Secondary EU law itself can establish a hierarchy for its validity. Legislative acts, for example, often have precedence over delegated or executive acts (per Articles 289 and 290 TFEU).
• International law also plays a role; the EU Court will evaluate the legitimacy of agreements and norms when the secondary EU law is affected.

Ground of appeal: misuse of power

• Misuse of power is a residual ground of appeal, triggered whenever a body or institution uses a power for an unintended purpose, distinct from the stated purpose of the power itself.
• Sufficient evidence is needed for the Court to accept a misuse of power claim—and not merely a procedural defect or violation of substantive law

The extent and limits of judicial review under Article 263 TFEU

• The Treaty's procedural requirements constrain the Court's ability to review contested EU acts beyond the matter of their legality.
• The judgment cannot affect the outcome when the act is unlawful. The review is bounded by the legality of the challenged acts, not their merits.

The extent and limits of judicial review under Article 263 TFEU (2)

• Judicial review in sensitive areas like antitrust or state aid is challenging because the Commissions make highly complex economic assessments.
• Economic evaluations that the CJEU reviews must still be accurate, reliable, and consistent with other relevant considerations

Locus standi: privileged applicants

• Privileged applicants in EU annulment cases include Member States and EU institutions.
• They can challenge any secondary EU law without showing specific interest or relations to the act.

Locus standi: semi-privileged applicants

• Semi-privileged applicants (like the ECB, the Court of Auditors, and the Committee of the Regions), are recognized by the Lisbon treaty for specific cases
• This group can challenge EU acts in certain instances based on their prerogatives.

Locus standi: not-privileged applicants

• Not-privileged applicants, typically individuals or legal entities, lack automatic standing to challenge EU acts.
• Claimants must prove that the EU act directly and individually concerns them—an intensely scrutinized requirement leading to strict standards for such cases.

Locus standi: not-privileged applicants (continued)

• The standing issue was initially based on Article 230 EC, later adjusted by Article 263 TFEU.

The notion of direct concern

• Individuals directly affected by an EU measure are eligible to challenge it even if the measure doesn't specify them.
• Direct concern involves a direct causal link between the act and the individual's situation, without any discretion for intervening authorities.
• Case law clarifies nuanced interpretations of direct concern through important case studies

Limited standing and the system of jurisdictional remedies offered by the Treaties

• The stringent application of the Plaumann formula has limited circumstances in which an individual successfully challenges EU acts not addressed to them.
• The full range of EU judicial remedies and procedures are available for individuals to challenge EU acts indirectly through national courts.

Limited standing and the system of jurisdictional remedies offered by the Treaties (continued)

• Applying the Plaumann formula precisely—with emphasis on acts that don't specify target recipients—emphasizes EU-wide jurisdictional protection, and the principle of the rule of law.

The call for a revision of the system: UPA and Jego Quere cases

• The UPA and Jego Quere cases prompted discussions about refining the system for reviewing less straightforward, non-directed EU actions.

The new regime provided by art. 263 TFEU

• Article III-365 of the Constitutional Treaty established new parameters for annulment appeals.
• Article 263's fourth paragraph now enables natural/legal persons to appeal against EU acts directly affecting them, or regulatory acts not involving implementation measures

The notion of regulatory acts

• Specific acts of general application are now excluded from the standard legislative act category and are considered 'regulatory acts.'
• Regulatory acts can be challenged according to their specific effect on interested parties, via judicial review.

Time Limitation to bring an annulment action

• Time limits for an annulment action: The deadline for taking action is two months from the publication, notification, or when the applicant acquires knowledge of the act (taking the latest of the three as governing criteria).
• Differing time frames apply for specific acts, e.g., those involving publication in official gazettes versus those without explicit addressee listings.
• The time limits can be extended under specific circumstances, e.g., in situations where the parties are located in different jurisdictions, under the rules of procedure of the court

The effects of the submission of the application

• A formal annulment request alone does not automatically suspend an EU act.
• The Court, in suitable circumstances and on request, can however set aside the act through precautionary suspension.

The effects of the judgement rendered by the CJEU

• Annulments, once issued, affect acts ex tunc (from when the act was first adopted), not only ex nunc.
• The second paragraph of Article 264 TFEU provides some degree of flexibility regarding when the nullification applies
• The effects of annulment also address the issue of regulatory acts

The effects of the judgement rendered by the CJEU (continued)

• Rulings against annulment claims do not automatically eliminate the validity of challenged EU acts (and they can be re-challenged under other, relevant circumstances).
• The annulment can be limited to specific parts (or provisions) of an act impacted.