EU Law: Actions for Annulment

Actions for Annulment in the EU System

• Member States must provide effective legal protection in fields covered by Union law.
• Article 263 TFEU allows for actions to be brought before the CJEU to review the legality of acts of Union institutions and other Union bodies.
• The goal of actions for annulment is to ensure that Union institutions comply with all requirements of EU law.

Judicial Review of Union Acts

• Judicial review of the legality of Union acts is a function of the CJEU.
• Direct action is available against acts of the Union under certain conditions.

Admissibility of Actions for Annulment

• Several questions need to be examined to determine admissibility, including:
  • Acts of which institutions are subject to review?
  • Which acts can be reviewed?
  • Is there a time limit for challenging acts?
  • Which applicants can bring an action for annulment?
  • On what grounds?
  • With what consequences?

Acts of Which Institutions are Reviewable?

• Initially, Article 173 EEC (now Article 263 TFEU) only referred to acts of the Commission and the Council.
• In Case C-294/83 Parti Écologiste ‘Les Verts’, the CJEU ruled that an action for annulment may be brought against measures adopted by the European Parliament which intend to have legal effects vis-à-vis third parties.
• Currently, Article 263 TFEU allows for the review of legislative acts, acts of the Council, of the Commission, and of the European Central Bank, as well as acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties.
• Acts of bodies, offices, or agencies of the Union intended to produce legal effects vis-à-vis third parties are also reviewable.

When is an Act Intended to Produce Legal Effects vis-à-vis Third Parties?

• According to the CJEU, an act is intended to produce legal effects vis-à-vis third parties when it is intended to have binding legal effects that definitely and specifically determine obligations for third parties and bring about a distinct change in their legal position.

Acts of Which Institutions are NOT Reviewable?

• Acts of COREPER are not reviewable, as COREPER is not an EU decision-making body and any agreement it reaches can be pushed aside by the Council.
• However, acts of the European Council are reviewable if they are intended to produce legal effects vis-à-vis third parties.

Which Acts are Reviewable?

• Prior to the Lisbon Treaty, only legally binding acts of the institutions, such as regulations, directives, and decisions, were reviewable.
• The CJEU has interpreted the concept of "act" widely, extending reviewable acts to other forms of acts.
• The CJEU decides whether an act is reviewable or not by applying the test: "Is the act intended to produce legal effects vis-à-vis third parties?"

Which Acts are Non-Reviewable?

• Examples of non-reviewable acts include:
  • Refusal by the European Commission to start an infringement procedure against a Member State.
  • A reasoned opinion delivered by the European Commission under Article 258 TFEU.

Locus Standi for Non-Privileged Applicants

• There are four possible scenarios for locus standi for non-privileged applicants under Article 263 TFEU:
  1. The act is addressed to the applicant.
  2. The act is addressed to "another person".
  3. The act is of general application, other than a regulatory act.
  4. The act is a regulatory act that does not entail any implementing measures.
• In each scenario, the applicant must demonstrate different levels of concern, such as direct concern or individual concern.

Grounds for Annulment

• There are several grounds for annulment, including:
  1. Lack of competence or authority.
  2. Infringement of an essential procedural requirement.
  3. Infringement of the Treaty or of any rule of law relating to its application.
  4. Misuse of powers.
• The CJEU has the power to declare an act void if it is found to be unlawful.