University of Groningen Law Lecture 14 Enforcement against EU Acts PDF

faculty of law department of european and economic law 07-10-2019 | 1 Law of the European Union Lecture 14: Enforcement against acts of EU institutions Justin Lindeboom Department of European a...

faculty of law department of european and economic law 07-10-2019 | 1 Law of the European Union Lecture 14: Enforcement against acts of EU institutions Justin Lindeboom Department of European and Economic Law  faculty of law department of european and economic law 07-10-2019 | 2 Overview › Direct route: action for annulment (Article 263 TFEU) › Action for damages (Article 268 TFEU) › Indirect route: preliminary reference procedure (Article 267 TFEU)  faculty of law department of european and economic law 07-10-2019 | 3 Article 263 TFEU: structure › Procedure  Competent institution  Reviewable acts  Legal standing  Time limit › Substance  Grounds of review  faculty of law department of european and economic law 07-10-2019 | 4 Article 263 TFEU: competent institution › Article 263 TFEU: “The Court of Justice of the European Union shall review …” › Court of Justice of the European Union =  Court of Justice + General Court › Article 256 TFEU: jurisdiction of the General Court in actions based on Article 263 TFEU  Exception in Article 51 of the Statute of the Court of Justice: (some) actions brought by Member States or EU institutions  faculty of law department of european and economic law 07-10-2019 | 5 Article 263 TFEU: reviewable acts › Legislative acts › Acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions › 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  All acts that have or intend to have legal effects  faculty of law department of european and economic law 07-10-2019 | 6 Article 263 TFEU: legal standing › Three categories of applicants  Privileged applicants (second paragraph)  Quasi-privileged applicants (third paragraph)  Non-privileged applicants (fourth paragraph)  faculty of law department of european and economic law 07-10-2019 | 7 Standing for non-privileged applicants › “Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against  an act addressed to that person or  [an act] which is of direct and individual concern to them, and  […] a regulatory act which is of direct concern to them and does not entail implementing measures.”  faculty of law department of european and economic law 07-10-2019 | 8 Standing for non-privileged applicants › “An act addressed to that person”  E.g. a Commission decision imposing a fine on Google for violating Artic le 102 TFEU › Automatic standing to challenge the act before the General Court  faculty of law department of european and economic law 07-10-2019 | 9 Standing for non-privileged applicants › “An act which is of direct and individual concern to them” › Direct concern: the act (1) directly affects the legal situation of the person and (2) leave no discretion to implementing institutions (Microban) › Individual concern: the act affects the person by “reason of certain peculiar attributes” or by reason of circumstances in which the person is “differentiated from all other persons” (Plaumann)  faculty of law department of european and economic law 07-10-2019 | 10 The Plaumann test › Commercial activities such as importing clementines “may at any time be practised by any person” › Virtually impossible for natural/legal persons to show individual concern re. an EU act of general application  Individuals should challenge the EU act indirectly through the national court system + Article 267 TFEU (more on this later) › But sometimes not possible to go to a national court (because of national procedural rules)  Even then no reason to loosen Plaumann test (Jégo Quéré)  faculty of law department of european and economic law 07-10-2019 | 11 Article 263 TFEU: Treaty of Lisbon reform › “a regulatory act which is of direct concern to them and does not entail implementing measures.” › Added to address academic and judicial critique of the Plaumann test › Two parts:  (1) “regulatory act”  (2) “which does not entail implementing measures”  faculty of law department of european and economic law 07-10-2019 | 12 Article 263 TFEU: “Regulatory act” › Regulatory act: “act of general application other than a legislative act” (Inuit) › Legislative act = act adopted in accordance with a legislative procedure (Article 289(3) TFEU)  Ordinary legislative procedure (Article 294 TFEU)  Special legislative procedures (throughout the Treaty) › Main examples of regulatory acts:  “Delegated act” by the Commission (Article 290 TFEU)  “Implementing act” by the Commission/Council (Article 291 TFEU) › NB: Regulations and Directives are not always legislative acts  faculty of law department of european and economic law 07-10-2019 | 13 Article 263 TFEU: Treaty of Lisbon reform › Telefónica: broad understanding of the term “implementing measure”  Implementing acts (=measures) by an EU institution (also Article 291 TFEU), or  Implementing measures by Member States (e.g. national legislatures, national data protection authorities, competition authorities, tax authorities, food safety authorities, etc. etc.)  faculty of law department of european and economic law 07-10-2019 | 14 Example of chain of legal acts EU Treaties Article 114 TFEU Directive on harmonisation of national law (Legislative act) Article XX Directive Commission Regulation (Implementing act/measure) Article XX Commission Regulation Enforcement measures by national authorities (Implementing measures)  faculty of law department of european and economic law 07-10-2019 | 15 Time limit: Article 263 TFEU, 6th paragraph › “The proceedings provided for in this Article shall be instituted within two months of the publication of the measure […]” › In practice: time limit starts running 14 days after publication in the Official Journal, and is extended with 10 days to account for delay in mail delivery  faculty of law department of european and economic law 07-10-2019 | 16 Article 263(2) TFEU: Grounds of review › Lack of competence  E.g. Tobacco Advertising I › Infringement of an essential procedural requirement  Right to be heard (e.g. in competition law cases)  Duty to give reasons (Article 296 TFEU) › Misuse of powers  Relevant e.g. in the context of delegated/implementing acts by the Commission › Infringement of the Treaties or of any rule of law relating to their application, e.g.:  Principle of conferral and the need to choose the right legal basis  Principle of subsidiarity (Article 5(3) TEU)  Principle of proportionality (Article 5(4) TEU)  faculty of law department of european and economic law 07-10-2019 | 17 Proportionality › Formally a full-fledged proportionality test  Suitability  Necessity › But EU legislature has a “wide discretion” in regard to “social policy choices” and “complex assessments” (Working Time Directive)  Deference to the judgment of the EU legislature re. proportionality  Review limited to “manifest errors” and “misuse of powers”  faculty of law department of european and economic law 07-10-2019 | 18 Proportionality › Stricter scrutiny of EU acts (including legislative acts) interfering with fundamental rights  Proportionality test in Article 52 Charter › Also full review of administrative decisions (e.g. Commission decisions applying Articles 101 and 102 TFEU)  faculty of law department of european and economic law 07-10-2019 | 19 Action for damages (Article 268 TFEU) › The EU is liable for damages caused by its institutions (Article 340 TFEU) › Article 268 TFEU provides for a separate action before the CJEU › Substantive criteria for liability the same as those for Member State liability (Bergaderm)  faculty of law department of european and economic law 07-10-2019 | 20 Indirect route: preliminary references The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. 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 Court. […]  faculty of law department of european and economic law 07-10-2019 | 21 Article 267 TFEU: validity of EU acts › Alternative, indirect route to challenge the validity of an EU act  Go to a national court and ask it to refer the case to the CJEU  CJEU applies same grounds of review as in Article 263 TFEU › Article 267 TFEU: only applies to acts of EU institutions because the CJEU cannot review the validity of the Treaties › How to go to a national court?  Depends on national procedural autonomy (and its limits)  Often: challenge a decision of an administrative authority enforcing EU secondary legislation  faculty of law department of european and economic law 07-10-2019 | 22 Article 267 TFEU: validity of EU acts › National courts are competent to declare an EU act valid, but not competent to declare it invalid (Foto-Frost) › Only if national court doubts the validity of an EU act, it must request a preliminary ruling  faculty of law department of european and economic law 07-10-2019 | 23 Relationship between Articles 263 and 267 › Article 263 TFEU: direct action for the annulment of EU acts  Fastest route to ask the CJEU to decide on the legality of EU acts  Standard procedure for appeal against e.g. Commission fining decisions in competition law  Also for judicial review of acts of general application, but very difficult for natural and legal persons › Article 267 TFEU: indirect route to request the CJEU to decide on the validity of EU acts  No time limit  No “individual and direct concern” requirement for natural and legal persons - But there could be other standing criteria in national procedural law (e.g. Jégo- Quéré) - Subject to the principles of equivalence and effectiveness  faculty of law department of european and economic law 07-10-2019 | 24 Relationship between Articles 263 and 267 › “[an act] which is of direct and individual concern to them [or] a regulatory act which is of direct concern to them and does not entail implementing measures.” › Limiting direct access to CJEU for natural/legal persons against EU legislative acts - Indirect route based on Article 267 TFEU should be used - Or direct route based on Article 263 TFEU if the legislative act entails delegated or implementing acts that can be challenged › Limiting direct access to CJEU for natural/legal persons against regulatory acts that do entail implementing measures - Indirect route based on Article 267 TFEU should be used if the implementing measure is a national measure - Direct route based on Article 263 TFEU should be used if the implementing measure is an EU act - Challenging the implementing measure and invoke the illegality of the regulatory act faculty of law department of european and economic law 07-10-2019 | 25  faculty of law department of european and economic law 07-10-2019 | 26 Thank you and good luck at the exam!