Art. 263 TFEU: Review of legality of EU acts and standing

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1 Art. 263 TFEU: Review of legality of EU acts and standing ENFORCEMENT OF EU LAW

2 General featureson Art. 263 TFEU Complex provision on rules for review of legality of EU acts; Identifying subjects and conditions for legal stading (locus standi); Norm completing the EU system of judicial protection; Pre- and post-treaty of Lisbon forumlations fundamental difference!

3 Art. 263: The provision 1. The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects visà-vis third parties.

4 Art. 263: The provision 2. It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. 3. The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives.

5 Art. 263: The provision 4. 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 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. 6. The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.

6 Limitations Area of Freedom, Security, and Justice (Art. 276): No review on the validity or proportionality of police acts; No review on exercise of MSs responsibility in internal security matters. Common Foreign and Security Policy (Art. 275): Excluded but review on competence encroachment; Possibility to review acts providing for restrictive measures against natural or legal persons ( C-402 and 415/05 Kadi [2008].

7 The old provision Art. 230(4) EC: Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.

8 The general principles Which acts? (Art. 288 TFEU): Regulations; Directives; Decisions; Others (C-22/70 Commission v. Council [1971]); Requirements: binding force; legal effects.

9 The general principles Case C-60/81 IBM [1981]: In order to ascertain whether the measures in question are acts within the meaning of [Art. 263] it is necessary, therefore, to look to their substance. [ ] any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position [ ] However, the form in which such acts or decisions are cast is, in principle, immaterial as regards the question whether they are open to challenge under that article. [ ] in principle an act is open to review only if it is a measure definitively laying down the position of the Commission or the Council on the conclusion of that procedure, and not a provisional measure intended to pave the way for the final decision. Legal effects!

10 The general principles The criteria of direct and individual concern for Regulation: C-789 and 790/79 Calpak [1980] The objective of that provision is in particular to prevent the Community Institutions from being in a position, merely by choosing the form of a regulation, to exclude an application by an individual against a decision which concerns him directly and individually; it therefore stipulates that the choice of form cannot change the nature of the measure. Expanding the range of judicial review possibilities! Privileging substance over form? restrictive outcome in case law!

11 Standing Privileged applicants: Member States; European Parliament; Council; Commission; Standing allowed in all cases.

12 Standing Quasi-privileged applicants: Court of Auditors; European Central Bank; Committee of Regions Standing only to defend their own prerogatives.

13 Standing Non-privileged applicants: Natural and legal persons; Addressee of a decision; Direct and individual concern, but not addressee of a decision / Regulation; Direct concern (but not individual concern) of a regulatory acts that do not need implementing measures.

14 Direct concern Directly applicable act no discretion for the MS; Being affected by the EU act change in the legal position of the person caused directly by the EU act. C-41-44/70 NV International Fruit [1971] yes! The duty of such authorities is merely to collect the data necessary in order that the Commission may take its decision in accordance with Article 2 (2) of that regulation, and subsequently adopt the national measures needed to give effect to that decision. C-222/83 Municipality of Differdange [1984] no! In this case the contested measure, which is addressed to the Grand Duchy of Luxembourg, authorizes it to grant certain aids to the undertakings named therein provided that they reduce their production capacity by a specified amount. However, it neither identifies the establishments in which the production must be reduced or terminated nor the factories which must be closed as a result of the termination of production.

15 Individual concern The applicant shall prove to be differentiated from all other persons very restrictive and closed category! The Plaumann test C-25/62 Plaumann [1963]: Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.

16 Individual concern C-25/62 Plaumann [1963]: In the present case the applicant is affected by the disputed Decision as an importer of clementines, that is to say, by reason of a commercial activity which may at any time be practiced by any person and is not therefore such as to distinguish the applicant in relation to the contested Decision as in the case of the addressee.

17 Individual concern Standing barrier? C-345/00 FNAB [2001]: In the present case, the contested provision concerns Biogram and the members of FNAB and of Setrab only by reason of their objective status as economic operators in the organic products market, in the same way as all other Community operators in that market. C-209/94 Buralux [1996]: The contested provision authorizes all Member States, and not merely the French Republic, to take measures prohibiting generally or partially, or systematically objecting to, shipments of waste That provision therefore concerns the appellants only in their objective capacity as economic operators in the business of waste transfer between Member States, in the same way as any other operator in that business. The generally applicable (EU-wide) regulation prevents the recognition of an individual concern.

18 Individual concern Valid also for general interest: Greenpeace v Commission, T-585/93 and C- 321/95 P [1998]: CFI: It has consistently been held that an association formed for the protection of the collective interests of a category of persons cannot be considered to be directly and individually concerned for the purposes of the fourth paragraph of [Art 263] of the Treaty by a measure affecting the general interests of that category, and is therefore not entitled to bring an action for annulment where its members may not do so individually The three applicant associations [ ] claim that they represent the general interest, in the matter of environmental protection, of people residing on Gran Canaria and Tenerife and that their members are affected by the contested decision; they do not, however, adduce any special circumstances to demonstrate the individual interest of their members as opposed to any other person residing in those areas. The possible effect on the legal position of the members of the applicant associations cannot, therefore, be any different from that alleged here by the applicants who are private individuals. ECJ confirms the CFI ruling.

19 Individual concern Closed category? C-309/89 Codorniu SA [1994]: Codorniu registered the graphic trade mark 'Gran Cremant de Codorniu' in Spain in 1924 and traditionally used that mark both before and after registration. By reserving the right to use the term 'cremant' to French and Luxembourg producers, the contested provision prevents Codorniu from using its graphic trade mark It follows that Codorniu has established the existence of a situation which from the point of view of the contested provision differentiates it from all other traders. C-11/82 Piraki-Patraiki [1985]: the applicants are affected by the decision at issue only in their capacity as exporters to France of cotton yarn of Greek origin. The decision is not intended to limit the production of those products in any way, nor does it have such a result it must also consider, in so far as is possible, the contracts which those undertakings, relying on the continuation of free trade within the Community, have already entered into and whose execution will be wholly or partially prevented by the decision authorizing the protective measure. Applicant to be discerned from other companies in the same position!

20 Individual concern T-177/01 Jégo-Quéré [2002]: in order to ensure effective judicial protection for individuals, a natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him. The number and position of other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard.

21 Limited access to court Effective judicial protection? C-50/00 Unión de Pequeños Agricultores (UPA) [2002]:. The European Community is, however, a community based on the rule of law in which its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law which include fundamental rights. Individuals are therefore entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection.

22 Limited access to court Effective judicial protection? C-50/00 Unión de Pequeños Agricultores (UPA) [2002]: [ ] according to the system for judicial review of legality established by the Treaty, a natural or legal person can bring an action challenging a regulation only if it is concerned both directly and individually. Although this last condition must be interpreted in the light of the principle of effective judicial protection by taking account of the various circumstances that may distinguish an applicant individually, such an interpretation cannot have the effect of setting aside the condition in question, expressly laid down in the Treaty, without going beyond the jurisdiction conferred by the Treaty on the Community Courts. C263/02 Jégo-Quéré [2004]: confirming UPA.

23 The post-lisbon reform 3 types of locus standing: Challenges against acts addressed to the person concerned; Challenges against acts not addressing the person but of direct and individual concern for the applicant; Challenges against regulatory acts of only direct concern not needing implementing measures. No individual concern required any more for private applicants for: Regulatory acts that do not entail implementing measure. Regulatory act not defined in the Treaty case law.

24 T-18/10 Inuit Tapiriit Kanatami and others [2011] Seal hunters challenging a regulation imposing restrictions on placing of seal products on EU market; Pleas of inadmissibility: Not a regulatory act; It entails implementing measures; It does not individually concern the applicants. To be resolved on the basis of Art. 263(4) TFEU first time! GC recognises that no definition of regulatory act is in the Treaty.

25 T-18/10 Inuit Tapiriit Kanatami and others [2011] Regulatory acts: certain acts of general application literal interpretation; Allowing proceedings against acts of general application, which are non-legislative acts and not require implementing measures teleological interpretation; Inclusive category Less restrictive criteria than for legislative acts (direct and individual concern).

26 T-18/10 Inuit Tapiriit Kanatami and others [2011] How to define a regulatory act? Although the test for distinguishing between an act of general application and an individual act is whether the act in question is of general application, its categorisation as a legislative act or a regulatory act according to the FEU Treaty is based on the criterion of the procedure, legislative or not, which led to its adoption. No regulatory act in the case back to pre-lisbon requirements! Direct concern? Individual concern?

27 T-18/10 Inuit Tapiriit Kanatami and others [2011] Direct concern? only some of the applicants! [ ] the contested regulation directly affects only the legal situation of those of the applicants who are active in the placing on the market of the European Union of seal products. That regulation does not in any way prohibit seal hunting, which indeed takes place outside the European Union market, or the use or consumption of seal products which are not marketed. Consequently [ ] while it cannot be precluded that the general prohibition of placing on the market provided for by the contested regulation may have consequences for the business activities of persons intervening upstream or downstream of that placing on the market, the fact remains that such consequences cannot be regarded as resulting directly from that regulation [ ] as regards the possible economic consequences of that prohibition, it must be borne in mind that, according the case-law, those consequences do not affect the applicants legal situation, but only their factual situation.

28 T-18/10 Inuit Tapiriit Kanatami and others [2011] Individual concern? none of the applicants! [ ]the contested regulation applies to objectively determined situations and produces legal effects in regard to categories of persons envisaged generally and in the abstract. In particular, the general prohibition of the placing on the market of seal products, with the exception of those which result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence, is expressed in a general manner and capable of applying equally to any trader who is covered by the contested regulation.

29 T-262/10 Microban International Ltd [2011] American manufacturer of antibacterial additives challenging Commission Decision to exclude a substance called triclosan from the allowed additives for treating plastic entering into contact with food; Pleas of inadmissibility: Not a regulatory act requiring no implementing measures; It does not individually concern the applicants On the basis of Art. 263(4) TFEU; On the basis of Inuit case!

30 T-262/10 Microban International Ltd [2011] Regulatory act? yes! [ ] the contested decision is of general application in that it applies to objectively determined situations and it produces legal effects with respect to categories of persons envisaged in general and in the abstract. [ ] the contested decision applies to all natural and legal persons who are engaged in the production and/or marketing of triclosan and materials and articles containing that substance. [ ] the contested decision was adopted by the Commission in the exercise of implementing powers and not in the exercise of legislative powers. no need of individual concern requirement!

31 T-262/10 Microban International Ltd [2011] Requiring implementing measures? no! [ ] the decision not to include it had the immediate consequence of its removal from the provisional list and a prohibition on the marketing of triclosan, without the Member States needing to adopt any implementing measure. [ ]it cannot be considered that the prohibition on the marketing of triclosan, following its non-inclusion in the positive list and its removal from the provisional list, required the adoption of implementing measures. [ ] Although the Member States have a measure of discretion as to the date from which they wish to prohibit the marketing of triclosa, the implementation is non the less automatic and mandatory. the action for annulment is admitted. [C-455, 457 and 460/13 Confederazione Cooperative Artigiane et al. [2015] implementation shall be automatic and resulting from EU rules without intermediate rules].

32 T-262/10 Microban International Ltd [2011] Direct concern? yes! [ ] the consequence of the contested decision is that the marketing of materials and articles containing triclosan [ ] is prohibited. Given that [ ] the applicants buy triclosan and use it to manufacture a product with antimicrobial and antibacterial properties, which is then sold on for use in the manufacture of plastic materials and articles intended to come into contact with foodstuffs, the contested decision directly affects their legal position. Based on pre-art. 263 TFEU case law, therefore valid also for the scope of Art. 263 TFEU not supposed to be more restrictive!

33 Art. 263 TFEU and effective judicial protection C-274/12 Teléfonica SA [2013] and C-456/13 T & L Sugar & Sidul Açúcares, Unipessoal Lda [2015]: Art 263 TFEU to be interpreted in the light of right to effective judicial protection (Art. 19 TEU and Art. 47 Charter); in the light of the principle of effective judicial protection, the fourth limb of Art. 263(4) completes the EU system of effective judicial review; fourth limb of new Art. 263(4) entails effective judicial protection against EU acts not requiring implementing measures, which cannot be reviewed before a national court; the right to effective judicial protection cannot have the effect to set aside the conditions set by Art. 263; As regards persons who do not fulfil the requirements of the fourth paragraph of Article 263 TFEU for bringing an action before the Courts of the European Union, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection [C- 456/13 T & L Sugar & Sidul Açúcares, Unipessoal Lda]

34 T-541/10 ADEDY [2012] Greek trade union seeking the annulment of Decision of the Council asking for benefits and pension cuts for civil servants (austerity measures) Art TFEU; Is the act of direct concern for the applicants? [the contested decision] is not of direct concern to the applicants, since it constitutes a general measure of organisation and management of the public administration, which does not directly affect their legal situation. In so far as that provision brings about a deterioration in the functioning of public services and worsens the applicants conditions of employment, as they argue, it is a situation which does not influence their legal situation, but only their factual situation.

35 T-541/10 ADEDY [2012] [ ] all those provisions, given their range, require national implementing measures which will specify their content. In the context of that implementation, the Greek authorities have a wide discretion, provided that the final objective of reducing the excessive deficit is pursued. It is those national measures which, possibly, will directly affect the legal situation of the applicants. [ ] as regards the possible negative consequences which those provisions may have for the applicants and civil servants in general as members of ADEDY, financially or in terms of conditions of employment, it must be noted that those do not affect their legal situation but only their factual situation.

36 T-541/10 ADEDY [2012] Effective judicial protection? [ ] having regard to the fact that the contested acts need implementing measures by the Hellenic Republic, the applicants have the possibility of attacking those measures before the national courts and, in the context of that dispute, arguing that the contested acts are invalid, thus leading the national court to refer a question for a preliminary ruling to the Court of Justice

37 Three Migration Cases Case T-192/16 - Case T-193/16 - Case T-257/16 On behalf of individuals from Pakistan and Afghanistan currently staying at No borders Refugees Camp in Lesbos and at Onofiyta Refugee Camp in Athens; Asking the review of the EU-Turkey statement, 18 March 2016 ; Inter alia, for violation of EU Fundametal Rights in the Charter: Art. 1 on Human Dignity; Art. 18 on Right to Asylum; Art. 19 on Protection in the event of removal, expulsion or extradition. Rulings (28 Feb 2017) Agreement not signed by EU Council but by MSs = no jurisdiction!

38 Thanks for your attention! QUESTIONS? COMMENTS? REMARKS?