10 th Congress of the IASAJ Sydney March 2010.

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1 10 th Congress of the IASAJ Sydney March REVIEW OF ADMINISTRATIVE DECISIONS OF GOVERNMENT BY ADMINISTRATIVE COURTS AND TRIBUNALS. THE COURT OF JUSTICE OF THE EUROPEAN UNION. Aindrias Ó Caoimh 1 This paper sets out a short summary of the review by the Court of Justice of the European Union of administrative decisions falling within its jurisdiction. 2 While the theme of the Congress is the Review of administrative decisions of government by administrative courts and tribunals, it is to be noted that, in general, the Court of Justice is not engaged in reviewing such decisions insofar as the decisions of national governments are concerned but it is involved in the review of decisions taken at the level of the institutions of the European Union. However, insofar as the review of such decisions comes before national courts and tribunals, these courts and tribunals may refer questions of interpretation of European Union law to the Court of Justice for decision. In addition the European Commission may take proceedings against Member States for failure to fulfil their treaty obligations, which matters may include a challenge to decisions taken at a national level. JURISDICTION AND COMPETENCE (a) - the action for annulment: Article 263 of the Treaty on the Foundation of the European Union (hereafter referred to as the FEU Treaty) provides that decisions of the institutions and certain other bodies established by the founding treaties of the European Union shall be reviewable by the Court of Justice of the European Union. The article reads as follows: Article 263 (ex Article 230 EC) 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 vis-à-vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the European 1 Judge at the Court of Justice. 2 Note that this paper is limited to a review of administrative decisions falling within the jurisdiction of the Court of Justice as distinct from the General Court or the Civil Service Tribunal. 1

2 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. 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. 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. Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them. 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. This article of the treaty has been expanded from time to time since the establishment of the EEC in 1957 and to reflect the increase in competence of the European Parliament and other bodies established since that time. In general, all decisions of such bodies are reviewable but an important exception is to be found in the FEU Treaty which concerns foreign policy and security matters. In practice only decisions having binding force are reviewable. However, the Court has indicated that it will look at the substance of a measure rather than its form in determining whether it is a reviewable act. Locus Standi: As can be seen from Article 263, the locus standi of natural and legal persons is limited. As regards the other parties, institutions, specified bodies and Member States, their right of action is prescribed by the Treaty provision itself. As can be seen there from, there is no specific requirement of locus standi to be demonstrated by the European Commission, the Council or the European Parliament or by an applicant Member State. This means that a Member State may, for example, take proceedings for annulment of measures in which they have been implicated in the adoption. A Member State may seek the annulment of a measure for which it has voted in the Council. Actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions are limited to those for the purpose of protecting their prerogatives. With regard to the requirement that a natural or legal person show direct and individual concern, this limitation has recently been relaxed somewhat in the context of paragraph four of Article 263. The concept of direct concern means that an individual must show that at the time of the adoption of the contested decision its effect on him could be reasonably foreseen. As for individual concern, an applicant must show that the contested measure affects their legal position because of a factual situation which differentiates them from all other persons and 2

3 distinguishes them individually in the same way as a person to whom the measure is addressed. This may apply in respect of a measure affecting a closed class of persons. The amendment effected by Article 263 of the FEU Treaty, relaxing the requirement for individual concern against a regulatory act which does not entail implementing measures, raises the issue of its import in view of the absence of a definition of regulatory act in the FEU Treaty. This appears to refer to a non legislative act, but further clarity on this will matter will, of course, have to be provided by the Court in the future. Procedure An application for annulment may be taken by an institution or body referred to in Article 263 or by a Member State, in which case the case commences before the Court of Justice itself. In the event of an action being taken by an individual or company (natural or legal person), the action will be commenced before the General Court (previously known as the Court of First Instance) before a formation which will be comprised of at least 3 judges. An appeal against a decision of the General Court lies to the Court of Justice, which will comprise, depending on the circumstances, a formation of three, five or thirteen judges. The procedure before the Court of Justice is governed by the Statute of the Court of Justice which forms the Fourth Protocol to the FEU Treaty and the Rules of Procedure of the Court of Justice. All cases coming before the Court of Justice are assigned by the President of the Court to one of the other 26 judges (there being one judge from each of the Member States of the Union) who acts as the reporting judge in the case. The First Advocate General assigns the case to one of the eight advocates general (which includes the First Advocate General). A general meeting of the full court decides, on the basis of a report from the reporting judge in consultation with the Advocate General, on the appropriate formation to hear the case (that is whether the case should be determined by a chamber of 3 or 5 or the Grand Chamber of the Court composed of 13 judges) and on whether an Opinion from the Advocate General is required. In any action for annulment under Article 263 of the FEU Treaty the applicant party must initiate the proceedings within the period of two months of the publication or notification of the measure by lodging a written application at the Court of Justice. The respondent institution(s) or other body has a right to file a defence to the application. The applicant thereafter has a right to file a reply and the respondent(s) have a right to file a rejoinder. In addition to pleadings filed by the applicant(s) and respondent(s), each Member State has a right to intervene in the procedure and to file observations. 3

4 The procedure before the Court is essentially a written procedure but a party to such a dispute can request an oral hearing which will be organised after the closing of the written phase of the procedure. In addition, the Court itself may arrange an oral hearing where no party has requested such a hearing. All parties filing applications before the Court for review of an administrative decision must be represented by a lawyer and there is no direct right of an applicant to file an application without the assistance of a lawyer or agent. Article 264 of the FEU Treaty provides that if the action is well founded, the Court shall declare the act concerned to be void. It is provided also in the same article that the Court shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive. An action for annulment has of itself no suspensory effect on the act sought to be annulled. However, the applicant may apply separately for interim measures to the President of the Court to which the primary application has been lodged for interim measures. Articles 278 and 279 of the FEU Treaty provide: Article 278 (ex Article 242 EC) Actions brought before the Court of Justice shall not have suspensory effect. The Court of Justice may, however, if it considers that circumstances so require, order that application of the contested act be suspended. Article 279 (ex Article 243 EC) The Court of Justice may in any cases before it prescribe any necessary interim measures. The relevant provisions of the Rules of Procedure of the Court of Justice are those at Articles 83 to 90. These indicate that an application to suspend the operation of any measure adopted by an institution, made pursuant to the Treaty, shall be admissible only if the applicant is challenging that measure in proceedings before the Court and shall be admissible only if it is made by a party to a case before the Court and relates to that case. Such an application shall state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The application is made by a separate document. Such applications are made to the President of the Court concerned who affords the opposite party an opportunity to submit written or oral observations. The President can, however, grant interim measures before such observations are made. As for the existence of urgent procedures, the Rules of Procedure provide 3 that the President may, "exceptionally", provide on an application of one of the parties for an 3 Article 62a of the Court's Rules of Procedure. 4

5 expedited procedure "where the particular urgency of the case requires the Court to give its ruling with the minimum of delay." In addition, urgent and accelerated procedures are provided for in the case of references from the courts of the Member States under Article 267 TFEU where the national court seeks a ruling on the interpretation or validity of a provision of Union law. The powers of review of the Court: Article 267 TFEU provides the essential grounds of annulment which are the 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. Infringement of the Treaty or any rule of law relating to their application involves a consideration as to whether a given act has been adopted having due regard to primary and secondary legislation as well as superior rules of law such as principles of equality, the principle of legal certainty the principle of proportionality, the principle of the protection of legitimate expectations to name a few of such principles of law. Accordingly the validity of an act, subject to an application to annulment, may be determined by reference to primary law (the Treaty on European Union, the TFEU or other Treaty provision), secondary legislation of the European Union in the form of legislative acts, as well as by reference to the requirements of international law, insofar as the European Union is a party to an international treaty obligation. Since the coming into force on 1 December, 2009 of the Lisbon Treaty, the norms by which an act subject to annulment may be judged will include rights, freedoms and principles set out in the Charter of Fundamental Rights, which, by reference to Article 6 of the Treaty on European Union, have now the same legal value as the Treaties and rank, therefore, as primary sources of law. The nature of acts that can be subject to actions for annulment: While an action for annulment lies against the acts of the institutions other than recommendations and opinions, the case law of the Court provides that it is the nature rather than the form of an act which is determinative as to whether it is subject to an action for annulment. Essentially, to be subject to annulment, an act must be such as to have legal affect. Court is sole arbiter of interpretation of Union law: The Court is solely responsible for the interpretation of legal acts and in no respect is the Court in any way bound by the view of the administration. However, in certain fields the Commission enjoys a margin of discretion, such as in the definition of economic policy. Insofar as complex issues of economic appreciation are concerned, the Court has indicated that the level of intensity of judicial review is such that such acts will not be annulled unless a manifest error is demonstrated. 5

6 Legal Aid: Article 76 of the Rules of Procedure provides for the possibility of a party to receive legal aid. A party who is wholly or in part unable to meet the costs of the proceedings may at any time apply for legal aid. The applicant for legal aid must furnish with his application evidence of the need for assistance and, in particular, a document from the competent authority certifying his lack of means. The application may be made prior to proceedings which the applicant wishes to commence in which case it shall briefly state the subject of such proceedings. The application need not be made through a lawyer. The Court decides on the application and on whether to grant, in whole or in part, or to refuse the legal aid requested. The Court, in granting legal aid, shall order a lawyer to be appointed to act for the applicant. If the person does not indicate his/her choice of lawyer, or if the Court considers that the choice is unacceptable, the Registrar shall send a copy of the order and of the application for legal aid to the competent authority of the State concerned. The Court, in the light of the suggestions made by that authority, shall of its own motion appoint a lawyer to act for the person concerned. 4 Electronic Filing of Documents: The Court's Rules of Procedure provide for decisions to be taken by the Court to enable the electronic transmission of documents 5. A Practice Direction 6 has been adopted in relation to direct actions and appeals which permit documents to be sent to the Court's registry by means of telefax or electronic mail ( ). In the case of an transmission, a copy of the signed original of a procedural document may be transmitted to the Registry as an attachment to an . However, the attachment must be a scanned copy of the original. In this regard the practice direction indicates that "an ordinary electronic file or one bearing an electronic signature or a computer-generated facsimile signature will not be treated as complying with the Rules of Procedure." The Practice Direction further indicates that a document lodged by telefax or electronic mail will be treated as complying with the relevant time-limit only if the signed original itself reaches the Registry within 10 days following such lodgement, as specified in Article 37(6) of the Rules of Procedure. 4 See Supplementary Rules of Procedure of the Court of Justice of Article 37 of the Court's Rules of Procedure. 6 See 6

7 The signed original must be sent without delay, immediately after the dispatch of the copy, without any corrections or amendments, even of a minor nature. In the event of any discrepancy between the signed original and the copy previously lodged, only the date of lodgement of the signed original will be taken into consideration. Representation in Court: A Member State may be represented in Court by an Agent assisted by a lawyer or expert. The Union's institutions are represented by lawyers drawn from their legal services but they may engage outside legal representation. As far as other parties are concerned, the Statute of the Court of Justice 7 provides that they may be represented by a lawyer. This excludes an individual appearing in Court to represent himself or herself in direct actions before the Court. It appears, however, in the case of a reference from a national court or tribunal, provided that an individual has a right of audience before the national court or tribunal, an individual may appear in person. Production of documents: In the case of an application for annulment, the application shall be accompanied, where appropriate, by the measure the annulment of which is sought. If the documents are not submitted with the application, the Registrar shall ask the party concerned to produce them within a reasonable period but, in that event, the rights of the party shall not lapse even if such documents are produced after the time limit for bringing proceedings. The Court may, after hearing the Advocate General, prescribe the measures of inquiry that it considers appropriate by means of an order setting out the facts to be proved. In this context it may make a request for information and production of documents. 8 Temporal aspect of a decision: In the normal way a decision of the Court quashing a prior act will have retroactive effect and will apply ex tunc and not ex nunc. The Court has exceptionally on a number of occasions put a temporal limitation on its judgment. This first arose in Case 43/75 Defrenne 9 in proceedings brought by an air hostess seeking to have applied to her the Treaty provision providing for equal pay for equal work. The Court ruled in her favour. The exceptional circumstance was that the Treaty provision could be invoked against private parties as well as against Member States but most Member States had ignored the Treaty obligation and new Member States had acceded to the then European Communities without the full appreciation of the import of the Treaty provision. 7 See Article 19 of the Statute. 8 Article 45 (2) (d) of the Court's Rules of Procedure. 9 [1976] E.C.R

8 The Court initially set out its position in principle where it indicated 10 : "Although the practical consequences of any judicial decision must be carefully taken into account, it would be impossible to go so far as to diminish the objectivity of the law and compromise its future application on the ground of the possible repercussions which might result, as regards the past, from such a judicial decision. However, in the exceptional circumstances of the case the Court limited its judgment saying 11 : "Therefore, the direct effect of Article 119 cannot be relied on in order to support claims concerning pay periods prior to the date of this judgment, except as regards those workers who have already brought legal proceedings or made an equivalent claim." Enforcement of Court decisions: Under the provisions of Articles 258 and 260 of the FEU Treaty the European Commission may, if it considers that a Member State has failed to fulfil an obligation under the Treaties or secondary legislation adopted to give them effect, deliver a reasoned opinion on the matter. If the Member State does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice. The judgment in the first instance is in the form of a declaration. However, if the Court of Justice finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court. If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it. More importantly, the Court has held that many provisions of primary law and of secondary law create directly effective rights in favour of individuals which national courts must protect. Accordingly, such rights are enforceable before the national courts. In other areas where there is a breach of European Union law a Member State may be liable to remedy its breach and to award damages. In such circumstances the remedy available must be at least equivalent to a remedy for a similar breach of national law and, furthermore, the remedy must be effective so as not to render recourse for such a party to be impossible or excessively difficult. 10 Case 43/75, paragraph Case 43/75, paragraph 75. 8

3. The attention of Convention members is drawn in particular to the following amendments proposed by the Praesidium:

3. The attention of Convention members is drawn in particular to the following amendments proposed by the Praesidium: THE EUROPEAN CONVENTION THE SECRETARIAT Brussels, 12 May 2003 (15.05) (OR. fr) CONV 734/03 COVER NOTE from : to: Subject : Praesidium Convention Articles on the Court of Justice and the High Court 1. Members