EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #6

Ch. 4. JUDICIAL REVIEW OF COMMUNITY ACTS

A. The Action for Annulment (arts. 230 and 231)

ˇ  What acts may be challenged under Art. 230 (ex 173) (not amended by Amsterdam or Nice in this respect)?

  • "...acts ... other than recommendations and opinions, and acts of the European Parliament intended to produce legal effects vis-ā-vis third parties."
  • IBM V. COMMISSION, p. 133 (1981)
    • relevant text of 173 then in force: "...acts of the Council and the Commission other than recommendations and opinions"
    • what act is being challenged?
    • what test does the Court apply for reviewability? where did it find the test?
    • is its conclusion consistent with that of the ERTA case, p. 76?
  • what acts might be reviewable, at the stage of proceedings involved in IBM?
    • a decision to disclose certain confidential documents and information? AKZO, p. 135
    • a preliminary ruling that the reg. applies and no exemption is available?

ˇ  Private Party Standing to seek judicial review

  • Private Party Standing to Challenge a Regulation
    • COMAFRICA, p. 138 (1999)
      • private parties art. 230 (ex 173) para. 4 (formerly para. 2) - when is a regulation or decision "of direct and individual concern" to a particular party?
      • C.N.P.F.L. v. Council, n. 1 p. 139 (1962): regulations normally don't have this quality
      • what specific act is at issue in Comafrica?
        • Does it finally determine individual import quotas?
        • if not, is the operator's concern not "individual"? Not "direct"?
    • Codorniu SA, n. 4 p. 140 (1994): regulation restricts a class of enterprises, all of which can be individually identified; what sets this particular member of the class apart? Does the case break new ground, or is it a straightforward application of established precedent?
    • Jego-Quere, n. 5 2004 Supp. Pp. 67-69 (2002-4): CJ putting down a CFI rebellion – is there reason to rethink the “individual concern” requirement?
  • Private Party Standing to Challenge Decisions Addressed to Member States
    • ALFRED TÖPFER, p. 140 (1965): if a Commission decision authorizes, but doesn't command, an MS action, is that decision reviewable in the ECJ by a direct addressee of the MS action? "individual", but also "direct" concern?
  • Private Party Standing to Challenge Decisions Addressed to Other Parties
    • METRO-SB-GROSSMÄRKTE GmbH, p. 143 (1977): what is "direct and individual concern", for a company with respect to a Commission decision which is addressed to another company, and effectively precludes the latter from contracting with the former?
      • is the economic impact alone enough?
      • must the complaining party have itself initiated the Commission proceeding?
    • is there a difference between "directness" and "individualness"?
    • Draft Constitution art. III-270(4) [III-365(4) in final version]: individual concern would not be required for a regulatory act [not a law, in its terminology] as such

Under what circumstances may interim relief be granted?

B. Complaint for Failure to Act (Art. 232 (ex 175))

ˇ  What institutions are subject to complaint for failure to act?

ˇ  Who has standing to bring such a complaint?

  • MS or Community institution: what must they show, to establish standing? Is any institution excluded? In Parliament v. Council, p. 148, it was argued that the political oversight function given to Parliament over Commission and (to a lesser extent) Council exhausted Parliament's rights
  • LORD BETHELL V. COMMISSION, p. 149 (1982): what must a "natural or legal person" show, in order to establish standing?

ˇ  Under what circumstances does such a duty to act arise?

  • Parliament v. Council, p. 148 (1985)
    • Did art. 74 (now 70) obligate Council to adopt a common transport policy, when Commission has made a proposal? (Co-operation procedure!)
    • Did arts. 59-61 (now 49-51) obligate Council to act to secure freedom to provide cross-border transport services, when Commission has made a proposal? (Basic procedure!)
  • LORD BETHELL, p. 149 (1982):
    • if an airline customer files a complaint with the Commission that airlines are engaged in anti-competitive practices, is the Commission obligated to take action against the alleged violators?
    • Would such action be addressed to the complainant? Why shouldn't it be enough that the action would have a substantial impact on his interests?
  • what if the Commission were to fail to respond altogether? UPS, p. 151 (1999)
  • if the Commission refuses to investigate a competition complaint that it had no duty to pursue, must it still give reasons, and be reviewed for their sufficiency?
    • not in its enforcement priorities: Automec, p. 151 (1992)
    • no violation on the alleged facts: Asia Motor France, p. 152 (1996)

ˇ  What relief is available under this form of action?

 

C. The Plea of Illegality (Art. 241 (ex 184))

ˇ  How does this differ from the Action to Annul?

  • if the Treaty specifies a period of time within which a regulation may be challenged, and that has passed, can the direct addressee of a decision rendered under the regulation still be challenged under art. 241 on the ground that the regulation itself is unlawful?
  • does it matter, if the addressee would have had standing to bring an action of annulment? Simmenthal III, p. 153 (1979)

ˇ  What form of relief is available? Does it bind the respondent institution in other disputes presenting the same issue of legality?