⇒ Judicial Review is a fundamental means by which the actions of any legislature can be controlled

⇒ Judicial Review enables a court to consider whether a legally binding measure violates procedural or substantive rules of law and therefore be rendered inapplicable

⇒ Judicial Review provides the mechanism for a direct challenge to the legality of Union Acts.

⇒ This Article lists the bodies that can be judicially reviewed by the CJEU, enabling a direct challenge to the legality of EU acts:

• So this covers acts of the Council and Commission, including legislative acts, and acts of the European Central Bank, other than recommendations and opinions. It also covers acts of the European Parliament, European Council, and EU bodies, offices, or agencies intended to produce legal effects against third parties
• So any act of the Union, other than recommendations and opinions, can be reviewed
• The Lisbon Treaty explicitly included the European Council and EU bodies, offices, or agencies as amenable to Judicial Review, even though prior jurisprudence had already brought agencies within the remit of Judicial Review

⇒ This says any natural or legal person may challenge an act (of one of the bodies above) addressed to that person or if it is of direct and individual concern to them

⇒ Any natural/legal person can challenge a regulatory act if it is of direct concern to them and does not entail implementing measures

⇒ This says there is a 2 month window for that natural/legal person to Judicially Review an act once that measure has been published or when it comes to their knowledge

⇒ 1) The types of acts that are subject to review

⇒ 2) The bodies that may bring an action for review

⇒ 3) The time within which an action may be brought - this is 2 months

⇒ 4) The grounds on which such an action may be based

⇒ Under Article 263 three types of act are reviewable:

1. Legislative Acts
2. Regulatory Acts
3. Acts

⇒ Legislative Acts: Article 289(3) defines legislative acts as legal acts ‘adopted by legislative procedure.’ i.e. regulations, decisions, and directives

⇒ Regulatory Acts: the case of Inuit defines this as ”all acts of general application apart from legislative acts” i.e. recommendations, opinions and resolutions

⇒ Acts: In the case of Inuit ‘acts’ were held by the ECJ to encompass any act addressed to a natural or legal person and any act whether legislative or regulatory, which is of direct and individual concern to them (including legislative and regulatory acts which require implementing measures) i.e. “acts” are all acts

⇒ Reviewable acts must produce legal effect i.e. must have some legal consequence

• Commission v Council (Re ERTA) [1971]: Council resolutions may be ‘acts’, and therefore reviewable
• Re Noordwijk’s Cement Accord; France v Commission (Re Pensions Fund Communication): Letters sent by the Commission (that are not decisions) can be reviewable ‘acts’.

⇒ The following people may bring an action in different circumstances:

• A) Privileged applicants
• B) Semi-privileged applicants
• C) Non-privileged applicants

⇒ Privileged Applicant: A privileged applicant can challenge any binding act under Article 263 (e.g. Member State, Council, Commission, European Parliament)

⇒ Semi-privileged applicant: If it effects them in some way (effects their prerogative or ability to do their job) these guys can challenge a binding act under Article 263 e.g. European Central Bank, Court of Auditors, Committee of the Regions

⇒ Non-privileged applicant: a natural or legal person is entitled to challenge:

• (a) An act addressed to that person, or which is of direct and individual concern to them.
• (b) A regulatory act which is of direct concern to them and does not entail implementing measures.

⇒ A measure will be of direct concern where it:

• Directly affects the legal situation of the applicant
• Leaves no discretion to the addressees of the measure
• Who are entrusted with its implementation

⇒ The ideal situation is where the measure names the person by name → it is easy there to establish direct concern

⇒ NV International Fruit Company v Commission

• The applicant was directly concerned because a community regulation, which enabled the commission to issue licenses on the basis of previous week's Member State need for a license, thus affecting the importation of apples during a set period of time, directly affected the legal position of NV International Fruity Company

⇒ Differdange v Commission: Highlights the potential difficulty of proving direct concern

⇒ Plaumann & Co v Commission

• Applicants can only be individually concerned by a decision (so this concerns individual concern of decisions) addressed to another if they are differentiated from all other persons, and by reason of these distinguishing features singled out in the same way as the initial addressee
• So, they would be individually concerned if the decision affected them ‘by reason of certain attributed which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons’ i.e. being part of a ‘fixed, closed class’
• Problems with Plaumann:
• Limited number of traders engaged in the activity - The fact that people ‘could’ do it doesn’t mean they will.
• Only applies retrospectively because then groups can be defined.
• The test seems to be applied from some future ill-defined date rather than from the date the application was made.

⇒ An open category is regarded as one where the membership is not fixed at the time of the decision i.e. the clementine seller in Plaumann

⇒ A closed category is one in which it is fixed.

⇒ Problem with open and closed categories:

• Ignores the practical realities of people joining groups.
• Any decision with a future impact becomes unchallengeable

⇒ An applicant can claim to be individually concerned by a legal act that takes the form of a regulation or a directive (Calpak)

⇒ In Calpak, even though the court found a closed and easily identifiable group they did not have individual concern because the court applied an abstract terminology test (i.e. the regulation used abstract terminology, which means there cannot be individual concern)

⇒ Cordiniu case:

• This case looked at Calpak ‘true regulation’ i.e. is something a ‘true regulation’ or does it go beyond a regulation and become a decision in some way
• Here, they differentiated itself from all other traders due to trademarking the work crémant – so the court could define the group!
• This liberalized Calpak but stayed true to Plaumann
• But, still very restrictive
• The court has often been reluctant to find individual concern with regulations as they have general applicability – but this case shows a relaxation in this demonstrating that a regulation can have both general applicability and specific applicability

⇒ The Lisbon Treaty could have cleared up the issues here, but didn’t

⇒ The only thing the Lisbon Treaty really did was add regulatory acts

⇒ Anti-dumping regulations prevent people outside the EU flooding the market with goods at low prices.

• Must be a regulation NOT a decision

⇒ The Timex case: Timex was the firm that initiated the complaint about dumping.

• Timex was able to show they had individual concern that the regulation affected them because they initiated the complaint – this a much broader approach than the one given under Plaumann

⇒ Allied Corporation case: Allied Corporation were the producers of the product subject to anti-dumping.

• Producers and exporters charged with dumping are individually concerned

⇒ Extramet case: Extramet was the importer of the product against which anti-dumping measure is imposed

⇒ Any natural or legal person, who claimed to have a legitimate interest, could make an application to the Commission, putting forward evidence of a breach of Articles 101 and 102

⇒ Metro case: A competitor challenging a decision by the commission that was not addressed to them had individual concern

• So it was a decision not addressed to them (so almost exactly the same as Plaumann) and they showed that they are individually concerned – that is a huge liberalisation of these issues

⇒ State Aid prevents competition from being distorted through government subsidies, giving it an unfair advantage over competitors.

• So where the governemnt gives money to some particularly failing industry, for example the UK woollen industry, that might give them an unfair advantage over other EU woollen industries – so they want to try and prevent that

⇒ COFAZ case: comparable with Metro and Timex cases

• Applicants have standing if their position on the market was significantly affected by the State Aid

UPA – Advocate General Jacobs outlined issues in this area:

⇒ Jacobs says that if you can’t prove individual concern (Article 263) you can take it under Article 267 as a preliminary ruling and, in that way, it will get to court

⇒ He says if you do take it under Article 267 there’s no guarantee it will get to the ECJ – national courts have discretion to refer, which means access to justice can be difficult

⇒ He says there are some circumstances where if someone really wants something to go to court they will have to break the law, and then take it to the national court, and then the national court can make a preliminary reference under article 267 if they want to (how stupid!)

⇒ He says “legal certainty pleads in favour of allowing a general measure to be reviewed as soon as possible and not only after implementing measures have been adopted”

⇒ He says that there are a number of advantages of using Article 263 in comparison to Article 267 just in your ability to direct your questions to the Court in the right way

⇒ He says that it would be a better system to say that someone is individual concerned if they have, or is liable to, been adversely affected by a community measure – he says this has the following advantages:

• Access to justice and protection easier
• Removes the odd system whereby if more people are affected by the measure the less likely it will be to get a remedy
• Makes the test easier: Has the person been affected, yes or no?

⇒ Inuit case: The Court decided that regulatory acts in Article 263(4) do not include Legislative acts

• The act under challenge in this case was EU Regulation 1007/2009 made by the EU Parliament and Council, and was therefore a legislative act and unchallengeable by individual citizens
• In contrast, an implementing regulation made by the Commission alone, filling in the details not dealt with in the primary Regulation, which could be challenged under Article 263(4) if of direct concern.
• Article 263 becomes increasingly ineffective and despite the problems with relying on article 267 we are forced into a situation where we almost have to rely upon article 267 (rely on the national courts)
• By narrowing Article 263 to such a huge extent maybe what they have done is to reinforce the idea that this is a cooperative relationship between EU Courts and Member States