User:Kaihsu/EUlawC4

Constitutional and institutional law of the European Union.

Section C: Remedies and procedures in European Union law.

Chapter 4: Actions for annulment.

Notes by Kaihsu Tai, 2011-11-17.

Legal basis
"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 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."

Reviewable acts
The General Court hears proceedings brought by natural and legal persons, from which an appeal on points of law to the Court of Justice is possible: Article 256(1) TFEU.

A “communication” by the Commission, if held to have legal effects on account of its contents, can be the object of annulment action; if so held, it can be ultra vires and annulled: Case C-57/95 France v Commission. Such an act is one “capable of affecting the interests of the applicant by bringing about a distinct change in his legal position”; the form of the act is immaterial: Case 60/81 IBM v Commission. An act is not necessarily non-existent (void ab initio) even if the institution failed to comply with the procedure: Case C-137/92 P Commission v BASF.

Locus standi
See the fourth paragraph of Article 263 TFEU, amended by the Lisbon Treaty: Case T‑262/10 Microban v Commission (triclosan). “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”: Case 25/62 Plaumann v Commission.

“[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.” There is a division of labour between the Court of Justice of the EU and the national courts. Annulment actions can be brought by a natural or legal person only if the act concerns it “both directly and individually”: Case C-50/00 P Unión de Pequeños Agricultores v Council, confirmed in Case C-263/02 P Commission v Jégo-Quéré which quashed Court of First Instance Case T-177/01.

Grounds for review
See the second paragraph of Article 263 TFEU.

Effects
"If the action is well founded, the Court of Justice of the European Union shall declare the act concerned to be void [ex tunc and erga omnes].

However, 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."

Article 266 TFEU (ex Article 233 TEC), first paragraph: “The institution whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.”

Article 277 TFEU (ex Article 241 TEC): “Notwithstanding the expiry of the period laid down in Article 263, sixth paragraph, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the Union is at issue, plead the grounds specified in Article 263, second paragraph, in order to invoke before the Court of Justice of the European Union the inapplicability of that act.” However, for the sake of legal certainty, the possibility of such indirect challenge does expire for individual acts (e.g. Decisions in contradistinction to act of general application such as Regulations): Case C-188/92 TWD Textilwerke Deggendorf GmbH v Germany, but see Case C-309/89 Codorníu v Council.