EU Judicial Review - Arts 263 and 265 TFEU
ฝัง
- เผยแพร่เมื่อ 20 มิ.ย. 2024
- An examination of judicial review and the relevant procedure under EU law and in particular articles 263, 264 and 265.
Firstly there has to be a binding piece of secondary legislation such as a regulation, directive or decision and not a recommendation or opinion as these are not binding.
A review has to be brought within two months of publication in the Official Journal or two months from when the applicant first new about the act.
There are four grounds of review:
Lack of competence (Germany v EP & Council [2000] (Tobacco advertising case))
Infringement of an essential procedural requirement (Roquette Frères v Council [1980])
Infringement of the Treaty or any rule of law relating to its application (Hautala v Council [2001])
Misuse of power (UK v Council (Re. Working Time Directive) [1996])
Locus standi for privileged applicants such as the European Council, European Commission, European Parliament and Member States is automatic.
Semi-privileged applicants such as the European Central Bank, the Court of Auditors and the Committee of Regions can also challenge legislation when it affects their prerogaative.
Challenging legislation through judicial review is much harder for non-privileged applicants as they can only challenge three types of act:
An act addressed to that person
An act of direct and individual concern
A regulatory act of direct concern with no implementing measures
The interpretation of direct and individual concern by the Court of Justice has been very problematic.
A person is only directly concerned when they are directly affected by a piece of legislation such as in Société Louis Dreyfus et Cie v. Commission [1998]. There can be no intervening discretion exercised by a Member State as was the case in Eridana v Commission [1969].
Individual concern is the most controversial area of judicial review since the case of Plaumann v Commission [1963] and the establishment of the Plaumann test. The idea of a fixed, closed class has been interpreted so narrowly as to be almost meaningless. In fact it almost only ever applies retrospectively as in the case of Alfred Toepfer v Commission [1965].
There have been attempts to ameliorate the effects of Plaumann such as the abstract terminology test of Calpak [1980] but this had little practical effect despite claiming to look behind the form to the substance of a piece of legislation. Codorniu [1994] took Calpak to its logical conclusion but unfortunately has never been followed. Attorney-General Jacobs in Unión de Pequeños Agricultores (UPA) v Council [2002] suggested an alternative test based on whether the legislation had a substantial, adverse impact on the applicant but this was rejected in that case itself as well as in Jégo-Quéré [2004].
The actual meaning of the final type of act (A regulatory act of direct concern with no implementing measures) is still unclear since the Lisbon treaty but both Inuit v EP & Council [2013] and T&L Sugars v Commission [2015] shed some light and suggest the insertion does not break new ground beyond Plaumann.
Article 264 empowers the court to annul a piece of legislation if a successful challenge is brought by an applicant.
Article 265 is the converse to article 263 and allows a challenge for failure to act. However there has to be a duty to act (European Parliament v Commission [1985]) but the legislation must have been addressed to that person (Lord Bethel v Commission [1982]). Even if the applicant is successful the institution can respond by simply defining its position.
An alternative for non-privileged applicants is to use art 267 (the preliminary reference procedure) but this has its own risks. An applicant has to break the law to bring the challenge and it is not certain that a court will make a reference to the CJEU.
Your videos are the only reason I'm going to be able to pass my EU exams. Thank you :) keep it up!
I'm sure that's not true! Good luck in the exams! :D
That could be true! Your videos helped me in my exam last week and useful for my next one next week. You are a real blessing to Law Students who struggle with assimilating it all...
What you do make further studies easier.. Thank you
Hi Marcus! I am a student in Sweden and have watched each of your videos for EU law at least 3 times over and over (because I had exam on that recently haha). I havent been attending all the lectures sadly because most of the time the lecturer reads of their powerpoint which is just basically copy and paste treaty articles or case law that they copy paste a long paragraph from. The language is not always easy to understand from the cases, and on top of that our lectures are way too long. You simplify and keep it interesting and guide us through how to answer in an exam question which has been super useful! AND I love how you summarize about some important case law that you put in your slides! Most of those are mentioned in our lecturer´s powerpoint but yes once again it is copy and pasted from some section from the case judgement (which is super hard to follow and understand anyway). Thank you for helping us out :D! I was originally going to leave a comment after I get my exam results but oh wells I found my here again in your channel because we started to a new course about ECHR so I watched that video of yours! :P
Thank you so much :)
Yuck, sorry to hear that. :(
You are saving my life right now. You seriously explain things 1000 times better than my professor. Thank you !
You said exactly what I want it to comment. Thanks for your videos. You saved my life too>
Your videos never get old-fashioned! Huge thanks!
Thank you so much for all your videos Marcus! Amazingly helpful
You're truly a life saver! I feel more confident for the upcoming exam! Thank you for this :D
You really are the gift that keeps giving. THANK YOU!! You have no idea how much you have just saved me from failure.
You're an absolute lifesaver Marcus, thank you!
thank you so much for these.. you're better than most lecturers at my university
You are just great. Thank you!
Thank you so much!!! God bless you
so so good explained. Thanks a lot!! :) keep it going!
Thank you for your legal content, this helps me understand better, for some reason the way you explain everything is more clear and understandable than my professor.
God bless always🙏
thank you very much , i have an exam in 2 weeks and you just saved me
Excellent video! much appreciated
Thank you so much for these videos, they have been so helpful. I have watched your videos on free movement of goods, workers, establishment and services and they have truly helped me in my preparations for my exams.
You are more than welcome! :)
Excellent video, thanks a lot!:)
Thank you! Smart fellow You are!
Thank you so much for your videos. Life saver!!!!
You are more than welcome :)
Hi Marcus.
Firstly thank you for your video. It has simplified and enabled me to actually to understand this area of EU law!
Could you please explain what happened in Hautala v Council with regards to proportionality?
Cheers!
so helpful Thank u so much!!
Thank you for the video!
Cannot thank you enough for these videos, purely passing my degree because of you my friend, keep it up!!!
No worries, best of luck!!
Thank you for this! You saved my exam!
That was really helpful! Thank You!!! Keep it up ♥
Very helpful thanks a lot!
Thank you!
thank you so much, you are really helping me with my studies:))
That's great to hear! Good luck!
Wish I watched your videos before wasting my time on those stupid lecture slides! I have failed eu law 2 times already! My last go is at 9:30 am to day. Your videos have been extremely helpful. Hope I do well! Thank you Marcus you're amazing! WISH I STUDIED LAW WHEN YOU DECIDE TO BECOME A LECTURER
How did the exam go???
Hi Marcus, Quick question. If an applicant were to challenge the validity of an act via Art 267 and the court made a reference to the CJEU, does the 2 month time limit still apply to bring a challenge? Thanks :)
No it doesn't have the time limit. Only the 263 procedure has that in place but tbh going through domestic courts would probably take more than 2 months anyway. ;)
Thank you very much :)
Hey Marcus, thanks a lot for your video! Please, keep on going!!
I believe that If you would do some specific examples of how to address PQ or essays, it will help a lot!! :)
+Aibibi Kalibekova Might try and pull an example from somewhere to go through ;)
Please do so, waiting for your video ;)
it would be great if you would give an additional example on grounds for associations to bring an action under 263 ;)
Hi Marcus, do you have a video on judicial protection in the EU? I couldn't find it, but might have overlooked it, so I thought I'd pop a quick question here. Thanks a lot for the videos! They have helped me out a ton!
Oh, i actually just found the lecture on preliminary reference! If there are more, let me know!
+mylufCGH There's an EU law playlist that has everything I've done one that subject if you're interested. Should be on the channel.
Thanks a lot!
Hello Marcus! I am currently studying law in the UK and have got a question for coursework - critically discuss whether the Plaumann test makes it easy for private parties to file an action for annulment under article 263 TFEU?
Thank you so very much for this video❤💯. Trust me, you're a life saviour and had already subscribed after watching my first video of yours. Love from Pakistan 🇵🇰
hello i really appreciate your lectures, pls is this action for annulment?
Hey Marcus, I was wondering if you had a contact e-mail where I can ask you few questions about judicial review? THANK YOU for your content!
Does it have to have both direct and I individual concern or is it one or the other?
Hi Marcus please could you re-upload all the free movement of good/persons etc
They are still up, check out the EU law playlist. :)
Praise god for this angel making public videos for cramming students
Hallelujah ;)
In all serious though Marcus, thank you so much for this; your students are a lucky bunch!
You are more than welcome and best of luck in the upcoming exams!
What's the relationship between The EU law and International law? really need an answer >
+Tako Tamara The EU is committed to observing and developing international law and can sign up to international treaties but EU secondary legislation is not reviewable on the basis of international law (Client Earth v Commission [2015])
Carcus Maleaver, you’re excellent at this. I’d like a Zoom chat sometime, please.
Excellent - making sense of EU nonsense, many thanks
Thank you!
+Dagnė Garšvaitė You are more than welcome! :)