{"id":273,"date":"2019-08-06T08:43:09","date_gmt":"2019-08-06T08:43:09","guid":{"rendered":""},"modified":"2019-08-07T11:05:33","modified_gmt":"2019-08-07T11:05:33","slug":"judicial-controls-eu-legal-powers-8826","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/european-law\/judicial-controls-eu-legal-powers-8826.php","title":{"rendered":"Judicial Controls for European Union Legal Powers"},"content":{"rendered":"

The Treaty on the Functioning of the European Union (TFEU), under Articles 263 and 267, contains two provisions that are judicial controls which ensure the legal powers of the European Union (EU) institutions are being properly exercised.[1]<\/a> Article 263 TFEU concerns circumstances in which a direct action can be brought against EU institutions by an ordinary individual.[2]<\/a> Whereas, under Article 267, involves indirect review by the national courts of the Member States through the preliminary review reference. Since the creation of the EU in the 1960s, EU law has had a profound effect on each Member States and citizens and these controls provide an opportunity to review the legality of an EU. However, the access that EU citizens have to justice may be viewed as limited under Articles 263 and 267 of the TFEU. This essay will examine each of these articles, which are in relation to the judicial review and preliminary review procedure, with special reference to whether there is a limited individual access. <\/p>\n

European law, according to the precedence principle, has supremacy over national laws<\/a> of the Member States; if a national law is contradictory to a piece of European law, the binding force is suspended so the EU law prevails and is applied.[3]<\/a> The principle is not defined in a treaty but has developed from Court of Justice of the European Union (CJEU) in cases such as Costa v Enel [1964].[4]<\/a> The national law is not repealed but there is a suspension of its binding force in all cases where there is a conflict. This is done to ensure there is uniformity of the application of European law across all Member States. This principle has a profound effect on the judicial system of each Member States but also for all citizens. The access that citizens have to review the legality of European law are contained under Articles 263 and 267 TFEU but the effectiveness may be viewed as restricted due to the nature and protection of European law which ensures that this principle is being adhered to. <\/p>\n

Article
\n263 TFEU enables an action to be brought in front of the Court of Justice or
\nGeneral Court in circumstances where an act of the Union contains a defect in
\nsome way. In Parti Ecologiste Les Verts v EP [1986],[5]<\/a> it
\nwas held that Article 263 provides an opportunity for an action to be brought
\ninto front of the Court of Justice allowing them to review the legality of the
\nacts. If found to be illegality, then they can declare the acts in question as
\nvoid.[6]<\/a>
\nThis prevents Union institutions not complying with EU law requirements when
\nthey create an act. This article has a specific procedure which has two main
\npurposes of \u201cquestioning the validity of EU institutions and forms a protection
\nto those that are subject to the instruments\u201d.[7]<\/a>
\nHowever, as will be seen through the analyse of this Article, it is difficult
\nfor an individual to be successful. This is because of the issue of
\nadmissibility, there are four requirements that need to be satisfied; failure
\nto do this will result in the case being rejected. The four requirements
\ninclude: which institutions can be subject to review, types of reviewable acts,
\nthe time limit and who is eligible to bring an action.<\/p>\n

The
\noriginal position before Article 263 was contained under Article 173 of the
\nEuropean Economic Community (EEC),[8]<\/a>
\nand was that only acts of the Commission and Council could be reviewed.
\nHowever, through case law such as Luxembourg v EP [1991],[9]<\/a>
\nthis was extended to now include Acts of the European Parliament as the Court
\nof Justice argued that the powers of this institution have increased, it
\ntherefore should be open to review.[10]<\/a>
\nArticle 263 now states that all Union institutions that have a legislative role
\nor intended to create a legal effect by their act should be open to review.
\nTherefore, includes the European Council, this increase has meant that an
\nindividual can challenge a more diverse range of acts. <\/p>\n

Not every act is a reviewable act by a Union institution, meaning that the act in question by not be subject to a judicial review. Only Union acts that have an intention to create a \u201clegal effect vis-\u00e0-vis <\/em>third parties\u201d may be subject to a review.[11]<\/a> This means that if there is a legal impact on third parties than this can be reviewed. This includes a variety of acts such as a Commission Communication as in the case of French Republic v Commission [1997].[12]<\/a> However, there are still areas that cannot be challenged. For example, a decision to prosecute cannot be challenged, this can be seen in P Reynolds Tobacco Holdings and Others [2006].[13]<\/a> Therefore, there is a broad range of measures that can be challenged but it depends whether or not there is a legal implication. <\/p>\n

Under
\npara 6 of the Article 263 TFEU, there is time limit of within two months from
\nthe date that either the measure was made public, or the date that the measure
\nwas notified from the applicant or, the day that the applicant came to know of
\nthe measure that the proceeding for judicial review should be instituted.
\nHowever, as seen in BASF v Commission [1994],[14]<\/a>
\nif there is a serious defect in the measure the time limits may not be apply.
\nHowever, this is only done in expectational circumstances, and after two months
\nperiod, the measure becomes immune from the judicial review and this time limit
\napplies to every applicant.[15]<\/a> Therefore showing the limited time and
\nopportunity that is available for an individual to start proceeding. This reflects the <\/p>\n

There
\nare three categories of applicants that may apply for a judicial review under
\nArticle 263 TFEU, different rules apply depending which category an applicant
\nfalls into and this can impact how difficult an individual may find it to
\naccess justice. This is a complex and disputed feature of Article 263 TFEU as
\nit limits the position of individual to challenge.[16]<\/a> <\/p>\n

The
\nfirst category, under para 2, are referred to as privileged applicants, which includes
\nspecified Union institutions, such as the European Parliament, the Council of
\nMinisters and the Commission, and Member States.[17]<\/a>
\nUnder this category, an action can be brought against all reviewable acts that
\nthey wish and do not have to state and justify their reason for the
\napplication.[18]<\/a> As seen
\nby the Court of Justice in Regione Siciliana v Commission [2006],[19]<\/a>
\n\u201cMember States\u201d only includes the government authorities and anything other
\nmust be considered under the other categories. <\/p>\n

The
\nsecond category, under para 3, is referred to as semi-privileged applicants.
\nThis includes the Court of Auditors and the European Central Bank, who have
\nmore limited powers to challenge than privileged claimants, as they can only
\nbring an action if it encroaches on their prerogatives meaning that their
\ninterests are evidently affected.[20]<\/a> <\/p>\n

Lastly,
\nunder para 4, the last category of people who can challenge the legality are
\nreferred to as a \u201cnon-privileged applicant\u201d and there are only three
\ncircumstances in which this may happen. These are: where an act is addressed to
\nthe applicant, an act addressed to another but is of a \u201cdirect and individual
\nconcern\u201d to the applicant and if a regulatory act has a direct concern to the
\napplicant but does not have implementing measures.[21]<\/a>
\nCompared to the two previous categories, the opportunity to review the
\nlegitimacy of an Union\u2019s act seems more restricted. However, these conditions
\nhave developed into a broader remedy compared to the previous version contained
\nunder Article 23 of the EC Treaty. This is because a right to challenge \u201can
\nact\u201d can include a decision but also a regulation or a directive. The act must
\nbe of a \u201cdirect and individual concern\u201d if it does not satisfy this then there
\nis no possible review under this article.[22]<\/a> <\/p>\n

Direct
\nconcern is a concept that the act must cause immediate and inevitable
\ndisadvantages as seen in Alcan Aluminium Raeren v Commission [1970].[23]<\/a>
\nThis concept has been interpreted inconsistently by the Court of Justice reflecting
\nthe difficult there is in proving this element as different meanings have
\narisen.[24]<\/a>
\nDue to the extension of Acts that can now be reviewed under Article 263 TFEU
\nthis element is heavily scrutinise increasing the difficult in satisfying this
\nrequirement.[25]<\/a><\/p>\n

Individual
\nconcern means that is must affect the applicant as seen in Plaumann v
\nCommission [1963].[26]<\/a>
\nThis is a restrictive approach that may reflect the protection of the European Union legal order and the
\nvalidity of a Union measure as it does not open the floodgates to all non-privileged
\napplicants.[27]<\/a>
\nHowever, it increases the challenge for individuals to access justice for a
\nbreach of their rights caused by an Union act.[28]<\/a>
\nThis element has been criticised heavily, the Advocate General Jacobs in UPA v
\nCouncil [2003][29]<\/a>
\nrecognised the difficulties that an individual has to show how he has been
\naffected by the instrument more than other individuals. However, the ECJ in
\nthis case followed the individual concern test, confirmed in Plaumann, and
\nwithout a change in the Treaty this will unlikely change. Consequently, this
\nstrict approach has meant that there is a limited number of cases that can meet
\nthe requirements limiting the opportunities to review the legality of an EU
\nmeasure.[30]<\/a><\/p>\n

If all four requirements of admissibility are
\nsatisfied, then the application must satisfy one of four substantive grounds
\nfor review which are identified under Article 263.[31]<\/a>
\nThis includes: \u201clack of competence, infringement of an essential procedural
\nrequirement, infringement of the Treaties or any rule of law relating to their
\napplication, or misuse of power.\u201d[32]<\/a>
\nIf one of these specific grounds are identified in the application then a
\nreview may be possible under Article 263 TFEU. This essential covers all areas
\nthat a violation of EU law can be challenged.[33]<\/a>
\nBut as seen from the above analysis there is a sufficient difficult for an
\nindividual to access a judicial review even before the grounds of review can be
\nconsidered. <\/p>\n

Bibliography<\/h2>\n