The Action for Annulment within the Judicial System of the European Union

1. The Action for Annulment within the Judicial System of theEuropean Union Ao. Univ.-Prof. Dr. Alina-Maria Lengauer, LLM

2. History of the European Court of Justice (1) • 1951/52: Establishment of the ECJ by Treaty of Paris as part of the European Coal and Steal Community (ECSC) 1957: European Economic Community (EEC) and European Atomic Energy Community (Euratom) founded as independend Communities 1967: EEC, Euratom and ECSC merge  ECJ expands its jurisdiction to all three Communities 1989: Establishment of the Court of First Instance (CFI) Renamed by Treaty of Lisbon to „General Court“

3. History of the European Court of Justice (2) 2003: Treaty of Nice enables the creation of "judicial panels" in certain specific areas 2005: Creation of European Union Civil Service Tribunal due to caseload of General Court 2009: Treaty of Lisbon  new terminology: Court of Justice of the European Union – Court of Justice – General Court – specialized tribunals Currently: debate on ECJ reform

4. System and Provisions (1) • Article 19 TEU: • „The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. […]“

5. System and Provisions (2) • Meaning of Article 19 TEU: • ECJ is obliged to protect the constitutional framework of the European Union •  preserving competence structure •  legality of acts by the Union •  uniform interpretation of Union Law •  autonomy of Union legal order • Treaties create actiones-system: • Union Law provides for several types of action, each with specific claim and procedure

6. General Court at least 27 Judges Specialised Courts(e.g. EU Civil Service Tribunal 7 Judges) System and Provisions (3) - Organization

7. System and Provisions (4) – Functions • Court of Justice: • can be termed Constitutional Court jurisdiction over disputes between the Union's institutions and Member States (MS) and preliminary rulings General Court: can be termed Administrative Court jurisdiction over disputes between individuals and the Union's institutions European Union Civil Service Tribunal: can be termed Labor Court jurisdiction over disputes between the Union and its employees

8. Court of Justice (CJ): 27 Judges 8 Advocates-Generals General Court (GC): At least 27 Judges System and Provisions (5) - Composition • Renewable six-yearterm of office • Appointed by common accord of the governments of the Member States • Supported by Registrar

9. System and Provisions (12) – Chambers • Court of Justice sits as: • Chamber of three Judges • Chamber of five Judges • Grand Chamber of 13 Judges on request of MS or institution that is party  complex cases • Full Court administrative decisions  cases of exceptional importance  impeachment of members of commission

10. System and Provisions (13) – Chambers • CJ - completed cases by type of chamber 2010:

11. System and Provisions (14) – Chambers • General Court sits as: • Single Judge clear and evident cases • Chamber of three Judges • Chamber of five Judges • Grand Chamber of 13 Judges  complex cases • Full Court administrative decisions  cases of exceptional importance

12. System and Provisions (15) – Chambers • GC - completed cases by type of chamber 2010:

13. Procedure at ECJ (1) - Overview • Application • Statement of defense • Reply • Oral examination • Documentary evidence • Experts‘ Reports • Hearings • Opinion of AG • Closing speeches

14. Procedure at ECJ (2) - Actions • References for preliminary rulings(Art 267) • Direct actions • Actions for failure to fulfill obligations (Art 258) • Actions for annulment (Art 263) • Actions for failure to act (Art 265) • Actions for damages (Art 268) • Appeals and Reviews limited to points of law

15. Court of Justice: Preliminary rulings Actions for failure to fulfill an obligation Direct actions brought by institutions of the European Union Direct actions brought by MS against institutions of the Union except the Commission Appeals and reviews against decisions of the General Court Procedure at ECJ (3) - Competence • General Court: • Direct actions brought by natural or legal persons • Actions brought by the Member Statesagainst the Commission/Agencies • Actions for damages • Appeals and reviews against decisions of the Civil Service Tribunal

16. Competence of CJ or GC is determined by: Court of Justice functions as constitutional court and provides binding opinions(e.g. ECJ Opinion 1/91 - 14.12.1991) General Court functions as administrative court Procedure at ECJ (4) - Competence • type of action • AND • category of applicant 16

17. Procedure at ECJ (5) - Statistics • CJ – Type of actions 2010:

18. Procedure at ECJ (6) - Statistics • GC – Type of actions 2010:

19. Action for annulment • Functions within the judicial system of the EU: • aims for a declaration that an act is void; • and thus enables Union institutions, Member States and natural and legal persons to protect themselves against unlauwful, yet binding acts of the EU • -> contested act is reviewed in the light of superior – written or unwritten – Union law.

20. Action for annulment • This action may be taken by • Target of action: • Annulment of legislative act created by body/institution of the Union intended to produce legal effects vis-à-vis third parties (Art 263) • Privileged applicants (MS, Commission, European Parliament, Council) • Semi-privileged applicants (ECB, Committee of the Regions, Court of Auditors) • Non-privileged applicants (natural or legal persons)

21. Applicants Defendants MS Commission Agencies General Court Applicants Defendants MS CouncilEP Court of Justice Action for annulment - Competence

22. Applicants Defendants Council EP other bodies Council EP other bodies Court of Justice Applicants Defendants Individuals Union institutions and bodies General Court Action for annulment - Competence

23. The Term „Act“ and its requirements • Application for annulment ist only admissible against an existing act a non-existent act may not be declared void. • (cf. Case C-137/92 P Commission v. BASF, ECR 1994, I-2555) • 2. The act contested must be binding, thus: „capable of affecting the intereste of the applicant by bringing about a distinct change in his legal position“ and/or „adversely affect his legal position by restricting his rights.“ • (cf. Case 60/81 IBM v. Commission, ECR 1981, 2369)

24. Action for annulment – Admissibility • Privileged applicants (Art 263 II): MS, European Parliament, Commission, Council no further requirements for action • Semi-privileged applicants (Art 263 III):  Court of Auditors, ECB, Committee of the Regions  for the purpose of protecting their rights and prerogatives • (cf. Case 294/83 Parti écologiste Les Verts v. European Parliament)

25. Action for annulment – Admissibility non-privileged applicants(Art 263 IV) • a) natural or legal person ( determined by national law) •  b) against act that is addressed to individual • c) act which is of direct and individual concern  d) regulatory act of direct concern that does not entail implementing measures.

26. Act „adressed to an individual“ • Arguments: • prima facie, a single provision cannot at the same time have the character of a measure of general application and of an individual measure; • however: some provisions may be severed from the act as a whole; • and:dual nature of provisions possible, thus some provisions may operate as a decision against certain persons and as an act of general application as against others; • (cf. Case T-298/94 Roquette Frères, ECR 1996, II-1531; Case C- 10/95P Asocarne v. Council, I-4149) •  Example: Anti-dumping cases (regulations are being contested); common agricultural policy.

27. Direct Concern •  Inevitability that measure have legal effects on the legal position of a natural or legal person; • Measure is conditio sine qua non for effect for admissibility of the action for annulment • Thus only directly effective acts, and – under certain conditions – also provisions of directives.

28. Direct concern – admissibility of natural/legal persons: • Direct concern: • no implementation necessary and/or allowed; and • Even if third party must take further steps but lacks of discretion – e.g. implementation if Member State has no discretion • Case law (cf. “Les Verts”):“they constitute a complete set of rules which are sufficient in themselves and and require no implementing provisions.”

29. Individual Concern •  Individual Concern is assessed according to the Plaumann-rule: • An act not addressed to natural or legal persons will be of individual concern to them if it „affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in wich they are differentiated from allother 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, ECR 1963, 95; however: Case C-309/89 Codorniu v. Council, ECR 1994, I-185)

30. Individual concern • Plaumann-rule – two possibilities: • Individual concern by act of general application: Act affects them by reason of certain attributes which are peculiar to themOR  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  Strict boundaries for admissibility, no actio popularis

31. Regulatory act of direct concern • Meaning of • „against a regulatory act which is of direct concern to them • and • does not entail implementing measures“ • obvious aim of the legislator to enlarge the field of application of art. 162 para 4 TEUF and admissibility for individuals; • addresses distinction between legislative acts and regulatory acts

32. Regulatory act of direct concern • consequence: more open approach as to challenge to regulatory acts, while maintaining restrictive approach with regard to legislative acts. • Case law: cf. Case T-262/10 Microban v. European Commission, judgment of the General Court of 25 october 2011: „Nevertheless, it must be observed that, according to case-law, by allowing a natural or legal person to institute proceedings against regulatory acts of direct concern to them which do not entail implementing measures, the fourth paragraph of Article 263 TFEU pursues an objective of opening up the conditions for bringing direct actions (see, to that effect, Inuit Tapiriit Kanatami and Others v Parliament and Council, paragraph 21 above, paragraph 50). Accordingly, the concept of direct concern, as recently introduced in that provision cannot, in any event, be subject to a more restrictive interpretation than the notion of direct concern as it appeared in the fourth paragraph of Article 230 EC. Since it has been established, at paragraph 30 above, that the applicants were directly concerned by the contested decision, within the meaning of the concept of direct concern as laid down by the fourth paragraph of Article 230 EC, it must be held that they are also directly concerned by the contested decision within the meaning of the concept of direct concern as recently introduced in the fourth paragraph of Article 263 TFEU.“

33. Regulatory act of direct concern • Thus: • Legal acts promulgated unter Art. 289 TEUF may not be challenged under this prong of art. 263 TEUF, only those promulgated under art. 290 and 291 TEUF; •  Legislative acts can only be challenged under strict conditions!

34. Action for annulment: Time limits • All applicants must bring their claims within: two months of the publication of the measure – e.g. Official Journal  two months of its notification to the plaintiffOR in absence of notification  two months of the day it came to the plaintiff's knowledge • Later review of legality only in procedure for preliminary ruling under certain conditions

35. Lack of competence Infringementofessential procedural requirement Infringementof the Treaties Misuse of Powers Action for annulment – Grounds of review

36. Action for annulment • Lack of competence: • Institution of the Union act outside the Union's competences: breach of principal of conferral • Institution of the Union act within the competence of an other institution:  breach of principal of institutional balance Infringement of essential procedural requirement: • Failure to consult EP and other Institutions when required by the Treaties • Failure to give an adequate statement of reasons • Incorrect publication

37. Action for annulment • Infringement of the Treaties: • is the widest ground • examples are: measure contravenes general principals of law such as proportionality, equality etc. Misuse of powers: • Institution crossed boundaries of its discretion as conferred by the Treaties: power was not conferred to pursue purpose of adopted act

38. Action for annulment: legal effect of judgments • Effects of the Court‘s rulings: • the legislative act is null and void • the annulment has effect erga omnes and ex tunc • liability for damages • presumption of lawfulness of acts until they are annulled by ECJ

39. Thank you for your attention!