EU Law – E509 Direct Actions and Course Review February 3, 2009 (Daemen)

1. EU Law – E509Direct Actions and Course ReviewFebruary 3, 2009(Daemen)

2. Direct Actions

3. Direct Actions: Overview • Direct action = attempt to annul EU legislative activity • Different types • Art. 230 (review of institutional acts) • Art. 234 (national court reference for review) • Art. 232 (review of failure to act) • Arts. 235/288 (damages caused by acts) • Art. 241 (incidental challenges) • As always, treaty based procedures and requirements vary significantly • Success = annulment, in whole or in part • See, e.g., Arts. 231 and 233

4. Article 230 Direct Actions • Potential defendants (i.e., which institutions are subject to Art. 230 review) • Treaty says COM and Council… ...but the court extended to EP given rising power and importance of democratic check • Reviewable acts • “legally binding acts” • Treaty says Regulations, Directives and Decisions… …but the court expanded to anything that could impact the legal status of others

5. Article 230 Direct Actions (2) • Reviewable acts (cont.) • Class discussion: Les Verts (Rachel Feller, Liz Little) • Les Verts is not unique; hundreds of cases have expanded reviewable acts beyond the 3 specifically delineated in the Treaty • Time limits • 2 months from • Date of publication • Date of notice, or • Date when plaintiff became aware

6. Article 230 Direct Actions (3) • Potential plaintiffs • “Privileged” status • Always have right to object • Identified in Art. 230 • Member States, Council, COM, EP • “Semi-privileged” status • Includes agencies such as Court of Auditors • Limited to “protection of prerogatives” • “Non-privileged” status • Anyone else • Art. 230(4) details standing requirement • In short, can challenge if directly addressed or of direct and individual concern • Very difficult standing requirement, leading to extensive debate about this seemingly restrictive approach

7. Article 230 Direct Actions (4) • Challenging a Regulation • General rule • Individuals can’t challenge b/c Regulations are directly and generally applicable • Regulations quasi-primary law and not easily contested • Exceptions • “closed group” (e.g., fruit importers) • Plaintiff named in Regulation (e.g., anti-dumping) • Direct and individual concern • Direct concern: if individuals can be identified with high-level of certainty • Individual concern: factors that distinguish plaintiffs • Once again, hundreds of cases

8. Article 230 Direct Actions (5) • Grounds for annulment • General rule • Art. 230(2) (block quote on p. 211) • Grounds frequently overlap • Lack of competence/authority • Hundreds of cases • Recall the tobacco advertising case from previous class • Infringement of essential procedural requirement • E.g., consult EP as required • E.g., identify treaty basis as required

9. Article 230 Direct Actions (6) • Grounds for annulment (2) • Infringement of treaty • Most common b/c extremely broad • E.g., right of fair hearing, human rights protection, etc. • Misuse of power • E.g., failure to follow appointment process

10. Article 234 Direct Actions • Overview • Reference from national court to ECJ when national law at issue • Viewed as means of bypassing 230 limits • Limitations time based on national law • Potentially easier for individuals • But longer litigation process

11. Article 232 Failure to Act (1) • Overview • Failure to act can have significant legal ramifications • Frequently pled in conjunction with standard Art. 230 claim

12. Article 232 Failure to Act (2) • Potential defendants (i.e., which institutions are subject to Art. 232 review) • EP, Council, COM • Potential plaintiffs • “Privileged” status • Always have right to object • Identified in Art. 232(1) • Member States, Council, COM, EP • “Non-privileged” status • Individuals have limited rights since only theoretical impact

13. Article 232 Failure to Act (3) • Procedural Issues • Invitation to Act • Art. 232(2): must first call upon the institution • Two months to respond • Definition of Position • Explaining a refusal = taking a position • Many cases acknowledge legislative/administrative discretion and “approve” explained refusals • But seeTransport Policy

14. Article 282 Non-K Liability (1) • Overview • EU institutions subject to damages caused by improper conduct • “Non-contract” phase deliberately vague to account for divergent national laws and yet provide necessary legal protections • In short, includes civil wrongs caused by EU • Very difficult and rare due to significant legislative discretion

15. Article 282 Non-K Liability (2) • Potential plaintiffs • Far less restrictive than earlier options • Plaintiff must be affected and damaged, and suffer some degree of loss • Must file within 5 years • Class discussion: Lütticke (Rachel C Waters, Emily Nauman, Tanja Alexandra Douay) • Potential defendants • All EU-level institutions • Member States when implementing EU measures

16. Article 282 Non-K Liability (3) • Liability requirement • Community liability based on general principles of law in the Member States • Key criteria – breach of duty was proximate cause of damage • Can result from legislative and/or administrative action and/or inaction • Administrative acts • EU given broad discretion • But seeStanley Adams

17. Article 282 Non-K Liability (4) • Legislative acts • Again, EU given broad discretion • ECJ recognizes difficult of finding “injury free” solutions to complex problems • Criteria • Breach of superior rule (e.g., fundamental rights implicated) • Rule exists to protect persons (i.e., legal and natural) • Violation must be sufficiently serious (i.e., mere breach insufficient)

18. Article 282 Non-K Liability (5) • Damages • Can be purely economic or “moral” • Must exceed normal business risks • Causation • Sufficiently direct consequence • Third parties can break chain

19. Article 241 Plea of Illegality • Overview • “Catch all” claim of EU-level illegality • Potential plaintiffs • Intended to cover those without rights under other provisions, but nonetheless impacted by EU-level activity (or inactivity) • Reviewable actions • Generally limited to Regulations • Impact of ruling • Regulation void for that particular case

20. Course Review

21. Group Project • Step one: break into groups • Step two: select a group leader • Step three: discuss what you learned during the assigned class • Step four: after 20 minutes, identify: • 3 important things you learned; and, • 2 questions that remain

22. Groups Class Three: Lee, Jung Hyun Lindquist, Nicole Joy Little, Elizabeth Anne Nauman, Emily Lorraine Nikiforova, Marianna Osawa, SazaSumie Penar, Anna Marie Prongdong, Temsiri Radics, George Baylon Ren, Lisha Class Four: Ringland, Kristina Lynn Sanoja, Natalia Alexis Santamaria-Schwartz, Rachel Angela Shim, Hyunjin Shultz, Theodore Judson Silk-Eglit, Kyle John Waters, Rachel C Wishaar, Angela Rae Zhou, Jingdi Class One: Antonio, RayoAzucenas Bond, Katharine Sue Bridge, Marc Daniel Campbell, Sara Lorraine Chang, KyoungSoo Curnutt, Jeffrey Garth Damm-Luhr, Tobias Franz Dean, Robin Allison Douay, Tanja Alexandra Class Two: Feichtmeir, Alicia Marguerite Feller, Rachel Sarah Flaschen, Joan Steward Huang, Hui-I Jeong, In-Seop Jiang, Hong Johnson, Steven Peter Kinukawa, Yasuhisa Knaphus, Emily S Lee, Ji Won