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European Union (EU) Law Masters (LLM) Standing, Enforcement and Remedies Notes
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Masters module notes on the European Union (EU) law of standing, enforcement and remedies.
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STANDING, ENFORCEMENT AND REMEDIESACTION FOR ANNULMENT
- Article 19: when it comes to legal remedies, domestic courts are not to be separated
from what the CJ does.
- Article 263: the material scope of the procedure.
- Commission v Council (re: European Road Transport Agreement): if it has legal
effect, it may be challenged.
- IBM Corporation: only whole measures can be challenged, not just one part of it.
- Schindler: measures need to give rise to a distinct legal change in order to be
challenged.
WHO MAY CHALLENGE
Three types of applicant
1. Privileged
- May challenged any EU measure and without a standing requirement. E.g.
Member States, Parliament, Council, Commission.
2. Semi-Privileged
- They may challenge any EU measure without a standing requirement, but only in
terms of those measures that affect their prerogative. E.g. Court of auditors, ECB
and Committee of Regions.
3. Non-Privileged.
- The need to meet standing requirements. E.g. private individuals.
The Rights of Non-Privileged applicants:
- Article 263 distinguishes between three types of circumstance:
1. An act addressed to themselves
, - An act that legally affects you. It is presumed that you have an interest in
challenging it so no standing requirements.
2. An act addressed to someone else.
- Two requirements:
1. Individual concern - Closed Class: no one could join in
2. Direct Concern - Direct impacted by a decision (i.e. no discretion of a
government in implementing a commission decision.
- Need to show an interest in challenging a measure.
3. Regulatory Acts
Individual Concern
- Plaumann: individuals can only challenge a measure if ‘the 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 facts,
distinguishes them individually concerned.’
- Piraiki-Patraiki: exporters who had already entered into contracts that exceeded a new
quota on cotton imports were a closed group and therefore individually concerned.
- Codorniu: persons may only contest a provision of individual concern if ‘it affects them
by reason of certain attributes which are peculiar to them or by reason of circumstance
in which they are differentiated from all other persons.’
- Buralux: a potentially open group cannot be considered.
Direct Concern
- Les Verts: Direct concern is applicable if that decision ‘constitutes a complete set of
rules which are sufficient in themselves and which require no implementing provision.’
If an individual does not have the right to challenge an EU law, they can challenge it once it
becomes part of national law in domestic courts.
- Advocate General Jacobs in Union de Pequenos Agricultores: a person should be
considered individually concerned where, ‘by reason of his particular circumstances, the
measure has, or is liable to have, a substantial adverse effect on his interests.’
, - Union de Pequenos Agricultores: Court decision rejected Adv Gen Jacobs and kept to
Plaumann. ‘If we apply an individual right to challenge directly then we could have to
abolish the individual requirements, which we cannot do’.
- Art 263: ‘A regulatory Act which is of direct concern to them and does entail
implementing measures’
- Don’t need to worry about individual concern, only about direct concern within
regulatory acts.
What does a regulatory act entail.
- Inuit: Regulatory acts defines any kind of act which has not been adopted on the basis
of legislative procedure.
Lisbon Treaty Changed Art 263:
- Made it easier for individuals to challenge, introduced the possibility of challenging
regulatory measures.
- Before Lisbon individuals could only challenge decisions - Lisbon dispensed with
decisions.
- The relationship between Art 263 and 267 (Preliminary references)
- The right to challenge Union measures in domestic courts is not unlimited.
- Can only challenge if you do not have standing to challenge that measure in the
Union Courts.
- TWD: If you can do something directly in front of EU courts then you cannot do it
indirectly in domestic courts.
- Federolio: sets out conditions for associations to challenge Union measures.
- Where a legal provision expressly grants associations procedural rights
- Where the association represents the interests of those who were entitled to
bring proceedings in their own right.
- Where the association's position as negotiator is affected by the measure which it
seeks to have annulled.
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