first class judicial reveiw and the effectiveness of judicial protection in EU law coursework essay
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Course
EU law
Institution
Liverpool John Moores University (LJMU)
An essay written for coursework giving an overview of judicial review and the effectiveness of judicial protection for individuals. It outlines article 263 and 267 TFEU and cases that provide further reasons for improvement and how it is lacking to achieve its intended purpose.
‘Despite the ground-breaking assertion in 1960s that EU law concurrently addresses
Member States and individuals, the Union system of judicial remedies remains a challenge
for individual access to justice. On the one hand, the admissibility of a non-privileged
applicant’s claim under article 263 TFEU for reviewing the legality of an EU measure is
limited. On the other hand, there is no recognition of an individual right to access the
preliminary ruling procedure under article 267 TFEU. This suggests that the so-called
complementary and composite nature of judicial protection in the European Union legal
order is not that effective for individual citizens.’
Evaluate the accuracy of the statement.
Judicial review within the European Union (EU) has a specific role. It is a procedural
framework that safeguards the legality of acts and decisions of EU institutions. Secondly it
governs the protection of rights of individuals (natural or legal persons). The principles of
effective judicial protection and viability of EU law are one of the fundamental notions in the
law of the European Court of Justice (ECJ). The court considers them to be central for the
lawful arrangement of the community and regularly utilises them as a classification of its
thinking or as a contention in its decisions. The ECJ, however, does not define the notion of
effective judicial protection. It states it is an essential principle of the community legal order,
derived from common constitutional traditions of member states and affirmed in the
European Convention on the Protection of Human Rights and Fundamental freedoms.1
Based on the case law of the ECJ it is presumed that this standard means the commitment
to protect and safeguard all the rights conferred upon the individuals by EU law. All of the
institutions applying EU law should consider this standard with respect to individuals and
the particular role is that of the national courts and ECJ. 2 Through this essay, the access to
justice for individuals will be analysed along with how article 263 TFEU can be utilised as a
device to access justice. Furthermore, it will be discussed how article 267 TFEU confers the
lack of effective judicial protection for individuals.
1
Weiler J, 'The Locus Standi Of Private Applicants Under Article 230 (4) EC And The Principle Of Judicial
Protection In The European Community' [2003] The Jean Monnet Program
2
ibid
, 794577
Firstly, article 263 TFEU outlines the action for annulment. There are four requirements for
the action of annulment. The first stipulation is the act must be reviewable ie of a kind that
is open to challenge. In Commission v Council ‘ETRA’ the commission tested the
“procedures” of the Council contending that they bound mentality of MS’s in the
subsequent negotiations with third countries.3 It was held by the ECJ ‘Activity for annulment
… available in the case of all measures adopted by the institutions, whatever their nature
and form, which are intended to have legal effects.’4 In terms of legal effects, IBM v
Commission involved the Commission commencing examinations against IBM for
conceivable maltreatment by the latter of its dominant position. 5 IBM challenged the
announcement of protests.6 The ECJ concluded the term ‘lawful impacts’ implies the
demonstration must achieve a particular change in the legitimate position of the candidate
– a change to their rights and commitments, notwithstanding its form. Whether a measure
is reviewable is based on its nature and effect as reinforced in International Fruit Company. 7
The ECJ distinguishes a decision is limited to the persons who are addressed, a regulation is
by nature of general application, hence not reviewable. Furthermore, it has been debated if
it is the act of the council or act of the MSs. In Parliament v Council and Commission. MSs
meeting in council adopted a decision to grant aid to Bangladesh, additionally putting the
Commission responsible for overseeing the aid delivery. 8 The parliament challenged the
decision. The ECJ held the court has ability to analyse the content and effects of a
demonstration, with a view to deciding if it is truly a demonstration of the council. ‘The goal
to embrace it as a demonstration of the Member States meeting in Council, not a
demonstration of the Council.’9 Hence, exemplifying how the decision again is non-
reviewable.
Grounds for review includes the lack of competence however this is rarely used. In Germany
v European Parliament and Council10 the case represents the way that few reasons for audit
3
Case 22/70 Commission v Council ‘ERTA’
4
ibid
5
Case 60/81 IBM v Commission
6
ibid
7
Cases 16/62 and 17/62 Confederation nationale des producteurs de fruits et legumes and others v council
[1971]
8
Case C-181 & C-248/91 Parliament v Council and Commission (Bangladesh aid)
9
ibid
10
Case T-198/12 Germany v Commission [2014]
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