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European Union Law - Liability of the Union Summary
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Comprehensive summary/exam notes on liability of the EU which can be used to structure any problem question and contains analysis that can be used in an essay. This document covers both the Article 263 TFEU route and Article 265 TFEU route to holding the EU to account, setting out for each the rule...

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  • October 7, 2024
  • 9
  • 2022/2023
  • Summary

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Liability of the Union
EU can be held to account through Article 263 TFEU.

1. The relevant body must be subject to JR:
Article 263(1) TFEU:
“The Court of Justice of the European Union shall review the legality of
legislative acts, of acts of the Council, of the Commission and of the
European Central Bank, other than recommendations and opinions, and of
acts of the European Parliament and of the European Council intended to
produce legal effects vis-à-vis third parties. It shall also review the legality of
acts of bodies, offices or agencies of the Union intended to produce legal
effects vis-à-vis third parties.”
All EU institutions, EU agencies, offices and other bodies.
2. The act must be of a nature open to challenge:
Article 288 TFEU:
To exercise the Union’s competences, the institutions shall adopt regulations,
directives, decisions, recommendations and opinions.
BUT – this is not an exhaustive list!
Anything which has a “legal effect” is reviewable – to have legal effect there
must be a change in parties’ legal positions and be definitive.
C-57/95 France v Commission.
C-22/70 Commission v Council – MS acting through Council adopted a Resolution to
coordinate their approach to the negotiations for a European Road Transport
Agreement. The Commission disliked the negotiating procedure established in the
Resolution and sought to challenge it before the ECJ.
The proceedings could not have been simply the expression or the
recognition of a voluntary coordination, but were designed to lay down a
course of action binding on both the institutions and the MS, and destined
ultimately to be reflected in the tenor of the regulation.
SO – the proceedings had definite legal effects both on relations between the
Community and the MS and on the relationship between institutions.
The test is one of substance, not form and the challenged measure must be final and
not preparatory.
C-60/81 IBM Corporation v Commission – IBM sought the annulment of a
Commission letter notifying it of the fact that the Commission had initiated
competition proceedings against it. The letter was accompanied by a
statement of objections, with a request that the company reply to it within a
specified time.
“…any measure the legal effects of which are binding on, and
capable of effecting the legal interests of, the applicant by bringing
about a distinct change in his legal position is an act or decision
which may be the subject of an action”.
“…whilst measures of a purely preparatory character may not
themselves be the subject of an application for a declaration that they
are void, any legal defects therein may be relied upon in an action
directed against the definitive act for which they represent a
preparatory step.”
Applicant failed – the letter was merely the initiation of the
competition procedure.
The statement of objectives did not alter IBM’s legal position –
merely indicated that it was in danger of being fined later.
3. The institution or person must have standing:
Article 263 TFEU – distinguishes between three types of applicants:

, a. Privileged and Semi-Privileged Applicants:
Member States:
C-376/98 Germany v Parliament and Council – Germany sought the
annulment of the Tobacco Advertising Directive.
The EU’s main political institutions (Parliament, Council and Commission).
b. Non-Privileged Applicants:
Access to the Court is available in only three cases:
- An act addressed to that person.
- An act of direct and individual concern to them, and
- (AFTER LISBON TREATY) A regulatory act of direct concern to
them and not entailing implementing measures.
Direct Concern:
Relatively uncontroversial.
CJEU interpreted it to mean that the impugned EU measure should be
directly applicable without any discretion on the part of the MS.
In other words – direct concern simply requires that the contested EU
measure directly affect the individual’s legal situation and that it leaves no
discretion to the addresses entrusted with this act’s implementation.
Individual Concern:
CJEU generally attributed a rather stringent interpretation.
C-25/62 Plaumann
Non-privileged applicants may only claim to be individually
concerned 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 factors distinguishes them individually just as in the case of
the person addressed.”
As the applicant in this case was an importer of clementines, a job
which, in the eyes of the Court, anyone could partake in, there was
not sufficient evidence to distinguish the applicant in relation to the
contested decision and therefore he lacked the standing to bring the
claim.
EU legislation affecting an IP right is of individual concern.
C-309/89 Codorníu –
By reserving the right to use the term “crémant” to French
and Luxembourg producers, the contested provision
prevented the applicants from using its graphic trademark.
It follows that the applicant had established the existence of a
situation which from the point of the view of the contested
provision differentiates it from all traders
Harm suffered does not constitute “individual concern”, even where it
relates to challenges concerning areas of public interest such as environment
and health.
T-585/93 Greenpeace v Commission –
“…the existence of harm suffered or to be suffered cannot
alone suffice to confer locus standi on an applicant, since
such harm may affect, generally and in the abstract, a large
number of persons who cannot be determined in advance in a
way which distinguishes them individually in the same way
as the addressee of a decision…”
The applicants cannot be affected by the contested decision
other than in the same manner as any other local resident,
fisherman, farmer, or tourist who is, or might be in the
future, in the same situation.
Standing of associations:

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