QUIZ

Judicial review of Community acts

Which measures are reviewable under Art. 263 TFEU?

a All legally binding measures (e.g. Regulations, Directives and Decisions) b Regulations c Decisions d Regulations and Directives e Directives

There are two categories of applicant who may apply for review under Art 263 TFEU, privileged and non-privileged. Who comes within the scope of privileged applicant?

a All Community institutions and the Member States b The Member States c Specified Community institutions and the

Member States d All the Community institutions e Specified Community institutions

Who comes within the scope of non-privileged applicant?

a Any legal person b Any natural or legal person c Any natural person d The European Commission e The Council of the European Union

Which measures can be challenged by a non-privileged applicant?

a (i) A decision addressed to the applicant; and (ii) a decision addressed to another person which is of

direct and individual concern to the applicant b A decision addressed to the applicant c A decision addressed to another person which is of

direct and individual concern to the applicant d (i) A decision addressed to the applicant; (ii) a decision addressed to another person which is of direct and individual concern to the applicant; and (iii) a decision in the form of a Regulation which is of direct and individual concern to the applicant e A decision in the form of a Regulation which is of direct and individual concern to the applicant

In the case of a non-privileged applicant, an action for annulment of a measure pursuant to Art 263 TFEU is only admissible if the applicant shows a legal interest in seeing the contested measure annulled. That interest must be 'vested and present'.

a True b False

Under Article 263 TFEU in the case of a decision addressed to another person, what must the applicant show about the decision?

a That it is of individual concern to the applicant b That it is of direct concern to the applicant c That it retrospectively penalises the applicant d That it adversely affects the applicant's legal position e That it is of direct concern and individual concern to the applicant

When is a decision of direct concern to the applicant?

a When the applicant is explicitly referred to in the decision b When the decision directly affects the applicant's legal situation c When (i) the decision directly affects the applicant's

legal situation; and (ii) its implementation is purely automatic, flowing solely from the Community

legislation and without the application of other intermediate rules d When the applicant is implicitly referred to in the

decision e When implementation of the directive is purely automatic, flowing solely from the Community legislation and without the application of other intermediate rules

In Case 25/62 Plaumann & Co v Commission the ECJ set out a test to determine whether the applicant is individually concerned with the decision. This test provides that the applicant will be individually concerned with the decision in what circumstances?

a (i) The decision affects the applicant by reason of certain attributes which are peculiar to him; or (ii) by reason of circumstances in which the applicant is differentiated from all other persons and by virtue of these factors the applicant is distinguished individually just as in the case of the person addressed b The applicant is differentiated from all other persons c The decision affects the applicant by reason of certain attributes which are peculiar to him d By reason of circumstances in which the applicant is differentiated from all other persons and by virtue of these factors the

applicant is distinguished individually just as in the case of the person addressed

e The applicant is distinguished individually just as in the case of the person addressed

What are the grounds for challenging a measure under Art 230 EC Treaty (Art 263 TFEU, post-ToL)?

a (i) Lack of competence; (ii) infringement of the Treaty or any rule of law relating to its application; and (iii) misuse of powers b (i) Lack of competence; (ii) infringement of an essential procedural requirement; (iii) infringement of the Treaty or any rule of law relating to its application; and (iv) misuse of powers c (i) Lack of competence; and (ii) infringement of the Treaty

or any rule of law relating to its application d (i) Infringement of an essential procedural requirement; (ii)

infringement of the Treaty or any rule of law relating to its application; and (iii) misuse of powers

e (i) Infringement of the Treaty or any rule of law relating to its application; and (ii) misuse of powers

What is the effect of a successful Article 230 action?a Annulment of the Community act.b Delayed implementation of the Community act.c Immediate entry into force of the Community act.d Award of damages against the Community institution concerned.

• In 2007 the European Commission adopted (fictitious) Regulation 364/2007, which requires Member States to issue wine import licences each month to importers who submit applications during the previous month. In December 2007, the Commission became concerned that South American wine was becoming much more popular with EU consumers than wine produced in the EU and that some EU wine producers were suffering as a result. In January 2008, it adopted Regulation 3/2008, which amended Regulation 364/2007, and allowed Member States to restrict licences for Argentinian wine for February 2008 so as to limit the amount that could be imported by an applicant to no more than 10,000 litres during that month.

• Argenco SA ('Argenco') imports Argentinian wine into the EU. In January 2008, it applied to import 15,000 litres of wine into France in February. A licence was granted but was limited to 8,000 litres. The French authorities claimed to be acting pursuant to Regulation 3/2008.

• Argenco asks for your advice on instituting annulment proceedings in the CFI in respect of Regulation 3/2008. Advise Argenco as to whether such an action would be admissible.

• How, if at all, would your answer differ if in December 2007 the French authorities had informed Argenco that they had sought permission from the Commission to restrict import licences for Argentinian wine to 8,000 litres for the month of February?

Jurisdiction of the ECJ and CFI• Act falling within the scope of 263 TFEU• The Court has jurisdiction in proceedings brought by

Member States and the Community institutions. In addition, any legal or natural person may challenge binding acts of the Community institutions,

• As a company, Argenco is a legal person: non-privileged applicant

Admissibility: standing requirements for non-privileged applicants

• Argenco's action will be admissible if the company can establish standing.

• Article 263 provides that any legal person may institute proceedings against an act that, though not addressed to him, is of direct and individual concern to the former.

Direct concern• The Treaty does not define 'direct concern' but the case law of the ECJ

gives guidance on the meaning of the term. The Court has indicated that the applicant must show a direct link or an unbroken chain of causation between the Community measure and the loss or damage suffered.

• Regulation 3/2008 allows Member States to restrict licenses for Argentinian wine so as to limit the amount that can be imported in February 2008 to no more than 10,000 litres, but does not require them to do so. Thus, Member States are left with discretion as to whether to restrict licences. It was the exercise of that discretion by the French authorities, not Regulation 3/2008, which affected Argenco. Consequently there is no direct concern and the action is inadmissible. (TERRES ROUGES!)

• The position would be likely to be different if in December 2007 the French authorities had informed Argenco that they had sought permission from the Commission to restrict import licences for Argentinian wine to 8,000 litres for February 2008. Here, the Court may well take the view, that although the French authorities could choose whether or not to restrict imports, the possibility that they would not do so was 'purely theoretical'. in these circumstances, Argenco will probably succeed in persuading the Court that it is directly concerned by Regulation 3/2008.

Individual concern• In relation to decisions, the ECJ set out its well-known test for

individual concern in Plaumann.• Persons other than those to whom a decision is addressed are

individually concerned only 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'. The decision must distinguish them individually in the same way that it distinguished the original addressee. Applicants may claim to be singled out, if they can show that they are a member of a closed class of applicants that was fixed and ascertainable at the date the measure was adopted (CODORNIU)

• Argenco can claim to be a member of such a class, namely the class of importers which made licence applications during January 2008. That class of applicants was fixed and ascertainable at the date Regulation 3/2008 was adopted. (Koninklijke Friesland)

• In the light of these authorities, the CFI may be persuaded that Argenco is individually concerned by Regulation 3/2008, which is thus in reality a 'decision in disguise'.

Time limit• The action must be brought within two

months of the publication of the measure or its notification to the Argenco or, in the absence of either, the date on which it came to Argenco's knowledge.

• TAKE ALL NECESSARY STEPS!!

• USE YOUR TREATY!!

• MARK YOUR TREATY!!!