Admissibility checklist annulment procedure:
Art. 263 TFEU
1. Is the action a secondary, legislative, binding act?
• Regulations and directives are
• Decisions are only binding to whom the decision is addressed
(Refer to: Art. 288 TFEU)
2. Is the action brought within 2 months?
(otherwise, you can’t challenge it anymore)
3. Does the party have standing?
- Privileged (EP, MS, Council, Commission)
- Semi-privileged (ECB, Committee of Regions, Court of Auditors)
- Non-privileged (citizens, etc.)
4. In case semi-privileged, is the act that they want to annul in violation of their
prerogatives? (If not, they can’t go to court)
ECB: art. 309 TFEU
Court of Auditors: art. 287 TFEU.
Committee of Regions (=advisory body): art. 263(3) TFEU.
5. In case non-privileged, they have to comply with one of these conditions:
a) Decisions is addressed directly to them
b) Applicant has both direct and individual concern
▪ Direct concern:
▪ Individual concern: is the applicant differentiated/distinguished
from other people? (yes: individually concerned)
c) - The act the applicant wants to annul is a regulatory act (non-legislative
act of general application)
-That is of direct concern to them (=…)
-That does not need implementing measures (if EU act requires
national authorities to adopt decisions applicant should challenge those
national decisions)
Annulment procedure: article 263 TFEU
Conditions:
- Is type of EU act reviewable ?
- Legislative acts
- Acts of Council, Commission or Parliament
- Binding acts of ECB
X Not for recommendations nor opinions
- Is there a valid of review ?
- Lack of competence
- Infringement of essential procedural requirement
, - Infringement of rule of law related to application of the treaties (violating the
treaties)
- Misuse of powers (EU institutions have done more than what their power allow it,
go further than just looking at the competence given to the EU but also what is
allow by the treaties)
- Are we within the time limit ?
- 2 months from publication, formal notification from when you find out the
measure
- Standing ?
❖ Privilege applicants (MS, EP, Council, Commission):
always have standing
❖ Semi-privilege (COR, ECB, Court of Auditor):
have standing when their prerogatives are affected
❖ Non privileged (natural and legal persons):
have standing in 1 or 3 situations need to be valid :
‣ Decision is address to the applicant
‣ Acts that have direct and individual concern to the applicant (“does it give me
more obligation as an applicant ?” “Is the applicant uniquely affected ?”)
‣ Act is regulatory of direct concern and no implementation necessary = > case
Inuit
How do you know if the act should have been address to them ?
Direct concern: changes / affects legal position of person = > case
Microban
Individual concern: closed group, they have certain attributes or for a
specific reason they can be differentiated from all the other persons. It must
be a fixed and closed class. Particularly affected, usually this group is name
very precisely = > case Plaumann
Ex: the directive is address to companies earning 1 billions = still open to
companies that in the future will earn that much (direct concern)
however, if it say companies earning 1 billion until the 7 of October or when they
mention the GAFAM = it is consider a closed group of people (individuals
concern)
Ex: Even if you represent the interest of the farmers it is address to the farmer not the
one representing them
Def regulatory act: a non legislative act that has general application, which does not
require implementing measures (Inuit), so no acts adopted under article 288
TFEU, but can be delegated or implementing acts
,3) The twelve farmers affected by the Decision ordering the Netherlands to recollect
illegally paid subsidies want to challenge the legality of the Decision. Can they do so?
! When it’s about challenging the legality of an EU act we always apply the annulment
procedure !
Misuse of power because by asking the money back
, Checklist: EU INSTITUTIONS
Look at the articles in the treaties which have the blue stars. Then restate
what the procedures or the principles are. This will mostly be knowledges
questions about it.
+ Notes from the notebook
Democratic backlisting:
The democratic deficit is the accusation levelled at the EU that it lacks democracy in it’s
legislative institutions.
The Council of Ministers represents the interests of the MS gov’.
The European Parliament represents the interests of the EU citizens.
The Commission represents the interests of the EU as an organisation.
Increasing powers have been given to the European Parliament over the years because
of democratic and direct link to the Eu citizens. Indeed, it’s the only body where people
are directly elected. For example the Parliament’s involvement in the legislative process
has increased.
The EU believes that increasing EP power addresses the problems of “democratic
deficit”. This issue has an effect on the balance between the institutions.
In the annulment procedure (Article 263 TFEU) the European Parliament is a
privileged applicant. It mean that it will always have standing. So the european
Parliament gain more power by having the power to scrutinise other institutions.
The fact that the Commission is constituted of a representative of each state goes a long
way towards helping the MS to feel involved in policy making, and to accept policies
coming out of the Commission despite the facts that Commissioners are persons whose
“independence is beyond doubts” (Article 245 TFEU). They are not supposed to
represent their national interests.
Article 12 TEU provides more direct involvement of the national parliaments in the
decision-making process at the EU level, by for example reviewing draft of legislation.
Remember that the EU system relies upon a process of “checks & balances” between
the institutions.
Powers of the institutions:
✤ Legislative power is the involvement of an institution in amending, or agreeing to,
legislation made by the EU under the treaties.
Art. 263 TFEU
1. Is the action a secondary, legislative, binding act?
• Regulations and directives are
• Decisions are only binding to whom the decision is addressed
(Refer to: Art. 288 TFEU)
2. Is the action brought within 2 months?
(otherwise, you can’t challenge it anymore)
3. Does the party have standing?
- Privileged (EP, MS, Council, Commission)
- Semi-privileged (ECB, Committee of Regions, Court of Auditors)
- Non-privileged (citizens, etc.)
4. In case semi-privileged, is the act that they want to annul in violation of their
prerogatives? (If not, they can’t go to court)
ECB: art. 309 TFEU
Court of Auditors: art. 287 TFEU.
Committee of Regions (=advisory body): art. 263(3) TFEU.
5. In case non-privileged, they have to comply with one of these conditions:
a) Decisions is addressed directly to them
b) Applicant has both direct and individual concern
▪ Direct concern:
▪ Individual concern: is the applicant differentiated/distinguished
from other people? (yes: individually concerned)
c) - The act the applicant wants to annul is a regulatory act (non-legislative
act of general application)
-That is of direct concern to them (=…)
-That does not need implementing measures (if EU act requires
national authorities to adopt decisions applicant should challenge those
national decisions)
Annulment procedure: article 263 TFEU
Conditions:
- Is type of EU act reviewable ?
- Legislative acts
- Acts of Council, Commission or Parliament
- Binding acts of ECB
X Not for recommendations nor opinions
- Is there a valid of review ?
- Lack of competence
- Infringement of essential procedural requirement
, - Infringement of rule of law related to application of the treaties (violating the
treaties)
- Misuse of powers (EU institutions have done more than what their power allow it,
go further than just looking at the competence given to the EU but also what is
allow by the treaties)
- Are we within the time limit ?
- 2 months from publication, formal notification from when you find out the
measure
- Standing ?
❖ Privilege applicants (MS, EP, Council, Commission):
always have standing
❖ Semi-privilege (COR, ECB, Court of Auditor):
have standing when their prerogatives are affected
❖ Non privileged (natural and legal persons):
have standing in 1 or 3 situations need to be valid :
‣ Decision is address to the applicant
‣ Acts that have direct and individual concern to the applicant (“does it give me
more obligation as an applicant ?” “Is the applicant uniquely affected ?”)
‣ Act is regulatory of direct concern and no implementation necessary = > case
Inuit
How do you know if the act should have been address to them ?
Direct concern: changes / affects legal position of person = > case
Microban
Individual concern: closed group, they have certain attributes or for a
specific reason they can be differentiated from all the other persons. It must
be a fixed and closed class. Particularly affected, usually this group is name
very precisely = > case Plaumann
Ex: the directive is address to companies earning 1 billions = still open to
companies that in the future will earn that much (direct concern)
however, if it say companies earning 1 billion until the 7 of October or when they
mention the GAFAM = it is consider a closed group of people (individuals
concern)
Ex: Even if you represent the interest of the farmers it is address to the farmer not the
one representing them
Def regulatory act: a non legislative act that has general application, which does not
require implementing measures (Inuit), so no acts adopted under article 288
TFEU, but can be delegated or implementing acts
,3) The twelve farmers affected by the Decision ordering the Netherlands to recollect
illegally paid subsidies want to challenge the legality of the Decision. Can they do so?
! When it’s about challenging the legality of an EU act we always apply the annulment
procedure !
Misuse of power because by asking the money back
, Checklist: EU INSTITUTIONS
Look at the articles in the treaties which have the blue stars. Then restate
what the procedures or the principles are. This will mostly be knowledges
questions about it.
+ Notes from the notebook
Democratic backlisting:
The democratic deficit is the accusation levelled at the EU that it lacks democracy in it’s
legislative institutions.
The Council of Ministers represents the interests of the MS gov’.
The European Parliament represents the interests of the EU citizens.
The Commission represents the interests of the EU as an organisation.
Increasing powers have been given to the European Parliament over the years because
of democratic and direct link to the Eu citizens. Indeed, it’s the only body where people
are directly elected. For example the Parliament’s involvement in the legislative process
has increased.
The EU believes that increasing EP power addresses the problems of “democratic
deficit”. This issue has an effect on the balance between the institutions.
In the annulment procedure (Article 263 TFEU) the European Parliament is a
privileged applicant. It mean that it will always have standing. So the european
Parliament gain more power by having the power to scrutinise other institutions.
The fact that the Commission is constituted of a representative of each state goes a long
way towards helping the MS to feel involved in policy making, and to accept policies
coming out of the Commission despite the facts that Commissioners are persons whose
“independence is beyond doubts” (Article 245 TFEU). They are not supposed to
represent their national interests.
Article 12 TEU provides more direct involvement of the national parliaments in the
decision-making process at the EU level, by for example reviewing draft of legislation.
Remember that the EU system relies upon a process of “checks & balances” between
the institutions.
Powers of the institutions:
✤ Legislative power is the involvement of an institution in amending, or agreeing to,
legislation made by the EU under the treaties.
