February 3 2009 Daemen Direct Actions Direct Actions Overview Direct action attempt to annul EU legislative activity Different types Art 230 review of institutional acts Art 234 national court reference for review ID: 804793
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Slide1
EU Law – E509
Direct Actions and Course Review
February 3, 2009
(Daemen)
Slide2Direct Actions
Slide3Direct Actions: Overview
Direct action = attempt to annul EU legislative activity
Different types
Art. 230 (review of institutional acts)
Art. 234 (national court reference for review)
Art. 232 (review of failure to act)
Arts. 235/288 (damages caused by acts)
Art. 241 (incidental challenges)
As always, treaty based procedures and requirements vary significantly
Success = annulment, in whole or in part
See, e.g., Arts. 231 and 233
Slide4Article 230 Direct Actions
Potential defendants (
i.e.
, which institutions are subject to Art. 230 review)
Treaty says COM and Council…
...but the court extended to EP given rising power and importance of democratic check
Reviewable acts
“legally binding acts”
Treaty says Regulations, Directives and Decisions…
…but the court expanded to anything that could impact the legal status of others
Slide5Article 230 Direct Actions (2)
Reviewable acts (cont.)
Class discussion:
Les
Verts
(Rachel Feller, Liz Little)
Les
Verts
is not unique; hundreds of cases have expanded reviewable acts beyond the 3 specifically delineated in the Treaty
Time limits
2 months from
Date of publication
Date of notice, or
Date when plaintiff became aware
Slide6Article 230 Direct Actions (3)
Potential plaintiffs
“Privileged” status
Always have right to object
Identified in Art. 230
Member States, Council, COM, EP
“Semi-privileged” status
Includes agencies such as Court of Auditors
Limited to “protection of prerogatives”
“Non-privileged” status
Anyone else
Art. 230(4) details standing requirement
In short, can challenge if directly addressed or of direct and individual concern
Very difficult standing requirement, leading to extensive debate about this seemingly restrictive approach
Slide7Article 230 Direct Actions (4)
Challenging a Regulation
General rule
Individuals can’t challenge b/c Regulations are directly and generally applicable
Regulations quasi-primary law and not easily contested
Exceptions
“closed group” (e.g., fruit importers)
Plaintiff named in Regulation (e.g., anti-dumping)
Direct and individual concern
Direct concern: if individuals can be identified with high-level of certainty
Individual concern: factors that distinguish plaintiffs
Once again, hundreds of cases
Slide8Article 230 Direct Actions (5)
Grounds for annulment
General rule
Art. 230(2) (block quote on p. 211)
Grounds frequently overlap
Lack of competence/authority
Hundreds of cases
Recall the tobacco advertising case from previous class
Infringement of essential procedural requirement
E.g., consult EP as required
E.g., identify treaty basis as required
Slide9Article 230 Direct Actions (6)
Grounds for annulment (2)
Infringement of treaty
Most common b/c extremely broad
E.g., right of fair hearing, human rights protection, etc.
Misuse of power
E.g., failure to follow appointment process
Slide10Article 234 Direct Actions
Overview
Reference from national court to ECJ when national law at issue
Viewed as means of bypassing 230 limits
Limitations time based on national law
Potentially
easier for individuals
But longer litigation process
Slide11Article 232 Failure to Act (1)
Overview
Failure to act can have significant legal ramifications
Frequently pled in conjunction with standard Art. 230 claim
Slide12Article 232 Failure to Act (2)
Potential defendants (
i.e.
, which institutions are subject to Art. 232 review)
EP, Council, COM
Potential plaintiffs
“Privileged” status
Always have right to object
Identified in Art. 232(1)
Member States, Council, COM, EP
“Non-privileged” status
Individuals have limited rights since only theoretical impact
Slide13Article 232 Failure to Act (3)
Procedural Issues
Invitation to Act
Art. 232(2): must first call upon the institution
Two months to respond
Definition of Position
Explaining a refusal = taking a position
Many cases acknowledge legislative/administrative discretion and “approve” explained refusals
But see
Transport Policy
Slide14Article 282 Non-K Liability (1)
Overview
EU institutions subject to damages caused by improper conduct
“Non-contract” phase deliberately vague to account for divergent national laws and yet provide necessary legal protections
In short, includes civil wrongs caused by EU
Very difficult and rare due to significant legislative discretion
Slide15Article 282 Non-K Liability (2)
Potential plaintiffs
Far less restrictive than earlier options
Plaintiff must be affected and damaged, and suffer some degree of loss
Must file within 5 years
Class discussion:
L
ü
tticke
(Rachel C Waters, Emily
Nauman
,
Tanja
Alexandra Douay)
Potential defendants
All EU-level institutions
Member States when implementing EU measures
Slide16Article 282 Non-K Liability (3)
Liability requirement
Community liability based on general principles of law in the Member States
Key criteria – breach of duty was proximate cause of damage
Can result from legislative and/or administrative action and/or inaction
Administrative acts
EU given broad discretion
But see
Stanley Adams
Slide17Article 282 Non-K Liability (4)
Legislative acts
Again, EU given broad discretion
ECJ recognizes difficult of finding “injury free” solutions to complex problems
Criteria
Breach of superior rule (e.g., fundamental rights implicated)
Rule exists to protect persons (i.e., legal and natural)
Violation must be sufficiently serious (i.e., mere breach insufficient)
Slide18Article 282 Non-K Liability (5)
Damages
Can be purely economic or “moral”
Must exceed normal business risks
Causation
Sufficiently direct consequence
Third parties can break chain
Slide19Article 241 Plea of Illegality
Overview
“Catch all” claim of EU-level illegality
Potential plaintiffs
Intended to cover those without rights under other provisions, but nonetheless impacted by EU-level activity (or inactivity)
Reviewable actions
Generally limited to Regulations
Impact of ruling
Regulation void for that particular case
Slide20Course Review
Slide21Group Project
Step one:
break into groups
Step two:
select a group leader
Step three:
discuss what you learned during the assigned class
Step four:
after 20 minutes, identify:
3 important things you learned; and,
2 questions that remain
Slide22Groups
Class One:
Antonio,
Rayo
Azucenas
Bond, Katharine Sue
Bridge, Marc Daniel
Campbell, Sara Lorraine
Chang,
Kyoung
Soo
Curnutt
, Jeffrey Garth
Damm-Luhr
, Tobias Franz
Dean, Robin Allison
Douay,
Tanja
Alexandra
Class
Two:
Feichtmeir
, Alicia Marguerite
Feller, Rachel Sarah
Flaschen
, Joan Steward
Huang,
Hui
-I
Jeong
, In-
Seop
Jiang, Hong
Johnson, Steven Peter
Kinukawa
, Yasuhisa
Knaphus
, Emily SLee, Ji Won
Class Three:
Lee
, Jung Hyun
Lindquist, Nicole Joy
Little, Elizabeth Anne
Nauman
, Emily Lorraine
Nikiforova
, Marianna
Osawa
,
Saza
Sumie
Penar
, Anna Marie
Prongdong
,
Temsiri
Radics
, George
Baylon
Ren
,
Lisha
Class
Four:
Ringland
, Kristina Lynn
Sanoja
, Natalia Alexis
Santamaria
-Schwartz, Rachel Angela
Shim,
Hyunjin
Shultz, Theodore Judson
Silk-
Eglit
, Kyle John
Waters, Rachel C
Wishaar
, Angela Rae
Zhou,
Jingdi