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EU Law – E509 Direct Actions and Course Review EU Law – E509 Direct Actions and Course Review

EU Law – E509 Direct Actions and Course Review - PowerPoint Presentation

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EU Law – E509 Direct Actions and Course Review - PPT Presentation

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

direct article art 230 article direct 230 art actions class review potential acts liability 232 act failure treaty status

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Presentation Transcript

Slide1

EU Law – E509

Direct Actions and Course Review

February 3, 2009

(Daemen)

Slide2

Direct Actions

Slide3

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)

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

Slide4

Article 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

Slide5

Article 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

Slide6

Article 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

Slide7

Article 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

Slide8

Article 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

Slide9

Article 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

Slide10

Article 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

Slide11

Article 232 Failure to Act (1)

Overview

Failure to act can have significant legal ramifications

Frequently pled in conjunction with standard Art. 230 claim

Slide12

Article 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

Slide13

Article 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

Slide14

Article 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

Slide15

Article 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

Slide16

Article 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

Slide17

Article 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)

Slide18

Article 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

Slide19

Article 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

Slide20

Course Review

Slide21

Group 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

Slide22

Groups

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