Introduction

We saw in chapter 5 that Community law imposes a series of limits on the law-making powers of the European Union. The principles of conferred powers, subsidiarity and proportionality as introduced into the Treaties and developed by the courts may be seen to provide a developing jurisprudence of legislative review. In this chapter we consider the principal ways in which Community law has fashioned a body of administrative law in which the legality of the decisions and actions taken by the Community institutions may be judicially reviewed. It must immediately be emphasised that there is no bright line to be drawn in EC law between constitutional or legislative review, on the one hand, and administrative or executive review, on the other. In this sense, the materials considered in this chapter should be read alongside and in the light of those considered in chapter 5.

The most important provisions of the EC Treaty as regards judicial review are Articles 230 and 288(2) (before renumbering, these were Articles 173 and 215(2), respectively). Unlike some aspects of constitutional review under Article 5 EC, the core provisions of these Articles have been enshrined in Community law since its earliest days. Both are considered in some detail in this chapter. The former concerns the action for annulment and the latter, the principle of non-contractual liability; that is to say, the former is used when an applicant wishes to argue that a Community institution has acted unlawfully and the latter is used to sue a Community institution for compensatory damages.