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Judicial Review in EC and EU Law—Some Architectural Malfunctions and Design Improvements?

Published online by Cambridge University Press:  27 October 2017


From the point of view of an individual, rights conferred by a legal system are only effective and substantive if there are effective remedies available if those rights are infringed. In some instances, those remedies may be pre-emptive; but in most instances, they seek to deal with infringements of rights, or damage to interests, which have taken place.

Research Article
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2001

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1 Such as quia timet injunctions in English law.

2 See e.g. Case C–312/93 Peterbroeck, Van Campenhout & Cie. SCS v. Belgian State [1995] ECR 4599; Cases C–430 & 431/93 Van Schijndel et al. v. Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I–4705 (both reciting earlier case–law); Cases C–10–22/97 Ministero delle Finanze v. IN. CO. GE.’90 Srl et al. [1998] ECR I–6307, and Case C–126/97 Eco Swiss China Time Ltd. v. Bennetton International NV [1999] ECR I–3055.

3 See inter alia Andenas, M. (ed.), Article 177: References to the European Court: Practice and Procedure (London, Butterworths, 1994)Google Scholar; Anderson, D., References to the European Court 2nd. ed., (London, Sweet & Maxwell, 2002)Google Scholar; Kapteyn, P.J.G. & VerLoren van Themaat, P. (ed. Gormley, L.W.), Introduction to the Law of the European Communities 3rd. ed., (London, Kluwer Law International, 1998) 498573 Google Scholar, and Arnull, A.M., The European Union and its Court of Justice (Oxford, OUP, 1999) 4974 Google Scholar. See further the series of papers relating to national practice in (2002) 66 Rabel’s Z. 203–631.

4 Bebr, G., Development of Judicial Control of the European Communities (The Hague, Nighoff, 1982) 362 Google Scholar.

5 Art. 234 EC sets up ‘a special field of judicial cooperation, which requires the national court and the Court of Justice, both keeping within their respective jurisdiction, and with the aim of ensuring that Community law is applied in a unified manner, to make direct and complementary contributions to the working out of a decision.’ (Case 16/65 Firma C. Schwarze v. Einfuhr– und Vorratsstelle für Getreide und Futtermittel [1965] ECR 877 at 886. See also Case 244/80 Foglia v. Novello [1981] ECR 3045 at 3062–3063 on the importance of each court having regard to the other’s responsiblities.

6 See Kapteyn & VerLoren van Themaat, above, n 3, 525.

7 Particularly where the Court has so completely dealt with an issue before it that the national judge is simply left with nothing more to do than act as if he or she were a mere functionary of the Court of Justice. See e.g. Case C–362/88 GB–INNO–BM v. Confédération du Commerce Luxembourgeois [1990] ECR I–667; Case C–312/89 Union départementale des syndicats CGT de l’Aisne v. SIDEF Conforama et al. [1991] ECR I–997; Case C–332/89 Marchandise et al. [1991] ECR I–1027, and Case C–126/91 Schutzverein gegen Unwesen in der Wirtschaft e.V. v. Yves Rocher GmbH [1993] ECR I–2361

8 Slynn, G., Introducing a European Legal Order (43rd. Hamlyn Lecture Series) (London, Stevens, 1992) 9 Google Scholar.

9 Kapteyn & VerLoren van Themaat, above, note 3, 525.

10 See e.g. Case 166/73 Rheinmühlen Düsseldorf v. Einfuhr– und Vorratsstelle für Getreide und Futtermittel [1974] ECR 33 at 48.

11 E.g. Case 6/64 Costa v. ENEL [1964] ECR 585.

12 Case C–188/92 TWD Textilwerke Deggendorf GmbH v. Germany [1994] ECR I–833 at 852–53.

13 Thus it reflects the desire to ensure equal access to judicial protection, in particular (but not only) against acts of the Community Institutions and against action by national administrations implementing those acts.

14 Pescatore, P., ‘The doctrine of Direct Effect: An Infant Disease of Community Law’ (1983) 8 ELRev. 155 Google Scholar at 157. See also Mancini, G.F., Democracy and Constitutionalism in the European Union (Oxford, Hart, 2000) 183–86Google Scholar.

15 See e.g. the Protocol to the Judgments Convention (consolidated in O.J. 1998 C 27/28); see also O.J. 1998 C 221/19.

16 See Gormley, L.W., in O’Keeffe, D. & Twomey, P. (eds.), Legal issues of the Amsterdam Treaty (Oxford, Hart, 1999) 57 Google Scholar at 70.

17 Case C–170/96 Commission v. Council [1998] ECR I–2763 at 2788.

18 Art. 35(3) EU. But, by virtue of Art. 47 EU, this provision clearly cannot operate so as to pre vent the Court reviewing the effectiveness of measures allegedly justified on public policy or public security grounds (Arts. 30, 39(3), 46(1), 296(1) and 297 EC).

19 Although on an argument that the measure should have been adopted under the Community pillar, there is no reason why the Parliament could not seek relief (arguing an infringement of its prerogatives), by analogy with Case C–170/96 Commission v. Council [1998] ECR I–2763 at 2788.

20 Arts. 34(2)(b) and (c) EU.

21 In relation to framework decisions, decisions, and conventions, see Art. 39(1) EU.

22 See e.g. Case C–65/90 European Parliament v. Council [1992] ECR I–4593 at 4621; Case C–417/93 European Parliament v. Council [1995] ECR I–1185 at 1215, and Case C–21/94 European Parliament v. Council [1995] ECR I–1827 at 1852 & 1854. See further, the Code of Conduct agreed between the Commission and the Parliament (OJ 1995 C 89/69) point 3.6.

23 Case C–70/88 European Parliament v. Council [1990] ECR I–2041, [1992] 1 CMLR 91 (Chernobyl).

24 In relation to acts adopted under Art. 34(2) EU, whenever a dispute between Member states on the interpretation or application of any such act cannot be settled by the Council within six months of its being referred to the Council by one of its members (not necessarily, therefore by one of the disputants). Further, also by virtue of Art. 35(7) EU, the Court has jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Art. 34(2)(d) EU.

25 Thus third pillar conventions no longer need to confer specific jurisdiction; it now follows directly from Art. 35(1) TEU itself, assuming the necessary declaration has been made under Art. 35(2) TEU.

26 OJ. 1999 L 114/5. Of those taking the wider option, all except Greece, Portugal, Finland and Sweden reserved the right to oblige their courts or tribunals against whose decisions there is no judicial remedy to make a reference, ibid.

27 Gormley, L.W., in O’Keeffe, D., & Twomey, P., above, n 16, 57.

28 Case 60/81 International Business Machines Corporation v. Commission [1981] ECR 2639 at 2652. The Court added, ibid., that it ‘would be otherwise only if acts or decisions adopted in the course of the preparatory proceedings not only bore all the legal characteristics referred to above [binding effects, capable of affecting an applicant’s interests by bringing about a distinct change in his or her legal position] but in addition were themselves the culmination of a special procedure distinct from that intended to permit the Commission or the Council to take a decision on the substance of the case.’ See also Case T–64/89 Automec v. Commission [1990] ECR II–367 and Case T–36/92 SFI v. Commission [1992] ECR II–2479.

29 Neither the final annulment of the notorious PVC decisions in Case C–137/92 P Commission v. BASF AG et al. [1994] ECR I–2629 nor the initial finding of non-existence by the Court of First Instance in Cases T–79/89 etc. BASF et al. v. Commission [1992] ECR II–315 seems to have produced any consequences for the officials involved.

30 See the revisiting of PVC in Dec. 94/599 (O.J. 1994 L 239/14), as to which, see Case T–305/94 Limburgse Vinyl Maatschappij NV et al. [1999] ECR II–931.

31 E.g. the Court’s conferment on the European Parliament of standing for the defence of its prerogatives, see Case 70/88 European Parliament v. Council [1990] ECR I–2041 (Chernobyl) prior to the amendment of the EC Treaty to that effect. See also the extension of semi–privileged applicant status to the European Central Bank and to the Court of Auditors.

32 This will make the European Parliament a privileged applicant under Art. 230 EC, meaning that its standing will no longer be restricted to the defence of its prerogatives. It may be expected that the principal effect of this change will be seen in challenges to delegated legislation enacted by the Commission in accordance with one of the comitology procedures.

33 See Gormley, L.W. in O’Keeffe, D., & Bavasso, A., (eds.), Judicial Review in European Union Law (Liber Amicorum Lord Slynn of Hadley, Vol. I) (London, Kluwer Law International, 2000) 191 Google Scholar, and in (2001) European Public Law 51. This book contains numerous important contributions on judicial review in European Union law in general.

34 Case C–50/00 P Unión de Pequeños Agricultores v. Council (Opinion delivered on March 21, 2002). The opinion cites various judicial Opinions, extra–judicial writing, and academic literature criticising the Court of Justice’s traditional approach (see notes 5& 6 of his Opinion). A brief discussion of the Court’s judgment of 25 July 2002 has been added at proof stage.

35 Case T–177/01 Jégo–Quéré et Cie SA v. Commission [2002] ECR I–nyr (judgment of 3 May 2002).

36 See, generally, Barents, R., The Agricultural Law of the EC (European Monographs 9) (Deventer, Kluwer Law International, 1994)Google Scholar.

37 Bebr, above, n 4, 21.

38 E.g. Case C–358/89 Extramet Industrie SA v. Council [1991] ECR 2501 at 2532 (cf. Jacobs, Adv. Gen. at 2514) and Case C–309/89 Codorniu SA v. Council [1994] ECR I–1853 at 1886. As to the latter judgment, see Kapteyn & VerLoren van Themaat, above, note 3, 486.

39 Case 25/62 Plaumann & Co. v. Commission [1963] ECR 95 at 107.

40 [1994] ECR I–1853 at 1870–1871.

41 In Micklitz, H.-W., and Reich, N. (eds.), Public Interest Litigation before European Courts (Baden–Baden, Nomos, 1996), 39 Google Scholar at 46. See See further, Arnull, A.M., Private applicants and the action for annulment since Codorníu (2001) CMLRev. 7 Google Scholar

42 Case T–585/93 Stichting Greenpeace Council (Greenpeace International) et al. v. Commission [1995] ECR II–2205 at 2230–2232.

43 Case C–321/95 P Stichting Greenpeace Council (Greenpeace International) et al. v. Commission [1998] ECR I–1651 at 1715–1716.

44 Ibid. at 1715.

45 Arnull, A.M. in Micklitz & Reich (eds.), above, nn 41, 39 at 51.

46 Ibid.

47 As advocated by Arnull, A.M., ibid.

48 They also have been put, by way of balance, in Kapteyn & VerLoren van Themaat, above, n 3, 488, although an alert reader may well detect that the editor of that work had little sympathy for them.

49 Case C–321/95P Stichting Greenpeace Council (Greenpeace International) v. Commission [1998] ECR I–1651 at 1699–1700.

50 E.g. Art. 231 EC confers power on the Court to decide which effects of an annulled regulation shall be considered definitive, but the Court has interpreted it by analogy to give itself the same power in relation to directives: e.g. Case C–295/90 European Parliament v. Council [1992] ECR I–4193 at 4236–4237.

51 A comparison of the development of the concept of direct effect for decisions and directives with the refusal to accept horizontal direct effect of directives makes this very plain: see e.g. Case 9/70 Grad v. Finanzamt Traunstein [1970] ECR 825 at 838 and Case C–91/92 Faccini Dori v. Recreb Srl [1994] ECR I–3325 at 33.

52 The Court’s conclusion that it had the power by analogy to determine which of the effects of an annulled directive or decision should be declared definitive, while undoubtedly eminently sensible in the circumstances, clearly flies in the face of the restrictive wording of Art. 231 (ex 174) EC, see above, n 50, and e.g. Case C–34/86 Council v. European Parliament [1986] ECR 2155 at 2212, and Case C–271/94 European Parliament v. Council [1996] ECR I–1689 at 1719.

53 See above, n 34.

54 This last point can be met by the possibility of the Court of Justice reformulating the questions, but it cannot wholly reinvent a reference.

55 Case T–122/96 Federazione Nazionale del Commercio Oleario (Federolio) v. Commission [1997] ECR II–1559 at 1581–1582.

56 See above, n 46.

57 He noted that the TWD Deggendorff case–law would not normally extend to general measures, see above, n 12.

58 These parallel in part the observations above about creative interpretation of the Treaty, see above, nn 23, 50, and 52.

59 Under Arts. 235 and 288 EC.

60 As to the judicial architecture of the EU after Nice, see Gormley, L.W., in Arnull, A.M. & Wincott, D. (eds.), Accountability and Legitimacy in the European Union (Oxford UP, Oxford, 2001)Google Scholar Ch. 7.

61 [2002] ECR II–nyr (3 May 2002).

62 Case C–263/02 P Commission v. Jégo–Quéré et Cie SA (pending).

63 The applicant could not be individually differentiated, even though it was in practice the only operator fishing for whiting in the waters south of Ireland with vessels over 30m in length; while the applicant had had meetings with the Commission, there were no procedural rights conferred upon it under a specific scheme of Community legislation, and, finally, it had not adduced evidence of peculiar circumstances such as those in Extramet or Codorniu (see above, nn 38 and 40).

64 Because of the complete system of remedies to permit review of the legality of the acts of the Community Institutions. See Case 294/83 Les Verts v. European Parliament [1986] ECR 1339 at 1365, in which the Court of Justice also noted that ‘Neither [the Community’s] Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in accordance with the basic constitutional charter, the Treaty.’

65 See, inter alia, Case 222/84 Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651 at 1682, in which the Court noted that the European Parliament, the Council and the Commission (OJ 1977 C 103/1) and the Court itself in myriad decisions had recognized that the principles on which that Convention was based had to be taken into consideration in Community law.

66 OJ 2000 C 364/1.

67 See e.g. Case22/84 Johnston, above, n 65, and Case C–106/96 United Kingdom v. Commission [1998] ECR I–2728.

68 The Court of First Instance referred inter alia to Case C–352/98 P Bergaderm & Goupil v. Commission [2000] ECR I–5291 at 5324–5325 and Case T–155/99 Dieckmann & Hansen v. Commission [2001] ECR II–3143 at 3162.

69 Thus the Court of First Instance looked over its shoulder to remind the Court of Justice that it was not redrafting the Treaty (even though, as demonstrated above, note 50, the Court of Justice in effect does that on occasions).

70 Para. 51 of the judgment.

71 Paras. 82–99 of his Opinion in Case 50/00 P Uniòn de Pequenos Agricultores v. Council [2002] ECR I–nyr (21 March 2002). He based his view that the time was ripe on four points: the Court’s case–law was hardly entirely consistent and settled, as there had been some movement over the years, so that decisions on admissibility had become increasingly complex and unpredictable; the Court’s case–law on standing was increasingly out of line with the administrative laws of the Member States; the establishment of the Court of First Instance and the progressive transfer to it of all actions brought by individuals made it increasingly appropriate to enlarge the standing of individuals to challenge general measures (and this could be achieved without stretching the wording of Article 230 EC), and, finally, the case–law of the Court on the principle that the national courts must offer effective judicial protection of rights granted under Community law made it increasingly difficult to justify narrow restrictions on standing before Community courts.

72 Clearly, if a case is remitted to the Court of First Instance by the Court of Justice for re–determination in accordance with a point of law decided on appeal by the Court of Justice, the Court of First Instance is then bound by that decision on the point of law.

73 See Cases T–177 and 377/94 Altmann et al. v. Commission [1996] ECR–SC IA–533; II–1471 departing, because of changes in the nature of the JET project from a short–term into a more permanent project, from Cases C–271/83 Ainsworth et al. v. Council et al. [1987] ECR 167. The identity of the litigants and their arguments were different. The Court of First Instance thus followed the line advocated by Mischo and VerLoren van Themaat, Adv. Gen. in the earlier case.

74 See Pepper (Inspector of Taxes) v. Hart [1993] AC 593, [1993] 1 All ER 42, HL, overruling on this point, Davis v. Johnson [1979] AC 264, [1978] 1 All ER 1132, HL; as to Lord Denning’s approach, see [1978] 1 All ER 841 at 850–852 (although, as to the substantive result, the House of Lords affirmed the Court of Appeal). But Lord Denning MR demonstrated that there was a perfect way round the views of the House of Lords on quoting Hansard in Davis v. Johnson, by quoting someone else citing Hansard! See R. v. Local Commissioner for Administration for the North and East Area of England, ex parte Bradford Metropolitan City Council [1979] 2 All ER 881 at 898 (on the meaning of maladministration).

75 By way of amendment of the Treaty through an intergovernmental conference under Art. 48 EU.

76 Case C–50/00 P Unión de Pequños Agricultores v. Council [2002] ECR 1–nyr (25 July 2002).

77 See above, n 62.

78 Unless provision is to be make for a special scheme of public interest litigation, as to which, see above, n 33.

79 John 5. 8.

80 See above, n 62.

81 Reich, N., ‘Zur Notwendigkeit einer Europäischen Grundrechtsbeschwerde’ (2000) Zweitschrift für Rechtspolitik 375 Google Scholar.

82 The present author’s own translation of Reich’s proposal.

83 See above, note 60.

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