WEEK 1 - INSTITUTIONS
- explain and evaluate the EU’s system of judicial protection against the EU
institutions, in particular; (procedural means for institutions)
a. the action for annulment and standing requirements;
263 TFEU
1. time limit: 2 months ph 6 of article 263
2. reviewability: eu act that produces legal effects, (ph 1) legislative act, article 114 tfeu
it requires the eu to adopt the measures to adopt legislative measures
3. grounds: art 263(2) choose one
4. standing
a. privileged 263(2)
b. semi privileged 263(3)
c. non privileged 263(4)
- addresse
- non-addresse
1. general standing test, legislative act (read in 114 tfeu ph 1),
plaumann test
a. direct, if there is an intermediate player you are not
directly concerned - locus standi
b. individual - locus standi , inuit, danielsson, based on the
individual personality, there are individual
circumstances.
2. special standing test (inuit I)
a. if regulatory act (inuit I case, non legislative, general
application) (direct+ does not entail implementing
measures)
b. the non-contractual liability of the EU institutions;
268 TFEU JO 340 TFEU
There must be a (sufficiently serious) breach of EU law by the EU
Institutions : BRASSERIE DU PÊCHEUR:
- There must be a (sufficiently serious) breach of EU law by the EU
Institutions
- The violated norm was there to protect you (‘Schutznorm’)
- You need to prove you suffered damages
- There must be causal link
- Time limit is 5 years
The Conditions: same as when you demand damages from the MS for violating
EU law: Francovich, Brasserie du Pecheur, Dillenkofer, Bergaderm
A rare case where this proved a successful action: The case of the Dutch ‘SLOM
boeren’. The violated norm was there to protect you (‘Schutznorm’).
, (Non-contractual liability EU 268 TFEU voor dit geval, action for damages - in het
geval voor institutions)
- Non-contractual liability against the member state is not in your treaties but it
is in a case you had to read: Brasserie du pêcheur. 3 voorwaarden van
staatsaansprakelijkheid are the same for the state liability and the member
state.
c. the action for failure to act;
265 TFEU
1. time limit: prelitigation 2 months + within 2 months
2. reviewability: any other than recommendation or opinion
3. grounds: omission, when you don't do something
4. standing: mirrored to action for annulment.
- privileged 263(2)
- semi privileged 263(3)
- non privileged 263(4)
- addresse
- non-addresse
1. general standing test, legislative act (read in 114 tfeu ph 1),
plaumann test
a. direct, if there is an intermediate player you are
not directly concerned.
b. individual, inuit 1, danielsson
2. special standing test
a. if regulatory act (inuit I case, non legislative, general application) (direct+ does not
entail implementing measures)
d. the plea of illegality;
277 TFEU JO 263 lid 6.
What are the requirements?
-> Art. 277 TFEU:
1) Standing: Any party. Very open, broad notion of standing.
2) Must be in proceedings.
3) Must concern an act of general application, which must be adopted by a
Union institution, body or agency.
4) Must be at issue.
5) Grounds for review specified in art. 263 to found arguments why a certain
act is illegal.
e. the preliminary reference procedure for questions on the validity of EU
legal acts. FOTO FROST CASE - institutions (see week 2 for the criteria
applied for the member state)
, 267 TFEU
- validity; is this eu act valid or not? YOU ARE ALWAYS GOING TO
CHALLENGE A EU ACT - institutions - FOTO frost case
- interpretation: against the member state you can never challenge a EU
ACT because you CANT GO against the EU. So in this case you can
ask for interpretation but not the validity. - this is for the member states
- Is an act a legal act? Is it of general application? Is it a legislative act?:
a. Definition: A legal act refers to any action or decision that has legal
consequences. It must be authorized by law and carried out according to legal
principles.
b. Definition: An act of general application applies to a broad category of
individuals, entities, or situations rather than a specific individual or case.
c. Definition: A legislative act is a law or statute passed by a legislative body,
such as a parliament or congress. It typically involves the creation,
modification, or repeal of laws.
- Explain and evaluate this EU’s system of judicial protection against the EU
institutions in terms of access to justice and/or its relationship with fundamental
rights.
Judicial protection and the environment in the EU legal order: Missing pieces for a
complete puzzle of legal remedies' 58 (2021) Common Market Law Review, 777-812
(selection, 29 pages).
_____________________________________________________________________
The EU’s judicial protection system provides a robust mechanism for legal oversight
of EU institutions, with several routes to access justice. It ensures that individuals and
Member States can challenge the legality of EU acts, and it is an essential pillar of the
rule of law within the EU. However, significant barriers to access remain, particularly
for individuals due to the restrictive standing rules for annulment actions under
Article 263 TFEU. While the CJEU has made efforts to expand access to justice,
further reforms may be necessary to ensure that individuals can more directly
challenge EU measures.
In terms of fundamental rights protection, the CJEU plays a crucial role, especially
with the increased prominence of the Charter of Fundamental Rights. Nevertheless,
the EU’s judicial system still faces challenges in harmonizing rights protection across
Member States, and further progress on accession to the ECHR would strengthen the
framework of judicial protection in the EU.
, WEEK 2 - Member states
Action for annulment, action for failure, action for damages as in 268 TFEU ARE only
for eu institution, not for a member state!!!!!!!
- explain and evaluate the EU’s system of judicial protection against the Member
States of the EU in terms of access to justice, in particular; (procedural means
for member states)
a. the preliminary reference procedure; 267 TFEU
Who can initiate this: Only national judges may request a preliminary ruling
from the Court, and only if it is necessary for a case they are handling. Clarify
EU law but do not directly address member state actions or inactions. To
clarify eu law. If there is no appeal possible, as read in the case given on the
test, thats when they should go to the preliminary reference stadium.
Preliminary reference is possible but in some cases you don't have to ask a
preliminary question: CILFIT CASE
Main Rule
It is the national court that decides to refer the case to the CJEU under 267 TFEU; litigants
can ask but not demand
Exception
The exception to the freedom of MS courts to refer to the CJEU: Sometimes
they must! Except → so when the national court does not have the freedom to decide
whether or not to refer to the CJEU
- questions on the validity of EU law: institutions eu can do this
- questions on the interpretation of EU law: interpretation: as a
member state you can never challenge a EU ACT because you
CAN'T GO against the EU. So in this case you can ask for
interpretation but not validity.
Exception to the exception
In some cases you do not have to ask a preliminary question → CILFIT Case.
In Three instances the highest MS court dealing with EU law interpretation
questions need not refer to the CJEU for the preliminary reference under 267 TFEU:
1. No Necessity
2. Acte éclairé (already answered; see Cilfit, par. 13 + 14)
3. Acte clair (answer is extremely obvious; see Cilfit, par. 16)
- explain and evaluate the EU’s system of judicial protection against the EU
institutions, in particular; (procedural means for institutions)
a. the action for annulment and standing requirements;
263 TFEU
1. time limit: 2 months ph 6 of article 263
2. reviewability: eu act that produces legal effects, (ph 1) legislative act, article 114 tfeu
it requires the eu to adopt the measures to adopt legislative measures
3. grounds: art 263(2) choose one
4. standing
a. privileged 263(2)
b. semi privileged 263(3)
c. non privileged 263(4)
- addresse
- non-addresse
1. general standing test, legislative act (read in 114 tfeu ph 1),
plaumann test
a. direct, if there is an intermediate player you are not
directly concerned - locus standi
b. individual - locus standi , inuit, danielsson, based on the
individual personality, there are individual
circumstances.
2. special standing test (inuit I)
a. if regulatory act (inuit I case, non legislative, general
application) (direct+ does not entail implementing
measures)
b. the non-contractual liability of the EU institutions;
268 TFEU JO 340 TFEU
There must be a (sufficiently serious) breach of EU law by the EU
Institutions : BRASSERIE DU PÊCHEUR:
- There must be a (sufficiently serious) breach of EU law by the EU
Institutions
- The violated norm was there to protect you (‘Schutznorm’)
- You need to prove you suffered damages
- There must be causal link
- Time limit is 5 years
The Conditions: same as when you demand damages from the MS for violating
EU law: Francovich, Brasserie du Pecheur, Dillenkofer, Bergaderm
A rare case where this proved a successful action: The case of the Dutch ‘SLOM
boeren’. The violated norm was there to protect you (‘Schutznorm’).
, (Non-contractual liability EU 268 TFEU voor dit geval, action for damages - in het
geval voor institutions)
- Non-contractual liability against the member state is not in your treaties but it
is in a case you had to read: Brasserie du pêcheur. 3 voorwaarden van
staatsaansprakelijkheid are the same for the state liability and the member
state.
c. the action for failure to act;
265 TFEU
1. time limit: prelitigation 2 months + within 2 months
2. reviewability: any other than recommendation or opinion
3. grounds: omission, when you don't do something
4. standing: mirrored to action for annulment.
- privileged 263(2)
- semi privileged 263(3)
- non privileged 263(4)
- addresse
- non-addresse
1. general standing test, legislative act (read in 114 tfeu ph 1),
plaumann test
a. direct, if there is an intermediate player you are
not directly concerned.
b. individual, inuit 1, danielsson
2. special standing test
a. if regulatory act (inuit I case, non legislative, general application) (direct+ does not
entail implementing measures)
d. the plea of illegality;
277 TFEU JO 263 lid 6.
What are the requirements?
-> Art. 277 TFEU:
1) Standing: Any party. Very open, broad notion of standing.
2) Must be in proceedings.
3) Must concern an act of general application, which must be adopted by a
Union institution, body or agency.
4) Must be at issue.
5) Grounds for review specified in art. 263 to found arguments why a certain
act is illegal.
e. the preliminary reference procedure for questions on the validity of EU
legal acts. FOTO FROST CASE - institutions (see week 2 for the criteria
applied for the member state)
, 267 TFEU
- validity; is this eu act valid or not? YOU ARE ALWAYS GOING TO
CHALLENGE A EU ACT - institutions - FOTO frost case
- interpretation: against the member state you can never challenge a EU
ACT because you CANT GO against the EU. So in this case you can
ask for interpretation but not the validity. - this is for the member states
- Is an act a legal act? Is it of general application? Is it a legislative act?:
a. Definition: A legal act refers to any action or decision that has legal
consequences. It must be authorized by law and carried out according to legal
principles.
b. Definition: An act of general application applies to a broad category of
individuals, entities, or situations rather than a specific individual or case.
c. Definition: A legislative act is a law or statute passed by a legislative body,
such as a parliament or congress. It typically involves the creation,
modification, or repeal of laws.
- Explain and evaluate this EU’s system of judicial protection against the EU
institutions in terms of access to justice and/or its relationship with fundamental
rights.
Judicial protection and the environment in the EU legal order: Missing pieces for a
complete puzzle of legal remedies' 58 (2021) Common Market Law Review, 777-812
(selection, 29 pages).
_____________________________________________________________________
The EU’s judicial protection system provides a robust mechanism for legal oversight
of EU institutions, with several routes to access justice. It ensures that individuals and
Member States can challenge the legality of EU acts, and it is an essential pillar of the
rule of law within the EU. However, significant barriers to access remain, particularly
for individuals due to the restrictive standing rules for annulment actions under
Article 263 TFEU. While the CJEU has made efforts to expand access to justice,
further reforms may be necessary to ensure that individuals can more directly
challenge EU measures.
In terms of fundamental rights protection, the CJEU plays a crucial role, especially
with the increased prominence of the Charter of Fundamental Rights. Nevertheless,
the EU’s judicial system still faces challenges in harmonizing rights protection across
Member States, and further progress on accession to the ECHR would strengthen the
framework of judicial protection in the EU.
, WEEK 2 - Member states
Action for annulment, action for failure, action for damages as in 268 TFEU ARE only
for eu institution, not for a member state!!!!!!!
- explain and evaluate the EU’s system of judicial protection against the Member
States of the EU in terms of access to justice, in particular; (procedural means
for member states)
a. the preliminary reference procedure; 267 TFEU
Who can initiate this: Only national judges may request a preliminary ruling
from the Court, and only if it is necessary for a case they are handling. Clarify
EU law but do not directly address member state actions or inactions. To
clarify eu law. If there is no appeal possible, as read in the case given on the
test, thats when they should go to the preliminary reference stadium.
Preliminary reference is possible but in some cases you don't have to ask a
preliminary question: CILFIT CASE
Main Rule
It is the national court that decides to refer the case to the CJEU under 267 TFEU; litigants
can ask but not demand
Exception
The exception to the freedom of MS courts to refer to the CJEU: Sometimes
they must! Except → so when the national court does not have the freedom to decide
whether or not to refer to the CJEU
- questions on the validity of EU law: institutions eu can do this
- questions on the interpretation of EU law: interpretation: as a
member state you can never challenge a EU ACT because you
CAN'T GO against the EU. So in this case you can ask for
interpretation but not validity.
Exception to the exception
In some cases you do not have to ask a preliminary question → CILFIT Case.
In Three instances the highest MS court dealing with EU law interpretation
questions need not refer to the CJEU for the preliminary reference under 267 TFEU:
1. No Necessity
2. Acte éclairé (already answered; see Cilfit, par. 13 + 14)
3. Acte clair (answer is extremely obvious; see Cilfit, par. 16)
