Actions for annulment

(Articles 263-266
TFEU)
Réka Somssich 2012
What is an action for
annulment?
 By the action for annulment the
applicants seek the invalidation of an act
adopted by the EU institutions
 The TFEU foresees limitations as to the
applicants, the acts the annulment of
which might be sought, the deadline for
the application and the grounds of
annulment
Reasons

 lack of competence,
 infringement of an essential procedural
requirement,
 infringement of the Treaties or of any rule
of law relating to their application,
 misuse of powers.
Which court is competent?

 For actions of annulment there is a

shared competence between the ECJ
and the General Court
Jurisdiction of the Court
of Justice
 legislative acts (adopted in legislative
procedure jointly by the European Parliament
and the Council) if the action is initiated by an
institution or a Member State
 acts of the Council (other than
recommendations and opinions and
antidumping, state aid and implementing
measures)
 acts of the European Central Bank if the action
is initiated by an institution or a Member State
Jurisdiction of the General
Court
 legislative acts (adopted in legislative
procedure jointly by the European
Parliament and the Council) if the action
is initiated by a natural or legal person
 acts by which the Council exercises
implementing powers (State aid,
dumping)
Jurisdiction of the General
Court
 acts of the Commission (other than
recommendations and opinions) if the action is
initiated by a a Member State or by a natural or
legal person
 acts of the European Central Bank if the action
is initiated by a natural or legal person
 acts of the European Parliament and the
European Council intended to produce legal
effects vis-à-vis third parties
Privileged applicants

 = enabled unconditionally by the Treaty

to bring an action to the Court
 any Member State
 the European Parliament
 the Council
 the Commission
Unprivileged applicants
 = who must either fulfil certain criteria in order
to be able to bring an action to the Court or can
only do so under certain circumstances or
against certain acts
 the Court of Auditors
 the European Central Bank
 the Committee of Regions
only for the purpose of protecting their
prerogatives
National parliaments: breach of the principle of
subsidiarity
Unprivileged applicants

 any natural or legal person

 only against an act addressed to that
person or which is of direct and individual
concern to them and against a regulatory
act which is of direct concern to them and
does not entail implementing measures
(new!)
Unprivileged applicants

 Before the entry into force of the Lisbon

treaty not only direct but individual
concern too was required
 The Court gave a very strict interpretation
to the concept (T-417/04, T-418/04)
 Only regulations can be attacked, the
annulment of directives can never be
sought by individuals
Typical cases

- Decisions of the Commission addressed

to undertakings in competition cases
(attacked by the addressee)
- State aid decisions on incompatibility
addressed to a Member State (attacked
by the beneficiary of the aid)
„Regulatory act which is of direct
concern to them and does not entail
implementing measures”
 What does this concept mean? See case
T-18/10 Inuiit Tapiriit Kanatami and
others v. Parliament and Council
(appealed under C-583/11 P)
 Legislative acts can not be challenged by
individuals only regulatory acts which are
non legislative acts
„Regulatory act which is of direct
concern to them and does not entail
implementing measures”

 In 2009 the EP and the Council adopted

a regulation on the ban of seal products
 Only the import and sale of seal
products which result from hunts
traditionally conducted by Inuit and other
indigenous communities and contribute
to their subsistence are excluded from
this ban
„Regulatory act which is of direct
concern to them and does not entail
implementing measures”

 The inuiits contested the validity of the

measure and brought and action to the
General Court
 The Treaty does not apply to legislative acts
 for actions against legislative acts, which enjoy
a particularly high democratic legitimation, the
classical requirements (direct and individual
concern) should continue to apply
What to do in the case of
lack of locus standi…
 Validity of a provision of EU law can be
questioned in a preliminary ruling
procedure by the national judge
 For that: there must be a genuine case
and a national judge willing to initiate the
procedure (see: C-58/08, Vodafone)
Challengable acts

 measures producing binding legal effects

of such a nature as to affect the interests
of the applicant, by significantly altering
the applicant’s legal situation, may form
the subject-matter of an action for
annulment. To determine if a measure
produces such effects, regard must be
had to its substance
The deadline for
application
 The proceedings shall be instituted within two
months of the publication in the Official Journal
of the European Union of the measure/or its
notification to the plaintiff or in the absence
thereof, of the day on which it came to the
knowledge of the later
 In fact the deadline is calculated the following
way: publication+14 days (presumption of
availability of the publication) + 2 months + 10
(distance)
C-273/04, Poland v.
Council
 The Act of Accession has foreseen a
phasing-in mechanism for direct
agricultural payments (ie: gradual
introduction)
 A Regulation adopted after the signature
of the AoA but before its entry into force
increased the amount of direct support in
the milk sector
C-273/04, Poland v.
Council
 A decision of the Council extended the
phasing in mechanism to the increased
payments
 Poland considered the increased amount
as new payment where phasing in should
not apply
C-273/04, Poland v.
Council
 Admissibility:
The decision was published the 30 of
March 2004
The time-limit of 2 months (+14 days, +
10 days) expired the 24 of June 2004
Poland lodged its application the 28 of
June 2004
Interveners: LV, LT, HU
C-273/04, Poland v.
Council
 Council: the application is inadmissible (late)
 Poland: it became member state only the 1st of
May (time limit must be counted from that date)
- The entry into force of the decision was
dependent on the accession
- Before accession it was not able to bring an
action to the Court (it could not be privileged
applicant)
C-273/04, Poland v.
Council
 Other arguments:
- Rule of law
- Right to effective judicial protection
AG Maduro: strict interpretation of the treaty
should lead to refusal; the right to effective
judicial protection militates for admissibility
ECJ: does not give reasons for the admissibility
but turns to the merit of the case
T-320/11, Hungary v.
Commission
 If a decision is notified to the Member
State to which it is addressed and
published in the OJ at the same time, the
deadline for lodging the application
should be counted from the notification
and not from the publication
 Extra 14 days rule does not apply
Motivations in cases for
annulment
 Member States’ motivations:
- the act in question harms national interests
(see in Case T-310/06 Hungary v. Com, T-
33/09 Portugal v. Com, T-139/06 France v.
Com) or economic interests (C-376/98,
Germany v. Council)
 Motivations of the institutions:
- the Commission and/or the European
Parliament consider that an act has been
adopted by the Council with prejudice to their
prerogatives (see Case C-440/05 Commission
v. Council)
C-237/11, France v. EP

The Treaties require the EP, whose seat

is established in Strasbourg, to meet in
12 monthly plenary part-sessions per
year in Strasbourg, but do not prescribe
the length of those periods of plenary
part-sessions. In accordance with the
Parliament’s practice, the periods of
ordinary plenary part-sessions, which last
four days, are held in Strasbourg while
the additional periods of part-sessions
C-237/11, France v. EP

the Parliament amended the calendar of

periods of part-sessions for 2012 and
2013. One of the two periods of plenary
part-sessions of four days was cancelled.
Secondly, the remaining period of
plenary part-sessions of October 2012
and October 2013 were split in two.
C-237/11, France v. EP

France brought an action seeking

annulment of the votes of the EP.
Supported by Luxembourg, it submited
that those votes infringe the Treaties and
the case-law of the Court and that the EP
has broken the regularity of the rhythm of
the periods of plenary part-sessions by
scheduling additional part-sessions in
Brussels when only 11 periods of plenary
part-sessions were scheduled for
C-237/11, France v. EP

 ECJ: Contrary to the Edinburgh Decision

of 1997, the Court annuls the vote
 The Member States have not, by so
defining its seat, encroached upon the
competence of the Parliament to
determine its own internal organisation.
T-310/06 Hungary v.
Commission
 A Regulation of 2006 introduced a new
eligibility criteria for intervention for
maize, the specific weight
 The Regulation was publishes 10 days
before the start of the intervention period
 The criteria excludes 80% of the
Hungarian maize from intervention
T-310/06 Hungary v.
Commission
 Pleas of Hungary:
- Breach of the principles of protection of
legitimate expectations, legal certainty
and proportionality
- breach of the duty to state reasons
- The COM lacked competence
- misuse of powers and a manifest error of
assessment
T-310/06 Hungary v.
Commission
 The judgment:
by introducing a new criterion of minimum
specific weight below which maize may
not be offered to the intervention agency
or must be reduced in price, without the
producers concerned having been
notified in good time, the contested
provisions have infringed the legitimate
expectations of those producers
T-310/06 Hungary v.
Commission
 The judgment:
The contested provisions must also be
annulled because the Regulation is
vitiated by breach of the obligation to
state reasons
the Regulation is vitiated by a manifest
error of assessment
Intervention

 Intervention in actions for annulment is

possible for institutions and Member
States (for the highest number of
interveners ever see Case C-440/05)
Partial annulment

 only if the elements annulment of which

is sought may be severed from the
remainder of the measure
 severability is not satisfied when partial
annulment of a measure would have the
effect of altering its substance