Article 263 TFEU and Direct Access to EU Judicial Review

Q1. This essay explains the principle of direct effect as developed by the Court of the European Union (CJEU) and also explains how this principle is applied or limited in application with respect to directives.

The principle of direct effect proceeds on the premise that the law of the EU has direct effect on the Member States and therefore should be implemented by them. This premise is derived from the Treaty on Functioning of the European Union (TFEU), Article 4(3), which provides that the EU law is to be fully implemented. Article 288 makes a reference to directive and provides that while EU directive is binding, the national authorities have the choice of form and methods for achieving this. Therefore, there is some flexibility given to the Member States for implementing the directives, due to which the doctrine of direct effect is applied in a more limited sense to the directives. What can be surmised at the outset is that the doctrine of direct effect gives effect to the binding character of the EU law for the Member States. If in case you require assistance with your law dissertation, then we are here to provide expert law dissertation help in place to ensure your academic success.

It was in Van Gend en Loos v Nederlandse Administratie der Belastingen, that the CJEU first laid down the doctrine of direct effect, which was explained as the capacity of the EU law to be invoked before the national courts. Over a period of time, the CJEU widened the scope of the doctrine to regulations as well as jurisprudence developed by the EU. In Defrenne v Sabena, the CJEU explained the difference between vertical and horizontal direct effect based on the party against whom the right is being claimed. Consequently, vertical effect refers to rights available against the Member State while horizontal direct effect is applicable to obligations of persons or companies. With regard to directives of the EU, the general principle was that directives of the EU can have only vertical direct effect as held in Marshall, where the CJEU held that directives had direct effect only against the state. This would mean that direct effect of directives was limited only to claims against the state and one could not approach a national court for implementing a directive against a private party.

1. Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.
2. Paul Craig and Gráinne De Búrca, EU law: text, cases, and materials (Oxford University Press 2011) 182.
3. Defrenne v Sabena [1976] ECR 455.
4. Ibid.
5. Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723.

Over a period of time, the CJEU has adopted different methods by which it can circumvent the Marshall doctrine so that the directives may also be given horizontal direct effect and it can be said that the Marshall doctrine was diluted. In Foster v British Gas, the CJEU held that directives can be made directly effective against a body which may not be a state but which may be responsible for providing some public service under State control and which also has also been bestowed with special powers. Foster v British Gas exemplifies a situation where the doctrine of direct effect can be applied to directives beyond the limited scope provided by the Marshall case. However, the point to be noted is that the court restricted the application of directives only to bodies that exercised public service powers.

It is emphasised that the application of the doctrine of direct effect strengthens the enforceability of the EU law. The role of the CJEU is a significant aspect of how the doctrine has developed over a period of time. Since the Van Gend decision, the CJEU has taken primacy in determining the position of EU law with respect to the national courts and jurisdiction, and this has generally found acceptance by national courts. This has led to the situation that national states do give direct effect to the EU law and they also defer to the CJEU where the effectiveness of a particular EU law provision may be in question.

The doctrine of direct effect also has significance for the rights of individuals under EU law and how individuals are able to access remedies from national courts by relying on direct effect of the EU law. The doctrine of direct effect denotes the capacity of the EU law to confer enforceable rights of the individuals and provides them the means to access the national courts for the enforcement of the rights. Where Member States have failed to harmonise their own laws with the EU law, the doctrine of direct effect allows the individuals to approach the national courts to enforce EU provisions that give them rights that have not been given effect to under the national laws.

1. Foster and others v British Gas plc [1990] ECR I-3313.
2. P Pescatore, ‘The Doctrine of Direct Effect: The Infant Disease of Community Law’ (1983) 8 ELRev 155, 158.
3. Armin Von Bogdandy, "Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law" (2008) 6 (3-4) International Journal of Constitutional Law 397.
4. Ibid.
5. Lutticke (Alfons) GmbH v Hauptzollamt Saarlouis [1966] ECR 205.
6. Reyners v Belgium [1974] ECR 631.

Although the doctrine of direct effect has a more limited effect with respect to directives, the CJEU has applied the direct effect doctrine even in the case of directives. There are a number of cases where the CJEU has allowed the application of direct effect doctrine even in case of directives; this was allowed in Van Duyn v Home Office. In Pubblico Ministero v Ratti, the CJEU held that directives can be invoked in the national courts if the state has not given effect to the directives within the implementation period. This again points at the way in which direct effect doctrine can have a limited effect on directives, because courts can apply direct effect only where the time limit given for the implementation of the directive has expired meaning that directives can be directly effective only after the lapse of the prescribed date for implementation.

To conclude this essay, the doctrine of direct effect can be linked to the premise that the law of the EU should have direct effect on the Member States and individuals should be able to enforce the rights that they have under EU law by recourse to the doctrine of direct effect. Article 4(3) of TFEU, which provides that the EU law is to be fully implemented can be linked to the premise of direct effect. At the same time, the doctrine only has limited effect for directives, although the scope has been enlarged since the Marshall decision.

Bibliography

Cases

Defrenne v Sabena [1976] ECR 455

Foster and others v British Gas plc [1990] ECR I-3313

Lutticke (Alfons) GmbH v Hauptzollamt Saarlouis [1966] ECR 205

Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723

Océano Grupo Editorial SA v Roció Murciano Quintero [2000] ECR 1-4941

Pubblico Ministero v Ratti [1979] ECR 1629

Reyners v Belgium [1974] ECR 631

Van Duyn v Home Office (1974) ECR 1137

Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1

1. Océano Grupo Editorial SA v Roció Murciano Quintero [2000] ECR 1-4941.
2. Van Duyn v Home Office (1974) ECR 1137.
3. Pubblico Ministero v Ratti [1979] ECR 1629.

Books

Craig P and De Búrca G, EU law: text, cases, and materials (Oxford University Press 2011)

Journals

Pescatore P, ‘The Doctrine of Direct Effect: The Infant Disease of Community Law’ (1983) 8 ELRev 155

Von Bogdandy A, "Pluralism, direct effect, and the ultimate say: On the relationship between international and domestic constitutional law" (2008) 6 (3-4) International Journal of Constitutional Law 397

Q2. Article 263 TFEU provides for the following requirements for actions of annulment: the EU institution and their acts must be reviewable; the challenge must be made within the specified time limit of two months of the publication of a measure by the institution; and that an individual must have locus standi, which is issues must be direct and of individual concern. Such challenge is against acts of EU institutions and regulatory acst. This essay will assess the extent of the direct access available to individuals to the EU judiciary in regard to measures of EU institutions. It will particularly discuss the direct access to justice with respect to regulatory act.

In Plaumann judgment, the European Commission refused permission sought by the German authorities to suspend custom duties on imports, in this case the import of clementines by Plaumann & Co. The Court of Justice held that the applicant had no locus standi for judicial review as it was not individually concerned. The Commission held that a decision to be individually concerned must affect the applicant due to attributes peculiar to the applicant or the circumstances surround the applicant must be differentiated from all others. Since the judgment of ECJ, there has been a restrictive interpretation of locus standi as is provided under Article 263.

The restrictive interpretation goes against the purpose of granting individuals direct access to justice giving them a substantive justice involving fair trial, judicial protection, redress and due process. The wordings of Article 263 signify that for a case involving a non-regulatory act, the applicant must prove individual concern, and for a case involving a regulatory act, they must prove the act does not entail implementing measures. Thus, in P T & L Sugars Ltd v Commission, the Court of Justice addressed “regulatory act not entailing implementing measures’ by ruling those regulations of the EU Commission were not regulatory acts not entailing implementing measures as they entailed measures for the national authorities to take up, which could be challenged in the national legal system. The Court also held that the applicants were not individually concerned by the measures. The interpretation is conducted in a restrictive manner to protect the domestic law in order where an individual has to firstly seek remedy at the national level. Thus, the language of Article 263 does not imply a direct access to individual to EU court system.

1. Case 25/62, Plaumann v Commission, [1963] ECR 95.
2. Ibid.
3. Van Malleghem, Pieter-Augustijn, and Niels Baeten, ‘Before the law stands a gatekeeper–Or, what is a “regulatory act” in Article 263 (4) TFEU? Inuit Tapiriit Kanatami’ (2014) 51(4) Common Market Law Review.

TFEU, Article 263 presents a strict governance of individuals’ right to direct access to justice. It does not allow collective organisation to avail such direct access. This is supported by two cases, Comité Central d’Entreprise de la Société Générale des Grandes Sources v. Commission, Vittel v. Commission, where French works councils raised complaints against the decisions of the Commission permitting mergers between French companies. ECJ refused to accept representation made by collective organisations qualify as individually and directly concerned. Where such interpretation is very restrictive, a natural individual or a legal entity do not have the priviledge to directly challenge measures by EU institutions. The restrictive interpretation of Article 263 forces individuals to avail actions under Article 267 that provides for the Court of Justice to give preliminary ruling concerning the acts of EU institutions. However, the Court of Justice exercise little control over the range of applicants that could use Article 267. The decisions enforcing a restrictive interpretation also shows that the EU court system is cautious of intervening in EU institutions. The EU court system does not lay down criteria that could have influenced actions of individuals. As such, the strict application may lead to reductionism where the courts decline cases to save judicial resources.

The controversy surrounding direct access stems from the meaning of the regulatory act mentioned in Article 263. Plaumann has remained the test for individual concern. It is the fact that an individual operating a business will be engaged by another person. This can deny individual concern making it difficult for a claim to succeed. The EU courts are not willing to adopt a liberal test as they hold the view that the TFEU provides for a complete legal protection framework for individuals, though the application of Articles 263 and 270. The controversy surrounding the restrictive interpretation by CJEU of the element of direct and individual concern could be best explained in context to environmental challenges. The CJEU interpretation requires a measure to directly affect the individual’s legal situation and it leaves no discretion to affected individuals where the implementation of the measure is purely automatic and resulting from the measure in absence of intermediate rules. This means that it excludes actions by non-for-profit organisation that are purely for protecting environment. This happened in the case of P Regiao autonoma dos Acores. This means that the test of individual concern is impossible to satisfy in the EU courts on environmental ground.

1. Case C-456/13, T & L Sugars and others v Commission, T-279/11.
2. Case T-96/92, Comité Central d’Entreprise de la Société Générale des Grandes Sources v. Commission, [1995].
3. Case T-12/93, Vittel v. Commission, [1995].
4. Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (OUP Oxford 2011) 507.
5. Ibid.
6. Ibid, 510.

The controversy surrounding direct access stems from the meaning of the regulatory act mentioned in Article 263. Plaumann has remained the test for individual concern. It is the fact that an individual operating a business will be engaged by another person. This can deny individual concern making it difficult for a claim to succeed. The EU courts are not willing to adopt a liberal test as they hold the view that the TFEU provides for a complete legal protection framework for individuals, though the application of Articles 263 and 270. The controversy surrounding the restrictive interpretation by CJEU of the element of direct and individual concern could be best explained in context to environmental challenges. The CJEU interpretation requires a measure to directly affect the individual’s legal situation and it leaves no discretion to affected individuals where the implementation of the measure is purely automatic and resulting from the measure in absence of intermediate rules. This means that it excludes actions by non-for-profit organisation that are purely for protecting environment. This happened in the case of P Regiao autonoma dos Acores. This means that the test of individual concern is impossible to satisfy in the EU courts on environmental ground.

The provision regarding regulatory action is a new insertion in TFEU to address challenges of EU Regulation where there are no implementation measures at the national level to challenge in domestic courts. A narrower interpretation of this provision means that a regulatory act will be a legal act adopted by the legislative procedure of the EU as laid down in TFEU. The General Court enforced this narrow interpretation in the case of Inuit Tapiriit Kanatami, which concerned a challenge against an EU Regulation related to trade in seal products. The Court strongly favoured the narrow interpretation by prohibiting extension of the regulatory act to general application and by excluding legislative acts.

To conclude, TFEU may have its provisions under Article 263 to ensure individuals do not have to violate the law so as to access to the Eu court. However, the position remains unchanged in regard to the rights of private parties to challenge EU acts or regulatory acts. The strict test is impossible to satisfy. The strict interpretation ensure EU institutions function that way EU desire with not judicial intervention. This leaves the individuals to seek solution in the national legal system removing individuals’ right to directly seek annulment of an EU act.

1. Ibid.
2. Case T-262/10, Microban [2011], para. 27.
3. Suzanne Kingston, Veerle Heyvaert, and Aleksandra Čavoški, European Environmental Law (Cambridge University Press 2017) 247.
4. Case C-444/08 P Regiao autonoma dos Acores [2009].
5. Suzanne Kingston, Veerle Heyvaert, and Aleksandra Čavoški, European Environmental Law (Cambridge University Press 2017) 250.
6. Case T-18/10, Inuit Tapiriit Kanatami and Others v European Parliament and Council of the EU [2011], para. 49.

Bibliography

Cases

Case T-96/92, Comité Central d’Entreprise de la Société Générale des Grandes Sources v. Commission, [1995]

Case T-18/10, Inuit Tapiriit Kanatami and Others v European Parliament and Council of the EU [2011]

Case T-262/10, Microban [2011]

Case 25/62, Plaumann v Commission, [1963] ECR 95

Case C-444/08 P Regiao autonoma dos Acores [2009]

Case C-456/13, T & L Sugars and others v Commission, T-279/11

Case T-12/93, Vittel v. Commission, [1995]

Books

Craig P and Gráinne de Búrca, EU Law: Text, Cases, and Materials (OUP Oxford 2011)

Kingston S, Veerle Heyvaert, and Aleksandra Čavoški, European Environmental Law (Cambridge University Press 2017)

Journals

Van Malleghem, Pieter-Augustijn, and Niels Baeten, ‘Before the law stands a gatekeeper–Or, what is a “regulatory act” in Article 263 (4) TFEU? Inuit Tapiriit Kanatami’ (2014) 51(4) Common Market Law Review

Take a deeper dive into Analysis of EU Commission Investigations with our additional resources.