EU Law – E509Direct Actions and Course Review

February 3, 2009(Daemen)

Direct Actions

Direct Actions: Overview• Direct action = attempt to annul EU legislative activity• Different types

– Art. 230 (review of institutional acts)– Art. 234 (national court reference for review)– Art. 232 (review of failure to act)– Arts. 235/288 (damages caused by acts)– Art. 241 (incidental challenges)

• As always, treaty based procedures and requirements vary significantly

• Success = annulment, in whole or in part– See, e.g., Arts. 231 and 233

Article 230 Direct Actions

• Potential defendants (i.e., which institutions are subject to Art. 230 review)– Treaty says COM and Council…...but the court extended to EP given rising power and

importance of democratic check• Reviewable acts– “legally binding acts”– Treaty says Regulations, Directives and Decisions……but the court expanded to anything that could impact

the legal status of others

Article 230 Direct Actions (2)

• Reviewable acts (cont.)– Class discussion: Les Verts (Rachel Feller, Liz Little)– Les Verts is not unique; hundreds of cases have

expanded reviewable acts beyond the 3 specifically delineated in the Treaty

• Time limits– 2 months from

• Date of publication• Date of notice, or• Date when plaintiff became aware

Article 230 Direct Actions (3)• Potential plaintiffs

– “Privileged” status• Always have right to object• Identified in Art. 230• Member States, Council, COM, EP

– “Semi-privileged” status• Includes agencies such as Court of Auditors• Limited to “protection of prerogatives”– “Non-privileged” status

• Anyone else• Art. 230(4) details standing requirement• In short, can challenge if directly addressed or of direct and individual concern• Very difficult standing requirement, leading to extensive debate about this

seemingly restrictive approach

Article 230 Direct Actions (4)• Challenging a Regulation

– General rule• Individuals can’t challenge b/c Regulations are directly and generally

applicable• Regulations quasi-primary law and not easily contested

– Exceptions• “closed group” (e.g., fruit importers)• Plaintiff named in Regulation (e.g., anti-dumping)

– Direct and individual concern• Direct concern: if individuals can be identified with high-level of certainty• Individual concern: factors that distinguish plaintiffs• Once again, hundreds of cases

Article 230 Direct Actions (5)

• Grounds for annulment– General rule• Art. 230(2) (block quote on p. 211)• Grounds frequently overlap

– Lack of competence/authority• Hundreds of cases• Recall the tobacco advertising case from previous class

– Infringement of essential procedural requirement• E.g., consult EP as required• E.g., identify treaty basis as required

Article 230 Direct Actions (6)

• Grounds for annulment (2)– Infringement of treaty• Most common b/c extremely broad• E.g., right of fair hearing, human rights protection, etc.

– Misuse of power• E.g., failure to follow appointment process

Article 234 Direct Actions

• Overview– Reference from national court to ECJ when

national law at issue– Viewed as means of bypassing 230 limits• Limitations time based on national law• Potentially easier for individuals• But longer litigation process

Article 232 Failure to Act (1)

• Overview– Failure to act can have significant legal

ramifications– Frequently pled in conjunction with standard Art.

230 claim

Article 232 Failure to Act (2)

• Potential defendants (i.e., which institutions are subject to Art. 232 review)– EP, Council, COM

• Potential plaintiffs– “Privileged” status

• Always have right to object• Identified in Art. 232(1)• Member States, Council, COM, EP

– “Non-privileged” status• Individuals have limited rights since only theoretical impact

Article 232 Failure to Act (3)

• Procedural Issues– Invitation to Act• Art. 232(2): must first call upon the institution• Two months to respond

– Definition of Position• Explaining a refusal = taking a position• Many cases acknowledge legislative/administrative

discretion and “approve” explained refusals• But see Transport Policy

Article 282 Non-K Liability (1)

• Overview– EU institutions subject to damages caused by

improper conduct– “Non-contract” phase deliberately vague to

account for divergent national laws and yet provide necessary legal protections

– In short, includes civil wrongs caused by EU– Very difficult and rare due to significant legislative

discretion

Article 282 Non-K Liability (2)

• Potential plaintiffs– Far less restrictive than earlier options– Plaintiff must be affected and damaged, and suffer some

degree of loss– Must file within 5 years– Class discussion: Lütticke (Rachel C Waters, Emily

Nauman, Tanja Alexandra Douay)• Potential defendants– All EU-level institutions– Member States when implementing EU measures

Article 282 Non-K Liability (3)

• Liability requirement– Community liability based on general principles of law

in the Member States – Key criteria – breach of duty was proximate cause of

damage– Can result from legislative and/or administrative action

and/or inaction • Administrative acts – EU given broad discretion– But see Stanley Adams

Article 282 Non-K Liability (4)

• Legislative acts – Again, EU given broad discretion– ECJ recognizes difficult of finding “injury free”

solutions to complex problems – Criteria• Breach of superior rule (e.g., fundamental rights

implicated)• Rule exists to protect persons (i.e., legal and natural)• Violation must be sufficiently serious (i.e., mere breach

insufficient)

Article 282 Non-K Liability (5)

• Damages– Can be purely economic or “moral”– Must exceed normal business risks

• Causation – Sufficiently direct consequence– Third parties can break chain

Article 241 Plea of Illegality

• Overview– “Catch all” claim of EU-level illegality

• Potential plaintiffs– Intended to cover those without rights under other

provisions, but nonetheless impacted by EU-level activity (or inactivity)

• Reviewable actions– Generally limited to Regulations

• Impact of ruling– Regulation void for that particular case

Course Review

Group Project

• Step one: break into groups• Step two: select a group leader• Step three: discuss what you learned during

the assigned class• Step four: after 20 minutes, identify:– 3 important things you learned; and,– 2 questions that remain

GroupsClass One:Antonio, Rayo AzucenasBond, Katharine SueBridge, Marc DanielCampbell, Sara LorraineChang, Kyoung SooCurnutt, Jeffrey GarthDamm-Luhr, Tobias FranzDean, Robin AllisonDouay, Tanja Alexandra Class Two:Feichtmeir, Alicia MargueriteFeller, Rachel SarahFlaschen, Joan StewardHuang, Hui-IJeong, In-SeopJiang, HongJohnson, Steven PeterKinukawa, YasuhisaKnaphus, Emily SLee, Ji Won

Class Three: Lee, Jung HyunLindquist, Nicole JoyLittle, Elizabeth AnneNauman, Emily LorraineNikiforova, MariannaOsawa, Saza SumiePenar, Anna MarieProngdong, TemsiriRadics, George BaylonRen, Lisha Class Four: Ringland, Kristina LynnSanoja, Natalia AlexisSantamaria-Schwartz, Rachel AngelaShim, HyunjinShultz, Theodore JudsonSilk-Eglit, Kyle JohnWaters, Rachel CWishaar, Angela RaeZhou, Jingdi