Judicial Review in EU Law under Articles 263 and 265

Aim and Procedure

• Aim: Challenge secondary legislation by EU institutions to get it annulled (similar to UK judicial review).
• Procedure: Different from UK law; involves specific articles (263 and 265).

Article 263 - Procedure

1. Binding Act: Only regulations, directives, and decisions (not opinions and recommendations) can be challenged as they are binding.
2. Two-Month Time Limit: Challenge must be brought within two months from the act’s publication or from when the applicant knew about it.
3. Four Grounds of Review:
   • Lack of Competence: Rare; EU usually has broad competence (e.g., Tobacco Advertising Case).
   • Infringement of Essential Procedural Requirement: Occasional; e.g., Rocket Frere case.
   • Infringement of Treaty: Common; e.g., How Thatcher case involving proportionality.
   • Misuse of Powers: Rare; e.g., UK challenging the Working Time Directive.
4. Locus Standi (Standing to Bring a Case):
   • Privileged and Semi-Privileged Applicants: Council, Commission, Parliament, Member States (can always challenge) and specific bodies like ECB, Court of Auditors.
   • Non-Privileged Applicants: Must meet extra criteria (act addressed to them, direct and individual concern, or regulatory act of direct concern with no implementing measures).
     • Direct Concern: Legislation must directly affect the applicant.
     • Individual Concern: Subject to the Plaumann test (must show part of a fixed, closed class).
       • Examples and Critiques: Plaumann case (importing clementines), Alfred Toepfer case (fixed class due to time limit).
       • Attempts at Reform: Calpak test, UPA case, but still largely under Plaumann criteria.
     • Regulatory Act with No Implementing Measures: Defined narrowly; e.g., Inuit case.

Article 265 - Failure to Act

• Purpose: Challenge EU institutions for not acting when they should have.
• Application: Limited; must show duty to act and personal address.
  • Examples: European Parliament v. Commission, Lord Bethell case.
• Outcome: Institutions may just need to give reasons, not necessarily act.

Advantages and Disadvantages of Article 263

Advantages

• Annuls ultra vires community law.
• Broad grounds for review, e.g., proportionality.
• Simple for privileged applicants (institutions, Member States, etc.) to challenge.

Disadvantages

• Short time limit (2 months).
• Plaumann test: Difficult to satisfy; economically and democratically flawed.
• Difficulty in using Article 265 for non-action.

Alternative - Article 267

• Preliminary Reference Procedure: Domestic courts refer question to ECJ.
• Considerations: Risky (may need to break the law), no guarantee of referral by the judge.

Note: Integrate knowledge of Article 267 in problem essays to show understanding of EU law linkages.