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EU Law – E509 Direct 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)

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direct actions overview
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
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
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
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
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
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
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
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
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
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
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 seeTransport Policy
article 282 non k liability 1
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
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
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 seeStanley Adams
article 282 non k liability 4
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
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
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
group project
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
groups
Groups

Class Three:

Lee, Jung Hyun

Lindquist, Nicole Joy

Little, Elizabeth Anne

Nauman, Emily Lorraine

Nikiforova, Marianna

Osawa, SazaSumie

Penar, Anna Marie

Prongdong, Temsiri

Radics, George Baylon

Ren, Lisha

Class Four:

Ringland, Kristina Lynn

Sanoja, Natalia Alexis

Santamaria-Schwartz, Rachel Angela

Shim, Hyunjin

Shultz, Theodore Judson

Silk-Eglit, Kyle John

Waters, Rachel C

Wishaar, Angela Rae

Zhou, Jingdi

Class One:

Antonio, RayoAzucenas

Bond, Katharine Sue

Bridge, Marc Daniel

Campbell, Sara Lorraine

Chang, KyoungSoo

Curnutt, Jeffrey Garth

Damm-Luhr, Tobias Franz

Dean, Robin Allison

Douay, Tanja Alexandra

Class Two:

Feichtmeir, Alicia Marguerite

Feller, Rachel Sarah

Flaschen, Joan Steward

Huang, Hui-I

Jeong, In-Seop

Jiang, Hong

Johnson, Steven Peter

Kinukawa, Yasuhisa

Knaphus, Emily S

Lee, Ji Won