Chapter 15

DIRECT ACTIONS AGAINST EU INSTITUTIONS, BODIES, OFFICES OR AGENCIES - PART I

Articles 263, 277 and 265 TFEU

1. Which EU institution in the following list is NOT a privileged applicant under Article 263 TFEU?

a. The Council

b. The ECB

c. The EP

a. This is an incorrect answer. The Council is a privileged applicant under Article 263 TFEU.

b. This is the correct answer. The European Central Bank is not a privileged applicant under Article 263 TFEU. It can only challenge those EU acts which encroach on its prerogatives.

c. This is an incorrect answer. The EP is a privileged applicant under Article 263 TFEU. The EP was initially denied locus standi, but became a semi-privileged applicant under the Treaty of Maastricht and finally acquired the status of a privileged applicant under the ToN. The current status of the EP is well justified given that it has become a co-legislator and the fact that it is the only directly elected body of the EU.

2. For non-privileged applicants under Article 263 TFEU what case explains the test for ‘individual concern’?

a. Case 25/62 Plaumann

b. Case C-50/00P Unión de PequeñosAgricultores (UPA) v Council

c. Case T-177/01 Jégo-QuéréCie SA v Commission

a. This is the correct answer. Although it was one of the earliest cases on ‘individual concern’ the ECJ has confirmed the approach taken in the Plaumanncase and rejected suggestions that a more flexible test should be used.

b. This is an incorrect answer. In this case Advocate-General Jacobs submitted an Opinion that the interpretation of the concept of ‘individual concern’ should be relaxed to allow more cases to meetthe locus standi requirements of Article 263 TFEU. This suggestion was rejected by the ECJ.

c. This is an incorrect answer. The General Court supported the approach of Advocate-General Jacobs in UPA but this was rejected on appeal to the ECJ who reaffirmed the approach in Plaumann.

3. In order to establish locus standi under Article 263 TFEU non-privileged applicants who wish to challenge non-regulatory acts, must establish:

a. that they are directly and individually concerned by the relevant act

b. that they are directly concerned by the relevant act

c that they are individually concerned by the relevant act.

Which of a, b, and c is correct?

a.This is the correct answer. In respect of non-regulatory acts non privileged applicants must show that they are directly and individually concerned by the act

b. This is an incorrect answer. To challenge a regulatory act non-privileged applicants have to prove only that they are directly concerned by the act.

c. This is an incorrect answer.

4. What is the purpose of Article 265 TFEU actions?

a. To challenge the validity of an act of an EU institution.

b. To challenge the actions of one of the Member States.

c. To compel an EU institution to act.

a. This is an incorrect answer. It is Article 263 TFEU which deals with challenges of validity of acts of EU institutions, bodies, office or agency.

b. This is an incorrect answer. Member States are not subject to any action under Article 265 TFEU.

c. This is the correct answer. Article 265 TFEU is used to compel the relevant EU institution to act in circumstances where it has a legal duty to take action.

5. In which of the situations set out below can an applicant, who has lodged a complaint notifying the relevant EU institution of its failure to act, bring proceedings before the Union courts against that EU institution for failure to act?

a. When the relevant EU institution adopts a decision contrary to that requested by the applicant

b. When the relevant EU institution adopts a decision rejecting the applicant’s complaint

c. When the relevant EU institution remains silent for more than 2 months after having received a complaint from the applicant.

a. This is an incorrect answer. When an institution adopts a different measure from that which was requested by the applicant, it defines its position.

b. This is an incorrect answer. If the applicant is entitled to an answer, a decision, even stating the refusal to act, defines that institution’s position. Once the institution concerned defines its position the proceedings under Article 265 TFEU are terminated. The applicant, provided he is legally entitled to a specific measure and unhappy about the answer he obtained from a particular institution, may then bring proceedings against that institution under Article 263 TFEU to annul the decision adopted in his case.

c. This is the correct answer. Once the institution concerned is notified of the complaint it has two months to define its position. If the institution concerned does not define its position within two months the applicant has another two months to bring proceedings before the Union Courts. The applicant is required to submit an application, limited to the points he raised in the original complaint, to the institution concerned. The time-limit is strictly enforced by the Union courts.

6. In which of the three situations set out below can a non-privileged applicant establish that he is individually concerned by a measure adopted by an EU institution?

a)Where the applicant is the only one in a particular Member State who is affected by that measure

b)Where the measure concerns specific activities carried out by the applicant, for example, importing of clementines from Egypt;

c) Where, at the request of the relevant national authorities, the Commission adopted a measure confirming a position taken by the relevant national authorities with regard to the applicant.

a. This is an incorrect answer. Even if the applicant is the only one concerned by a measure in a particular Member State, this is not sufficient to establish that he is individually concerned by the measure. What is required is that the measure affects an applicant in a special way, that is, distinguishes him from all other persons by reason of certain attributes which are peculiar to him or by reason of his peculiar circumstances. For example, in Case 231/82 SpijkerKwasten, the ECJ refused to recognise that an undertaking was individually concerned in the situation where it was the only one concerned by a measure in a particular Member State.

b. This is an incorrect answer. In Case 25/62 Plaumann, the applicant, who was an importer of clementines from outside the EU, was considered as not being individually concerned. The applicant challenged the decision of the Commission adopted subsequent to the application from the relevant German authorities asking for suspension of customs duties on clementines imported from outside the EU. The ECJ held that the applicant was not individually concerned by the Commission's decision, although he was affected, as any importer of clementines, by the decision. His commercial activities were such that they could, at any time, be carried on by any person, and thus he did not distinguish himself from others in relation to the challenged decision.

c. This is the correct answer. In such a situation the applicant is individually concerned as he belongs to a “fixed” group, i.e. the number and identity of those individually concerned had become fixed and ascertainable before the contested decision was made by the Commission. For example, in Case 62/70 Bock, the ECJ held that Bock was individually concerned by a decision adopted by the Commission because, when he applied for a licence to import Chinese mushrooms, the German authorities refused to grant it and asked the Commission to confirm their decision, which the Commission did. The decision was issued to deal with Bock’s application. Accordingly, he belonged to an ascertainable and fixed group of importers at the time of the adoption of that decision.