EU Law and Fundamental Rights: Infringement Procedure and Charter

Judicial Review and Remedies

Infringement Procedure

VM VERS ESTA VGVSTA UNIVERSITÀ DEGLI STUDI DI TORINO start-unito EU Law and Fundamental Rights 3. Judicial review and remedies Unit 3.1 - Infringement procedure The infringement procedure is regulated by Articles 258-260 of the TFEU and it can be triggered in those cases where a Member State has committed a violation of EU law. For instance, the mechanism is enacted after the State adopts a national legislation that contravenes EU law or in case it fails to implement a directive within the set deadline. The action is generally activated by the European Commission, despite, according to Article 259, also Member States have the power to commence it. On the contrary, individuals are forbidden to bring the matter before the Court of Justice. Instead, they can resort to national courts and request them to make a preliminary reference on the interpretation of EU law provisions.

As has just been said, the infringement procedure arises when the European Commission deems that a breach of EU law has been perpetrated by a Member State. The Court of Justice specified in its case law that also the violations committed by Stateagencies and public authorities are attributable to the State that can be the sole subject of the procedure. Despite Article 258 only refers to actions or omissions causing breaches of Treaties obligations, the Court of Justice expanded the content of the provision by also referring to the duties deriving from international agreements, secondary law and general principles.

Since the European Commission is considered the Guardian of the Treaties and it is bound to act in the interest of the EU, it enjoys a wide discretion in establishing whether and when an infringement proceeding should be initiated.

The procedure is composed of two phases.

The first one is the pre-litigation stage and has the purpose to attempt an amicable settlement of the issue and to encourage the respect of EU law. In case it witnesses a violation, the Commission is entitled to send a letter of formal notice to the government's State, specifying the subject matter of the controversy. The State can then provide its EU Law and Fundamental Rights 1VM VERS ESTA VGVSTA UNIVERSITÀ DEGLI STUDI DI TORINO start@unito EU Law and Fundamental Rights observations intended to illustrate the motives under its breach within the set deadline (usually two months). Afterwards, if the justification is considered unsatisfactory, the European Commission is authorized to define the violation of EU law in a reasoned opinion and to give the State a time limit to conform with it. This opinion must be very precise and shall not be made public.

According to Article 259, the pre-litigation phase can also be launched by another Member State. Indeed, it can ask the Commission to issue a reasoned opinion in case it presumes that a violation of EU law has been committed by another State. Subsequently, if the Commission does not act within three months, the claimant State can directly bring the matter to the Court of Justice. However, such mechanism is rarely used because the Commission itself incites political settlement of the disputes in order to avoid bilateral tensions.

When the non-compliant State does not also conform to the reasoned opinion, the European Commission is entitled to initiate the second phase of the procedure - the judicial one - by referring the matter to the Court of Justice. In this case, the contested issue must be identical or narrower than the one contained in the reasoned opinion. At the end of the proceeding, the Court pronounces a declaratory judgement, through which it acknowledges whether or not a violation of EU law has been committed by the State. In the affirmative case, the Member State is obliged to take the necessary measures to implement the sentence and to remedy its breach.

Following the issuance of judgement, if the State does not comply with it, the Commission can initiate a new infringement procedure with a simplified pre-litigation phase. Indeed, it is required to issue a letter of formal notice - and not also a reasoned opinion - against which the State must submit its observations. At the end of the judicial stage of this second infringement procedure, the Court of Justice can impose on the non- compliant State a lump sum or penalty that must take into account the seriousness of the violation, its duration, its deterrent effect and the ability of the State to pay. The amount EU Law and Fundamental Rights 2VM ESTA VERS VGVSTA UNIVERSITÀ DEGLI STUDI DI TORINO start@unito EU Law and Fundamental Rights of the penalty must be determined in advance by a proposal of the Commission on the basis of the principle of proportionality.

Lastly, according to Article 260(3), infringement action can also be brought against a State that, within the set time limit, fails to communicate to the European Commission the measures that it adopted to transpose a directive into its national law. In this case, it is provided that, already in the course of the first infringement procedure, the Commission can propose and the Court impose the payment of a lump sum and a penalty.

Action for Annulment

Judicial Review and Remedies for Annulment

EU Law and Fundamental Rights 3VM VERS ESTA VGVSTA UNIVERSITÀ DEGLI STUDI DI TORINO start-unito EU Law and Fundamental Rights 3. Judicial review and remedies Unit 3.2 - Action for annulment The action for annulment is regulated by Articles 263 and 264 of the TFEU and is a remedy aimed at obtaining a ruling of the Court of Justice that recognise the illegality of an act adopted by the institutions of the EU. Indeed, it has the primary purpose to ensure the legality of EU's conduct.

Reviewable acts are those that emanate from the institutions, agencies, bodies and offices of the EU and that produce legally binding effects. In this context, it must be underlined that the Court has progressively bestowed priority to the substance of an act, thus deciding to review all acts that can directly affect the legal position of a person, regardless of their nature, form or title. Recommendations and opinions are expressly excluded from the category of reviewable acts, as they do not possess a legally binding nature, nor they can significantly affect the legal position of an individual.

Grounds for Annulment

The grounds for annulment are contained in Article 263(2). The first ground is "lack of competence", which occurs: i) when an institution adopts an act that falls outside of those that it is empowered to approve according to the Treaties; ii) when an excessive delegation of power is conferred to EU institutions or agencies; iii) when an institution does not respect the limits of its powers while implementing an act.

The second ground is "infringement of an essential procedural requirement", which implies that an institution failed to respect a compulsory rule of procedure when adopting an act (for instance, it failed to give adequate reasons for the approval of the act or it did not consult with the European Parliament when consultation was obligatory).

The third ground is "infringement of the Treaties or of any rule of law relating to their application". It occurs when EU institutions violate primary sources of law, namely Treaty provisions, general principles, the rights contained in the Charter of Fundamental Rights and international law provisions that directly bind the EU.

EU Law and Fundamental Rights 1VM ESTA VERS VGVSTA UNIVERSITÀ DEGLI STUDI DI TORINO start@unito EU Law and Fundamental Rights The fourth ground for annulment is "misuse of powers" that occurs when an institution operates with the intention to use its powers and authority for a different purpose than the one for which such powers have been bestowed to it in the first place.

Applicants for Annulment

In order for an action for annulment to be admissible, the applicant must have standing. There are three categories of applicants: privileged, semi-privileged and non- privileged. According to Article 263(2), privileged plaintiffs are Member States (to be understood as the central government authorities), the European Parliament, the Council and the European Commission. They are entitled to autonomously bring an action without having to prove a specific interest in bringing proceedings. According to Article 263(3), semi-privileged applicants are the Court of Auditors, the European Central Bank and the Committee of the Regions. Differently from the previous category, they can start proceedings only for safeguarding their own prerogatives.

The discipline of non-privileged applicants concerns natural and legal persons. It can be considered as the most nuanced category as well as the one that underwent the major changes. According to Article 263(4), natural and legal persons can challenge an allegedly unlawful act in three situations. Firstly, they have automatic standing when they are the immediate addressee of the disputed act.

Secondly, if they are not the recipient of the act, applicants can challenge it only by demonstrating that such act is of individual and direct concern to them (general test of standing). The definition of individual concern has been formulated by the Court of Justice in the 1962 Plaumann case. It asserted that natural or legal persons are individually concerned if the act affects them "by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed". This statement implies that applicants must form part of a closed category of people, which already existed before the emanation of the disputed act. Hence, the Court set a very high standard, as it basically imposed on plaintiffs to prove EU Law and Fundamental Rights 2VM ESTA VERS VGVSTA UNIVERSITÀ DEGLI STUDI DI TORINO start@unito EU Law and Fundamental Rights that they are, in fact, the recipient of the act at hand. This test has been frequently challenged and contested.

On the other hand, the direct concern test has been considered fulfilled when it is demonstrated that the act directly affects the legal position of the applicant. There must exist a causal relation between the act at stake and its impact on the recipient. Therefore, it is necessary that such act does not in itself require implementation or - in case it does - the recipient must have no discretion over it, otherwise it can be inferred that the unlawful effect of the act has been indeed caused by the implementing measure adopted by the applicant.

Thirdly, the Treaty of Lisbon included a new category of acts that non-privileged applicants can challenge directly. It is the case of regulatory acts that are of direct concern to them and do not entail implementing measures. Unlike the general test of standing, this test does not demand the fulfillment of the individual concern requirement, thus makingit easier for private persons to challenge this type of acts.

Nevertheless, also in this case, some issues have to be clarified. Initially, regulatory acts are those "of general application apart from legislative acts" (this definition has been provided for by the General Court in the Inuit case and subsequently upheld by the Court of Justice on appeal). Therefore, legislative ones can only be subject to the general standing test. Finally, it is provided that the questioned act must not entail implementing measures. This is because, in case further implementation is mandated for the act to produce its effects, the implementing measures should be impugned in front of a different judge. Hence, the Lisbon test is restricted to situations in which an act cannot be otherwise challenged before a judge other than the Court of Justice.

The action for annulment can be initiated only within two months either from the publication of the measure at stake, from its notification to the applicant, or - in the absence of it - from the day on which the plaintiff came to know it. The purpose to grant such a short term is to avoid that an EU measure could remain uncertain for a too long period of time.