What are mechanisms and procedural grounds for Judicial Review in European Union Law and its potential shortcomings in relation to the general EU legal governing bodies

Introduction

The Treaty on the Functioning of European Union (“TFEU”) provides the power of judicial review to the Court of Justice of the European Union (“CJEU”) under Article 263. The CJEU consists of the Court of Justice (“ECJ”), the General Court and the Civil Service Tribunal. The General Court is an administrative court of the EU, and decisions or legislative acts by the EU institutions can be the subject of judicial review proceedings before the Court.

The power of judicial review is an important part of the checks and balances system within the European Union (“EU”). Article 263 has been considered to be a “safeguard against abuses of authority by Union institutions.”[1] This is so because judicial review is provided over all EU institutions and this ensures that all the decisions of the EU institutions, particularly those that produce binding effects on third parties are reviewable.

There are two points of consideration that are of importance when analysing the judicial review powers of the ECJ. First point of consideration is the institutions which are subject to judicial review. The Union institutions which are particularly covered under Article 263 as listed institutions whose acts are reviewable, include, inter alia, the European Commission, the European Council and the European Parliament. The second point of consideration is the acts which are reviewable. In this regard, the interpretation given to reviewable acts by ECJ under Article 263, is very wide and the court has time and again specified that it shall consider the nature and effect of the measure and not just its form.[2] TFEU.

Article 265 allows judicial review where there is a failure to act by the institutions of the EU, and such institutions can be made to act when such action is also a legal duty. This provision is a complement to Article 263, and according to the ECJ in Chevalley v Commission,[3] the two articles prescribe the one and the same course. Article 277 of the TFEU allows the plea of illegality against the actions of the Union institutions where such challenges can be made indirectly, or in other words, Article 277 claims do not give separate forms of action and must be raised in context of proceedings initiated on other grounds, such as under Article 263.

This essay will consider the mechanisms and procedural grounds for judicial review. In this, focus will be on Article 263 of the TFEU as this is the principal provision for judicial review in the EU. There are also some potential shortcomings of judicial review in context of EU governing bodies. These are also considered in this essay. First, to get the background of judicial review, a brief analysis on the inter-relationship between judicial review and rule of law is covered.

Judicial Review and Rule of Law

Judicial review is inextricably related to the principle of the rule of law. The right to effective judicial protection is also enshrined in the Article 47 of the EU Charter of Fundamental Rights, as an essential element of the rule of law. In Inuit Tapiriit Kanatami and Others v Parliament and Council,[4] it was held that “the European Union is a union based on the rule of law in which the acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, the general principles of law and fundamental rights.”

In a classical administrative law system, the rule of law would require that the government should act within its powers, follows the proper procedures and most importantly, such a classical administrative system would provide equality of access to courts or other adjudicatory bodies. In this sense, the rule of law is procedural and it is most likely to flourish in economic communities.[5] Rule of law can also be interpreted in a different way, where the key requirement of the rule of law would be that there would be a legal order with fixed and stable general principles, and that there would also be a formal right of access to courts for when the people feel the need for adjudication of their disputes.

The member states have had to ensure that “their economies are organized and run in accordance with the principles of the market and competition.”[6] In the EU Treaties, this was ensured by the providing of the free movement of persons, goods, services and capital, and establishment. The ECJ has been the last bastion for ensuring that both the member states as well as the EU institutions are within the scope of the Treaties and that the decisions of the states as well as the institutions conform to the Treaties. The interpretation of the four freedoms of movement has shaped the principles of administrative law of judicial review. This jurisprudence was evolved first under TEC Articles 230 and 232 and is now being evolved under TFEU, Article 263. The principles of legality and due process, as well as the principle of proportionality have informed the shaping of the judicial review jurisprudence and these principles have been taken from the national systems.

Gray has called the EU “the late-twentieth-century free market experiment attempt to legitimate through democratic institutions severe limits on the scope and content of democratic control over economic life.”[7] This has partly been achieved due to the principles of rule of law being followed by allowing the ECJ judicial review, as this is a necessary condition of the EU’s democratic control over economic life the member states.

Judicial Review and Rule of Law

Free movement of workers and services or goods pose different implications for host states. Free movement of people pose more sensitive implications for the host state. These implications may be related to welfare for the migrants, that would put economic pressure on the state. Increasingly, such implications may also be security related, where the migrants may be threats to the state’s security. In the post 9/11 world, greater security risks are seen in Europe and the recent attacks in Paris and Brussels evidence the greater risks posed to states because of open borders. Although these aspects do not directly form part of the essay, it is important to keep in mind the implications that are posed therein.

TThis essay examines the role played by the Court of Justice in evolving the jurisprudence on free movement of persons within the Union in the context of Union citizenship. The first part of the essay examines the EU law on citizenship and the provisions on free movement of persons. Then the essay studies the role played and the jurisprudence developed by the Court of Justice in this area. The essay posits that the Court of Justice is focussed on the removing of discriminatory and non discriminatory restrictions to freedom of movement.

EU Law on Judicial Review

Just like national constitutional courts, the Court of Justice of the European Union (“ECJ”) has the power of judicial review over EU legislative and executive acts. The TFEU, Article 263 allows the ECJ to review the legality of acts adopted by the European Council, Parliament and Commission.[8] The opening paragraph of the TFEU, Article 263 reads:

“The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.”

As is clearly seen in the above part, the ECJ has jurisdiction to review the legality of acts not only of the Council, Commission and the Parliament, but also the European Central Bank and other bodies, offices and agencies of the Union. The two important points for such review to take place are that: first, the acts under review must be legislative acts, and second, the acts must be intended to produce legal effects vis-à-vis third parties. The last point was emphasised by the ECJ in Les Verts v European Parliament,[10] wherein the ECJ held that where the acts were intended to create legal effects between third parties, the acts would become reviewable. In this case, the court also held that in a community based on the principle of the rule of law, all institutions of the community must be subject to review. This was essential where the institutions were capable of creating binding effects. For instance, the European Parliament can enact binding laws, therefore, it is essential that such laws be subject to judicial review, so that the rule of law principles are met.

With regard to acts which reviewable, the ECJ has time and again emphasised that the interpretation given to reviewable acts by EU courts under Article 263, is very wide. The court has specified that it shall consider the nature and effect of the measure and not just its form.[12] For example, in Commission v Council (ERTA),[13] the measure under question involved a coordination of policies among member states. Nevertheless, the ECJ held that the resolution of the Council, which set out the position to be taken by the Council could be subjected to judicial review of the ECJ. In the European Parliament v Council,[14] the ECJ held that a regulation adopted by the Council under an internal Convention agreement (and not the Treaty), was subject to judicial review. The court justified its liberal interpretation of the judicial review provision as:

“annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, intended to have legal effects. It follows that an action….is admissible irrespective of whether the act was adopted by the institution pursuant to the Treaty provisions.”

Before the passage of the Lisbon Treaty in 2007, the European Council was not subject to the jurisdiction of the court as decided by the Court of First Instance in Roujanski v Council .[16] After the Lisbon Treaty came into effect, the decisions of the Council are reviewable. The Council is also mentioned as one of the listed institutions in Article 263 of TFEU, whose acts are reviewable.

As mentioned earlier, in order to be reviewable, the acts must be intended to produce legal effects vis-a-vis third parties.[18] In Council v European Parliament,[19] a declaration made by the President of the European Parliament, as to the final adoption of the budget, was held to be an act capable of producing legal effects with respect to the third parties, therefore, reviewable. In Les Verts v European Parliament,[20] the impugned measures had an effect in the internal administration of the Parliament, but there were no legal effects for the third parties. Therefore, the court held that such measures of the Parliament shall not be reviewable. In SA Cimenteries CBR and Others v Commission of the European Communities,[21] a registered letter sent by the Commission became an administrative act challenged under the judicial review provisions of the ECJ. Although the letter could not be said to be a decision, it did produce some legal effects for third parties, in as much as the letter states that groups of companies no longer had immunity from fines. This brought a change in their legal position and the ECJ held that the letter could be brought under challenge and for that purpose it could be treated as a reviewable matter.[22] The effect of the decision is the most important element, as summarized by the court in BUPA and others v Commission,

“The contested measure must directly produce effects on the legal situation of the person concerned and its implementation must be purely automatic and follow solely from the [Union] rules, without the application of other intermediate measures.”

In the EU, the ECJ is the principal court which has the power of legal adjudication and judicial review.[25] It can be said that the ECJ is the judicial authority of the EU. In this context, the ECJ has to ensure that the EU legislation is interpreted and applied in the same way in all member states. The judicial review by ECJ is applied over treaties, secondary legislation and tertiary instruments.

It is also important to describe the laws that are subject to judicial review of the ECJ. EU laws have three distinct sources, each of which is liable to judicial review. The first source is primary acts between governments of the EU member states.[27] The second source of EU law is the secondary legislative and executive acts of the European Council, Parliament and the European Commission.[28] Such secondary acts may be directives, regulations, recommendations and decisions of these bodies.[29] The third source of EU law is the ‘general principles of law’, which has been interpreted by the ECJ to mean principles of fundamental rights and freedoms, economic freedoms and political rights.[30] The cases can be brought to the ECJ by the member states, the Commission, Council and Parliament, who contend that a treaty has been infringed, or there is a lack of competence or there is some procedural requirement or there is a misuse of powers.[31] These are the grounds of annulment of the decision as provided under TFEU, Article 263 (2). One of these grounds can be used by the applicant to show that the decision by the institution is fit for annulment. For instance, in Roquette Freres v Council,[32] there was a failure to adopt the correct legislative procedure by the Council. In another case, WWF UK v Commission,[33] the Commission made a decision to refuse access to Commission documents and this was questioned by the applicant. The court annulled the decision for breach of duty to give reasons.

The Commission, Council, Parliament and member states are considered to be privileged applicants under the TFEU, Article 263. They all have a standing by right and therefore their locus standi is a given. In other words, the standing applicants do not have to establish a particular interest in the action.[34] This was also held by the court in the case of Luxembourg v European Parliament,[35] where the court held that Luxembourg did not have to argue a particular interest in the action, as it already had locus standi.

There are some parties who are considered ‘semi-privileged’ applicants. These are the European Central Bank, Court of Auditors and the Committee of the Regions. The reason why they are considered to be semi-privileged applicants is because they do not have standing as of right, but they may take action for the purpose of protecting their prerogatives.

Finally, there are some non-privileged applicants under the TFEU, Article 263 (4), which are, natural and legal persons. Here, non-privileged means that they do have access to the EU judiciary for bringing an annulment action, but they also have to clear some hurdles in order to bring such an action because they do not have standing as of right under the TFEU. Although, the TFEU has made some changes in order to allow natural and legal persons a less restrictive access to the courts than earlier provided, such access is dependent on the individual or legal person being able to justify such access as per TFEU provisions.

There is a period of limitation that is prescribed by the TFEU, Article 263 (5) as per which an annulment action must be brought within two months from the publication of the measure or from when the measure was notified to the applicant. In this context, notification would mean a communication which would give a detailed account of the content of the measure and the reason why the measure was adopted. For this, the communication of the full text of the decision and not the mere summary of the same would be taken to be the time from where the period of limitation will start as held in Commission v Socurte.

The application of the judicial review principles within the EU law have shown the development of EU administrative procedures.[39] There is a reassertion of judicial supremacy principle in the EU law and this has taken the form of enhanced judicial review as seen in the TFEU, which has expanded the list of reviewable institutions to include institutions such as the Council, which were hitherto not reviewable.[40] Now all the principal legal governing institutions are subject to the judicial review structure and not only that, the judicial interpretation of the reviewable acts by these institutions has also been fairly wide.

A potential shortcoming of the judicial review in relation to general EU legal governing bodies is that the judges are not always neutral actors and like other political actors, judges too many have preferences. Within the EU, as the society gets more litigious and judicial review of legislative acts is increasing, judges are increasingly involved in making choices between political positions.[41] Another shortcoming of the judicial review by the ECJ is that the process of attaining justice under the ECJ is long drawn, with the average length of proceedings in 2009 being 17 months.[42] However, EU is a complex system of multi-level governance. For the EU courts, the balancing of the disparate views within a complex multi-level system of governance can be a complicated exercise, involving the balancing of disparate views and interests of the EU governing bodies as well as the member states. Judicial review within the EU has been seen in the context of level of administrative powers and the corresponding level of judicial review, with the general idea that the higher the administrative powers, the stricter the judicial review.[43] This may present a problem or possible conflict between the EU governing bodies, who have substantial administrative powers, and the EU courts which have powers of judicial review over such administrative acts that create legally binding effects.

The ECJ is the creature of a treaty and not a constitution, therefore, its mandate is to interpret the EU treaties and the laws made pursuant to them.[44] Therefore, the scope of judicial review as may be seen in a national legal system, would be limited in the case of EU courts.[45] Therefore, it can be said that ECJ does not have legitimate constitutional review function.[46] This may put it at a disadvantage vis a vis the governing bodies, which are the bodies with the power to make, repeal or modify treaties, including the ones that give judicial review powers to the EU courts, such as TFEU.

Conclusion

The provisions of judicial review that are provided in the EU system, manifest the emphasis on the rule of law, which gives legitimacy to the EU governing bodies and EU law. The EU governing bodies are empowered to make decisions and commit acts that restrict the powers of the nation states within the market economy established by the EU. These powers and actions are legitimated by ensuring that the bodies act within the powers given it by the Treaties of the EU. In that sense, the development of the judicial review mechanisms in the EU are also an interesting aspect of its administrative law. The EU judicial review mechanisms also suffer from some shortcomings. In particular, the review process is very long drawn with cases taking upwards of a year and a half and in many cases many years before they are decided. The judges are also not always neutral actors and there are times when the judges have to take stand as between the stated political positions of parties.

Bibliography

• Gray J, False Dawn: The Delusions of Global Capitalism (London: Granta Books 1998)
• Hix S, and Høyland B, The political system of the European Union (Palgrave Macmillan 2011).
• Horspool M, and Matthew Humphreys, European Union Law (Oxford University Press 2012)
• Neumann F, The Rule of Law: Political Theory and the Legal System in Modern Society (Berg 1986).
• Harlow C, ‘Global administrative law: the quest for principles and values’ (2006) 17 (1) European journal of international law 187.
• Lenaerts and Vanhamme, ‘Procedural Rights of Private Parties in the Community Administrative Process’, (1997) 34 CML Rev 53.
• Rosenfeld M, ‘Comparing constitutional review by the European Court of Justice and the US Supreme Court’ (2006) 4 (4) International Journal of Constitutional Law 618.
• Schwarze J, ‘Judicial review of European administrative procedure’ (2004) 68 (1) Law and Contemporary Problems 85.
• Margot Horspool, and Matthew Humphreys, European Union Law (Oxford University Press 2012) 241.
• F Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (Berg 1986).
• Martin Seidel, ‘Constitutional aspects of the economic and monetary union’ (1996) Constitutional dimensions of European economic integration 43.
• J Gray, False Dawn, The Delusions of Global Capitalism (London: Granta Books 1998) 9.
• Simon Hix, and Bjørn Høyland, The political system of the European Union (Palgrave Macmillan
• The Treaty on the Functioning of the European Union, Article 273.
• Margot Horspool, and Matthew Humphreys, European Union Law (Oxford University Press 2012)
• Ibid, quoted in Margot Horspool, and Matthew Humphreys, European Union Law (Oxford University Press 2012) 241.
• Margot Horspool, and Matthew Humphreys, European Union Law (Oxford University Press 2012)
• Simon Hix, and Bjørn Høyland, The political system of the European Union (Palgrave Macmillan
• Margot Horspool, and Matthew Humphreys, European Union Law (Oxford University Press
• Margot Horspool, and Matthew Humphreys, European Union Law (Oxford University Press