11.1 Judicial review: actions for annulment and actions for failure to act
In addition to those cases before the national court, individuals can also bring a series of actions directly before the CJEU, either in the Court of Justice or General Court.
The most important are:
- Actions to annul the acts of EU institutions carried out in error in some way. These are made under Article 263 TFEU.
- Actions reviewing the lawfulness of failure to act by an EU institution, under Article 265 TFEU. Such an action may be brought only after the institution concerned has been called on to act.
- If one of the previous two actions is successful, a follow-up action for damages by individuals whose interests were harmed because of the action or inaction of the EU, under Articles 268 and 340 TFEU.
Under Article 263 TFEU, there are four requirements for actions of annulment:
- The institution must be reviewable.
- The act must be reviewable.
- The challenge must be made within the specified time limit.
- The individual must have locus standi – this relates to the recognition of a legal interest in a matter. It is that interest which results in the right to mount a legal challenge against the act.
The first three requirements are set out in Article 263 TFEU and are unproblematic. Reviewable acts are those of the Council, Commission and European Central Bank, other than recommendations and opinions, and of the European Parliament and European Council intended to produce legal effects against third parties. Any claim for review must be commenced within two months of the date of the publication of the measure or notification of the act.
The question of who may apply, so the matter of locus standi has been problematic. Applicants are categorised as privileged, semi-privileged and non-privileged. Privileged applicants have automatic standing, they do not need to prove their locus standi. They are set out in Article 263 TFEU as member states, the European Parliament, the Council and the Commission. Other institutions, such as the Court of Auditors, European Central Bank and Committee of the Regions have semi-privileged standing where their prerogatives are not protected.
Non-privileged applicants are individuals. They only have standing in limited circumstances. They must establish that they have had a Decision addressed to them or that the Decision was of direct and individual concern to them.
Under Article 265 TFEU, failure to act, individuals have a more clearly defined locus than under Article 263 TFEU because there is no equivalent within the article itself of direct and individual concern. All the individual has to establish is that the measure (rule or decision) could potentially be addressed to them. However, in a series of cases the CJEU has tempered the scope of standing by introducing requirements analogous to the direct and individual concern requirement under Article 265 TFEU.
The only limit to an individual’s standing under Article 268 TFEU is that the individual applicant must be affected and damaged in some tangible and provable way.
You may question the importance of standing for individuals at the CJEU level. It is of practical importance because it costs a lot less, in terms of court costs, to make an application for review in the CJEU than it does in many national courts (including the UK) and because the grounds of review are broader in the CJEU than in some national courts.
Activity 16 Rights of standing of persons, institutions and member states before CJEU
Use the link read sections I and II and the last paragraph on page 107 of the judgment in(Case C- 25/62)  ECR 00095.
- Summarise below how the court deals with the issue of locus standi in the case at hand.
A back-door way, and an alternative route to direct action, in which an individual may challenge the validity of acts of EU institutions, is by way of a preliminary reference from a national court under Article 267 TFEU.
Most CJEU cases that you may have come across will have come to the court as preliminary reference. A difficulty in this avenue to the CJEU is that, in the first place, there needs to be a vehicle in which to do so. What this means is that the individuals claim before the national court has to have an element of national law (which could concern EU rights and obligations) in order to be able to raise the matter before the national courts. The issue cannot only relate to EU law. As the procedural grounds for judicial review in England and Wales are broader than in some other EU member states, some individuals in commerce in other member states have conducted a type of forum shopping and brought claims before the courts in England and Wales. However, they must have some jurisdictional connection to England and Wales in order to establish claims.