Annulment of legal acts by the Court of Justice

SUMMARY OF:

Article 263 of the Treaty on the Functioning of the European Union (TFEU)

Article 264 TFEU

Article 266 TFEU

WHAT IS THE AIM OF THESE ARTICLES?

Article 263 makes it possible to take action before the Court of Justice of the European Union (hereinafter ‘the Court’) challenging the legality of European Union (EU) legal acts.
Article 264 states that if the action is well founded, the Court shall declare the act void or, when necessary, state which of the effects of the act declared void shall be considered as definitive.
Article 266 requires the party whose act has been annulled to take the necessary measures to comply with the Court’s judgment.

KEY POINTS

Scope

Article 263 TFEU states that the Court can review the legality of:
- legislative acts;
- acts of the Council, of the European Commission and of the European Central Bank (ECB), other than recommendations and opinions; and
- acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties.
The Court may also review the legality of acts of EU bodies, offices or agencies intended to produce legal effects vis-à-vis third parties.
The Court has found that in addition to acts like regulations, decisions and directives, which are defined in Article 288 TFEU as binding, it is the content (and intention) of the measure that matters, rather than the form (in Case C-316/91 European Parliament v Council). Thus, the legality of other types of acts, such as Council conclusions, can be contestable (in Case C-27/04 Commission v Council).

Who can bring an action for annulment to the Court?

Article 263 TFEU distinguishes between 3 types of applicants.
- Privileged applicants, i.e. EU countries, the European Parliament, the Council and the Commission. They can always bring an action for judicial review (paragraph 2).
- Semi-privileged applicants, i.e. the Court of Auditors, the ECB and the Committee of the Regions. They may solely bring review proceedings ‘for the purpose of protecting their prerogatives’ (paragraph 3).
- Non-privileged applicants, i.e. legal persons, such as businesses, and natural persons, such as individuals, can bring action for judicial review, but they are subject to more stringent conditions as regards satisfying the legal standing (‘locus standi’) requirement (paragraph 4).

Bringing an action for annulment

An action must be brought within 2 months of the act’s publication or of its notification to the applicant. A further 10 days’ extension to allow for postal delays on account of distance exists under Article 51 of the Rules of Procedure of the Court of Justice — see summary. If the act is not published or notified, the deadline runs from the point at which the applicant gained knowledge about it by other means.
Non-privileged applicants must establish that they have had an act addressed to them or that the act was both of direct concern (see Case C-486/01 Front national v European Parliament) and of individual concern to them (see Case C-25/62 Plaumann v Commission).

Grounds for the annulment of an act

Article 263 TFEU (paragraph 2) sets out the following grounds for annulling an act:

lack of competence;
infringement of an essential procedural requirement, for example the need to respect an institution’s prerogatives before taking a decision, as in the requirement to consult in the Isoglucose case (Cases C-138/79 SA Roquette Frères v Council and C-139/79 Maizena GmbH v Council);
infringement of the treaties or of the Charter of Fundamental Rights;
infringement of any rule of law relating to the application of the treaties; and
the misuse of powers (the applicant must be able to prove on the basis of facts that the contested act was adopted for unauthorised purposes (Case C-23/76 Pellegrini v Commission).

Annulment of an act

Article 264 TFEU is the legal basis for the annulment of an act.

Where the action for annulment is well founded, the Court declares the act void.
Where the Court considers it necessary, it can state which of the effects of the act that it has declared void must be considered as definitive. In other words, it can declare certain aspects of the challenged act operative in the interests of:
- the need for legal certainty (see, for example, Case C-21/94 European Parliament v Council); or
- the need to suspend the effects of annulment until a competent institution adopts an act to replace the annulled one.
When the Court rules that an act is void, the effect of annulment is generally from the point of the adoption of the act in question (known as ex tunc). However, the effect may also be from the date of the Court’s judgment (ex nunc). In addition, the Court may maintain the effects of the annulled act.
An annulment may also be partial, as in Case C-378/00 Commission v European Parliament and Council, where the Court annuls an article of an act, but declares that the measures implementing that act, which had already been adopted, should stand.

Compliance with the Court’s judgment

The party whose act has been annulled should take the necessary measures to comply with the Court’s judgment (Article 266 TFEU).

BACKGROUND

An action for annulment is a legal instrument that allows EU countries and EU institutions and bodies, as well as citizens, companies and interest groups in certain specific circumstances, to directly request the Court of Justice of the European Union for a judicial review to verify the legality of EU acts.

MAIN DOCUMENTS

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 1 — The institutions — Section 5 — The Court of Justice of the European Union — Article 263 (ex Article 230 TEC) (OJ C 202, 7.6.2016, pp. 162-163)

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 1 — The institutions — Section 5 — The Court of Justice of the European Union — Article 264 (ex Article 231 TEC) (OJ C 202, 7.6.2016, p. 163)

Consolidated version of the Treaty on the Functioning of the European Union — Part Six — Institutional and financial provisions — Title I — Institutional provisions — Chapter 1 — The institutions — Section 5 — The Court of Justice of the European Union — Article 266 (ex Article 233 TEC) (OJ C 202, 7.6.2016, p. 163)