Judicial Review Community

Common Introduction for both 1 & 2: The Community institutions must act within the powers they derive from the EC Treaty. To ensure that the political Institutions do Act within their powers and that they comply with their obligations, the Treaty has empowered the ECJ to review the manner in which the Institutions have discharged or failed to discharge their responsibility. In order to answer this question it is necessary to few question need to consider such as what is the meaning of ‘acts’ in Art 230 EC, who can attack, within what time limit, on what grounds and what effect does annulment have.

Art 230 EC provides that ‘The Court of Justice shall review the legality of acts adopted jointly by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations and opinions, and of acts of the EP intended to produce legal affects vis-a-vis third parties’. In Case 22/70 Commission v Council  ECJ held that the category of reviewable Acts includes all Acts that have legal effects. It is not limited to the Acts listed in Article 249.

In the ERTA case (C-22/70) the ECJ held that the meaning of ‘acts’ was not restricted to the secondary legislation of the Community under Art 249, that is, Regulations, Directives and Decisions (Recommendations and Opinions are excluded because they are not legally binding), but could include any act which had legal effects. In the ERTA (European Road Transport Agreement) case the Member States acting together but not acting as the Council, had adopted a resolution, which laid down what negotiating procedure would be used at the conference drawing up the European Road Transport Agreement.

From the above discussion the Decision can be challenged under Article 230. Answer to the Question No. 1: From the fact of the question it can found In October 2007, the Commission issued a Decision to the UK authorising it to seize and destroy any poultry imported from Brittany during September 2007 and to inspect all future imports for traces of bird flu virus (H5N1). Here the Decision issued by the Commission addressed to the UK as a consequence it need to consider that whether the Decision can be challenged under Article 230.

Here it needs to consider whether the MS France; Jacques St Malo & Pierre St Michel who a Breton poultry farmer, Sainsbury’s Supermarkets can be challenged the decision under Art 230. There are three classes of applicant under Art 230 EC: privileged, semi-privileged and non-privileged. Under Article 230, Member States, the Council and the Commission have always been privileged applicants. That is, they are accepted to have a sufficient legal interest to give them standing (locus standi) for such an action and thus they have automatic locus standi.

From the above discussion it can be said that France is a privileged applicant. The general rule is that in order to challenge a decision addressed to someone else or a Member State, it must be shown to be direct or individual concern to the applicant. So France needs to show direct concern of the Decision. Direct concern means that there should be no exercise of discretion between the original Decision and its application to the applicant. So the effect of the Decision addressed to another, or the Decision in the form of a Regulation, is applied to the applicant without the intervening party exercising discretion.

On direct concern, Case 69/69 Alcan [1970] ECR 385, which is now considered to be a very tough application of the test for direct concern. The Belgian government lobbied the Commission to increase the allocation of low tariff aluminium allowed into Belgium. The Commission refused to increase the quota and this decision was challenged by the applicant, which was an importer of aluminium. In Case 62/70 Bock v Commission , the facts of this case are given above.

Bock was held to be directly concerned because the German authorities had informed him that they would refuse his application as soon as they received a decision from the Commission permitting them to do so. On the other hand, in order to challenge under Art 230 Jacques St Malo & Pierre St Michel who a Breton poultry farmer, Sainsbury’s Supermarkets have to shown that they have Individual concern. To prove Individual concern it need to consider the two situations: (a) where the decision is a decision addressed to another person. (b) Where the decision is in the form of a Regulation.