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The grounds for annullment under Art. 230

Art. 230-1 gives the European Court of Justice (and now the Cfi) authority to annul any item of EC legislation if, broadly speaking, it contravenes the ECTreaty. For the action to succeed, the petitioner must show three things. First, the petitioner must have standing to bring the action. Second, the action must be against some institution over which the Court has jurisdiction. Third, the petitioner must show that the provision falls within one of the defined grounds for annulment. In addition, the action must be brought inside the strict time limit of two months.

Who has standing under Art. 230?

Privileged petitioners have standing to bring an action, whether or not they are directly affected by the legislation in question. These are:

  1. member states,
  2. the institutions of the EU (including the Parliament), and
  3. the European Central Bank and the Court of Auditors, where such action is to protect their prerogatives.

It appears that only member states in their entirety are privileged petitioners. Regional or provincial governments (e.g., the Scottish Executive) would have to be treated as persons under this Article.

Any natural or legal person can bring an action under Art. 230 for annulment of the following metas of legislative instrument.

  • A Decision addressed specifically to that person * A Regulation which is of direct and individual concern to the petitioner * A Decision addressed to a third party which is of direct and individual concern to the petitioner.

Where the instrument takes the form of a Decision addressed specifically to the petitioner, there is no great controversy. However, in the case of Regulations, or Decisions addressed to third parties, the situation is more complicated.

Regulations which are concealed Decisions

It is now well settled that the Court is not concerned with the precise form of the legislative provision -- Regulation, Directive, or Decision. So the fact that the measure is framed as a Regulation does not, in itself, prevent its being challenged. In International fruit company (1972) the Court indicated that the deciding factor was whether the Regulation applied to a fixed, closed class of individuals. However, the fact that it is possible, at any given time, to ascertain the individuals to whom the Regulation applies does not, in itself, mean that the class of individuals is closed -- the important factor is the way the measure is expressed (SpijkerVCommission1983).

True Regulations

What is still in contention is the extent to which Art. 230 gives a private individual the right to challenge a Regulation which is more general. The lack of certainty in this area follows from the difficulty in defining the exact scope of direct and individual concern. In the early case of Plaumann (C-25/62) the ECJ imposed a very strict test of direct and individual concern. Essentially, the petitioner had show that the Regulation affected him uniquely, by reason of some essentially feature that he alone had, or because his circumstances were unlike those of other individuals.

Over the years, it has been argued that the scope of persons with standing should be widened, and there has been some evidence that the Court might be prepared to do this. In Greenpeace 95, the ECJ hinted that the test for standing might be different from Plaumann where the interest of the petitioner was not economic. However it refused to consider the environmental issues in the case at hand, and standing was denied. The call for a widening of the scope of standing was taken up by several Advocates General. Most recently, in union de pequenos (2002) AG Jacobs recognized that a strict test of standing might act as a barrier to access to justice. However, the ECJ decided in that case that it was not withing its powers to decide who had standing to bring an action for annullment. The scope of standing could only be enlarged by ammending the Treaty. So it appears that the strict test of Plaumann is back in force.

Discussion

There are a number of reasons why the test for individual standing in Art. 230 should be a strict one. Most evidently, the ECJ is keen to prevent a deluge of applications for judicial review from individuals who would be better advised to seek a remedy in the national courts. Although the ECJ has repeatedly asserted that national courts do not have jurisdiction to declare that EC enactments are invalid, they can make a reference to the ECJ under Art. 234. Presumably the thinking of the ECJ is that national courts will Act as a filter, using their discretion only to invoke Art. 234 where the application has a chance of success. However, as AG Jacobs pointed out in Union de Pequenos, Art. 234 can only be invoked when there is an action before the national courts. This means that an individual cannot challenge EC legislation until he has already been adversely affected. In any event, the right of the national court to refuse to make a reference means that individual will not always get satisfaction in the national courts and, if he does not, he has no remedy under EC law either.

What is more, in reality large and influential corporations are able to exert pressure on their member states to take action on their behalf, which means that such bodies have, in practice, greater access to justice.

Whatever the strength of these arguments, the ECJ has not been convinced to take action, holding that it is outside its powers, and requires ammendment to the Treaties. The ECJ, it has to be said, has not always been so diligent to operate within the exact scope of its Treaty powers.

Which bodies are subject to the Court's jurisdiction?

Art. 230 provides jurisdication over acts of the Council, acts of the Council and Parliament together, acts of the Parliament which are intended to have legal effect, acts of the Commision, and acts of the European Central Bank. It does not allow the Court to rule on the validity of Recommendations and Opinions, but these are not generally legally binding anyway.

It is crucial to note that the words of the Article refer to acts of the relevant bodies. This is taken to mean that an institution can only be the target of an Art. 230 action if it is acting under the terms of the EC (not EU) treaty. Thus Art. 230 does not_ apply to the Council of Ministers acting as the policy-making body of the EU -- only as the legislative body of the EC. So, in general, inter-governmental decisions made under the Second Pillar and Third Pillar are not within the juridiction of the Court, except where expressly provided.

The following grounds for annulment are defined in the Article.

  1. Lack of competence (that is, lack of authority, not stupidity)
  2. Infringement of an essential procedural requirement
  3. Infringement of the EC Treaty or rule of law relating to its application (see EU General principles of law)
  4. Misuse of powers

There is no explicit provision for annullment on the grounds of what is often called 'Wednesbury unreasonableness' (see Associated provincial picture houses v wednesbury corporation (1948)), although misuse of powers is broad enough to encompass profound unreasonableness.

Comparison with Art. 241

Art. 230 provides the only grounds for specific annullment of EC legislation. However, that legislation is invalid can be argued in any case before the ECJ, at any time (Art. 241). Unlike Art. 230, Art. 241 is not subject to the two-month time limit.

Invalidity is decided on the same grounds as annullment: misuse of power, infringement of the Treaty, etc. If the action succeeds on the grounds that the challenged legislation is invalid, what effect does that have on the subsequent interpretation of that legislation? It seems to be generally accepted that the decision binds only the parties to the action. All the same, the fact that a piece of legislation has been deemed invalid must exert at least a persuasive effect over later court hearings.

So Art. 230 has the effect of nullifying the offending legislation; any other action can declare legislation invalid for the purposes of the instant proceedings only. But if Art. 230 nullifies the legislation, does it nullify it prospectively only, or retrospectively as well? In other words, if a Regulation were annulled, could I later bring an action for damages that I incurred in following the nullified legislation? It seems to be accepted that decisions of the ECJ act to declare what EC law is (and, therefore what it always was), rather than to decide what the law should now be. If this is the case, a declaration of nullity under Art. 230 would have retrospective effect. Art. 231 rescues this situation, by allowing the ECJ to decide how far-reaching the effect of its decision should be.

Comparison with Art. 234

Art. 234 (see preliminary reference procedure) allows a court in a member state to refer to the ECJ a question concerning interpretation of national law. There is no time limit on such applications, and occasionally litigants have sought to dispute the validity of EU in a national court (which they are perfectly entitled to do), knowing that the court will have to refer under Art. 234. However, it seems that the ECJ considers this an abuse of process -- an action for annulment should be brought under Art. 230, and within the two-month time limit -- and has been known to refuse to hear the case.