Analysis of Judicial Review and Remedies in EU Law - LJMU Coursework

This coursework essay delves into the intricacies of judicial review and remedies within the European Union legal framework, primarily focusing on Articles 263 and 267 of the Treaty on the Functioning of the European Union (TFEU). The essay begins by outlining the EU's legal system, the supremacy of EU law, and the roles of judicial review and remedies in safeguarding the interests of member states and individuals. It then explores the application of Article 263, examining the concept of locus standi and the distinctions between privileged, semi-privileged, and non-privileged individuals. The essay critiques the limitations faced by non-privileged individuals in challenging decisions and seeking remedies. Subsequently, the analysis shifts to Article 267, highlighting its role in interpreting EU law and ensuring its equal application across member states. The discussion includes the preliminary ruling procedure and the jurisdiction of the Court of Justice. The essay emphasizes the importance of preliminary rulings in clarifying EU law and the powers of the Court of Justice in adjudicating matters related to the interpretation of treaties and the actions of executive bodies. Finally, the essay concludes by assessing the effectiveness of the provisions in providing judicial remedies to all citizens.

Running head: EUROPEAN UNION LAW
COURSEWORK TWO
QUESTION THREE
Name of the student:
Name of the university:
Author note

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Table of Contents
Introduction:...............................................................................................................................2
Discussion:.................................................................................................................................2
Judicial review and remedies under EU Law:........................................................................2
Application of Article 263:....................................................................................................3
Interpretation of Article 263:.................................................................................................5
Application of Article 267:....................................................................................................5
Interpretation of Article 267:.................................................................................................7
Conclusion:................................................................................................................................8
Reference:..................................................................................................................................9

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Introduction:
The main subject matter of the question is based on the provisions of the EU Law. European
Union is an institution that consists of twenty-eight member states and it has its own legal
system. EU Law is supreme in nature and if any conflict takes place in between the national
law and European law, the decision of the national law will be overruled and the decision of
the European law will prevail. The provisions of the European Union law have secured the
interest of both the member states and the individual. However, certain problems have been
cropped up regarding the application of certain provisions of the stated law and it has been
stated that the EU has failed to secure the interest of the non-privileged citizens. There are
two different provisions of the EU Law that are dealing with the current subject matter. In
this report, an attempt has been taken to discuss the merit and application of both the
provisions and come to a specific conclusion regarding the question that whether EU was
able to provide proper judicial remedies to the non-privileged citizens or not.
Discussion:
Judicial review and remedies under EU Law:
The main subject matter of the topic is based on the term judicial review and judicial
remedies. The term judicial review denotes a process by which any executive or legislative
process could be reviewed by the judiciary1. The institution that has the power of judicial
review has the power to invalidate the existing laws and could take all the necessary steps as
required for securing the interest of the natural justice. However, there are certain rules
regarding the same. An administrative decision could be challenged or invalidated if any
action is unlawful in nature or any contents of the statute are violating the provision of the
1 Fabien Terpan, 'Soft Law In The European Union-The Changing Nature Of EU Law' (2014) 21 European Law
Journal.

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constitution. Similar rules are applicable in case of the legislative action. The ultimate legal
balance can be established through judicial review and this doctrine is based on the principle
of separation of power.
It has been stated earlier that all the member states of the European Union is a part of the EU
Law and they have to admit the rules and regulations decided by the EU. Further, there is a
treaty named Treaty on the Functioning of European Union (TFEU) that regulates all the
legislative provisions2. It consists of different Articles that secure the interest of the member
states as well as the individual. If any member states or any individual could prove the illegal
nature of any decision, the defendant has to compensate the affected party and such a process
could be generated through judicial remedies. The most relevant provisions regarding the
same are Article 263 and Article 267 of the EU Constitution. Authority has been established
in this regard that is called a Court of Justice. The duty of this court is to interpret the legal
provisions, enforcing the law, annulling the legal acts, ensuring that the European Union is
working good and sanctioning the EU institutions. Two kinds of decisions could be
challenged in this court; first, any decisions made by the national court indirectly; and
second, any decisions taken by the general court directly. This rule is applicable to both the
member states and the individual. However, before that, the same case or activities should be
proved. Certain inefficiencies have been cropped up in this regard that required to be clarified
before come into a suitable conclusion3.
Application of Article 263:
It has been stated in the earlier paragraphs that Court of Justice and the EU law has the power
to annul any provision or decision taken by the national and the general court. This process
has been generated through the provision of Article 263 and Article 267 of the Treaty on the
2 Whish and David Bailey, Competition Law (7th edn, Oxford University Press 2015).
3 Schütze, European Union Law (6th edn, Cambridge University Press 2015).

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Functioning of the European Union. There are certain essential elements of Article 263 which
are as follows:
 The institution that has been decided any facts must be reviewable;
 The acts against which allegation has been made is reviewable;
 The specific challenge should be filed within a limited period;
 The locus standi of the individual should be proved4.
This provision is specifically applied for the individual. However, this provision has certain
lacunas. According to this Article, the individual who challenges or wishes to challenge the
decision or action of the national or general court should have to prove that his or her right
has been infringed. In this case, it is required to define the term individual and the meaning of
locus standi. According to the explanation of the Article, there are three types of individual
such as privileged, semi-privileged and non-privileged. The term locus standi denotes the
right to bring an action against any executive or legislative body. In this case, this Article is
facing certain weak points5. It is very clear that the privileged individual does not have to
prove their right, but the semi or non-privileged individual must have to prove their legality
or the right to bring an action against those authorities. The reviewing options for those
individuals are not wide but limited. They could not take any action against the indirect
action and should have enjoyed their rights only in case of direct action. Further, the action
should be addressed to them only. Such address must be potential in nature and this ground
has made certain differentiation in between Article 263 and Article 265 of Treaty on the
Functioning of European Union. Additionally, the rules must be measured well.
4. C Green, The Contemporary Law Of Armed Conflict (6th edn, Oxford University Press 2018).
5 Mark Tushnet, 'Comparative Constitutional Law' (2017) 6 The Oxford handbook of comparative law.

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Interpretation of Article 263:
Therefore, it is clear from the above-mentioned paragraphs that only the privileged class of
individual could enjoy the judicial review and remedy system contained in the provision. The
term privileged denotes any special class or benefits that the individual is enjoying. However,
the scopes of facilities are limited in case of semi or non-privileged class of individuals. The
ultimate intention of the provision is to identify the incapability of the executive or legislative
bodies and any infringement made against the provision of the Treaty on the Functioning of
the European Union. Equal opportunity should be given to all the individuals in this regard to
all the individuals6. However, the second phase of the provision has failed to carry this
principle and loopholes have been created in this regard. The non-privileged individual has
no right to challenge the indirect actions made by any national court and they have to
establish the direct contract of all the provisions to them. However, after the establishment of
all the provisions, the individual could get all the legal benefits and could able to earn the
judicial remedies as well. However, the time limit of such filing has been specified and the
entire applicant should have to file their cases or challenge the action within two months of
such commencement7. Further, it has been stated under ERTA 1971 that the acts commenced
by any European Union institution could be reviewed if it has a serious legal effect. In the
case of the Commission v Council [2004], it has been decided that the legal position of the
claimant should be established before taking the challenges into concern.
Application of Article 267:
A proper interpretation of the EU Law could be made by the provision of Article 267 of the
Treaty on the Functioning of the European Union (TFEU). The provision provides certain
preliminary rulings and this provision looks after the carrying out of the equal application of
6 Albert Sánchez Graells, Public Procurement And The EU Competition Rules (6th edn, Bloomsbury Publishing
2015).
7 Nigel G Foster, EU Law Directions (4th edn, Oxford University Press 2018).

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the EU law irrespective of the member states and individuals. According to this Article, if the
claimant could prove that he has a fair and legal ground against the authority. An ample of
power has been given to the Court of Justice to listen to the allegations made against the
entire national and general court and take proper actions if the truth of such allegations has
been verified8.
To understand the different aspects of this Article and for the proper application of the same,
the meaning and scope of the preliminary rule are required to be discussed. The preliminary
rule is a decision of the European Court of Justice (ECJ) on the comprehension of European
Union law, given due to interest from a court or gathering of a European Union Member
State. A basic choice is the last confirmation of EU law, with no expansion for demand. The
European Court of Justice passes on its decision to the implying court, which is then obliged
to complete the choice. If, as in the main fact of the case, the European Court of Justice holds
that a Member State's sanctioning conflicts with EU law, the Member State will be required
to "wind" such law, anyway the European Court of Justice may not itself right the Member
State's establishment. Starter choices have for the most part been issued by the European
Court of Justice. The Treaty of Lisbon gives that domain may be relegated the General Court,
anyway this game plan still can't be put into effect. Groundwork Rulings make up most of
CJEU business, a couple of individuals have locus standi to question in the Luxembourg
court. "Favoured social affairs" that do have standing join all Member States and EU
Institutions, yet normally a private individual or "undertaking" will have standing just if they
are the beneficiary of an EU Decision. In case a court or chamber of a Member State finds a
course of action of EU law to be indeterminate, dark or hazy, it may search for a preliminary
choice; and if that court or court is one from which there is no interest, the court must make
an application. In either case, the nearby court is rejected until the point that the European
8 Catherine Barnard and Steve Peers, European Union Law (3rd edn, Oxford University Press 2017).

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Court of Justice directing is issued. The request to the European Court of Justice must be
short and brief, anyway may be joined by records clearing up the explicit circumstance and
states of the issue9. The European Court of Justice may diminish to give judgment without an
authentic discussion, on the preface that it would not consider "agitated core interests".
The jurisdiction of such preliminary ruling could be managed in two ways; either by
interpreting the treaties or by interpreting the activities of the executive bodies. If any
challenges have been made based on these grounds, the Court of Justice has the ability to
adjudge the matter and give proper judgment in this regard.
Interpretation of Article 267:
Article 267 of the Treaty on the Functioning of the European Union (TFEU) setting up the
fundamental reference system separates between the privilege and the obligation of national
courts to look for a starter administering. Under the optional reference stipulated in Article
267(2) TFEU, a national "court or council" may request that the CJEU give a starter deciding
in the event that it thinks about that a choice on the inquiry is "vital" to empower it to give a
judgment in a specific case. The required reference is built up in two cases, for example,
regarding national courts arbitrating finally case [Article 267(3)] and with the deference of all
courts looked with an issue of the legitimacy of EU law. The commitment of national courts
of the last occurrence to allude for a fundamental decision when an issue of the understanding
of EU law emerges is liable to specific exemptions10.
9 Justin Greenwood, Interest Representation In The European Union (Macmillan International Higher Education
2017).
10 Neill Nugent, The Government And Politics Of The European Union (4th edn, Palgrave, Macmillan Education
2017).

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Conclusion:
It is, therefore, be stated that certain loopholes have been observed in case of Article 263 of
the Treaty regarding the rights of the non-privileged citizen; however, the provision of Article
267 was able to recover the rights of such individual. The main contents of Article 267 are
based on the equal opportunity of the individual, and the concept of the preliminary rulings
has been established through this Article. This report will able the reader to understand the
fact that the rights of the individual have been secured to its ultimate limit and it was able to
provide judicial protection.

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Reference:
References
Barnard CS Peers, European Union Law (3rd edn, Oxford University Press 2017)
Foster N, EU Law Directions (4th edn, Oxford University Press 2018)
Green L, The Contemporary Law Of Armed Conflict (6th edn, Oxford University Press 2018)
Greenwood J, Interest Representation In The European Union (Macmillan International
Higher Education 2017)
Nugent N, The Government And Politics Of The European Union (4th edn, Palgrave,
Macmillan Education 2017)
Sánchez Graells A, Public Procurement And The EU Competition Rules (6th edn,
Bloomsbury Publishing 2015)
Schütze R, European Union Law (6th edn, Cambridge University Press 2015)
Terpan F, 'Soft Law In The European Union-The Changing Nature Of EU Law' (2014) 21
European Law Journal
Tushnet M, 'Comparative Constitutional Law' (2017) 6 The Oxford handbook of comparative
law
Whish RD Bailey, Competition Law (7th edn, Oxford University Press 2015)