Category Archives: (3) Applicant’s standing – art 263(2)-(3)

Adopted by Union institution/body/agency.

        • Disputed measure must be final (not preparatory, as is often the case in a multi-stage procedure), though legal defects in the preparatory measures leading up to the final one can be relied upon in an action directed against the latter. ( Dentist Airdrie
      • France v Commission, 1997: ECJ held that this list is not exhaustive, and other acts which are sui generis can also be reviewed as long as they have binding force or produce legal effects.  
      • Commission v Council, 1971: ECJ held that Council’s proceedings and Resolution had definite legal effects, hence was subject to review.
    • Must also be adopted by Union institution/body/agency.
      • Includes legislative acts, acts of the Council/Commission/ECB.
      • Acts of the EP which have legal effects on third parties.
        • Les Verts v EP, 1986: French political party challenged reimbursement decision by EP. EP not usually one of the institutions against which you would use action for annulment. Hence, court had to adopt constitutional approach – if we have institution like EP which creates legal effects for applicants, then such acts will be challengeable before ECJ.
      • Also includes acts of European Council with legal effects on third parties.
      • Acts of bodies/offices/agencies of the Union intended to produce legal effects on third parties.
        • Hence, when ECB became main supervisory bank over many MS banks, acting like securities commission, decisions could still be challenged!

(3) Applicant’s standing – art 263(2)-(3)

    • Privileged applicants:
        • Art 263(2): action can be brought by MS, EP, Council or the Commission


  • Automatic, absolute right to bring proceedings. No need to provide any political reasons. (Comm v Council, 1987)


      • Can be brought even where decision is addressed to another.
      • NB: EU law does not oblige MS to bring action for benefit of citizens, but neither does it preclude national law from containing such an obligation.
      • EP: prior to Maastricht Treaty, it did not have formal privileged status, and in the Comitology case, 1988, ECJ rejected EP’s argument that it should have unlimited standing.
        • In the Chernobyl case, 1990, however, ECJ then held that EP could have quasi-privileged status to protect its own prerogatives.
        • Chernobyl reflected in re-drafting of art 173(3) EEC.
        • Nice Treaty then added EP to the list of privileged applicants.
    • Quasi-privileged applicants:
      • Art 263(3): ECB, Court of Auditors and Committee of the Regions only have standing to defend their own prerogatives.
      • This category was essentially codification of case law (ECJ developed it saying necessary for constitutional reasons)


    • European Council is a body amenable to review, but is not listed as a privileged/quasi-privileged body under art 263. Even odder because EC has right to bring action for failure to act under art 265.
    • Bodies/offices/agencies of the Union are also subject to possibility of being defendants, without being recognised as applicants. But most agencies could be legal persons under art 263(4)!


    • ***Non-privileged applicants – art 263(4)


  • 3 possible scenarios where natural and legal person can bring direct action….