Tag Archives: Army

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….

 

 

Homosexuals in the Armed Forces

Article 8 has also been used to protect the interests of homosexuals serving in the armed forces. See the Lustig Prean v UK case referred to at 8.2.2(8), where the ECHR held that the applicants’

discharge from the armed forces as part of a blanket ban on homosexuals infringed their right to

respect for their private life. The internal investigation which was carried out prior to their

discharge was also found to be a breach of Article 8. The UK Government was unable to show

that either breach was necessary in a democratic society. See 8.9.

Transexuals and pensions

The landmark decision of the ECHR on the rights of transsexuals is Goodwin v United Kingdom

[2002]. The ECHR held that the lack of recognition in the UK of a transsexual’s new gender

identity for legal purposes is a breach of Article 8 (and Article 12 – right to marry). This will have

implications for employment law in respect of, for example, pensions.

Regulation of Investigatory Powers Act 2000 (RIPA 2000) and the DPA 1998

5

The issues raised by Article 8 are also reflected in these two other recent pieces of legislation ( Written by Notary Public London )

Articles 9 – freedom of thought, conscience and religion

It protects freedom of thought, conscience, and religion.

Article 10 – freedom of expression

It gives the right to freedom of expression. Both 10 and 11 are subject to similar

restrictions to those contained in Article 8.

Relevance to Employment:

These Articles (10 and 11) are most likely to be relevant to:

1 employees’ attendance at religious ceremonies

2 employers’ imposition of dress codes. Here there would be no need for a

comparison between the sexes as, under the SDA 1975, the issue would be simply

whether the interference with the freedom could be justified by the employer (eg on

health and safety grounds – but what about enhancing the employer’s business

reputation?). To a large extent the protection offered by Article 10 is mirrored in

PIDA

3 Article 10 may also impact on confidentiality clauses in contracts.