judicial review and citizens
SRN: xxxxxxxxx School of Law Malta (M) can bring a claim for annulment of the regulation imposed by the Council (C) and the European Parliament (EP) under Article 230 EC. The European Court of Justice (ECJ) will review the validity of the act .If those acts are found to be invalid, the ECJ have the right to declare it void. If, however, they are valid then M would be required to implement the regulation into their legal system.In order for M to be successful in their action for annulment, there are certain requirements which the Treaty impose. They include; whether the act in question is reviewable, the bodies that may bring a review (locus standi), the time limit for review and the grounds which the action may be based. All these requirements must be complete if M is to be considered successful. The first requirement that M have to show is that the regulation in place is a reviewable act within the meaning of Article 230 . These Article states that, “acts other than recommendations and opinions” are allowed to be review. These others will cover regulations directives and decisions. In the present case, the act which is in place is a regulation. This come within the define act which are eligible for review. Thus, M will easily fulfil this requirement and thus will have ground for review.A regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states . They are often termed as normative acts , because they are designed to have general provisions applicable to all rather than specific individuals or groups. Due to their directly applicable nature, they will become legally valid in the MS without any need of implementation. This was firmly confirmed in Commission v Italy that MS cannot subject the regulation to any implementing measures than those require by the act itself. Therefore, if is unsuccessful an action of annulment, they citizen regulation will implemented in their legal system without the choice and form of implementation Directives . M being a MS comes under the privileged applicants when reviewing an act under judicial review. Thus, M has an automatic locus standi and do not have to prove a standing as a natural and legal person would. Furthermore, article 230 imposes a two-month time limit in which action should be taken. To comply with this requirement, M must ensure that their application for annulment is within this time limit. A failure to comply with the time limit will mean that an action under Art230 will be inadmissible without the need to discuss other requirements. If the time limit has expired, Art 241 still conferred rights to bring actions of annulment. The regulation in question passed in November 2008, and it is now December, so long as M bring claim by of January 2009, they will fulfil this requirement.The grounds for judicial review are set out in Article 230 EC. M can bring a claim on the grounds of; lack of competence, infringement of this Treaty or any rule of law relating to its application, infringement of an essential procedural requirement and misuse of powers. M claim is that the EC Treaty does not contain a legal basis for secondary legislation giving citizens of the EU an unlimited right to move and reside freely within the EU. M must be able to point to the exact basis which contradicts the legislation.The preamble of the regulation contains Articles 12, 18, 40, 44 and 52. The community may argue that these Articles express power to take necessary steps to facilitate the free movement aim. In order for M to be successful in an
annulment of the regulation, they must proved that these Treaty Articles does not conferred power expressly/implied to the C and EP to make secondary legislation.Lack of competence will be the first ground of argument. This asks whether the C and the EP have acted ultra virus to the power conferred to them. They must be able to point to power within the Treaty which authorise their actions. If they cannot do so then the act will be declared void for lack of competence, and M’s action of annulment will be successful. This power may arrive from EC Treaty or secondary ...
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annulment of the regulation, they must proved that these Treaty Articles does not conferred power expressly/implied to the C and EP to make secondary legislation.Lack of competence will be the first ground of argument. This asks whether the C and the EP have acted ultra virus to the power conferred to them. They must be able to point to power within the Treaty which authorise their actions. If they cannot do so then the act will be declared void for lack of competence, and M’s action of annulment will be successful. This power may arrive from EC Treaty or secondary legislation - as in the case of The ERTA the commission challenged the council’s power to participate in the shaping of the road transport agreement, since under the Treaty Art 300 it is the commission which is empowered to negotiate national agreements and the council whose duty is to conclude them.Article 12 EC prohibits “discrimination on grounds of nationality”. And where necessary “the council may adopt rules designed to prohibit such discrimination”. The council may adopt procedures in Article 251. The C and EP would argue that the regulation seeks to eliminate the grounds of discrimination. However, Malta can argue that although they have the competence to do so, they exceed their authority. M will struggle to find lack of competence under this article, and therefore their chances of succession are slim.Article 18(1) provides that “every citizen of the union shall have right to move and reside freely within the territory of the other member state subject to the limitations and conditions lay down in this Treaty and by the measures adopted to give it effect”. Paragraph(2) gives the community authority to legislate when necessary in order to achieve the object of the of free movement of citizens. However, paragraph (3) restricts C and EP from making provisions that effects residence permits and provisions on social security and social protection. C and EP have gone beyond their competence as the citizens regulations allow citizens to reside without the necessary requirements set in Art 18(3). The C and EP might argue that this falls within the “centre of gravity” test in Germany v European Parliament and Council . The C and EP held that this falls within the centre of gravity as the aim of the regulation is to facilitate the free movement of workers.Article40 states that the community can issue directives and make regulations on workers. M can argue lack of competence as they have used the wrong Article on workers instead of citizens. However, the C and EP can offer an even stronger argument in that the Directive2004/38 preamble refers to this Article even though it is based on worker. Furthermore, they have complied with the Article by issuing a regulation. M would once again be very unlikely in arguing lack of competence.Article 44 gives right on free movement of establishment. Whilst article 52 refers to services, although are used in directive 2004/38, these treaties only conferred power to issue directives and not regulation. The act in place is a regulation. M would be successful in their argument of lack of competence.Even though prima facie, some of the treaty might have lack of competence, the council and the EP might still be able to argue that 12, 18, 40, 44 and 52 contains an implied power to make the new regulation. The ECJ in interpreting the law have shown their willingness to embrace a wide interpretation of the meaning of implied power. In Germany v Commission , the commission made a decision under art118 (now art135) relating to migration policies affecting workers from non-EC countries. Germany and a number of other MS challenge this measure as being ultra virus the Commission, as article 118 concerns the social field there did not expressively give the Commission power to make binding decisions. The ECJ held that the 2nd paragraph of article 118 “must be interpreted as conferring on the commission all powers which are necessary in order to arrange the consultations” . The aim behind all the articles is about facilitating the free movement and they have all been used in Directive 2004/38 EC, thus the C and EP can claim that because those aims are not being met in the directive, it was necessary to implement a regulation. However, M would argue that the Directive and the ECJ are already achieving the aim and there is no need for further regulations in this area.Furthermore, this argument is strength under the subsidiary rule which is listed in article 5 states “in areas which do not fall within its exclusive competence, the community shall take actions in accordance with the principles of subsidiary, only and insofar as the objectives of the proposed action cannot be sufficiently achieved by the member states and can therefore be better achieved by the community” therefore, national law if they can achieve the aim then they do so. The community can only interrupt if they believe that the MS cannot achieve this aim and they can achieve it better. This was the case in ex parte Bat where the community had to interfere because the elimination of barrier for Health protection could not be achieved by the MS. This issue of subsidiary was also held in the case of United Kingdom v Council of the European union The EC treaty does not define the boundary between EC and national legislative competence . However since citizens is a fairly new concept, and was introduced after the EEC Treaty it might fall within exclusive competence.However, M can argue that the wording of article 18 still ensure that the MS retain some power. If the ECJ decided that article 18 falls in the exclusive competence area, the test for subsidiary will not apply . Which in essence mean that because C and EP have acted outside their competence, M would be successful in their action for annulment.M can also argue under infringement of treaty or any rule of law to its application. Art 18 would most likely be successful in this ground. The problem with term the “any rule of law” is that we are unaware of what it was meant to entail. The ECJ have however, developed a rich body of jurisprudence on general principles of law, covering topics such as fundamental rights, non-discriminations and proportionality. The principle of proportionality set down in Article 5(c) provides that“ the action of the community shall not go beyond what is necessary to achieve the objectives of the Treaty”. That is, the actions by the community shall not go beyond what is necessary in order to achieve the objections of the Treaty. M can claim that it was disproportionate for the C and EP to issue regulations which gives citizens and their family members right to residence irrespective of whether they have sickness insurance, or sufficient funds and not to be a burden on the MS. C and EP could have adopted less strik rules and they will still be able to achieve the same aim.The second requirement under article 230 is the infringement of essential procedural requirement. The institutions, when enacting binding measures, must follow the correct procedures. For examples, Article 253EC states that all secondary legislation must state the reasons on which it is based and must refer to proposals and opinions which were required to be obtained. The ECJ have held that insufficient or vague or inconsistent reasoning would constitute a breach of this ground. It was held in Germany v Commission (re tariff quotas on wine) that the reason must contain sufficient details of the facts and figure on which they are based. It doesn’t say it on the facts that the proper procedures followed but however, the council voted against M so therefore they must have been consulted. If they haven’t then it would be lack of procedure. Therefore, if this is the case, M would not be successful in this argument.As with the issue of misuse of power, there is nothing significant which the C and EP did to show that they have disproportionately gone beyond the power given to them. Yet again M would find this very difficult to prove.ii. This part of question is asking to compare and contrast the existing law on citizen and see whether, and how it goes beyond the existing law.Free movement of citizens is a fairly new concept. Free movement of person was initially in place to facilitate the European Economic aim. The right within the “economically active under regulation 1612/68 have been extended to grant members of the family rights to residence and also extend rights to those who are seeking work”. However, “more recently, the ECJ have reinforce the idea that free movement of persons went beyond purely economic terms describing it as a fundamental right and a social right in itself”. Directive 2004/38 grant citizens and their families and student have been rights of residence, social assistance housing etc. Therefore, the citizen’s regulation is following the case and secondary provision in this area. I do not think that it’s going beyond existing law of citizens. The new regulation gives citizens and there family “the right to move and reside freely within the EU, irrespective of how long they wish to stay”. Directive 2004/38 article 2 extends the scope of the free movement provisions to workers family members. “The overall aim of this provision is to further promote the free movement of workers”; if workers are not able to move with their family, they might be reluctant to reside in another MS which mean that there the economy will be in crisis. Article 2(2) define family member. The “citizen regulation alongside the existing law under citizen and worker have held that family members are not restricted to citizenship of the union and may include persons from any country as cases such as ONE v Deck This interpretations has yet again been widen by the ECJ in the case of Diatta v Land Berlin the ECJ held that the marital relationship cannot be regarded as dissolved...it is not dissolved even where they intended to get divorce at a later date”. Furthermore the citizens regulations n order to establish whether the regulation have gone beyond existing law, we turn to provisions in Directive 2006/38 and regulations 1612/68 on this issue.Directive 2006/38 give EU citizens and their family member rights of residence, however, as opposed to the new regulations, it does give automatic right to stay irrespective of how long they wish. They Directive lay down certain standards which must be meet before they gain permanent residential status . Article 6 of the directive European union citizens have a right of residence in another MS for a period of up to three months on production of a valid card or passport. If they wish to reside longer than three months, article 7 of the directive confers a right of residence for longer. By Article 14 of the directive, citizens and their family members enjoy the right of residence under art 6 provided they do not become an unreasonable burden on the social assistance system of the host MS. This new regulations takes away this right These requirements are put in place to ensure that the aim of the EU is meant, which is to increase the economic. If this restrictions are not put in place, there might be misuse of state funds in certain MS specially once which are economically stable i.e. UK. Citizens from less privilege MS would move and take advantage of economic in other MS which in turn will decrease the economic in that MS. The need for economic contribution is further enforce as with regards to Article 39 and regulation 1612/68. The case of Collins demonstrates that the ECJ will not allow non-contributory benefits to be claimed when there is not a sufffient connection to the state, although residence under the terms granted by community law is still upheld. The fact that the regulation automatically enforce right on citizen and the families to residence irrespective of how long, whether they have a comprehensive sickness insurance, sufficient funds to avoid becoming a burden on the social assistance. However, recent cases have shown ECJ’s have interpreted the case law in line with the citizens regulations. For example, Maria Martinez Sala V. Freistaat Bayern and Rudy Grelcky v CPAS the ECJ held that union citizens should be treated equally even when claiming non-contributory benefits providing they were not burden an unreasonable burden on the host state.The case interpretation of case by the ECJ might implied that the community are willing to held that article 18 have direct effect. Case such as Baumbast and Rv Secretary of state for the home department and Zhu and Chen v. Secretary of state for the home department demonstrates the courts the lintint approach adopted by the ECJ whenThis seems to that this new regulations have gone beyond the existing law. The effect of this if M fail in the quest for annulment means that the state would lose lots of money through paying for social assistance and sickness fees. Furthermore this unlimted right to move could prove a massive problem for small countries such as M as a lot of citizens would move to much bigger and well previlega countries which provides bigger states fund. Furthermore, M would need citizens to work and pay tax in order to fund their countries, this cannot be done if hardly anyone is there.Art 230(1)Art 249Case C-16&17/62Case C-39/72Art249- directives shall be binding, as to the results to be achived, upon each member stateArt 230C-22/70C-376/98 (2002) ECR I 8419Ibid para 28Case C-491/01 The Queen v Secretary of State for Health,ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco LtdCase c 84/92See R. BIEBER- on the mutual completion on the overlapping legal system: the case of European communities and the national legal system ELR 1988, 147Graig and de Burga (2007:02)C-376/98 par 47 Germany v European Parliament and CouncilCase c-24/62See Anotonission c 292/99International Handelgescellschaft mbh (11/70)(1970) ECR 1125C-94/84267/83 (1985) ECR 567C-138/02C-85/95 (1998) ECR 291C-184/99 ECR 6193C-200/02BILIOGRAPPHY J. Steiner, I. Woods, C. Twigg-Flesner EU Law 9th edition, oxford university press 2006K. Davis Understanding European Law Rougthlege-Cavendish 2007C. Barnard The Substantive law of the EU – the four freedoms 2nd edition Oxford university press 2007N. Foster EU Law questions and answers Oxford press 2007N. Foster EU Treaties and Legislation 2007-2008 Blackstones 2007P. Craig, G. De Burca Oxford press 2008 EU Law text, case and material 4th edition Oxford press 2008F. Lausanne Monitoring the delimitation of EC competence; some remarks on the current debates order of proprieties N. Mckay Extenting the right of free movement Coventry law journal Page