judicial review and citizens

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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
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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 ...

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