If a State, an institution or a legal or natural person is of the opinion that a project or proposal for Community legislation infringes nationalconsti- tutional provisions, fundamental rights, for instance, or that the Community does not have competence to adopt the decision, is there a cause of action available before the Court of Justice in order to prevent the adoption of the decision? It would seem not: the Court of Justice has jurisdiction only to review the validity of binding acts of the Community institutions10which are intended to produce legal effects,11by bringing a
10 The ECJ only reviews Communityacts and denies competence to review the validity of decisions and agreements adopted by the Representatives of the Governments of the Member States meeting within the Council. The representatives are then considered to act not in their capacity as members of the Council but as representatives of their govern- ments and thus collectively exercising the powers of the Member States. This may be oth- erwise if it can be shown that they in reality constitute acts of the Council; cfJoined Cases C–181/91 and C–248/91, European Parliament v Council and Commission[1993] ECR I–3685.
11 Case 22/70Commission v Council (ERTA) [1971] ECR 263.
distinct change in the legal position of the applicant.12Only final acts are susceptible to review, at the exclusion of preparatory acts: before adoption, there simply is no act to be challenged. The Court of First Instance has dis- missed as manifestly inadmissible an action for annulment brought against a Commission proposal for a Council Regulation replacing the term ‘ECU’ by ‘Euro’.13The Court held that a proposal for regulation sub- mitted by the Commission to the Council under the procedure described in Article 235 of the EC Treaty (now Article 308 EC) was part of a legisla- tive process involving several stages, and was only an intermediate meas- ure solely intended to pave the way for the final measure, the Council Regulation, without definitively determining the position that the Council will adopt. Consequently, it may not form the subject of an action for annulment. When the Regulation was finally adopted,14 the same appli- cant, a French Member of the European Parliament, in his private capacity brought a new action for annulment under Article 173(4) of the EC Treaty (now Article 230(4) EC), which was again dismissed as manifestly inad- missible, this time on grounds that the applicant could not prove direct and individual concern in order to have standing. Remarkable was the applicant’s reference to the decision of the Danish Hứjesteretof 12 August 1996 on the ratification of the Treaty of Maastricht:15Berthu claimed inter aliathat the change in the name of the European currency, carried out in breach of the provisions of the Treaty, affected the exercise of national sov- ereignty in such a serious manner that it was of direct and individual con- cern to him as a citizen. He argued that the decision of the Danish Supreme Court, which held admissible an action brought by natural persons chal- lenging the legality of certain provisions of the Treaty on the ground that infringement of national sovereignty constituted such serious harm that each citizen was directly and individually concerned, should be trans- posed to Community law. The Court analysed the applicant’s standing under the normal Community law conditions for standing under Article 230(4) EC, found that there was nothing to differentiate Berthu from other citizens in the Union, and denied standing.16
In the case of actions for annulment, a further complicating factor is the fact that individuals are not normally entitled to challenge general acts, except under strict conditions that they are directly and individually con- cerned: is no such thing as an actio popularisbefore the European Courts, a fortiorinot before the act has been adopted. Class actions, public interest
12 The ECJ does also control whether an act based on the EU Treaty should instead have been based on the EC Treaty, Case C–170/96 Commission v Council[1998] ECR I–2763.
13 Order of the CFI in Case T–175/96, Georges Berthu v Commission[1997] ECR I–811.
14 Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the Euro, OJ 1997 L 162/ 1.
15 Discussed above in Chapter 5.
16 Case T–207/97 Georges Berthu v Council [1998] ECR II-509, in particular paras 19 and 28.
litigation, popular constitutional complaints are all excluded due to the restrictive approach on standing under Article 230 EC. In addition, time limits17for bringing an action for annulment begin to run from the 14th day after the publication of regulations and other measures that have to be published in the Official Journal. Publication of those acts has consti- tutive effect.18Until they have been published, they do not exist and can- not be challenged.19
Furthermore, the Court of Justice has in various judgments shown that it does not want to ‘have its courtroom transformed into a legislative assembly’.20 In annulment actions the Court generally exercises mere judicial review functions, and rather marginally: as long as Community law is not infringed there is no illegality. In the area of review of Community action, the Court will not easily be accused of being overly strict. On the contrary, the Court’s track record in this context may rather be described as one of ‘passive activism’: by refraining from scrutinising Community legislation thoroughly and by allowing the Community insti- tutions to make extensive use of Community competences and of Article Article 308 EC, the Court has contributed to the expansion of Community law. More than the issue of fundamental rights, this attitude of passive co- operation was what set off the distrust of some of the national courts, most notably the Bundesverfassungsgericht. When the Court reviews Community acts in which the Community legislator or executive exer- cises political responsibility, the Court only exercises marginal review, and generally allows the institutions wide discretionary powers.21Also in the context of actions for damages, the Court shows great reluctance to hold that the Community should compensate for damages caused by wrongful normative acts. When the Community institutions have adopted legislative measures involving choices as to economic policy, damages are only awarded if there is a sufficiently serious breach of a superior rule of law for the protection of individuals.22The Court of Justice does not want to been seen to be interfering in the legislative activity.
17 Two months for the action for annulment under the EC and Euratom Treaties, Arts 230(3) EC and 146(3) Euratom Treaty.
18 Case 185/73Kửnig [1974] ECR 616.
19 Cf HG Schermers and DF Waelbroeck, Judicial Protection in the European Union, 6th edn, (The Hague, Kluwer Law International, 2001), at 687.
20 H Schepel and E Blankenburg, ‘Mobilizing the European Court of Justice’, in G de Búrca and JHH Weiler (eds)The European Court of Justice (Oxford, OUP, 2001) 9, at 41.
21 A case in point is Case C–280/93 Germany v Council[1994] ECR I–4973, on which one commentator and former member of the Court said that the Court almost granted the institutions carte blanche and reduced judicial control to a minimum, see U Everling, ‘Will Europe slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts’, 33 CML Rev, 1996, 401, at 419.
22 Case 5/71Schửppenstedt [1971] ECR 984; Liability of the State for normative action was at the time, and is still not, knwon in every national system. AG Roemer in the case argued in favour of accepting it for the Community to increase judicial control as compensation for the lack of democratic control of the Community’s legislative action.
The Court of Justice does not review national acts done or measures adopted in the framework of the preparation of a Community measure.
Under Article 230 EC the Court does not control the legality of national measures.23 Nor does it, in the framework of questions for preliminary ruling, rule on the validity of national law; it may however give an inter- pretation of Community law so as to allow the national court to draw con- clusions on the validity of the relevant national acts. In addition, the Court of Justice does not look beyond Community law: as long as Community law is not infringed, there is no illegality. The Court does not review whether national constitutional provisions have been observed.24
It thus seems that under Community law as it stands it is not possible to have the validity or lawfulness of secondary Community law reviewed a prioriby the Court of Justice, either directly or indirectly via the national preparatory acts.
17.2. THE NATIONAL PERSPECTIVE