Online Signature Legitimateness for Military Leave Policy in European Union

How to eSign a document: online signature legitimateness for Military Leave Policy in European Union

hey there guys those of you who've watched my video on judicial review in the UK will know that the overall aim of judicial review is to challenge a piece of secondary legislation as being ultra virus or outside of the power of the governing body to make it and therefore to ultimately get that piece of legislation annulled now it's the same aim in EU law so we're challenging a piece of secondary legislation that an EU institution has made in the attempt to get it annulled but the actual procedure for following a judicial review is slightly different in EU law and obviously we're looking at a different set of cases as well so let's have a look at how judicial review works in EU law under articles 263 and 265 so article 263 is quite a lengthy procedure and so whether you're answering as part of an essay or a problem question the best approach I would say is to try and take it step by step and follow the procedure that I've set out in the next two slides so first of all we have whether it's a binding act then we have a two month time limit we have to apply then there's the four grounds of review to look over and then we move on to the next slide and we can see that the next step is to establish whether there's locus standi or standing to bring a case and at this point the chat splits are between privileged and semi privileged applicants on one side and non privileged applicants on the other side now you'll see that privileged and semi privileged applicants can always bring a challenge straight away whereas non-privileged applicants have to satisfy other criteria and so we'll go through it step by step and then look at those criteria later on so first step that we have on the chart is is it a binding act now remember we're dealing with secondary legislation here for judicial review so primary legislation ie the treaties won't apply and we're only looking at binding secondary legislation so even though there are five types regulations directives decisions opinions and recommendations only the first three of these can actually be challenged and because they are the only ones that are actually binding opinions and recommendations and not binding so can't be challenged second is point is quite similar as well and quite easy to get used to so we have a two-month time limit and this two months runs from either the publication of the acting the Official Journal which is kind of like the official log of all the legislation passed in the EU or two months from when the applicant knew about the Act so if the applicant didn't find out about it straight away then they have two months from when they did actually find out about the EM particular legislative act so we have four grounds of review the first of these is lack of competence now this isn't used very often and this is generally because the EU is seen to have a wide degree of competence across a range of areas so in Germany against the European Parliament in Council from 2000 which was a tobacco advertising case Germany essentially tried to challenge the EU for its ban on tobacco advertising saying that the EU didn't have the competence to and put an impingement on freedom of speech which tobacco advertising essentially was a demonstration of freedom of speech however the European Court of Justice decided that yes the EU did have this competence in this area and so the challenge was dismissed so we don't see many cases for lack of competence and there aren't many that come up for the second point which is infringement of an essential procedural requirement and perhaps these are a little bit more common so in rocket frere and counsel for 1980 rocket frere challenged the council because as part of the legislative process they had failed to consult the European Parliament as they had meant to do so and so this was an infringement on the EMM procedure involved for actually making the legislation now normally the EU gets the procedure completely right and so this isn't a problem but there are the occasional cases where there isn't perhaps duty to consult and that might be missed out by the EU and so that would be a potential ground for challenge and judicial review the third point is possibly the most common ground for review and this is infringement of the treaty so we're looking at any of the EU treaties and any of the articles within those treaties and infringement of any of those articles could could fall under this ground and also any rule of law relating to its application now this has been interpreted quite broadly by the Court of Justice as seen in the case of how Tyler and counsel where they looked at the idea of proportionality and this is quite a uniquely European concept and one that's sort of used quite commonly within European Union law and it's relatively broad and so people can often bring challenges on the ground of proportionality basically saying that the EU in passing this particular piece of legislation acted disproportionately and misuse of powers comes up a little bit as well but not very often and again the EU is seen to have quite wide-ranging powers and so this doesn't come up too often so the UK challenged the council in respect of the Working Time Directive in 1996 but this challenge was unsuccessful and EU is again seen as not misusing its powers in this instance so now we come on to the next part of the diagram that I showed you at the start of the lecture and this looks at locust and I and you remember it branches off between privileged and semi privileged applicants on one side who can automatically make a challenge of judicial review and on the other hand non-privileged applicants who have to satisfy one of three criteria so we'll look at privileged in semi privileged applicants first because that's the easiest point to start with so privileged applicants are the council commissioned Parliament and the Member States and as we've said these can challenge any legislative actor or any piece of secondary legislation passed by the EU as long as they've met that criteria of sort of like the two-month time limit and as it grounds for review and obviously it's a binding act as well semi privileged applicants in a similar fashion can also challenge any piece of legislation but it has to be to do with their remit so the European Central Bank could challenge a piece of legislation to do with banking law for example similar with the Court of Auditors and the Committee of Regions they can challenge any piece of secondary legislation but it has to affect them in some way so this brings us onto non-privileged applicants and this is where the fun really starts and most essay questions on this subject will be based around non-privileged applicants so there's three types of instances when an applicant can bring a judicial review firstly is pretty obvious an act addressed to that person so if a person has had a decision made against them in particular then they can apply for judicial review and there's not really any problems with that one but it doesn't come up too often in the context of European law the second one is probably the most controversial and active direct and individual concern and we'll look at that on the next slide and then we'll also look later on a regulatory act of direct concern with no implementing measures so first of all let's look at directing an individual concern and in particular let's start with direct concern and all this means very simply is that the EU has passed a piece of legislation that has directly affected the applicant and we can see that in the left-hand diagram and also in the case of society louis-dreyfus on the right-hand side of the screen we can see an example of where there isn't direct concern because the EU has passed a piece of legislation but there have been implementing measures that have been taken by a member state before the applicant has actually been adversely affected by the piece of legislation and so we can see in the case of erry dollah in commission from 1969 how in that instance the applicant was seen as not being directly concerned because the member state had had a degree of discretion in how the legislation was applied however arguably the most controversial aspect of the article 263 procedure is establishing individual concern and this is where we get the idea of the ploughman test which is probably one of the most famous cases in EU law effectively the case says that in order to bring an application and to show individual concern in particular one has to show that one is part of a fixed closed class now obviously we need a complete definition of what a fixed closed classes and the real problem is that the court of justice has given a very narrow definition to how this is interpreted so to give you an example if we look at the ploughman case itself Plowman imported clementines and sought to challenge a piece of legislation that affected Clementine importers so it seems pretty obvious from a general normal wording that Plowman as a Clementine importer was individually concerned by a piece of legislation that affected Clementine importers however the court of justice didn't see it that way and basically said that because any person could in theory start importing clementines that meant that the class was not fixed and was not closed however the reality of the situation is that you're not going to start importing clementines tomorrow I'm not going to start importing clementines tomorrow and so the Court of Justices interpretation for what a fixed closed class and what individual concern is is completely devoid from reality it just just simply doesn't make any sense so if you are writing an essay about the ploughman test then I definitely encourage you to sort of go and try and read some more articles about it especially from an economic point of view because from general economic theory and economic practice the concept of the ploughman test and who is an important who is an exporter etc it just simply doesn't make sense or hold within economic theory whatsoever and you could even go further and look at the sort of more political or Democratic aspects of it and say that by the EU restricting judicial review in such a way and it essentially makes the EU a non democratic institution and doesn't allow people to exercise a democratic right and challenge the law of the EU as being ultra virus so I guess the question then is what does count as a fixed place class and we can look at the case of Alfred Topher to give an example from 1965 but we can see here from this Alfred Topher case that realistically the only chance you have of showing that you are individually concerned or part of a fixed closed class is where the legislation applies retrospectively so in Alfred Tate fur and he applied for a license on the 1st of October but the EU had placed a moratorium on that particular date for 24 hours so because there was a set 24-hour period within which people couldn't apply for a license or their licenses were ineffective that created the fixed closed class of people who had applied for a license within a set period of time but the problem is that that's always looking retro actively into a fixed time limit where is for most pieces of legislation it's ongoing all the time so things like importing clementines is a continuing business and that's where most legislation is effective and so we can see the criticism of the ploughman test now there have been attempts to broaden out clammin the abstract terminology test in Cal pack 1980 is one example and this was the idea that the Court of Justice should look behind the form of an instrument and look to the actual substance of it so even though something might appear to be a regulation then the court should essentially look behind the cloak and say that in fact that this is really a decision the IND of concerns particular people the problem with this is that the court doesn't look very far behind the cloak as long as a regulation or a directive is written in sufficiently general terms then that will be sufficient for it to be not be individually concerning a particular applicant kadhai knew in 1994 essentially said that this was ridiculous and that if a regulation was in effect a decision then a person should be able to make a challenge on that ground so for example if a regulation was passed in objective terms that said anyone who produces law videos on YouTube and has a name that rhymes with carcass Maleeva will be arrested then it's pretty obvious that that's directed at me but where is under Cal Pak that would not allow me to be individually concerned because it's worded in a broad and objective manner code on you said obviously that's ridiculous and therefore I should be able to challenge it because it is in reality a decision against me the problem however is that code on you has never been followed by the court and so it's one of those decisions that just stands alone and has never really been picked up there have been attempt to sort of and either try and develop the plan and test or pick up from code on you but without much success so for example Attorney General Jacobs in the Union typically neos Agricola Torres case in 2002 tried to argue that a person should be individually concerned if they're substantially adversely affected by a particular piece of legislation however the court in the UPA cases it's known was having none of that and re-established its traditional position in Plowman and in Cal pack and in the case of jeguk where a from 2004 so you can see that while there have been attempts to reform Plowman that test from 1963 is essentially still active and still the law as we see it today so the final and third type of legislation where a non privileged applicant can bring a case is where we have a regulatory act of direct concern with no implementing measures now this was introduced by the lisbon treaty in this sort of 2010 time and so there isn't much case law right which actually sort of goes into what this actually means so the inuit case from 2013 attempted to define a regulatory act and basically says it's something along the lines that obviously it could be a regulation but it will generally be a non legislative act that sort of seeks to regulate behavior or conduct in some sort of way again that's very broad and doesn't really help us very much and we can also say something similar with implementing measures and so what does this mean and it possibly links to the idea of direct concern that we looked at earlier so we saw that in the case of erry dollah there were implementing measures by the member state and so that wasn't direct concern the case of TN l sugars suggest that the implementing measures could also happen at an EU level as well and so this possibly restricts the application of this third ground not really a ground but as a sort of third basis for judicial review in terms of the locust and I for non privileged applicants so before we finish we get need to look at article 265 as well so whereas we have article 263 which is a means of challenging a piece of legislation in getting that an old article t65 is kind of the reverse so this is where the EU hasn't passed a piece of legislation but the applicant is arguing that the EU should have done so and so is therefore making a judicial review challenge now this is quite innovative saying that the EU should have done something but as we'll see the problem with article 265 is that it's not really applied in a sort of forceful or meaningful way where it's actually useful for applicants so there must have been a duty to act in a particular way so we can see that from the European Parliament in Commission case from 1985 where the European Parliament challenged the Commission and said that the Commission had a duty to consult the European Parliament and when it came to a legislative decision and it must be the person to whom a decision would have been addressed and we can see that this idea developed in Lord Bethel and Commission is essentially the ploughman test but for article 265 instead so Lord Bethel said that the Commission should have produced guidance for and a group of aeroplane companies and the court essentially said in the case that if those regulations had actually been produced by the Commission then because they wouldn't be individually directed at Lord Bessel but rather at all airline companies together then Lord Bethel couldn't be said to be individually concerned by the particular regulations that would have been made and so we can see here the article t65 kind of suppers from its own Plowman and tests as well in the sense of being really restrictive so unless you can actually show that a European regulation directive or decision would have been addressed to you personally then it's unlikely that you'll be able to bring a case also the European institution isn't actually forced to act if it has an article 265 decision go against it it can simply give a reason for why it has not acted in a particular way why it has failed in its duty to act so it doesn't force the European institution to actually do anything it just has to give reasons which isn't really a very effective remedy for people so right before we finish we need to look at the advantages and disadvantages this should be useful if you're doing an essay question on article 2 6 3 so we have article advantages so it provides a means of annulling ultra virus community law so it does essentially end up and annulling a piece of law if you are successful and so article 264 a which is the are sort of missing link between article 2 6 3 and t65 is the stepping stone that allows the court to another piece of legislation so it does satisfy that basic criteria and other advantages are that they can challenge an institution for its failure to act under article 2 6 5 and there's broad grounds for review so we talked about the role of proportionality as a ground for review and also it's simple for institutions such as the Parliament the Commission member states to actually bring a challenge as privileged or semi privileged applicants however there are some significant disadvantages and well they've only put three disadvantages there we have to remember that these are significant disadvantages that really affect the efficacy of article t6 3 and article t6 veau so we have first of all have a short time to challenge so two months isn't really a very long time to actually produce a challenge secondly the ploughman test as we've already seen is almost impossible to satisfy and as who as we also said it doesn't really make much sense either from an economic point of view or a political or democratic point of view either and we also just talked about how difficult it is similarly under article 265 as well so that's another disadvantage that you would have to consider as part of an essay so even though there are numerically less disadvantages than there are advantages those disadvantages are really important and in particularly almost impossibility of satisfying the ploughman test makes it basically impossible for people like me and you as individual athlete it's to hold the EU institutions to account if you are doing this as an essay question or a problem question you may also want to consider article 267 and check out my video on that essentially the argument goes that even though it is difficult for individual applicants to bring a case for judicial review there is an alternative remedy open to them through Article 267 and the preliminary reference procedure essentially a person could bring a case within their own domestic courts and ask the domestic court to put a reference forward to the court of justice that would challenge a particular piece of legislation this sounds like a really good alternative but do be aware of the risks of doing this so a company or an individual would probably have to break the law in the first instance to be able to actually be sued and therefore challenge it within the domestic court's and also remember it's not a guarantee the judge in a particular case would decide to make a reference to the court of justice and so those are a couple of things to consider in that context as well but article 267 and drawing that into any particular essay or problem question answer is a good way of showing that you understand how you law is all linked together right thank you very much for watching this rather long video on judicial review in EU law if you did like it then remember to leave a thumbs up any questions or anything you don't understand then leave that in the comments below and I'll make sure to get back to you and also subscribe for more videos in the future thanks again for watching bye