Assignment 3

Group 1

On September 3, 2013 the Council of Ministers and the European Parliament, acting in accordance with the procedure referred to in Article 294 TFEU, adopted Directive 2013/ABC with a view to harmonizing at Union level the rules concerning the elaboration and marketing of certain spirits. The legal basis for the Directive is Article 114 TFEU and its objective is to ensure the establishment and the functioning of the Internal Market and to avoid distortions of competition as differences in national legislations may hamper the trade in these products within the Internal Market. Member States must implement the Directive by June 30, 2015. You receive a phone call from Mr. MacDonald, a Scottish whiskey producer, who has just learned about the Directive and is asking for your legal advice on whether he can somehow challenge the Directive. He is particularly worried because the Directive will also affect the marketing of Scotch whisky. You promise to get back to him the following day and quickly start to draft a legal brief explaining his legal options. Advise Mr. MacDonald on whether there is any legal remedy available to him under EU law and explain why or why not. From the cases above we infer that Mr. MacDonald, a whisky producer, wishes to call into question Directive 2013/ABC, since it will affect the marketing of his whisky. This situation falls under Article 263 TFEU under which the Court of Justice has jurisdiction to review the legality of legislative acts. Article 263 states the ECJ has jurisdiction to review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis--vis third parties. Directive 2013/ABC is a legislative act1 enacted through ordinary procedure by the Parliament and the Council; both institutions are mentioned in Art 263 giving the Court jurisdiction. The article then proceeds to determine acts must be legally binding; intended to produce legal effects vis a vis third parties for the Court to have jurisdiction. Hence, they can neither be acts that merely confirm an existing situation nor preparatory acts. According to the Court of Justice in IBM v Commission (case 60/81) any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under article 173 [now Art 263 TFEU]2. Thus, it is necessary to analyze the content and scope of the directive. Directive 2013/ABC is legally binding as it is a legislative act and will affect the legal position of third parties, including that of Mr. McDonalds since it affect his rights and obligations. The directive does not deal with common foreign and security policy, over which the Court of Justice has no jurisdiction. Thus we can consider it reviewable under Article 263 TFEU. The next step is to analyze whether Mr. Macdonald has legal standing to bring proceedings to raise the case. Article 263 divides applicants into two categories, privileged applicants (specified Union institutions and Member States) and non-privileged applicants (natural or legal persons). In paragraph 4 it specifies any natural or legal person mayinstitute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. The act Mr. MacDonald wishes to challenge is a directive, which we assume is
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Legal acts adopted by legislative procedure shall constitute legislative acts (Article 289 TFEU, para 3) Fairhurst, Law of the European Union, 2010, pg 224

Assignment 3

Group 1

addressed to all member states, can be categorized as a regulatory act. There is no need to determine if he has individual concern over the measure, only direct concern. Before exploring Mr. MacDonalds direct concern, it is necessary to establish if he has legal interest in seeing the measure annulled. In the absence of a legal interest in bringing proceedings, it is unnecessary to examine whether the contested act is of direct and individual concern to the applicant (Olivieri v. Comission and Euroean Agency for the Evaluation of Medicinal Products Case T-326/99)3. The interest must be tangible at the time the action is brought or, if it concerns a future situation, the prejudice to the situation is certain. In the case of Mr. MacDonald the Directive will have a future impact on the marketing of the Scotch whisky, as ascertained by the case provided. It is probably possible to quantify the required marketing expenditure to change packaging, adverts, etc Thus, it can be deduced that Mr. MacDonald has a legal interest in commencing proceedings. With regard to direct concern, the Court of Justice (former CFI) states that a measure is of direct concern when it directly affects the legal situation of the applicant, and when no discretion is left to those who are entrusted to implement it. The legal situation of Mr. Macdonald is directly modified with the introduction of the measure since it affects his financial situation; there is a relationship of causality. The second requirement is perhaps more obscure since it is part of the nature of a directive to require national implementation. In Regionne Siciliana v. Commission (Case T-341/02) the court states that a measure is automatically applicable when it produces its legal effects on the applicant, that is to say, as a result of Community law alone, and the national authorities enjoy no discretion in their duty to implement the decision. The case is set before national implementation and states the directive will affect the marketing of Scotch whisky, hence we can assume the effect on the marketing happens as a result of Union law, not as consequence of the national laws that will enable to implement the measure. It is plausible to assume the directive could set standards to follow and national authorities have no discretion to change them. Therefore, the case presented appears to satisfy the requirements for direct concern and hence Mr. MacDonald has locus standi to bring proceedings. The last paragraph of Article 263 states that proceedings must be initiated within two months of the date of publication of the measure, its notification to the plaintiff or the day on which the measure came to the knowledge of the applicant. Directive 2013/ABC followed the ordinary legislative procedure, which terminates with the publication of the directive on the Official Journal. Additionally Article 297 TFEU establishes that Regulations and directives which are addressed to all Member States, as well as decisions which do not specify to whom they are addressed, shall be published in the Official Journal of the European Union. One can infer from the case that the directive is addressed to all Member States since its objective is to achieve harmonization hence it is plausible to assume the Directive has been diligently published.The date of publication marked the starting point of the period prescribed for instituting proceedings (Case C-122/95 Germany v. Council (1998) para 394), thus, if Directive 2013/ABC was adopted on September 3, 2013, Mr. MacDonald is still within the time limit established by Article 263 to initiate proceedings. Assuming Directive 2013/ABC was published on September 3, the final day would be the 3rd of November at midnight. If Mr. MacDonald was impeded to present proceedings by circumstances of force majeure he could rely on Article 45 of the Statute of the Court and court would still allow him to exercise his right to a certain extent.
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Fairhurst, Law of the European Union, 2010, pg 230 Fairhurst, Law of the European Union, 2010, pg 223

Assignment 3

Group 1

Mr. MacDonalds application suffices all the requirements of Article 263. He is able to challenge the directive on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the treaty or any rule relating to its application and misuse of power. Since the case does not provide us with the information, it is not possible to discern which ground would be more adequate in the situation. Hence, after close examination of Article 263, one can conclude there are legal remedies available for Mr. MacDonald under EU law to challenge a directive.