ART 277: PLEA OF ILLEGALITY

by ,
    • Used where A wishes to challenge, in the course of proceedings initiated for a different reason, the legality of some other measure. Latter measure being challenged indirectly must be a general act.
    • Eg. When challenging a decision of direct and indiv concern, A wishes to raise legality of the Reg on which the decision is based.
      • See Simmenthal for typical case
    • Same grounds of annulment as for annulment.
    • Hence NOT an independent course of action.
      • Time limit for principal action still applies!
      • Must have real connection between principal decision being challenged, and the general measure of which legality is being contested.
    • Cannot be used in proceedings before national court – only in proceedings brought before ECJ under some other Treaty provision (incidental + limited effect)
    • Can only be used to challenge acts of general application (usually Regs/directives made pursuant to arts 289 or 290 TFEU).
    • This is a test of substance! Simmenthal case, 1979:
      • A wanted to use plea of illegality to challenge certain Regs and notices, which formed legal basis of the contested decision.
      • ECJ held that art 277 expresses a general principle conferring upon a party to proceedings the right to challenge validity of previous acts which form the legal basis of the decision which is being attacked, if party was NOT entitled to bring direction action against those acts.
      • Hence, has to include acts which, though not being in form of Reg, still produce similar effects and hence cannot be challenged via direct action (too general) – need a wide interpretation of the plea of illegality!
      • Who can use the provision?
        • Available to private parties, UNLESS it is clear that act could have been challenged directly under art 263 (where there was indiv + direct concern).
        • Greater controversy over privileged applicants – Manchester Taxi
          • [Bebr]: NO, since privileged applicants can challenge any binding EU act under art 263, subject to time limit.
          • [Barav]: YES. Irregularities in general act might appear only after relevant implementation measures are adopted, hence after the time limit.
          • ECJ decided that MS can invoke use art 277 even if it did not contest measure within art 263’s time limit (hence agreeing with Barav)
            • Textual analysis: art 277 refers to “any party”
            • There may be good reasons why MSs did not challenge act directly within time limit!

Leave a Reply

Your email address will not be published. Required fields are marked *