Grounds for Review
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Art 230 sets out 4 grounds for review:

1) Lack of competence

2) Infringement of essential procedural requirements

3) Infringement of treaty

4) Misuse of powers

Considerable overlap

Lack of competence- usually used as grounds between the institutions e.g. the MS and often the Commission. E.g. France v Commission

However it is rarely used as the ECJ has interpreted the Commission's powers as being wide so that they can achieve their objectives.

Procedural requirements-

The defect must relate to an essential procedural requirement. What counts as essential is a matter of construction for the ECJ.

E.g. Roquette v Council

Infringement of the treaty or any rule of law relating to its application-

The first half is obvious the second half refers to all the rules of Comm law other than those which exist in the treaties. (For a more extensive list of such rules refer to later notes)

 E.g. legitimate expectations:

 R v Captn Kirk- the court struck down a regulation pertaining to have a retroactive effect because there was no pressing Comm objective and nor did it respect the legitimate expectations of the defendant.

E.g. Proportionality-

R v Intervention Board ex p Sugar: argued that the penalty imposed was excessive in relation to the aim of the measure in question. In this case the Board tried to take a deposit in excess of £1,500,000 in accordance with a regulation simply because the Defendant was 4 hours late!

Misuse of powers-

Use of power for purposes other than that for which it was granted.

In Fedechar v High Authority, the ECJ held that a measure will not be annulled if one of the reasons for its adoption was improper providing that the other reasons were legitimate.

Nor will it be annulled if the improper purpose has no effect on the substance of the measure.

CONSEQUENCES OF ANNULMENT:

Successful action under Art 230 -->the court declares that under Art 231 the measure is void. Note that the court may void only part of the measure providing that the offending part can be effectively severed from the rest of the measure.

INDIRECT CHALLENGE:

ART 232 Failure to Act:-

JR for failure to act is not brought under Art. 230 EC, but instead under the separate heading of Art. 232 EC.

Range of Reviewable Acts

Art. 232 EC does not confine itself to reviewable acts under Art. 230 EC.  The Comitology case seemed to suggest that Art. 232 EC could be used where the act did not fit under an Art. 230 EC heading.  BUT, individuals cannot challenge recommendations or opinions.  There must be an obligation to act not merely a discretion to do so.

In the Transport Policy case, the EP used Art. 232 EC to force the Council to formulate a transport policy.

Other Notes in this Category

1. Art 241: The Plea Of Illegality
2. Article 230 and 232
3. Democracy within the European Community
4. Grounds for Review
5. Locus Standi

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