5.4 Judicial Review
5.4.4 Discrepancies and Bridging the Gaps
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their review.389 As a result, high-intensity review before the Courts may compensate for the lack of avenues to appeal decisions of EDPB to an administrative review body, such as the agency Boards of Appeal.
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has become apparent. The development culminated in Advocate General Jacobs’ Opinion in UPA, in which he identifies certain discrepancies.395
For instance, Union case-law has created a high and complex threshold for direct actions.396 Further, the remedy – the preliminary ruling procedure – does not adequately rectify limited direct access. Because domestic courts are precluded from deciding on the invalidity of an act and referrals are oftentimes at the domestic court’s leniency, accessing judicial protection through EU Courts is not necessarily straightforward.397 Alas, in its ruling in UPA, the ECJ did not endorse the AG Opinion, declaring that it is for domestic courts to circumvent hindrances to indirect action in their domestic systems.398 The ECJ upheld this line of reasoning in its subsequent ruling in Jégo-Quéré.399
The ECJ’s reluctance to address discrepancies ultimately renders the question of whether the system is as complete and coherent as proclaimed by the Courts. Although amendments brought by the Lisbon Treaty sought to address some discrepancies400, most direct actions by natural and legal persons are rendered inadmissible due to the rigorous standing criteria, which has been described as “an almost insurmountable block”.401
An assessment of discrepancies in the EU Courts is beyond the scope of this paper, but the abovementioned considerations illustrate that there are certain inconsistences in the EU pillar.
This is interesting in our context because a main contention in this paper is that certain discrepancies in the EFTA pillar may be redeemed through cross-pillar access to the ECJ. Yet, natural and legal persons do not necessarily enjoy comprehensive protection beyond the possibility for indirect actions. As will be discussed, parties in the EFTA pillar do not benefit from this system. In the agency context, this is somewhat paradoxical because Union entities such as agencies de facto influence the rights and obligations of parties in the EFTA pillar.402 In the following, we will examine how certain elements related to the agency boards of appeal fit into the greater system of the EU judicature.
395 C-50/00 P UPA AG Jacobs Opinion.
396 Ibid. para. 100.
397 Ibid. para. 102.
398 C-50/00 P UPA ECJ para. 41–42.
399 C-263/02 P Jégo-Quéré.
400 Pursuant to Article 263(4), actions challenging “regulatory acts” which does not “entail implementing measures” need only satisfy the “direct” criterion. See e.g. C-583/11 Inuit.
401 Craig (2018) p. 347.
402 See discussions in section 6.2.4 and 7.2.3.
53 5.4.4.2 BoAs: Part of the EU Judiciary?
As mentioned, Regulation (EU) 2019/629 introduced a new Article 58a in the Statute of the ECJ, which envisages a filtering mechanism for actions challenging certain GC decisions.
Pursuant to Article 58a(1), appeals against GC decisions concerning the decisions of certain BoAs shall not proceed to the ECJ unless the ECJ provides its consent. The reform expressly applies to actions challenging the BoA decisions of four offices and agencies, including the ECHA BoA and the EASA BoA. Article 58a does not expressly list the ACER BoA nor the Joint BoA for the financial supervisory authorities.
A normal course of action would entail administrative review by a BoA, whose decision would proceed to the GC, followed by subsequent appraisal by the ECJ. The reform effectively eliminates the prospect of a second review by the EU Courts. As the novel mechanism excludes review of certain actions by the highest court, it is pertinent to ask whether the Union considers review within selected BoAs as providing sufficient safeguards à la review within the Courts.403 In the affirmative, the reform could implicate an elevation of certain BoAs from the administrative sphere to forming part of the EU judicature. Such an elevation would surely run counter to the ECJ’s continuous reluctance to acknowledge BoAs as tribunals, and as noted, the BoAs have not been established as specialized courts pursuant to Article 257 TFEU.404
Further, the reform suggests that the omitted BoAs may not offer adequate protection of rights, such as the ACER BoA or the Joint BoA.405 A distinction between the included and omitted BoAs could perhaps correspond to the extent of protection of rights provided by them. As demonstrated above, the ECHA BoA’s scope of review is presumably wider than that of the ACER BoA and the Joint BoA. Therefore, perhaps one could assume that protection of rights is more adequate in the former compared to the latter. However, the absence of an express reference to the omitted BoAs may have other reasons, for instance that their caseload is significantly smaller and does not warrant filtering, or that they are relatively new and that a filtering mechanism for these BoAs would be premature.406
Regardless, the reform reveals a fascinating, or perhaps even problematic, advance in the context of European agencies. With the reform, certain BoAs effectively operate as a “court of first instance”, to which a final appeal proceeds to the GC. Yet, as explained, an applicant may not rely on a right to a fair hearing before a BoA, and there are certain concerns over the BoAs’
403 Lamandini/Ramos Muñoz (2020) p. 120.
404 E.g. Joined Cases T-133/08, T-134/08, T-177/08 and T-242/09 Schräder II para. 137 and 190.
405 Lamandini/Ramos Muñoz (2020) p. 121.
406 Ibid. p. 121, 128.
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independence and impartiality, especially the BoAs which are in “functional continuity” with their associated agencies, such as the ECHA BoA.407
The ECJ has persistently held the requirements of independence and impartiality as enshrined in Article 47 CFR in high regard, e.g. in ASJP and more recently in Commission v Poland.408 As suggested, one might view the reform as covertly transforming certain BoAs into a “court of first instance”. For reasons of legal certainty, such BoAs should not escape the fundamental requirements of independence and impartiality that apply to courts and tribunals.
However, because BoAs are not formal courts, they are only subject to the principle of good administration under Article 41 CFR, while courts are bound by the more rigorous requirements of fair trial pursuant to Article 47 CFR.409 Within the Union’s system, claims of maladministration may be addressed by the European Ombudsman, who is competent to initiate inquires, investigate, and has certain remedial powers. However, in normative terms, it is clear that the Ombudsman’s primary task is to reach “friendly settlements” and that their decisions are not legally binding.410
Regrettably, the reform places itself in an incessant line of tendencies which seem symptomatic to the agency context, i.e. pragmatic solutions to meet a certain practical need (here: caseload reduction), presumably at the neglect of other pressing matters, such as judicial protection.
Interestingly, this tendency is especially evident in the EFTA States’ participation in agencies, see chapters 3 and 6–7.
5.4.4.3 Extension of the Preliminary Ruling Procedure
BoAs exercise great adjudicating influence, and the ramifications of their decisions are presumably even greater after the introduction of the abovementioned filtering mechanism.
BoAs might need to balance certain broad issues, including issues on which they are not competent or legitimized to rule. As such, some have proposed that BoAs should be allowed to partake in judicial dialogue via the preliminary ruling procedure.411
407 See section 5.3.2.
408 C-64/16 ASPJ para. 41–44 and C‑192/18 Commission v Poland para. 106, noting that the requirement of independence is “inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, which is of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected”.
409 Lamandini/Ramos Muñoz (2020) p. 153.
410 Craig (2018) pp. 808–809.
411 Lamandini/Ramos Muñoz (2020) pp. 147f.
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In essence, two requirements in Article 267 TFEU prevent dialogue. First, BoAs are not considered “courts or tribunals”. In Procter & Gamble, the CFI held that because BoAs enjoy
“the same powers as the examiner” and a BoA decision therefore “forms part of the administrative registration procedure”, they cannot be classified as tribunals.412 As explained, this is especially the case for the ECHA BoA, while the concept of functional continuity might not apply to the ACER BoA or the Joint BoA. Second, Article 267 TFEU stipulates that the procedure is available to courts or tribunals of “Member States”. Evidently, BoAs do not meet this condition as they are EU entities established through EU regulations.
Irrespective of the above limitations, it is somewhat a paradox that certain BoAs are viewed as competent enough to perform as de facto courts of first instance, while at the same time, they are excluded from verifying that the premise of their decisions is correct through a preliminary ruling reference.413