Similarities and Differences between Metropolis and Aelita - Essay Example

Similarities and Differences between Metropolis and Aelita al Affiliation) Introduction Companies and individuals in EU member states have a right to challenge the legality of the decisions their specific governments that have a direct impact in their lives. The decisions made could be either at the government level or at the EU level. Challenges to such actions are reviewed in a Claim for Judicial Review proceeding where the state is held accountable for its actions1. EU came under fierce criticism particularly because of its claim of being founded on the principles of the rule of law and easy accessibility to a court. Article 263 of the Lisbon Treaty TFEU was therefore revised to reflect the changes needed. A third qualification was added to the original criteria to include an addressee. The Inuit case has been used as a basis for criticisms against the Treaty of Lisbon provisions. Others are of the opinion that reference to non-legislative acts is entirely absent from the provisions of Article 263(4) but preset in Article 290(1).The other case to highlight the inadequacy of the new provision in the Lisbon Treaty is the case Microban International v Eursope Commission. The applicant was involved in the The changes made by the Treaty of Lisbon are a step in the correct direction but are still insufficient. There still exist gaps since no changes were made regarding private standing on cases where a legislative body was being challenged. Judgment on the case Telephonic v Commission by the CJEU continues to highlight the shortcomings of Article 263 (4) TFEU with the focus being on the third provision of the article which was introduced in the Treaty of Lisbon. History According to Craig, initially, the institution of Article 263 of the Lisbon Treaty, individuals, and countries that were members of the EU had to establish that they had been directly and sufficiently affected by the state’s decision and that the court’s intervention was warranted. This is known as a standing. If the court was able to establish the above criteria, the matter become subject to judicial review. However, fulfillment of the criteria was deemed too restrictive and contradictory in many quarters. One of the main concerns was that the two-test approach was not compatible with some of the basic human rights like accessibility to court. The EU came under fierce criticism particularly because of its claim of being founded on the principles of the rule of law and easy accessibility to a court2. Article 263 of the Lisbon Treaty TFEU was therefore revised to reflect the changes needed. A third qualification was added to the original criteria to include an addressee. Therefore, a legal person could challenge a regulatory act that was of direct concern and need not entail implementation. Other concerns remained a concern like the lack of a clear definition, which has led to further criticism of the treaty. This is because; there was no clear set guideline for accessibility to the court leaving the matter up for judicial interpretation. Inuit Tapiriit Kanatami v European Parliament Inuit Tapiriit Kanatami v European Parliament is identified as a pioneering case where the new provision in the Lisbon Treaty was reviewed. The case involved various parties participating in the trade of seal products as the claimants seeking the court’s annulment on a regulation that limited the conditions under which the marketing of seal products was permitted. The General Court, using the provisions of Article 263(4) argued that the term regulatory act was not defined by TFEU and therefore rejected the assertion that regulatory acts were limited by delegated acts. It suggested that for the purposes of history, purpose, and literal interpretation, the term should be defined as an act of general application rather than a legislative act. The court rejected the respondents’’ assertions of the need for the court to expound on the meaning of the regulatory act and basing its decision on Article 47 of the EU charter. Since the regulatory act mentioned was adopted, it was defined as a legislative act. This led the court to order the respondents to establish a direct and individual concern. They were unable to meet the measure of individual concern leading the court to declare their case inadmissible3. The Inuit case has been used as a basis for criticisms against the Treaty of Lisbon provisions. The definition of non-legislative acts has been at the center of discussions with some arguing that if the drafters of the treaty had wanted the added provision to state non-legislative acts they would have implicitly done so. Others are of the opinion that reference to non-legislative acts is entirely absents from the provisions of Article 263(4) but preset in Article 290(1).From this analysis, we can conclude that the drafters purposely imposed restrictions in order to limit individuals further from accessing the court. Observations to the fact that acts are limited with general application with the exclusion of article 263(4)4. According to Peers and Costa, they argue against the General Court’s emphasis on historical and literal analysis given their absence of importance in any other place. They argue that the historical approach adopted by the court, bears a striking resemblance to the teleological approach that has the same sources. The use of the rigid terminology regarding regulatory acts has further necessitated the need for clarification .A wider definition has been proposed in order to allow greater accessibility to courts particularly due to the EU Charter and its commitment to the rule of law. The Treaty of Lisbon reforms can be found in Article 263 of the Treaty on the Functioning of the European Union (TFEU). Microban International v Europe Commission The other case to highlight the inadequacy of the new provision in the Lisbon Treaty is the case Microban International v Europe Commission. The applicant was involved in the production and marketing of a material used in food packaging called Triclosan. Microban International was challenging the European Commission on its decision to prohibit the use of Triclosan as a food packaging material. The applicant sought access to the court in order for the matter to be reviewed under the new provisions of the Article 263. The action adopted by the court was comitology where the legislation undergoes review by the committee. The committee was able to produce legal effects in accordance with the categories of persons that are generally acceptable. This was deemed as satisfying the definition of a regulatory act. The applicants were subjected to the same test of measure that was applied before the Treaty of Lisbon. Since implementation was deemed unnecessary, Microban International was granted access to the court to seek an annulment of the decision made previously. The court reviewed the case and decides to annul the decision of the commission on grounds of incompetency. The commission was deemed to lack the necessary expertise required to introduce measures of public health protection5. The changes made by the Treaty of Lisbon are a step in the correct direction but are still insufficient. There still exist gaps since no changes were made regarding private standing on cases where a legislative body was being challenged. Cases like that have to prove both a direct and individual correlation between the respondent’s decision and the individual. Article 263 only highlights the fact that it only partially manages to ease the admissibility of annulment decisions6. However, the article still needs further revision as evidenced by the fact that definition of Inuit has been restricted further than originally intended. Further criticisms of the Inuit definition and Article 263(4) are forwarded citing the over emphasis of form rather than substance of a measure. It has resulted in a more rigid approach towards reasoning by the court as opposed to focusing on the effect a measure has on the applicant instead. In its current approach, there is a lack of clear consideration of the applicant’s interests. In relation to Inuit, the judgment of the General Court has an appeal to the ECJ giving chances to clarification and elaboration of Article 2637. Advocation for a wider interpretation of the article is necessary in relation to standing for legislative regulations. Under the definition of Inuit, applicants are required to prove a direct and individual concern in order for the measures to be challenged. A broader reading of the Article is required with reference to the language used in TFEU. Reading should be guided by principles of effective judicial protection as laid out by the EU Charter. A broader definition would result in greater accessibility to the courts and a lower rate of litigation cases pertaining to annulment of decisions. This would suit the intentions of the drafters of the new provisions to enhance greater accessibility to courts8. Telephonic v Commission Judgment on the case Telephonic v Commission by the CJEU continues to highlight the shortcomings of Article 263 (4) TFEU with the focus being on the third provision of the article which was introduced in the Treaty of Lisbon. The provision in question states that any natural or legal person may institute proceedings against a regulatory act, which is of direct concern to them and does not involve the implementation of the measures. The approach adopted in interpreting the provision is very restrictive. The approach is based on the reliance on requests for preliminary hearings under Article 267 TFEU. It seems clear that CJEU has almost entirely adopted re-interpreted the mechanisms for judicial review. The third provision of Article 264(4) continues to play a subdued role9. The CJEU clearly stated that legislative measures were not part of the term ‘regulatory act” in Inuit. This approach has however left the question of the definition of regulatory act open interpretation. Questions like whether legislative measure are products of ordinary legislative procedures or whether they all legislative measures are different from their profound legal basis raise further confusion. Consideration of the meaning of implementing measures was not implicitly defined also10. Such issues are discussed in the Telefonica case. The Advocate General is of the opinion that the concept of a ‘regulatory act’ is not related with implementation of measures in reference to the interpretation of the third provision of Article 263 (4) TFEU. According to him, the provision should be interpreted by focusing on the objective of the provision, which is the prevention of an individual from being obliged to break the law in order to gain access to court. In short, when a regulatory act affects a natural person’s legal situation directly without the obligation of having implementation measures, the person is denied legal remedy before EU courts. The purpose of this is to challenge the legal standing of a regulatory act11. If there are no implementing factors, individuals would be able to gain access to court for the purpose of a judicial review regarding the infringement of the person’s rights. A natural person may argue against the legality of the said provisions as his defense in proceedings against him before national courts. When there are regulatory acts involving implementation orders, judicial review compliance is pursued regardless of whether the measures are adopted by the EU and its member states. For those persons who are unable due to the conditions put in place for admissibility in Article 263 TFEU, they have the right to challenge a regulatory measure established by the EU. The individuals are protected by the law against any acts concerned with application of the implementation12. In instances where the application of regulatory acts lies with offices, institutions, bodies, or agencies of the EU, any natural person has the right to bring forth a direct action against the EU’s judicial system regarding implementation acts as stated in the fourth paragraph of Article 263 TFEU. One can argue against the legality of the issue in cases where the implementation of the matter is pursued by a member state in relation to Article 277 TFEU. The matter can be reviewed before the national courts and tribunals and a ruling before the Court of Justice13. The question of asking if the regulatory act involves the implementation mechanisms need to be reviewed through the analysis of the person pursuing the obligation of having the right under the provisions of the fourth paragraph of Article 263 TFEU. The Advocate General is of the opinion that it does not matter if the act under review involves the implementation of measures in reference to other persons. His right to institute proceedings under the new act is unquestionable. He also states that in order for the determination of the measure involves implementation; reference should be made solely on the subject matter of the action. Where a person seeks to have partial annulment of a previous decision, consideration should be taken to include any part that the implementation measure is part of14. There are however criticism of the Advocate Generals decisions. His source of reference Article 263(4) TFEU, includes the definition of regulatory acts that are to be adopted by member states and the implementation measures. Under a broader approach, regulatory acts requiring implementation would be specifically stated to avoid ambiguity and open interpretation. Differentiation of acts requiring implementation measures between member states and the EU would be easy if the treaty is further revised. The CJEU is clearly still using the Plaumann test in the interpretation of the second provision of the Article 263 that demands a natural/legal person have a direct and individual concern when instituting proceedings for judicial review in the EU Court. The decisions made in the Innuit and Telefonica cases give credence to these assertions15. The restrictive interpretation of the locus standi criteria as stipulated in Article 263(4) highlights how the article requires further revision for clarification purposes. The CJEU is adamant that no violations have been made on Articles 6 and 13 of the European Convention on Human Rights or Article 47 of the EU Charter concerning matters of fundamental rights with such a rigid interpretation. The CJEU is of the opinion that its judicial review is in accordance with the EU’s legal order as stipulated in Article 19(1). Conclusion Initially, before the Lisbon Treaty, the terms direct and individual were interpreted by the court to mean that an individual had to have a direct consequence and effect because of the implementation act16. The EU’s measure also had to affect a member of a fixed and identifiable group17. Article 263(4) has indeed resolved some of the problems that restricted access of individuals to the EU Courts in matters relating to standing orders. Standing requirements have now expanded the criteria required for the court to institute proceedings about regulatory acts that do not entail implantation of measures. The Plaumann formula that mandated the exhibition of a direct and individual concern for all measures appears to have been reiterated. Article 263 TFEU was revised in order to add clarity; however, this seems to be further from the intended purpose. Instead of the development of a clear and unambiguous stand on the EU’s judiciary review claims, there has been added needed for debates and clarifications. Matters that remain in contention include the definition of a regulatory act concerning the article and elements of an n implementing measure18. The article has clearly aided in reducing problems associated with standing but the restrictive interpretation of terms has hindered further success. A wider definition of the article would go a long way in limitless success. REFERENCES Craig, P. P. The Lisbon Treaty: Law, Politics, and Treaty Reform. Oxford: Oxford UP, 2010. . Griller, Stefan. The Lisbon Treaty EU Constitutionalism without a Constitutional Treaty? Wien: Springer, 2008. . Laursen, Finn. The Making of the EUs Lisbon Treaty the Role of Member States. New York: P.I.E. Peter Lang, 2011. . Your Guide to the Lisbon Treaty. Luxembourg: Publications Office of the European Union, 2010. . Bruun, Niklas. The Lisbon Treaty and Social Europe. . Piris, Jean. The Lisbon Treaty: A Legal and Political Analysis. Cambridge [U.K.: Cambridge UP, 2010. . Carbone, Maurizio. National Politics and European Integration from the Constitution to the Lisbon Treaty. Cheltenham: Edward Elgar, 2010. . Sieberson, Stephen C. 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