LEGAL ABROGATION PROBLEMS OF SOME STATE ACTS OF EUROPEAN UNION

Absattarov M.R. - candidate of jurisprudence, Kazakhstan

The beginning of the 21^st century marks significant but at the same time contradictory events in development of integration processes on the European continent.

The European Union, progressing from organization with strictly delimited sectors of integration to all encompassing economic and political association, and recently has suffered the quantitative and qualitative reforms. Since 2007, the European Union has united twenty seven countries, simultaneously official negotiations with candidate countries (Croatia and Turkey) about entering into the European Union are being continued, while some European governments were wary of the entry of Turkey. Taking into account the expansion of the European Union and the level of political and economic integration between member states, agreements were signed. Those agreements have brought forward essential changes and supplements into European Constituent treaties: the Nice Treaty of 2001, which has largely modified the activity of beyond national bodies, including the European Union Court; the Lisbon Treaty of 2007, which allows to adapt the methods of the EU bodies in accordance with modern reality and modern requirements to strengthen democratic legitimacy and increase transparency of functioning of the European Union and its institutions.

To this end, the activity of the European Union Court (hereinafter – the EU Court, the European Court, the Court of Justice) causes a scientific interest as a court body, which provides and guarantees the defence of human rights and legal interests of the subjects of European Law. It is also important to study the types of lawsuits considered by the EU Court that evolved with the European Court practice. Particularly, it is expedient to study a range of aspects of the problem as the circumstantial appeal of normative legal acts of the European Union, which has not been scientifically researched enough.

At the beginning stage the circumstantial appeal of normative legal acts of the European Union or, to put it differently, raising objections against the use of normative legal acts of the EU, which is based on their acts prior conjectural illegality, generally came from the doctrine of the national constructions of the EU states, insofar as the given type of lawsuit has not been directly foreseen by the constituent agreements. Thus, the 241^st article of the Treaty about the EU (156^th article of Euratum Treaty) contains a vague explanation about the point and defines that, despite the expiration of the date of action, which was mentioned in the 5^th paragraph of the 230^th article of the EU Treaty (the 5^th paragraph of the 146^th article of the Euratum Treaty). To this end, every claimant in the EU Court or European commission during the trial concerning validity of any procedure, can raise an issue about inapplicability of the procedure referring to the grounds considered in the 2^nd paragraph of the 230^th article of the EU Treaty (the 2^nd paragraph of the 146^th article of the Euratum Treaty).

Initially, it seems that the notion like the circumstantial appeal of normative legal act based on its illegality in European Law did not have its uniform definition, so, as a result, two approaches are considered here.

First of all, the lawsuit against the use of normative legal act in connection with its illegality has to be considered as an additional instrument which is used to defend infringement of human rights in court. Similar process is observed in criminal legislations of some EU countries, for example, the given opportunity was provided in the legislation of France. A judge who deals with crimes is endowed with authorities concerning citizens and it is quite logical that s/he does not have to use criminal sanctions in relation to people who do not carry on unlawful and illegal procedure. If one follows this direction in a framework provided by articles 226 of EU Treaty and article 141 of the Euratom Treaty, procedure of breach of the European legislation from the states of the EU, objection concerning the application of normative legal acts because of its illegality can be presented by the member state against application of normative legal act, in wrong execution of which it is accused.

Besides, claim against the application of any normative legal act for the reason of its illegality can be presented additionally in support of annulment, which will appeal national legislative norms accepted in the execution of European procedure [1]. So, in French national law during court practice it became possible that interested sides at any moment have a right to refer to the illegality of normative legal act of general nature and also achieve by court regulation the cancellation of other of normative legal act accepted for the reason of execution and application of the initial act.

At the same time, objection against the application of normative legal act because of its illegality can be presented only in support of the claim of annulment. Therefore, considering the nature of the claim of annulment, as a instrument of control over legality and its goal (abolition of the legal act), working court procedure against the application of act, based on its legality includes in some manner subsidiary character.

It should also be noted, that normative legal acts against the application of which objections can be presented based on its illegality can concern only the acts of general nature, which excludes any individual decision. In the context of the EU Treaty, article 241 implies only the procedures. However, the single qualification of such acts appears difficult, i.e. they must have, from material or formal sides, general and not individualized nature.

The sphere of application of article 241 of the EU Treaty and article 156 of the Euratom Treaty, extends to the normative legal acts of the EU institutions, which, although not accepted in the form of procedure, but have analogous legal consequences, and also for this reason can not be appealed with the goal of achieving its annulment within the frame of article 230 of the EU Treaty and article 146 of the Euratom Treaty by subjects of European law other than bodies and member states of the EU. Besides, in the opinion of the Community court, announcements, published by the European Commission, concerning unified agricultural market in questions of public sales is included in the sphere of application of article 230 of the EU Treaty, because they, although, in reality, they are acts of general content, at the same time, also secure the rights and responsibilities of the participants.

The application of material criteria in approach to the definition of such acts necessarily leads to recognition of possibility to also raise the question of illegality of application of European directive for the reason of their illegality, but it still does not find definite confirmation in legal practice.

As concerning the individual decision, it is accepted to assume that they cannot be the subject of appeal by suit against their application in connection with their illegality [2]. However, there are two exceptions, which should be emphasized, as they are known also in French legislation: on one hand, it concerns the theory of absolute unacceptability, and, on the other hand, the theory of operation of complex normative formation.

The theory of absolute unacceptability, which especially touches upon significant difficulty regarding the evaluation of the measure of illegality, which makes the act invalid, seems to be accepted in a specific decision. There exist such shortcomings which lead to consideration of the act as trivial and invalid before the law without the actions of the legal associates not directed toward the given consequences. Therefore, the claim against the application of normative legal act, based on its illegality, should be feasible in limited circumstances against individual decisions.

The theory of operation of complex normative formation allows the claimants, in cases when there exist the series of acts that fit the logic of application of the single procedure, appeal each of the acts in the duration of existing time limits or the final act, based on illegality of preceding acts, even if the foreseen limit of the appeal of this act has expired. Therefore, concerning the given claim against, the application of any normative legal act, the separation between permanent and individual acts becomes entirely secondary. The given approach in legal practice has developed mainly during deliberation of claims about labour disputes of the Community employees.

It’s also necessary to have a presence of direct connection between the procedure and individual act, i.e. a Lawsuit referred to European jurisdiction has to allow a challenge to the legality of the act only of general nature which precedes the individual act. In the absence of such connection, a claimant would be able to contest the legality of any other procedure. Besides, it is unquestionable that procedural act the illegality of which was presented during the trial must make up the legal base or the foundation of other normative legal act, the annulment of which is requested, i.e. the presence of logical interdependence is necessary. However, an objection against the use of the act in connection with it’s illegality is rejected in cases when appealed act, regardless of the fact that it’s adopted in order to provide the accomplishment of the procedure, but nevertheless it does not establish measure of application of the given procedure.

It seems reasonable to touch upon the question of claims in connection with which it is possible to raise a question of unacceptability of the act based on its illegality. It is quite logical that to bring a parallel action against the use of normative legal act because of its illegality in European Court is possible only in connection with other suit, present in European jurisdiction. In addition the essential nature of the given suit raises some questions which are the direct effect of the absence of specificity in article amendments of basic agreement. For instance, articles 241 of the EU Treaty and article 156 of the Euratom Treaty allow either side during the trial concerning the validity of the procedure, adopted by European Council or Euro commission, to put the question of unacceptability of this procedure before EU referring to arguments considered in paragraph 2 of the article 230 of EU Treaty and paragraph 2 of the article 146 of Euratom Treaty. Consequently, there exists an unarguable privileged connection between the given suit and the claim of annulment, but concerning other suits definite clarifications are necessary.

From technical point of view, the correlation is obvious, but in reality article 241 of EU Treaty seems to correct the restrictions placed on private individuals in cases of direct claims of annulment. This point of view, which is based mainly on doctrinal constructions, is supported by practice of EU in case No. 258/80, dated March 6^th 1979 “Simmental (IV)”. Therefore, in the opinion of the EU Court the given procedure is the reflection of general principle, which provides any side with the right to challenge with the aim to achieve cancellation of the decision that concerns it directly and individually and the validity of preceding adopted act of Community bodies, establishing the legal basis of the appealed decision, if this side does not have the right to direct claim against such actions, consequences of which it suffers, also not having an opportunity to demand an annulment. Therefore, the sphere of use of the given article must extend also to the acts of EU bodies which, even if not adopted in procedural form, also exerts analogous action, as a result they cannot be appealed by legal subjects other than institutions and countries of the EU. Such extensive elaboration is caused by the necessity to provide and guarantee control over the legality on behalf of individuals excluded from the initiators of direct claim against normative legal acts of general nature, at the same time they are affected by the decisions of the applications which concern directly and individually their rights and interests.

The question of acceptability of a claim of application of the act, because of its illegality during a legal process concerning breach of norms of European law by the EU State, appears in the following order: does the EU member state against which a suit is brought up, based on the article 226 of EU Treaty and 141 Euratom Treaty, have an opportunity to refer on behalf of its defence, to the illegality of the act the breach of which it is accused of. This means that state, as a privileged claimant, did not appeal the given act in advance, in the context of the annulment claim. On the formal side, nothing prevents such approach, so far as the article 241 of EU Treaty and 156 Euratom Treaty point to the necessity of the presence of court trial that already began. However, practically, these consequences have more complicated nature so far as in this case states will incline to ignore the acts addressed to them and wait while the legal procedure against them has not yet begun, in order to bring up this suit.

It seems that Community Court excludes the probability that the legality of the decision, in a breach and disobedience of which the EU member state is accused, can be challenged during the court procedures concerning the breach of European legislation from the EU countries.

In the context of EU Treaty, a claim against the inaction is not any more the annulment of fictive decision; this is rather proclamation of the absence of a decision, which constitutes a breach of basic agreement. Consequently, the claim against the application of action for reason of its illegality is excluded from given procedural scheme.

In terms of prejudicial procedure about elaboration of the claim against the application of the act, based on its illegality was rejected according to the decision of the Community Court from 14 December, 1963 in the case of “Wohrmann”. In opinion of the EU court, article 241 of the EU Court implies the declaration of inapplicability of the procedure only in duration of the procedure taken by the Court itself based on regulation of the basic agreement.

Concerning a question of sides which can raise the question of the inapplicability other action, based on its illegality, it is necessary to mention that article 241 of EU Treaty and 156 Euratom Treaty provide an opportunity to bring the given claim for any side of the legal trial. Moreover, there are polar points of view and different doctrines concerning this problem [3].

First, many people present arguments against the recognition of the rights of the member states to be a claimant, i.e. support the prohibition to initiate such claim by the states. The main argument is that countries of the EU have a right, as privileged claimants, to bring up against annulment. At the same time as frequently confirmed goal and task of the considered mechanism of indirect appeal of the legality of normative legal acts consist in softening strict restrictions, applied to the claims of private persons and not in presenting to the European states additional instruments of legal defence. However, the position of Community court regarding the given problem has changed with time. So, in considering a claim in which Italian government tried to appeal application of procedures of the Council and EU Commission, it made a decision dated 13 July, 1966, according to which it admitted such possibility for the state [4].

In subsequent the EU court reconsidered its initial position and refused such solution to the problem. Considering that the length of the claim has as its goal to keep legal basis avoiding ambiguity in appealing European normative acts affecting legal influence has to be excluded, so that the EU member states left without notice expiration of provided imperative length of time of the claim for annulment.

The possibility for the Community bodies to present an objection against an application of normative legal acts as a result of its illegality theoretically touches upon the same problems as in the case of the EU member states. If the goal of the claim against the application of the act as a result of its illegality is to temporarily ease the restrictive conditions, applicable to the claim of annulment, than the institutions of the EU also do not have the right to initiate it.

In this connection it should be noted, that the European Court of Justice in its practice, as correctly noted A.Ya. Kapustin, designed and developed a number of doctrines and principles, allowing for the highest legal effectiveness of the “ Community law" including its use in the territory of the Members .

In conclusion, considering the evolution of the given type of claim in practice of EU court, it has to be noted that ambiguity in understanding of this type of claim was clearly shown in the beginning stage. Further on, in its decisions, the EU court has worked out a principled position concerning this question, as it had to provide, as possible, a better defence of the rights of the opposite sides and keep European legal order. In this way, in the given type of claim it is possible to notice the supporting instrument and additional mechanism of defence of legal rights and interests of private (corporate and individual) persons, bringing forward the subjective rights and interests. The given type of claim also expresses a stronger control over legality in terms of the EU, resorting to the role and help of the Community Court as a body of European constitutional jurisdiction.

Literature

1. Auby J.-B. et Dutheil de la Rochure J. Droit adminstratif europйen.- Bruxelles: Bruylant, 2007.-P.1019-1027; Donnat F. Contieux communautaire de l’annulation.- Paris,2008.-P.145-146.

2. Rideau J. Droit istitutionnel de l’ Union et des Communautйs europйennes.- Paris: 2010.- P.843.

3. CJCE 29 octobre 1980, SA Roquette Frиres c. Conseil des Communautйs europйennes, aff. 138/79, Rec. 3370.

4. CJCE 16 f йvrier 1982, SpA Metallugica Rumi c. Commission des Communautйs europйennes, aff. 280/80, Rec.487.