Contesting Decrees Under European Law

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Contesting Decrees Under European Law

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Themes

European law, CJEU, Van Gend en Loos, Alitalia Company, Council of State, annulment, illegality, French courts, action, preliminary ruling, AIFA, Union law, TFEU, Articles 49, 56, 106, public procurement, abuse of power, Nicolo, Conseil d'Etat, Article 267, paragraph 3, Article 258, Directive 2006/123, conditional authorization, service activities, judicial review, European regulation, judicial system, coherence, uniformity, full effect, infringement, reasoned opinion, Commission, Member State, European jurisdictions, national laws, primacy of Union law, exclusive right, public asset, concessions, maritime and lacustrine domain assets, automatic extension, deadline, legitimate interest, administrative act, harm, prior administrative appeal, illegalities, initial decision, judicial intervention, keystone, European case law, national court, CJEU interpretation, derived law, Union norm, TFEU provisions

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Abstract
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Abstract

This document outlines the possibilities for contesting a decree under European law, including actions before French courts and the role of the CJEU in preliminary rulings.

Extract

[...] Concerning the obligatory or facultative nature, of the preliminary ruling it depends on its nature. For the preliminary ruling in interpretation it will be obligatory only for the courtswhere their decisions are not susceptible to a judicial review of domestic law in accordance with Article 267(3) of the TFEU, and in particular the Conseil d'Etat. In fact, within this framework, a judgment of the CJEU of 4 October 2018 (case C-416/17), France was condemned for the lack of referral to the CJEU by the Conseil d'Etat. [...]

[...] The court that introduced the preliminary question must suspend its judgment pending the CJEU's response. Once the CJEU's opinion is received, the court rules based on the interpretation of that opinion. The preliminary ruling is considered by the CJEU as the: "the « the keystone of the judicial system allowing for the coherence, uniformity and full effect of Union law (CJUE Dec opinion 2/13; CJUE March 2018, Achmea; CJUE Sept Republic of Moldova). As for the preliminary ruling on the validity of the applicable text, the national court may still try to ask for the CJEU's opinion. [...]

[...] If the Council of State considers that the decree is illegal, it will be annulled, i.e. the legal effects of the decree will be eliminated retroactively from the legal order by the administrative judge. - Recourse by the means of an exception : after the expiration of the two-month period, from the application of the said decree, it is still possible to bring a recourse « in support of conclusions directed against a subsequent administrative decision taken for the application of the regulatory act or of which the latter constitutes the legal basis That is to say that in the event of any appeal, if the judge's decision was made on the basis of the decree, it is entirely possible for the applicant to contest the said decree. [...]

[...] They have a two-month deadline from the publication of the decree. The said appeal must be presented by mail with a receipt to the Minister with a copy of the said decision. The administration will have a two-month deadline to respond. In case of refusal, this refusal decision will be susceptible to a review for abuse of power. - The appeal for abuse of power : In order for such an appeal to be admissible, the applicant must have a legitimate interest to act, in addition, the attacked act must be an administrative act that causes harm. [...]

[...] - Voluntary Appeal : This is an administrative appeal that can be brought directly against the author of the act, in this case, the Minister. The latter will have the choice to repeal the decree, modify it, reform it or maintain it. On this subject, the Council of State states; the exercise of a prior administrative appeal [ . ] is intended to allow the administrative authority, within the limits of its powers, to remedy the illegalities that may have tainted the initial decision, without waiting for the intervention of the judge. Only those who suffer a prejudice can bring a voluntary appeal. [...]

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