Scope of the Review
This approach seems to be in line with the practice in a number of Member States. Some of them similarly require the plaintiffs to state directly in the action against the decision why they have not already raised the objections they are raising at this stage. It is possible to legislate for such a procedure, as the CJEU explicitly allows for specific procedural rules, such as the inadmissibility of an argument not raised in good faith or an abusive manner. But still in such a way as to guarantee the efficiency of the judicial procedure. Situations that can be described as abuses of law are rather exceptional in EU law. See the Opinion in North East Pylon Pressure Campaing and Sheehy (C-470/16), para. 116: “Whilst it is in theory correct that even basic rules on access to justice may not apply in cases of vexatious litigation, which could also extend to the NPE rule leading for all practical purposes to its ‘disapplication’, such situations are truly exceptional. On the basis of the information provided by the referring court, the type of action in the present case is very far from falling into that exceptional category”.
As regards the intensity of the review, judicial review may be limited in substance, but instruments to ensure the full effectiveness of EU law must be put in place. See East Sussex County Council (C-71/14), para. 58: “In this respect, the Court has held that the exercise of the rights conferred by EU law is not made impossible in practice or excessively difficult merely by the fact that a procedure for the judicial review of decisions of the administrative authorities does not allow complete review of those decisions. However, also according to that case law, any national judicial review procedure must none the less enable the court or tribunal hearing an application for annulment of such a decision to apply effectively the relevant principles and rules of EU law when reviewing the lawfulness of the decision (see, to that effect, judgments in Upjohn, C-120/97, EU:C:1999:14, paragraphs 30, 35 and 36, and HLH Warenvertrieb and Orthica, C-211/03, C-299/03 and C-316/03 to C-318/03, EU:C:2005:370, paragraphs 75 to 77). Judicial review that is limited as regards the assessment of certain questions of fact is thus compatible with EU law, on condition that it enables the court or tribunal hearing an application for annulment of such a decision to apply effectively the relevant principles and rules of EU law when reviewing the lawfulness of the decision (see, to that effect, judgment in HLH Warenvertrieb and Orthica, C-211/03, C-299/03 and C-316/03 to C-318/03, EU:C:2005:370, paragraph 79).”
The competent courts must enforce EU rules to ensure that the decisions adopted by national authorities comply with EU law requirements and that – as much as possible – the actual situation is in accordance with the criteria laid down in the EU directive (see C-723/17 (Craeynest and Others)).
The national judge must also be able to review the validity of EU acts and ask the CJEU a corresponding preliminary question (Art. 267 TFEU). Before the national court raises a preliminary question on the validity of an EU act, it should consider whether an action under Article 263 TFEU is possible against that act. This is because a natural or legal person needs to bring an action for annulment based on Article 263 TFEU to challenge the legality of an EU measure when that person undoubtedly has standing. See C-135/16 (Georgsmarienhütte and Others), para. 17: “The possibility for a person to rely, in an action brought before a national court, on the invalidity of provisions contained in a measure of the European Union, which constitutes the basis of a national decision taken concerning him, presupposes either that he has also brought, pursuant to the fourth paragraph of Article 263 TFEU, an action for annulment of that EU measure within the prescribed time limits, or that he has not done so, as a result of not having an undoubted right to bring such an action”. In other words, where a person seeking to challenge an EU measure undoubtedly has standing under the fourth paragraph of Article 263 TFEU, that person is bound to use the remedy provided for in that provision by bringing an action before the General Court. As a rule, the CJEU will not provide the answer on the validity of an EU act in a preliminary reference proceeding if the action under Article 263 TFEU was not (but could be) brought first.
It must be borne in mind that where a national court or tribunal considers that one or more arguments for invalidity of a European Union act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the CJEU. The obligation of the national court to make reference on the validity of the EU act is therefore not limited to the national courts of the last instance. In this respect, the insistence of the CJEU on national courts having the ability to send references is more about monitoring lower national courts than about facilitating judicial dialogue.