BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ
v. IRELAND JUDGMENT
23
40. By Article 173 and Article 184 (now Article 241 EC), on the one hand, and by
Article 177, on the other, the Treaty has established a complete system of legal
remedies and procedures designed to ensure judicial review of the legality of acts of
the institutions, and has entrusted such review to the Community Courts ... Under that
system, where natural or legal persons cannot, by reason of the conditions for
admissibility laid down in the fourth paragraph of Article 173 of the Treaty, directly
challenge Community measures of general application, they are able, depending on
the case, either indirectly to plead the invalidity of such acts before the Community
Courts under Article 184 of the Treaty or to do so before the national courts and ask
them, since they have no jurisdiction themselves to declare those measures invalid ...,
to make a reference to the Court of Justice for a preliminary ruling on validity.
41. Thus it is for the Member States to establish a system of legal remedies and
procedures which ensure respect for the right to effective judicial protection.
42. In that context, in accordance with the principle of sincere cooperation laid
down in Article 5 of the Treaty, national courts are required, so far as possible, to
interpret and apply national procedural rules governing the exercise of rights of action
in a way that enables natural and legal persons to challenge before the courts the
legality of any decision or other national measure relative to the application to them of
a Community act of general application, by pleading the invalidity of such an act.”1
1. Direct actions before the ECJ
(a) Actions against Community institutions
86. Article 173 (now Article 230) provides member States, the European
Parliament, the Council and the Commission with a right to apply to the
ECJ for judicial review of a Community act (“annulment action”).
Applications from the Court of Auditors and the European Central Bank are
more restricted and, while subject to even greater restrictions, an individual
(a natural or legal person) can also challenge “a decision addressed to that
person or ... a decision which, although in the form of a regulation or a
decision addressed to another person, is of direct and individual concern to
the former” (Article 173(4), now Article 230(4)).
87. According to Article 175 (now Article 232) member States and the
Community institutions can also call, among others, the Council, the
Commission and the European Parliament to account before the ECJ for a
failure to perform their Treaty obligations. Article 184 (now Article 241)
allows a plea of illegality of a regulation (adopted jointly by the European
Parliament and the Council, by the Council, by the Commission or by the
European Central Bank) to be made during proceedings already pending
before the ECJ on the basis of another Article: a successful challenge will
result in the ECJ declaring its inapplicability inter partes, but not the
annulment of the relevant provision.
1. Unión de Pequeños Agricultores v. Council of the European Union, Case C-50/00 P
ECR [2002] I-6677.
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