Op-Ed: “Coordinating Judicial Review in Composite Procedures: GAEC Jeanningros” by Araceli Turmo
The Court of Justice of the European Union’s (CJEU) judgment in GAEC Jeanningros (C-785/18) provides clarification on a topic of growing importance in areas of shared competence in which EU law has established composite administrative procedures which combine national and European stages: identifying the appropriate level of judicial review and its consequences in both the national and EU legal orders.
This case concerned the simplified procedure laid down in Regulation 1151/2012 for minor amendments to product specifications for a protected designation of origin (PDO).
The French Government had issued a decree approving an amended product specification for this PDO and submitted it to the Commission for approval under Article 53 of Regulation 1151/2012. The Commission approved the application while judicial review of the French decree was still ongoing following an action for annulment brought by GAEC Jeanningros.
The French Conseil d’État sent a preliminary reference to the CJEU asking whether the Commission’s approval had resulted in the action before it becoming devoid of purpose.
According to the Conseil d’État’s previous case law, when litigation is brought before it to challenge the legality of a decision by which the French Government requests the registration of a PDO, and this PDO is registered by the Commission, the action before it becomes devoid of purpose. The Conseil d’État held that this case law applied to decrees approving minor amendments, however it took into account CJEU case law according to which national courts are competent to rule on the legality of requests seeking the annulment of product specifications for a PDO. It therefore decided to make a preliminary reference to the CJEU asking whether holding that the ongoing challenge against a minor amendment had become devoid of purpose would be compatible with the applicable secondary law as well as with Article 47 of the Charter of Fundamental Rights.
National and European level decisions: which decision should be challenged and before which court?
The question raised by the Conseil d’État is central to an increasing number of composite implementation procedures set up in EU law. If decisions are made at both the national and European levels, which decision should be challenged, and before which courts? And what is the impact of a decision by the Commission which seemingly confirms a national decision on the ability to effectively challenge it? Effective judicial review is difficult to achieve as two levels of public administration are involved, while the principle remains that EU courts have an exclusive competence to review EU acts and no competence to review national measures, and vice-versa.
Final decision-making power as the criterion
The Advocate General restated the need for clarification and a more systematic approach to the regulation of composite procedures and the judicial review of the decisions that they yield. He proposed an answer based on the criteria he had applied in Berlusconi & Fininvest, focused on finding the most appropriate level for an effective judicial review. Accordingly, the main criterion for the level at which review should be sought is where the final decision-making power is exercised, and whether a decision in a composite procedure are the expression of a specific and autonomous decision-making power.
In Berlusconi & Fininvest, the CJEU ruled that in the procedure at issue national acts could be considered preparatory acts or proposals while the EU institution alone exercised the final decision-making power, which gave EU Courts the capacity to review the EU decision but also, to some extent, the acts made by national authorities which may have affected its validity.
National authorities have the final decision-making power
In GAEC Jeanningros, both the Advocate General and the CJEU found that the real decision-making power rests with national authorities, whereas the Commission has very little discretion. National decisions on minor amendments to product specifications are autonomous acts, necessary for the Commission to make a decision, and it is at the national level that all factors justifying the approval can be taken into account. The Commission’s role is limited to checking whether there are any manifest errors or any necessary information is lacking. Not only does this mean that there is a genuine decision-making power being exercised at the national level, which justifies judicial review before national courts, it also means that such a review can only truly be effective at the national level. This is true a fortiori in the context of the simplified procedure for minor amendments because litigation is the only opportunity for persons affected by the amendment to oppose it.
Allowing national challenges to be dealt with first
The answer given to the Conseil d’État therefore had to be that it cannot rule that the Commission’s decision renders the challenge brought before it devoid of purpose. As the national decision at issue forms the legal basis for the Commission’s decision, should the national judges annul the national decision, this would entail a review of the case by the Commission. In an interesting reversal of the more usual conflict of laws approach in EU law: the illegality of a national measure would deprive an EU act of its foundation. For this reason, the Advocate General ventured further than the CJEU and concluded his Opinion with a word of advice for the Commission, to wait until such national challenges have been dealt with before making a decision, and for national authorities, not to submit requests to the Commission while judicial review is ongoing. We can certainly agree with the Advocate General that such practices would be preferable in order to ensure legal certainty and effective judicial protection as well as to comply with the principle of good administration.
Although a more systematic approach to composite procedures and the way to organise judicial review in such cases seems difficult at this stage, this judgment does provide interesting guidelines for future cases.
Araceli Turmo is Senior Lecturer in EU Law at the University of Nantes. Her recent publications include ‘Immutabilité des actes juridictionnels et droit de l’Union européenne: poursuite de l’exploration des mécanismes nationaux de révision et de réexamen par la Cour de justice’, RAE (2019) 3, and ‘ A Dialogue of Unequals – The European Court of Justice Reasserts National Courts’ Obligations under Article 267(3) TFEU’, EuConst (2019) 340.
Araceli is also a member of EU Law Live’s Editorial Board, and her full bio can be accessed here.