PRAWOMOCNOŚĆ A PROCEDURA ZAPYTANIA WSTĘPNEGO O WAŻNOŚĆ AKTÓW WSPÓLNOTOWYCH WEDŁUG ART. 234 TRAKTATU O USTANOWIENIU WSPÓLNOTY EUROPEJSKIEJ
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Date
2004
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Wydział Prawa i Administracji UAM
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VALIDITY CONTROL OF FINAL AND BINDING ACTS ACCORDING TO ART. 234 EUROPEAN COMMUNITY TREATY
Abstract
The article deals with the relation between the action for annulment under Art 230 EC and
the control of validity within the scope of the preliminary ruling procedure under Art 234(1)
(b) EC. Despite some fundamental differences between both procedures - Art 230 EC is a direct
action before the community courts, while Art 234 EC is a procedure of co-operation between
national courts and the ECJ - overlaps are possible: After expiration of the time-limit, pursuant
to Art. 230(5) EC, legal acts of community institutions become final. Yet, since the institution of
a preliminary ruling procedure is not subject to any time-limit, such legal acts can be subject to
a preliminary reference concerning their validity after the time limit pursuant to Art 230(5) has
already expired. Making a reference in favour of a person who could bring an action for annulment
against such an act but has failed to do so, would thus circumvent the finality of that act. For this
reason the ECJ rejects references concerning the validity of acts under Art 234 EC, if an annulment
action of the person in whose favour the reference is made was obviously admissible but no such
action was brought. The article analyses the case-law existing on this issue and attempts to
determine more precisely the criterion of obviousness. In addition, the article highlights
constellations of overlap that have not yet been subject of the existing case-law.
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Ruch Prawniczy, Ekonomiczny i Socjologiczny 66, 2004, z. 3, s. 71-90.