Non-Judicial Remedies and EU Administration

Protection of Rights versus Preservation of Autonomy

Paola Chirulli, Luca De Lucia

• Publisher: Routledge
• Year: 2021
• ISBN:
  9780429594403
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

The increasing number of executive tasks assigned to EU institutions and agencies has resulted in a greater demand for justice that can no longer be satisfied by the courts alone. This has led to the development of a wide range of administrative remedies that have become a central part of the EU administrative justice system. This book examines the important theoretical and practical issues raised by this phenomenon.

The work focuses on five administrative remedies: internal review; administrative appeals to the Commission against decisions of executive and decentralised agencies; independent administrative review of decisions of decentralised agencies; complaints to the EU Ombudsman; and complaints to the EU Data Protection Supervisor. The research rests on the idea that there is a complex, and at times ambivalent, relationship between administrative remedies and the varying degrees of autonomy of EU institutions and bodies, offices and agencies. The work draws on legislation, internal rules of executive bodies, administrative practices and specific case law, data and statistics. This empirical approach helps to unveil the true dynamics present within these procedures and demonstrates that whilst administrative remedies may improve the relationship between individuals and the EU administration, their interplay with administrative autonomy might lead to a risk of fragmentation and incoherence in the EU administrative justice system.

IV Administrative review before the EU agencies’ Boards of Appeal

Summary: 1. Boards of Appeal: types and constitutional basis. – 2. Distinctive features of EU Boards of Appeal. – 3. The quasi-judicial nature of Boards of Appeal. – 4. Proceedings before Boards of Appeal. – 4.1. Standing and entitled parties. – 4.2. Terms, conditions and procedures for lodging appeals; decisions subject to appeal. – 4.3. Effects of the appeal. – 4.4. Appeal proceedings. – 5. Scope and intensity of the review before EU agencies’ Boards of Appeal. – 5.1. The notice of appeal and the decision-making powers of Boards of Appeal. – 5.2. Questions of law and fact. – 5.3. Review of technical issues and substitutive powers: between adjudication and implementation. – 6. Boards of Appeal, protection of private interests and autonomy of agencies.

1 Boards of Appeal: types and constitutional basis

Boards of Appeal (BoAs) have developed in parallel with the assignment of important administrative functions to EU agencies, in particular the power to adopt binding decisions that impact individual legal positions.¹ The creation of independent appeal bodies is consistent with the special form of autonomy accorded to the agencies and, at the same time, meets the need to offer private parties an ad hoc protection tool.² It is therefore an expanding model which, according to various documents from the Commission and other EU Institutions as well as recent reforms, could in the future provide the standard means of administrative protection against the decisions of EU agencies.³

This chapter was written by Paola Chirulli.

1See Paola Chirulli and Luca De Lucia, ‘Specialized Adjudication in EU Administrative Law – The Boards of Appeal of EU Agencies’ (2015) 40 EL Rev 832, which is reworked, updated and further developed in this chapter.

2Autonomy, as a distinguishing feature of agencies, is highlighted in the Commission Communication ‘The Operating Framework for the European Regulatory Agencies’ (2002) COM 718 final.

3See also Commission, draft of the inter-institutional agreement on the operating framework for the EU regulatory agencies COM (2005) 59 final and the joint statement on decentralised agencies and the subsequent common approach of Parliament, the Council and the Commission signed on 19 June 2012 <https://europa.eu/european-union/sites/europaeu/files/docs/body/joint_statement_and_common_approach_2012_en.pdf> accessed 1 March 2020, followed by the Commission’s Progress Report COM (2015) 179 final. As to the role of the BoAs, the aforementioned draft of inter-institutional agreement clarifies that ‘all of these agencies adopt individual decisions, which could give rise to complaints from third parties. The role of the BoA is to check that the agency has applied basic regulation rules and the implementing rules correctly, within the scope of the tasks devolved on it and the responsibilities assigned to it’.

The Boards of Appeal are organised as follows. First of all, there are the BoAs set up within the agencies of the former first pillar, which are tasked with resolving disputes related to specific acts of the agency itself. These include: the five BoAs that operate within the European Union Intellectual Property Office (EUIPO, formerly OHIM);⁴ those within the Community Plant Variety Office (CPVO),⁵ the European Chemicals Agency (ECHA),⁶ the European Aviation Safety Agency (EASA),⁷ the Agency for the Cooperation of Energy Regulators (ACER),⁸ the joint BoA of the European Supervisory Authorities (ESAs)⁹ and the Appeal Panel of the Single Resolution Board (SRB).¹⁰ There are also the BoAs set up in the reformed European Union Agency for Railways.¹¹

4Arts 165ff of Regulation (EU) 1001/2017 of the European Parliament and the Council of 14 June 2017 on the European Union trade mark [2017] OJ L 154/1 (EUIPO Regulation), repealing Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark [2009] OJ L 78/1 (OHIM Regulation II). Commission Delegated Regulation (EU) 625/2018 [2018] OJ L 104/2 and Commission Implementing Regulation (EU) 626/2018 of 5 March 2018 laying down detailed rules for implementing certain provisions of Regulation (EU) 2017/1001 of the European Parliament and of the Council on the European Union trade mark, and repealing Implementing Regulation (EU) 2017/1431 [2018] OJ L 104/37, replacing the Commission Regulation (EC) No 2868/1995 of 13 December 1995, implementing Council Regulation (EC) No 40/94 on the Community trade mark [1994] OJ L 303/1 (OHIM Regulation) and the Commission Regulation (EC) No 216/96 of 5 February 1996 laying down the rules of procedure of the BoAs of the Office for Harmonization in the Internal Market [1996] OJ L 28/11). In the legal scholarship, Paolo Mengozzi, ‘Le contrôle des décisions de l’OHMI par le Tribunal de première instance et la Cour de justice dans le contentieux relatif au droits de la propriété industrielle’ (2002) 2 Revue du Droit de l’Union européenne 315ff; Amina Dammann, Die Beschwerdekammern der Europäischen Agenturen (Peter Lang 2004), passim; Nadia La Femina, ‘Alternative Administrative Dispute Resolution Methods in the European Union Intellectual Property Office’ in Barbara Marchetti (ed), Administrative Remedies in the European Union (Giappichelli 2017) 55ff.

5Arts 45ff and arts 67ff, Council Regulation (EC) No 2100/1994 of 27 July 1994 on Community plant variety rights [1994] OJ L 227/1 and arts 11ff and 45ff Commission Regulation (EC) No 874/2009 of 17 September 2009 establishing implementing rules for the application of Council Regulation (EC) No 2100/1994 as regards proceedings before the Community Plant Variety Office [1994] OJ L 251/3.

6Arts 89ff, Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency [2006] OJ L 396/1; art 77, Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products [2012] OJ L 167/1. See also the Commission Regulation (EC) No 771/2008 of 1 August 2008 laying down the rules of organisation and procedure of the BoA of the European Chemicals Agency [2008] OJ L 206/5, amended by Commission Implementing Regulation 2016/283 [2016] OJ L 137/4 (ECHA BoA Rules of Procedure). Marco Bronckers and Yves van Gerven, ‘Legal Remedies Under the EC’s New Chemicals Legislation REACH: Testing a New Model of European Governance’ (2009) 46 CML Rev 1823ff; Lucas Bergkamp and others, ‘Dispute Resolution and Legal Remedies’ in Lucas Bergkamp (ed), The European Union REACH Regulation for Chemicals (OUP 2013) 263ff; Marcus Navin-Jones, ‘A Legal Review of EU Boards of Appeal in Particular the European Chemicals Agency BoA’ (2014) 21 European Public Law 143ff.

7Art 47ff, Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency [2008] OJ L 79/1, repealed by Regulation (EU) 1139/2018 of 4 July 2018 of the European Union Parliament and of the Council [2018] OJ L 221/1 (EASA Regulation) and the Commission Regulation (EC) No 104/2004 of 22 January 2004 laying down rules on the organisation and composition of the BoA of the European Aviation Safety Agency [2004] OJ L 16/20 (EASA BoA Rules of Procedure). In the literature, see Antonio Cassatella, ‘Appeals before the European Aviation Safety Agency’ in Marchetti (n 4) 21.

8Arts 25ff, Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing an Agency for the Cooperation of Energy Regulators (recast) [2019] OJ L 158/22 (ACER Regulation), which has repealed Regulation (EC) No 713/2009 of 13 July 2009 [2009] OJ L 211/1; Decision BoA No1–2011 as amended on 5 October 2019 laying down the rules of organisation and procedure of the Board of Appeal of the European Union Agency for the Cooperation of Energy Regulators (ACER BoA Rules of Procedure) <www.acer.europa.eu/en/The_agency/Organisation/Board_of_Appeal/BoA_Public_Docs/Rules%20of%20Procedure_for%20publication.pdf> accessed 1 March 2020.

9Arts 58ff, Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority [2010] OJ L 331/12 (EBA Regulation), Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority [2010] OJ L 331/48 (EIOPA Regulation), Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority [2010] OJ L 331/84 (ESMA Regulation). These regulations have recently been amended by Regulation (EU) 2019/2175 of the European Parliament and of the Council of 18 December 2019 [2019] L 334/1, whose approval required a very long process from the adoption of the first proposal, and which has significantly reformed the ESA’s structure and powers but has only partly changed the BoA’s discipline. These agencies are the expression of what has been defined as the fourth wave of agencification (Carol Harlow and Richard Rawlings, Process and Procedure in EU Administrative Law (Hart 2014) 277ff). On the ESAs’ BoAs, William Blair, ‘Board of Appeal of the European Supervisory Authorities’ (2013) 24 European Business Law Review 164; Marco Lamandini, ‘The ESAs’ Board of Appeal as a Blueprint for the Quasi-Judicial Review of European Financial Supervision’ (2014) 11 European Company Law 290.

10Art 85, Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules of procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 [2014] OJ L 225/1 (Single Resolution Mechanism Regulation). In doctrine, see Andrea Magliari, ‘Administrative Remedies in European Financial Governance. Comparing Different Models...