Judicial Control of the European Communities

By Gerhard Bebr | Go to book overview

7
Charge of Exception of Illegality

AFTER the required period for an appeal for annulment has expired, an act becomes legal and generally unassailable. Even though it might have been vitiated by some illegalities, these are healed by time. Thus a general act, originally 'irregular' may be further implemented or executed by individual acts. Of course, private parties may appeal a general act or regulation, but only for a détournement de pouvoir and provided further that they can show that their 'interests were already aggrieved -- a rather difficult requirement in view of the very brief period during which an appeal may be lodged. To liberalise somewhat this rigid requirement the ECSC Treaty, Article 36 and the EEC Treaty, Article 184 (Euratom Article 156) provide for an exception of illegality to be charged against a general act or regulation as executed or implemented by an individual act. Dealing with such a charge the Court may annul the individual act appealed and thus exempt the application of the provisions of a general act or regulation on the basis of which the individual act was addressed to the party concerned.1

An exception of illegality is 'to complete the judicial protection of enterprises. . . .2 In interpreting Article 36 of the ECSC Treaty the Advocate-General Roemer emphasised this function. 'Since enterprises may appeal general decisions to a limited extent only, they must be able to charge irregularities against the application of general decisions in such instances in which these decisions impose direct obligations on them or

____________________
1
Judgment No. 9/56 ( Meroni c. Haute Autorité) 4 Recueil 11, at p. 27, ( 1958) reaffirmed by Judgment No. 15 /57 ( Compagnie des Hauts Fourneaux de Chasse c. Haute Autorité) ibid. 157, at p. 185. See also the conclusions of Advocate-General Roemer in Affaire No. 10/56 ( Meroni c. Hohe Behörde) 4 Sammlung 87, at pp. 101-102 ( 1958) and of Advocate-General Lagrange in Affaire No. 15/57 ( Compagnie des Hauts Fourneaux de Chasse c. Haute Autorité) 4 Recueil 197, at p. 206 ( 1958) with references to the law and practice of the Member States, ibid. pp. 203-204.
2
Conclusions of Advocate-General Roemer in Affaire 10/56 ( Meroni c. Hohe Behörde 4 Sammlung 87, at p. 102 ( 1958).

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