Getting Rid of Historic Relics – A Proposal to Modify Article 263 TFEU

Article 263 TFEU, which entrusts the CJEU with the jurisdiction to provide for the direct judicial control of legality of EU acts, has undergone a significant development. Nonetheless, one aspect survived several waves of Treaty modifications: the exemption of opinions and recommendations. Moreover, the CJEU extended the exemption to all EU acts, which do not produce binding legal effects. This paper suggests that all EU acts producing some legal effects (and not necessarily acts having binding legal force) should be admissible for the action for annulment. It argues that the flawed case law of the CJEU is a consequence of an inertial interpretation of the Treaty provision which seems to be a historic relic: Article 263 TFEU does not correspond to the current normative landscape in the EU. Various types of non-binding acts still possess a significant regulatory power that deserves a direct judicial control. In case of any future Treaty reform, this paper proposes a small modification which can have an important effect: to delete the exemption of recommendations and opinions from Article 263 TFEU and to allow for the direct judicial review of all EU acts producing legal effects regardless of whether such effects are binding or not.