The Plea of Illegality in EU law: the missing piece in the puzzle of a ‘complete system of remedies’?

Mariolina Eliantonio, Matthijs Wolferen

Research output: Chapter in Book/Report/Conference proceedingChapterAcademic

Abstract

In the multi-level European Union (EU) legal system, there are two possibilities to indirectly challenge the EU (administrative) action, namely before a national court through a preliminary question of validity under Article 267 Treaty on the Functioning of the European Union (TFEU) and before an EU court through the procedure known as the ‘plea of illegality’ and provided for in Article 277 TFEU. The importance of these two systems of indirect review has been stressed time and again by the Court of Justice in the context of allegations that direct access to the EU courts is too restrictive because of the narrow standing conditions to be fulfilled in direct actions. The aim of the chapter is to disprove the supposedly complete nature of remedies of the EU legal system, in particular with respect to the second system of indirect review, namely that which foresees the ‘plea of illegality’ under Article 277 TFEU. First, the restrictive requirements to gain direct access to the EU courts are discussed. Then, the plea of illegality and its main features are examined. Thereafter, an empirical analysis of the use of the plea of illegality is presented. Finally, the plea of illegality is framed in the context of the delicate balance between legality and legal certainty.
Original languageEnglish
Title of host publicationIndirect Judicial Review in Administrative Law: Legality vs Legal Certainty In Europe
EditorsMariolina Eliantonio, Dacian Dragos
Place of PublicationLondon
PublisherRoutledge
Chapter11
Pages1-22
Number of pages22
ISBN (Electronic)9781003164302, 9780367758622
ISBN (Print)9780367758578
DOIs
Publication statusPublished - 22 Nov 2022

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