JUDICIAL REVIEW BY THE EUROPEAN COURT OF JUSTICE

4.5 JUDICIAL REVIEW BY THE EUROPEAN COURT OF JUSTICE

As already discussed, the ECB enjoys extensive powers under the Treaty and the Statute of the ESCB, which include regulatory powers and the right to impose sanctions and penalties on undertakings in the event that they do not comply with the regulations and decisions of the ECB. Hence, Article 35.1 of the Statute of the ESCB provides for judicial review of the acts and omissions of the ECB under the conditions laid down in Articles 230 to 233 of the EC Treaty. Accordingly, the EU Council, the Commission or any Member State may initiate proceedings before the European Court of Justice (ECJ) against acts of the ECB that are intended to produce legal effects vis-à-vis third parties. The ECJ has jurisdiction in such actions “on grounds of lack of competence, infringement of an essential procedural requirement, infringement of [the] Treaty or of any rule of law relating to its application, or misuse of powers” (second paragraph of Article 230 of the Treaty). Moreover, any natural or legal person may, under the same conditions, initiate proceedings against a decision of the ECB that is of direct and individual concern to that person (fourth paragraph of Article 230).

Under Article 232 of the Treaty, the ECB may also be taken to the ECJ by a Community institution or a Member State for infringing the Treaty by failure to act. Similarly, any natural and legal person may complain to the Court that the ECB has failed to address to that person an act required by the Treaty or the Statute of the ESCB.

5 In the alphabetical order of the languages: Spanish, Czech, Danish, German, Greek, English, Estonian, French, Italian, Latvian, Lithuanian, Hungarian, Maltese, Dutch, Polish,

Portuguese, Slovak, Slovene, Finnish and Swedish. 6 EEC Council Regulation No 1 determining the languages to be used by the European

Economic Community (OJ B 17, 6.10.1958, p. 385).

If the action is well-founded, the ECJ declares the act to be void or, in the case of an omission, states that the failure to act was contrary to the Treaty. In those cases, the ECB is required to take the necessary measures to comply with its judgement. Such a situation arose in 2003 when the ECJ declared the ECB’s own anti-fraud regime to be void and instead ruled that the ECB should be subject to the Community’s anti-fraud scheme (see Section 4.6).

The ECJ not only reviews the acts and omissions of the ECB, but is also competent to rule in actions brought by the ECB against a Community institution or a Member State for the purpose of protecting its prerogatives or against a Community institution because of the latter’s failure to act (Articles 230 and 232 respectively). In the same vein, the ECB may bring action against an NCB if it fails to fulfil its Treaty and Statute obligations (Article 237(d) of the Treaty).

The ECJ also has jurisdiction in disputes between the ECB and its staff (see Section 6.4.1) and in all cases where jurisdiction has been conferred on the Court by agreement between the ECB and its contractual partners.