European Court of Justice

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European Court of Justice

The European Court of Justice (ECJ), which is seated in Luxembourg, is the highest court of the legal order of the European Union (EU). It has developed a federal constitutional architecture for the EU. This architecture includes the principles of supremacy and direct effect for European Community rules on national legal orders, the protection of fundamental rights, the expansion of Community competences, and the understanding of the European Community as a "community of law." The ECJ does not interpret the European Community treaties simply as an agreement between states but as having been created for the "peoples of Europe." In landmark decisions such as Van Gend & Loos (1963) and Francovich (1991) the ECJ contributed to the process of European integration while at the same time protecting the legal positions of individual citizens vis-à-vis the member states. For some, this has made the ECJ the hero of European integration, and for others, the villain.

The creation of a European legal order was only possible through the cooperation of different national actors, in particular the national courts. This cooperation was fundamental in both promoting the developments of the European legal order and securing its legitimacy. The ECJ is open to questions posed by national courts and often relies on national legal traditions when interpreting Community rules. The national courts in requesting and applying rulings from the ECJ provide ECJ decisions with the same authority as national judicial decisions. In this light, the judicial system of the EU should, in effect, be described as composed of both the European courts, which consist of the ECJ and a Court of First Instance (CFI), and the national courts responsible for the application of EU law in national proceedings.

composition of the court of justice

The ECJ and the CFI each consist of one judge per member state, which means that there are twenty-five judges on each court. The ECJ is also composed of eight advocates general who are members of the court with the same status as judges. Therefore, in total, the ECJ is composed of thirty-three members. Every three years, in the ECJ as well as in the CFI, the judges elect the president of their court from among their numbers for a renewable term of three years.

Cases coming to the ECJ are distributed to different chambers, usually composed of three or five judges. A case will be decided by the grand chamber—consisting of thirteen judges with a quorum of nine—when the ECJ considers this appropriate or when this is requested by a Member State or a European institution that is party to the proceedings. Only in extraordinary cases will the ECJ sit as a full court. The quorum for the full court is fifteen.

The members of the ECJ (judges and advocates general) are appointed for a term of six years by common accord of the member states. Often they previously held high political or administrative offices or were senior members of the national judiciary, academics, or practicing lawyers. Court rules provide that their independence "shall be beyond doubt." Observers of the court conclude that this rule is obeyed and that, rather than being representatives of their national governments, the judges are remarkably "European-minded."

To protect the perceived independence of the judges, judgments are delivered as collegiate decisions without separate concurring or dissenting opinions.

the role of the advocate general

The ECJ is assisted in its work by eight advocates general. Each case that is filed in the ECJ is assigned to one of the advocates general. After the parties have made their submissions to the Court, the advocate general publicly delivers an impartial and independent opinion on how, in the advocate general's view, the case at hand should be resolved. The opinion does not bind the Court, and the advocate general does not take part in the subsequent deliberations. However, the advocates general have an important influence on the development of Community law and their opinions form an integral part of the Court's jurisprudence . Only when the Court considers that a case raises no new point of law, it may decide, at the end of the written part of the proceedings, to determine the case without the advocate general's opinion.

jurisdiction of the court of justice

The jurisdiction of the ECJ mainly follows from provisions of the EU Treaty and the European Community Treaty. It is the European Community Treaty that established the ECJ. The ECJ can review the legality of decisions of the European Community institutions and may annul them or declare them invalid if they are not in conformity with higher rules of Community law. In addition, the Court has an important role in enforcing EU law in the member states and may even impose liability for violations of EU law and penalty payments if member states do not remedy their infringements . Perhaps most important, the Court assists national judicial bodies in interpreting Community law.

Because the EU Treaty borrows the institutions from the European Community, the ECJ is part of the single institutional framework of the EU. However, in the policy areas covered by the EU Treaty—notably the common foreign and security policy and police and judicial cooperation in criminal matters—the role of the ECJ is limited.

actions before the court of justice

The ECJ is authorized by the European Community Treaty to hear preliminary references and direct actions. Preliminary references are sent to the Court by national judicial bodies who, in proceedings before them, encounter a problem of


interpretation or application of Community law. Direct actions are brought before the Court by a member state, an institution, or a private individual. The direct actions are the infringement procedure, the action for annulment, the action for failure to act and the action for damages.

Under the infringement procedure member states can be forced to comply with Community law. The defendant in this procedure is always a member state. The action can be brought by one member state against another, but normally it is brought by the Commission. The infringement procedure is an important way for the Commission, the institution that is at the centre of the management of the EU system, to perform its role as "guardian of the Treaties." A significant proportion of the infringement procedure cases regards the timely and proper implementation of directives. The outcome of a successful Court action is a declaratory judgment that a state has committed an infringement. If a member state fails to remedy the infringement, the Commission, in a subsequent procedure, may ask the Court to impose a monetary penalty. Some have voiced skepticism about the cumbersome procedure that eventually leads to the imposition of a penalty and about the scenario that would unwind if a member state refuses to pay. In practice, however, most disputes are settled during the procedure the Commission is obliged to follow before it may refer the matter to the Court.

Reviews of the legality of Community acts and omissions occur through the action for annulment and the action for failure to act. Article 230 of the European Community Treaty offers the possibility of an action for annulment to challenge the legality of any Community act (other than an act of the ECJ itself) that has binding force. If the action is well-founded, the Court can declare the act void in whole or in part. As a general rule the act is then considered never to have existed.

Parallel to the action for annulment is the action for failure to act. The applicant must demonstrate that there was an obligation to act and that, even after having been called on, the institution concerned failed to do so. If the action is successful, the Court will pronounce a declaratory judgment to the effect that the defendant institution must take measures.

Member states, institutions, and private applicants may in principle all bring an action for annulment, but different conditions for standing to do so apply depending on the identity of the applicant. There are three categories of applicants: privileged, semi-privileged and nonprivileged. The Council, the institution in which government ministers meet to reconcile national interests and enact EU legislation, is a privileged applicant. So are the European parliament, the Commission, and the member states. They have standing to challenge any act regardless whether they can demonstrate an interest in bringing the action. The Court of Auditors and the European Central Bank are semi-privileged applicants. They have standing whenever their prerogatives are in issue.

All other applicants, including regional or local governments, fall within the category of nonprivileged applicants. Their actions for annulment are only admissible if the act challenged directly affects their interests. Consequently, it is extraordinarily difficult for a private applicant to challenge more general legislative measures through the action for annulment. The Court has often been urged to alter its stance on the strict requirement of individual concern but thus far to no avail.

Liability of the Community: The Action for Damages. Article 288 of the European Community Treaty governs claims for compensation for damage against the Community. In cases arising from contractual liability the court applies the law that is applicable to the contract according to the rules of private international law. In noncontractual liability cases—in which the Court has exclusive jurisdiction—the Court applies rules that it has developed from national legal traditions.

The rules on admissibility are considerably more lenient for the action for damages than they are for the action for annulment. An action for damages may be brought up until five years after the damage occurred, and the identity of the appellant sets no limits on admissibility. However, the substantive criteria for establishing Community liability can be very strict.

the preliminary reference procedure

Under Article 234 of the European Community Treaty a national court may refer a question to the ECJ on the interpretation of a Community rule whenever it considers it necessary to give a judgment in a case pending before it. Courts against whose decisions there are no appeals are obliged to stay the case and refer the question to the ECJ. Because of its increased workload, however, the ECJ has put forward a set of criteria that may excuse national courts from the obligation to refer a case to the ECJ when the question to be raised has been effectively answered in a previous decision of the ECJ. When the national proceedings require the national court to determine the validity of a Community act, those national courts are obliged to refer the question to the ECJ. Only this court can decide on the validity of the Community act.

The preliminary reference procedure performs a pivotal function in the European Community legal system. It forges a direct relationship between the ECJ and the national courts, who may have to set aside national law when Community law is relied on by parties before them.

the ecj and fundamental rights

Although the ECJ is often labelled the "constitutional court" of the EU, its role in respect to the protection of fundamental human rights is not equivalent to that of federal constitutional courts of, for example, Germany or the United States because the "basic constitutional charter" (the European Community Treaty), although imparting rules and competences that ultimately could affect fundamental rights, has a limited scope and purpose. As a result, the ECJ can only undertake human rights review in cases that fall within the scope of Community law—and even that definition of the Court's role was established by case law, in recognition of the tenet that the application of those treaties would have to occur in conformity with fundamental human rights. This case-law was codified as follows in Article 6 of the EU Treaty in 1992:

The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

In 2000 a Charter of Fundamental Rights was adopted but without legally binding effect. Still, the Charter may have a guiding value in determining the fundamental rights that correspond to the common constitutional traditions of the member states.

Fundamental Rights and the Member States. The reasons why the role of the ECJ regarding fundamental rights is the topic of continuing political and academic debate are numerous and closely related. The issue is important and sensitive when actions or legislation of a member state are at stake. It raises the following question: To what extent do fundamental rights, as general principles of Community law, impose limits and obligations on member states? The case Grogan (1991) may serve as illustration.

In Grogan the ECJ was confronted with an Irish prohibition to assist pregnant women in Ireland to obtain abortions by informing them of the location of abortion clinics abroad. When various student associations distributed information about the availability of legal abortion in the United Kingdom, an anti-abortion organization instituted legal proceedings against them and requested an injunction restraining the distribution. In their defense, the student associations argued that a ban would contravene their right to freedom of expression and that it would impair the freedom to provide and receive services (in breach of Article 43 European Community). The High Court of Ireland referred the matter to the ECJ for a preliminary ruling. Before the ECJ could examine the argument relating to freedom of expression, it had to determine whether the case raised an issue of Community law. According to the ECJ, it did not. This, in turn, meant that the Court could not examine the argument relating to freedom of expression. Some have criticized the judgment in Grogan, claiming that the ECJ adopted a narrow view of the scope of Article 43 European Community to avoid difficult questions on abortion and the freedom of expression.

Fundamental Rights and the European Institutions. The main focus of the human rights debate is not on the member states, but on the European institutions themselves. Here the wider context of the EU's perceived lack of democratic legitimacy is apparent. While often contested in democratic terms, the EU has the power to adopt legislation that supersedes national laws and constitutions. There consequently needed to be a guarantee that the EU would not threaten the fundamental rights usually protected at the level of the member states. Even though the original treaties made no reference to fundamental rights, the ECJ held in Stauder (1969) and subsequent cases that it would protect those rights. This currently has a firm basis in Article 6 EU. Nevertheless, Article 6 EU hardly settles the debate on human rights in the EU. The member states appear to be in consensus that the Charter of Fundamental Rights should be incorporated in binding EU law and that the EU itself should become party to the European Convention of Human Rights (ECHR) which could make its actions subject to scrutiny by the European Court of Human Rights.

division of tasks between the ecj and the cfi

Although the Court of Justice of the European Communities is one institution, it in fact consists of two Courts: the ECJ and the CFI. The CFI was created in 1989 to help relieve the ECJ of its case load and originally served as a court of first instance for direct actions brought by natural or legal persons against the Community institutions. The division of competences has become considerably more complex.

Nevertheless, with some exceptions, the general rule still applies that the CFI is competent for actions brought by natural and legal persons (e.g., an action for damages against the Community), whereas the ECJ has jurisdiction in preliminary rulings and actions brought by the member states, institutions, or the European Central Bank. The ECJ functions as a court of appeal against decisions of the CFI.

case load and length of proceedings

According to legend, on the day that the first preliminary reference made by a national judicial body was received—in 1961, almost four years after the Court was established—there was abundant popping of champagne corks in the deliberation room. In the early twenty-first century the Court receives well over 200 references per year—a number that is expected to increase significantly as a result of the enlargement of the EU from fifteen to twenty-five member states. The average length of the preliminary ruling procedure is approximately two years—a disquieting statistic as the procedure is an incident staying the national main proceedings. Preliminary references account for about half of the case load of the ECJ. Direct actions and appeals account for the other half. In total, more than 500 proceedings were brought before the ECJ in 2004, while at the end of that year nearly 900 cases were still pending. In addition, well over 500 direct actions were initiated before CFI, and 1,000 cases were pending at the end of 2004.

See also: European Court of Human Rights; European Union.

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Miguel Poiares Maduro