The Court of Justice in the legal order of the European Union
Following the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union now has legal personality and has acquired the competences previously conferred on the European Community. Community law has therefore become European Union law, which also includes all the provisions previously adopted under the Treaty on European Union as applicable before the Treaty of Lisbon. In the following presentation, the term ‘Community law' will nevertheless be used where reference is being made to the case-law of the Court of Justice before the entry into force of the Treaty of Lisbon.
The European Atomic Energy Community (Euratom) continues to exist alongside the European Union. Given that the jurisdiction of the Court of Justice in respect of Euratom is, in principle, the same as its jurisdiction in relation to the European Union, and to make the following presentation clearer, any reference to European Union law will also cover the law governing Euratom.
|The Court of Justice is composed of 27 Judges and 11 Advocates General. The Judges and Advocates General are appointed by common accord of the governments of the Member States after consultation of a panel responsible for giving an opinion on prospective candidates' suitability to perform the duties concerned. They are appointed for a term of office of six years, which is renewable. They are chosen from among individuals whose independence is beyond doubt and who possess the qualifications required for appointment, in their respective countries, to the highest judicial offices, or who are of recognised competence.|
The Judges of the Court of Justice elect from amongst themselves a President and a Vice-President for a renewable term of three years. The President directs the work of the Court and presides at hearings and deliberations of the full Court or the Grand Chamber. The Vice-President assists the President in the exercise of his duties and takes his place when necessary.
The Advocates General assist the Court. They are responsible for presenting, with complete impartiality and independence, an ‘opinion' in the cases assigned to them.
The Registrar is the institution's secretary general and manages its departments under the authority of the President of the Court.
The Court may sit as a full court, in a Grand Chamber of 15 Judges or in Chambers of three or five Judges.
The Court sits as a full court in the particular cases prescribed by the Statute of the Court (including proceedings to dismiss the European Ombudsman or a Member of the European Commission who has failed to fulfil his or her obligations) and where the Court considers that a case is of exceptional importance.
It sits in a Grand Chamber when a Member State or an institution which is a party to the proceedings so requests, and in particularly complex or important cases.
Other cases are heard by Chambers of three or five Judges. The Presidents of the Chambers of five Judges are elected for three years, and those of the Chambers of three Judges for one year.
To enable it properly to fulfil its task, the Court has been given clearly defined jurisdiction, which it exercises on references for preliminary rulings and in various categories of proceedings.
The Court of Justice cooperates with all the courts of the Member States, which are the ordinary courts in matters of European Union law. To ensure the effective and uniform application of European Union legislation and to prevent divergent interpretations, the national courts may, and sometimes must, refer to the Court of Justice and ask it to clarify a point concerning the interpretation of EU law, so that they may ascertain, for example, whether their national legislation complies with that law. A reference for a preliminary ruling may also seek the review of the validity of an act of EU law.
The Court of Justice's reply is not merely an opinion, but takes the form of a judgment or reasoned order. The national court to which it is addressed is, in deciding the dispute before it, bound by the interpretation given. The Court's judgment likewise binds other national courts before which the same problem is raised.
It is thus through references for preliminary rulings that any European citizen can seek clarification of the European Union rules which affect him. Although such a reference can be made only by a national court, all the parties to the proceedings before that court, the Member States and the institutions of the European Union may take part in the proceedings before the Court of Justice. In that way, several important principles of EU law have been laid down by preliminary rulings, sometimes in reply to questions referred by national courts of first instance.
These actions enable the Court of Justice to determine whether a Member State has fulfilled its obligations under European Union law. Before bringing the case before the Court of Justice, the Commission conducts a preliminary procedure in which the Member State concerned is given the opportunity to reply to the complaints addressed to it. If that procedure does not result in the Member State terminating the failure, an action for infringement of EU law may be brought before the Court of Justice.
The action may be brought by the Commission - as, in practice, is usually the case - or by a Member State. If the Court finds that an obligation has not been fulfilled, the State must bring the failure to an end without delay. If, after a further action is brought by the Commission, the Court of Justice finds that the Member State concerned has not complied with its judgment, it may impose on it a fixed or periodic financial penalty. However, if measures transposing a directive are not notified to the Commission, it may propose that the Court impose a pecuniary penalty on the Member State concerned, once the initial judgment establishing a failure to fulfil obligations has been delivered.
By an action for annulment, the applicant seeks the annulment of a measure (in particular a regulation, directive or decision) adopted by an institution, body, office or agency of the European Union. The Court of Justice has exclusive jurisdiction over actions brought by a Member State against the European Parliament and/or against the Council (apart from Council measures in respect of State aid, dumping and implementing powers) or brought by one European Union institution against another. The General Court has jurisdiction, at first instance, in all other actions of this type and particularly in actions brought by individuals.
These actions enable the lawfulness of the failure of the institutions, bodies, offices or agencies of the European Union to act to be reviewed. However, such an action may be brought only after the institution concerned has been called on to act. Where the failure to act is held to be unlawful, it is for the institution concerned to put an end to the failure by appropriate measures. Jurisdiction to hear actions for failure to act is shared between the Court of Justice and the General Court according to the same criteria as for actions for annulment.
Appeals on points of law only may be brought before the Court of Justice against judgments and orders of the General Court. If the appeal is admissible and well founded, the Court of Justice sets aside the judgment of the General Court. Where the state of the proceedings so permits, the Court of Justice may itself decide the case. Otherwise, it refers the case back to the General Court, which is bound by the decision given by the Court of Justice on the appeal.
Whatever the type of case, there is always a written stage and, if appropriate, an oral stage, which is public. However, a distinction must be drawn between, first, references for preliminary rulings and, second, other actions (direct actions and appeals).
The national court submits questions to the Court of Justice about the interpretation or validity of a provision of European Union law, generally in the form of a judicial decision in accordance with national procedural rules. When that request has been translated into all the European Union languages by the Court's translation service, the Registry notifies it to the parties to the national proceedings, and also to all the Member States and the institutions of the European Union. A notice is published in the Official Journal of the European Union stating, inter alia, the names of the parties to the proceedings and the content of the questions. The parties, the Member States and the institutions have two months within which to submit written observations to the Court of Justice.
An action before the Court must be brought by application addressed to the Registry. The Registrar publishes a notice of the action in the Official Journal, setting out the applicant's claims and arguments. The application is served on the other parties, who have two months within which to lodge a defence or a response. If appropriate, the applicant may lodge a reply and the defendant a rejoinder. The time limits for lodging these documents must be complied with.
In both types of action, a Judge-Rapporteur and an Advocate General, responsible for monitoring the progress of the case, are appointed by the President and the First Advocate General respectively.
In all proceedings, once the written procedure is closed, the parties may state, within three weeks, whether and why they wish a hearing to be held. The Court decides, after reading the proposal of the Judge-Rapporteur and hearing the views of the Advocate General, whether any preparatory inquiries are needed, what type of formation the case should be assigned to, and whether a hearing should be held for oral argument, for which the President will fix the date.
When it has been decided that an oral hearing will be held, the case is argued at a public hearing, before the bench and the Advocate General. The Judges and the Advocate General may put to the parties any questions they consider appropriate. Some weeks later, the Advocate General delivers his or her Opinion before the Court of Justice, again in open court. He or she analyses in detail the legal aspects of the case and suggests completely independently to the Court of Justice the response which he or she considers should be given to the problem raised. This marks the end of the oral stage of the proceedings. If it is decided that the case raises no new question of law, the Court may decide, after hearing the Advocate General, to give judgment without an Opinion.
The Judges deliberate on the basis of a draft judgment drawn up by the Judge-Rapporteur. Each Judge of the formation concerned may propose changes. Decisions of the Court of Justice are taken by majority and no record is made public of any dissenting opinions. Only the Judges present during the oral deliberations in the course of which the judgment is adopted sign the judgment, without prejudice to the rule that the most junior judge in the formation does not sign the judgment if that formation is even in number. Judgments are pronounced in open court. Judgments and the Opinions of the Advocate General are available on the CURIA internet site on the day they are delivered. They are, in most cases, subsequently published in the European Court Reports.
Where a question referred for a preliminary ruling is identical to a question on which the Court has already been called on to rule, or where the answer to the question admits of no reasonable doubt or may be clearly deduced from existing case-law, the Court may, after hearing the Advocate General, give its decision by reasoned order, citing in particular a previous judgment relating to that question or the relevant case-law.
The expedited procedure enables the Court to give its rulings quickly in very urgent cases by reducing the time-limits as far as possible and giving such cases absolute priority. On application by one of the parties, the President of the Court may decide, on a proposal from the Judge-Rapporteur, and after hearing the Advocate General and the other parties, whether the particular urgency of the case requires the use of the expedited procedure. Such a procedure can also be used for references for preliminary rulings. In that case, the application is made by the national court seeking the preliminary ruling and must set out in the application the circumstances establishing that a ruling on the question put to the Court is a matter of exceptional urgency.
This procedure enables the Court of Justice to deal in a much shorter timeframe with the most sensitive issues relating to the area of freedom, security and justice (police and judicial cooperation in civil and criminal matters, as well as visas, asylum, immigration and other policies related to free movement of persons). Cases dealt with under the PPU are referred to a Chamber of five specially designated Judges and the written part of the procedure is, in practice, essentially conducted electronically and is very much curtailed, both in terms of duration and in the number of those authorised to submit written observations, the majority of them intervening in the oral part of the procedure, which is mandatory.
Applications for interim measures seek suspension of the operation of measures which an institution has adopted and which form the subject-matter of an action, or any other interim order necessary to prevent serious and irreparable damage to a party.
There are no court fees for proceedings before the Court of Justice. On the other hand, the Court does not meet the fees and expenses of the lawyer entitled to practice before a court of a Member State by whom the parties must be represented. However, a party unable to meet all or part of the costs of the proceedings may, without having to instruct a lawyer, apply for legal aid. The application must be accompanied by all necessary evidence establishing the need for legal aid.
In direct actions, the language used in the application (which may be one of the 24 official languages of the European Union) will, in principle, be the ‘language of the case’, that is to say the language in which the proceedings will be conducted. In appeals, the language of the case is that of the judgment or order of the General Court which is under appeal. With references for preliminary rulings, the language of the case is that of the national court which made the reference to the Court of Justice. Oral proceedings at hearings are interpreted simultaneously, as required, into various official languages of the European Union. The Judges deliberate, without interpreters, in a common language which, traditionally, is French.
Procedure before the Court of Justice
Direct actions and appeals
References for a preliminary ruling
[Application for legal aid]
National court's decision to make a reference
The Judge-Rapporteur draws up the preliminary report
[Opinion of the Advocate General]
Deliberation by the Judges
Optional steps in the procedure are indicated in brackets.
Words in bold indicate a public document.
The Court of Justice in the legal order of the European Union
For the purpose of European construction, the Member States (now 27 in number) concluded treaties establishing first the European Communities and then a European Union, with institutions which adopt legal rules in specific areas.
The Court of Justice of the European Union is the judicial institution of the European Union and of the European Atomic Energy Community (Euratom). It is made up of two courts: the Court of Justice and the General Court. Their primary task is to examine the legality of EU measures and ensure the uniform interpretation and application of EU law.
Through its case-law, the Court of Justice has identified an obligation on administrations and national courts to apply EU law in full within their sphere of competence and to protect the rights conferred on citizens by that law (direct application of EU law), and to disapply any conflicting national provision, whether prior or subsequent to the EU provision (primacy of EU law over national law).
The Court has also recognised the principle of the liability of Member States for breach of EU law which, first, plays an important part in consolidating the protection of the rights conferred on individuals by EU provisions and, secondly, may contribute to more diligent application of EU provisions by Member States. Infringements committed by Member States are thus likely to give rise to obligations to pay compensation which may, in some cases, have serious repercussions on their public funds. Moreover, any breach of EU law by a Member State may be brought before the Court and, where a judgment finding such an infringement is not complied with, the Court can order payment of a periodic penalty and/or a fixed sum. However, if measures transposing a directive are not notified to the Commission, it may propose that the Court impose a pecuniary penalty on a Member State, once the initial judgment establishing a failure to fulfil obligations has been delivered
The Court of Justice also works in conjunction with the national courts, which are the ordinary courts applying EU law. Any national court or tribunal which is called upon to decide a dispute involving EU law may, and sometimes must, submit questions to the Court of Justice for a preliminary ruling. The Court must then give its interpretation or review the legality of a rule of EU law.
The development of its case-law illustrates the Court's contribution to creating a legal environment for citizens by protecting the rights which European Union legislation confers on them in various areas of their daily life.
In its case-law (starting with Van Gend & Loos in 1963), the Court introduced the principle of the direct effect of Community law in the Member States, which now enables European citizens to rely directly on rules of European Union law before their national courts.
The transport company Van Gend & Loos had imported goods from Germany to the Netherlands and had to pay customs duties which it considered to be incompatible with the rule in the EEC Treaty prohibiting increases in customs duties in trade between Member States. The action raised the question of the conflict between national legislation and the provisions of the EEC Treaty. The Court decided the question referred by a Netherlands court by stating the doctrine of direct effect, thus conferring on the transport company a direct guarantee of its rights under Community law before the national court.
In 1964, the Costa judgment established the primacy of Community law over domestic law. In that case, an Italian court had asked the Court of Justice whether the Italian law on nationalisation of the production and distribution of electrical energy was compatible with certain rules in the EEC Treaty. The Court introduced the doctrine of the primacy of Community law, basing it on the specific nature of the Community legal order, which is to be uniformly applied in all the Member States.
In 1991, in Francovich and Others, the Court developed another fundamental concept, the liability of a Member State to individuals for damage caused to them by a breach of Community law by that State. Since 1991, European citizens have therefore been able to bring an action for damages against a State which infringes a Community rule.
Two Italian citizens who were owed pay by their insolvent employers had brought actions for a declaration that the Italian State had failed to transpose Community provisions protecting employees in the event of their employers' insolvency. On a reference from an Italian court, the Court stated that the directive in question was designed to confer on individuals rights which they had been denied as a result of the failure to act of the State which had not implemented the directive. The Court thus opened up the possibility of an action for damages against the State itself.
Of the thousands of judgments given by the Court, the majority, particularly preliminary rulings, clearly have important consequences for the daily life of European Union citizens. Some of these judgments are cited below as examples from the most important areas of European Union law.
Since the Cassis de Dijon judgment in 1979 on the principle of free movement of goods, traders can import into their country any product coming from another country within the European Union, provided that it was lawfully manufactured and marketed there and that there is no overriding reason relating, for example, to the protection of health or the environment to prevent its importation into the country of consumption.
Many judgments have been given in the field of freedom of movement of persons.
In the judgment in Kraus (1993), the Court held that the situation of a Community national who holds a postgraduate academic title, which was awarded in another Member State and facilitates access to a profession or the pursuit of an economic activity, is governed by Community law, even as regards the relations between that national and his Member State of origin. Accordingly, if a Member State can make use of that title in its territory subject to an administrative authorisation, the authorisation procedure must be intended solely to verify whether the title was properly awarded.
One of the most well-known cases in this field is Bosman (1995), in which the Court gave a ruling on a reference from a Belgian court on the compatibility of rules of football federations with freedom of movement of workers. It stated that professional sport is an economic activity whose exercise may not be hindered by rules governing the transfer of players or restricting the number of players who are nationals of other Member States. That principle was extended in subsequent judgments to the situation of professional sportsmen from third countries which had entered into an association agreement (Deutscher Handballbund, 2003) or a partnership agreement (Simutenkov, 2005) with the European Communities.
A judgment of 1989 on freedom to provide services concerned a British tourist who was assaulted and seriously injured in the Paris metro. On a reference from a French court, the Court held that, as a tourist, he was the recipient of services outside his country and was covered by the Community law principle of non-discrimination on grounds of nationality. He was therefore entitled to the same compensation as a French national could claim (Cowan).
In cases referred by the Luxembourg courts, the Court declared that national provisions having the effect that an insured person cannot obtain reimbursement of the cost of dental treatment on the ground that it was given in another Member State constitute an unjustified restriction on freedom to provide services (Kohll, 1998), and that refusal to reimburse costs related to the purchase of spectacles abroad is regarded as an unjustified restriction on free movement of goods (Decker, 1998).
An air hostess brought an action against her employer on the grounds of discrimination in the pay she received compared with her male colleagues who did the same work. On a reference from a Belgian court, the Court held in 1976 that the Treaty rule requiring equal pay for men and women for equal work had direct effect (Defrenne).
In its interpretation of the Community rules on equal treatment for men and women, the Court has played a part in protecting women against dismissal linked to pregnancy. A woman who was unable to continue work because of difficulties connected with her pregnancy was dismissed. In 1998, the Court held that that dismissal was contrary to Community law. Dismissal of a woman during pregnancy for absences linked to pregnancy-related illness is unlawful discrimination on grounds of sex (Brown).
In order to ensure the protection of the health and safety of workers, workers must have paid annual leave. In 1999, BECTU, a British trade union, challenged United Kingdom legislation which denied that right to workers on short-term contracts on the ground that it was incompatible with a Community directive on the organisation of working time. The Court held (BECTU, 2001) that the right to paid annual leave is a social right directly conferred on every worker by Community law and that no worker may be denied that right.
By holding that respect for fundamental rights is an integral part of the general principles of law it safeguards, the Court has made a considerable contribution to improving the standards of protection of those rights. In this respect, it looks to the constitutional traditions common to the Member States and to international treaties on the protection of human rights, on which the Member States have collaborated or which they have signed, in particular the European Convention on Human Rights. Following the entry into force of the Treaty of Lisbon, the Court will be able to apply and interpret the Charter of Fundamental Rights of the European Union of 7 December 2000, which is recognised under the Treaty of Lisbon as having the same legal value as the Treaties.
After numerous terrorist attacks against the police, police officers in Northern Ireland began carrying fire-arms. However, on the grounds of public safety, women police officers were not authorised to carry fire-arms (on the basis of a certificate issued by the competent minister which could not be challenged before the courts). As a result, full-time contracts in the Northern Ireland police were no longer offered to women. On a reference from a United Kingdom court, the Court held that excluding any power of review by the courts of a certificate issued by a national authority runs counter to the principle of effective judicial control which may be relied upon by all persons who consider themselves wronged by discrimination on grounds of sex (Johnston, 1986).
In respect of European Union citizenship which, under the Treaty on the Functioning of the European Union, is afforded to every person holding the nationality of a Member State, the Court has stated that such citizenship entails the right to reside in another Member State. Accordingly, a minor who is a Member State national, is covered by sickness insurance and has available to him or her sufficient resources also has that right to reside. The Court noted that Community law does not require the child itself to have the necessary resources and that refusal to grant at the same time to its mother, who is a third-country national, a right to reside would render redundant the child's right to reside (Zhu and Chen, 2004).
In the same judgment the Court stated that, even where the purpose of acquiring the nationality of a Member State is to obtain for a third-country national a right of residence pursuant to Community law, it is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State.