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Role and Functioning of the Court of Justice in the EU's Judicial System - Prof. Covadonga, Apuntes de Derecho de la Unión Europea

Universidad Complutense de Madrid (UCM)Derecho de la Unión Europea
Prof. Ferrer Covadonga

An overview of the court of justice of the european union (cjeu), one of the eu's seven institutions. The cjeu is responsible for ensuring the correct interpretation and application of eu law in collaboration with national courts. It has limited jurisdiction, focusing on controlling infringements of eu law by member states and institutions, interpreting eu law, and examining the validity of eu acts. National courts play a crucial role in implementing eu law and can request preliminary rulings from the cjeu for clarification on interpretation and validity. Preliminary rulings facilitate uniform application and development of eu law.

Tipo: Apuntes

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EU’s Judicial System!
Communitarian Law!
8. EU’S JUDICIAL SYSTEM
I. THE COURT OF JUSTICE OF THE EU: ORGANIZATION AND FUNCTIONS
CJEU: The Court of Justice of the European Union is one of the EU’s seven institutions. It consists currently of two courts
of law: the Court of Justice proper, and the General Court .!
It incarnates the judicial power in the EU.!
It is responsible for the jurisdiction of the European Union. The three courts ensure the correct interpretation and
application of primary and secondary Union law in the EU.!
The CJEU shares the jurisdictional function with the national courts of Member States, that are the ones that apply, in the
first place, the European laws. National Courts are the ordinary judges of the EU law.!
It is not an Appeal Body with respect to the national court decisions and it can only decide regarding EU law issues!
Until 1998, it had a single instance; the Court of Justice. The Single European Act added a new instance, subordinated to
the CJ in order to help it due to the increase in the number of disputes. Nice Treaty added Specialized judicial panels for
specific disputes.!
Seat: Luxembourg!
Art. 13.1 TEU: EU‟s Institution Basic regulationArt. 19 TEU Restarts. 251 a 281 TFEU!
CJEU: Single Institution, integrated currently by two courts: Court of Justice and General Court. But the!
TFEU allows the creation of Specialized Tribunals!
CJEU Competences
Strictly defined judicial competences have been conferred to the CJEU.!
It has only the competences conferred upon it, the ones that the EU laws assign to it. National courts are the ones that
carries out the main function of ordinary judges of the EU law.!
Therefore, national courts know about the disputes between individuals, between the individuals and the Member Sates
and, in contractual issues, between the individuals and the EU.!
And the CJEU has only a limited number of competences:!
•Controls the breaches/infringements of EU law attributable to Member States (through the infringement
proceeding)!
•Controls the legality of the activity or inactivity of EU‟s Institutions (through the actions for annulment, the
complaints for failure to act and the exceptions of illegality)!
•Interprets the EU law (preliminary rulings on interpretation)!
•Exam of the validity of the Intuition's acts (preliminary rulings on validity)!
•Disputes between the EU and its civil servants.!
These competences are conferred to the two instances of the CJEU.!
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Communitarian Law

8. EU’S JUDICIAL SYSTEM

I. THE COURT OF JUSTICE OF THE EU: ORGANIZATION AND FUNCTIONS

CJEU: The Court of Justice of the European Union is one of the EU’s seven institutions. It consists currently of two courts of law: the Court of Justice proper, and the General Court. It incarnates the judicial power in the EU. It is responsible for the jurisdiction of the European Union. The three courts ensure the correct interpretation and application of primary and secondary Union law in the EU. The CJEU shares the jurisdictional function with the national courts of Member States, that are the ones that apply, in the first place, the European laws. National Courts are the ordinary judges of the EU law. It is not an Appeal Body with respect to the national court decisions and it can only decide regarding EU law issues Until 1998, it had a single instance; the Court of Justice. The Single European Act added a new instance, subordinated to the CJ in order to help it due to the increase in the number of disputes. Nice Treaty added Specialized judicial panels for specific disputes. Seat: Luxembourg Art. 13.1 TEU: EU‟s Institution Basic regulationArt. 19 TEU Restarts. 251 a 281 TFEU CJEU: Single Institution, integrated currently by two courts: Court of Justice and General Court. But the TFEU allows the creation of Specialized Tribunals CJEU Competences Strictly defined judicial competences have been conferred to the CJEU. It has only the competences conferred upon it, the ones that the EU laws assign to it. National courts are the ones that carries out the main function of ordinary judges of the EU law. Therefore, national courts know about the disputes between individuals, between the individuals and the Member Sates and, in contractual issues, between the individuals and the EU. And the CJEU has only a limited number of competences:

  • Controls^ the^ breaches/infringements^ of^ EU^ law^ attributable^ to^ Member^ States^ (through^ the^ infringement proceeding)
  • Controls the legality of the activity or inactivity of EU‟s Institutions (through the actions for annulment, the complaints for failure to act and the exceptions of illegality)
  • Interprets the EU law (preliminary rulings on interpretation)
  • Exam of the validity of the Intuition's acts (preliminary rulings on validity)
  • Disputes between the EU and its civil servants. These competences are conferred to the two instances of the CJEU.

Communitarian Law Art. 19.3 TEU: The CJEU shall, in accordance with the Treaties:

  • Rule on actions brought by a Member State, an institution or a natural or legal person
  • Give preliminary rulings, at the request of courts or tribunals of the member States, on the interpretation of Union law or the validity of acts adopted by the institutions
  • Rule in other cases provided for in the Treaties. With the disappearance of the pillar structure, the CJEU has extended its control over more areas. The restrictions to its competence in the area of AFSJ have disappeared. Although a limitation subsists in art. 276 TFEU. However, the CFSP is still subject to specific provisions and is outside the Court of Justice‟s control, except in two cases:
  • The delimitation between the Union‟s competences and the CFSP.
  • It has jurisdiction over the actions for annulment brought against decisions providing for restrictive measures against natural or legal persons adopted by the Council. To sum up: There is a relation between the CJEU and the national courts in order to achieve a uniform application of EU law, as well as its coherent development The CJEU has jurisdiction over a limited number of actions, that are reduced to the strictly necessary to ensure the autonomy of the EU. But, at least as a last instance, it has the monopoly of the interpretation of EU law (is the maximum guarantor of its uniform interpretation) through the preliminary rulings on interpretation and validity, that are a way of cooperation between the CJEU and the national courts. The CJEU is the supreme or the highest interpreter of EU law (Treaties, secondary legislation, etc).

1. The Court of Justice (CJ)

Composition CJ One judge per Member State (28) 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. The panel gives its opinion before the governments of the Member States make the appointments. The panel comprises seven persons chosen from among former members of the CJ and the GC, members of national supreme courts and lawyers of recognized competence, one of whom shall be proposed by the EP. Mandate: 6 years, renewable (partial replacements every 3 years) Retiring judges and advocates-general may be reappointed. Judges and advocates-general 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 jurisconsults of recognized competence.

Communitarian Law With the increase of the disputes, the Council transferred to it new competences in 1993 in order to resolve the actions for annulment, for failure to act and for liability brought by natural and legal persons according to the Treaties. Nice incorporated to the Treaties the provisions regarding the CFI and its competences. Lisbon Treaty changes the name to General Court (GC), the 18 competences (Art. 256 TFEU) and the rest of the regulation remains the same. A. COMPOSITION GC Art. 19.2 TEU: One judge from each Member State. Art. 254 TFEU: “The number of judges of the General Court shall be determined by the Statute of the Court of Justice of the European Union. The Statute may provide for the General Court to be assisted by Advocates-General”. On 28 March 2011, the General Court asked for an increase in the number of judges, in order to assume its workload. On 3 December 2015, the Council adopted a regulation reforming the General Court. The reform provides for a progressive increase in the number of judges at the General Court and for the merging of the Civil Service Tribunal with the General Court. The reform entered into force at the end of December 2015. New article 48 Statute CJEU The General Court shall consist of:

  • 40 Judges as from 25 December 2015;
  • 47 Judges as from 1 September 2016;
  • Two Judges per Member State as from 1 September 2019. Objective: Allow the General Court to deliver judgments within a reasonable time The judges are appointed by common accord of the governments of the Member States after consultation of a panel responsible for giving an opinion on candidates' suitability to perform the duties of Judge. Mandate: 6 years, renewable. They appoint their President, for a period of three years, from amongst themselves. The Judges perform their duties in a totally impartial and independent manner. Unlike the Court of Justice, the General Court does not have permanent Advocates General. However, that task may, in exceptional circumstances, be carried out by a Judge (that, of course, in that case cannot intervene as judge). Organization:
  • Full Court or Grand Chamber (fifteen Judges): When this is justified by the legal complexity or importance of the case.
  • Chambers of five or three Judges: Are the ones that resolve the issues in general.
  • Single Judge: Issues of low complexity. B. COMPETENCES The General Court has jurisdiction to hear and determine:
  • Actions brought by natural or legal persons against acts of the institutions, bodies, offices or agencies of the European Union (which are addressed to them or are of direct and individual concern to them) and against

Communitarian Law regulatory acts (which concern them directly and which do not entail implementing measures) or against a failure to act on the part of those institutions, bodies, offices or agencies; for example, a case brought by a company against a Commission decision imposing a fine on that company; [Actions for annulment and for failure to act whose objective is the judicial review of the basic legislative activity and to solve the conflicts between institutions (actions brought by a Member State or an Institution against the EP, the Council of both, and the ones brought by and Institution against the ECB or the Commission) Court of justice]

  • Actions brought by the Member States against the Commission;
  • Actions brought by the Member States against the Council relating to acts adopted in the field of State aid, trade protection measures (dumping) and acts by which it exercises implementing powers;
  • Actions seeking compensation for damage caused by the institutions or the bodies, offices or agencies of the European Union or their staff;
  • Actions based on contracts made by the European Union which expressly give jurisdiction to the General Court;
  • Actions relating to intellectual property brought against the Office for Harmonization in the Internal Market (Trade Marks and Designs) and against the Community Plant Variety Office;
  • Exercise at first instance jurisdiction in disputes between the Union and its servants. Art. 256.3 TFEU: The GC shall have jurisdiction to hear and determine questions referred for a preliminary ruling in specific areas laid down by the Statute. At the moment, the Statute has not conferred this competence to the GC. The decisions of the General Court may, within two months, be subject to an appeal before the Court of Justice, limited to points of law (the Court is linked by the facts established at first instance). C. SPECIALIZED COURTS Nice Treaty: Allowed the creation of specialized judicial panels attached to the CFI with jurisdiction in specific areas; the Council adopted a decision creating the Civil Service Tribunal, that came into operation in 2006. Lisbon: Change the name to specialized courts. They can be created by the EP and the Council, acting in accordance with the ordinary legislative procedure. They shall act by means of regulations, either on a proposal from the Commission after consultation of the CJ or at the request of the CJ after consultation of the Commission. They shall hear and determine at first instance certain classes of action or proceeding brought in specific areas. The regulation establishing a specialized court shall lay down the rules on the organisation of the court and the extent of the jurisdiction conferred upon it. The members of the specialized courts shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office. They shall be appointed by the Council, acting unanimously. The Civil Service Tribunal. The last reform have implied the merge of the Civil Service Tribunal and the General Court from September 2016. The 7 judges of the Civil Service Tribunal have been transferred to the GC, as well as its competence to resolve at first instance the disputes between the Union and its servants.

Communitarian Law national and Union law, or to decide on the applicability of a specific provision of Union law in proceedings pending before a national court.

  • The Court usually reinterprets these questions as a request by the referring court for basic or essential criteria for interpreting the Union legal provisions concerned, enabling the national court to then give its own assessment of compatibility between the national and Union law. The Court extracts those elements of Union law which need to be interpreted for the purpose of the underlying legal dispute. Capacity to proceed (to refer cases to the CJ); all national courts of the Member States.
  • Courts are understood to mean all independent institutions empowered to settle disputes in a constitutional state under due process of law (not private arbitration tribunals for example).
  • The CJ has clarify which bodies are obliged to refer a preliminary ruling and which ones not, depending whether their decisions can be subject or not to judicial remedy in national law (ulterior recurso)

1. Preliminary rulings on interpretation

The courts or tribunals against whose decisions there is no judicial remedy under national law are obliged to bring the matter before the CJ. Unless the Court has already ruled on the matter or the interpretation of the EU rule of law in question is obvious. CILFIT (1982); “Acte Claire” doctrine: Referral is not necessary in case de right interpretation of EU law is so clear that no reference is needed:

  • “...the correct application of Community law may be so obvious as to leave no scope for any reasonable doubts as to the manner in which the question raised is to be resolved”.
  • But, this doctrine may only be used when:
    • (^) The matter is equally clear to all courts of the Member States (in all languages of the EU).
    • (^) And is also equally clear to the CJEU.
  • If this is the case, the national court can refrain from submitting the question to the CJEU. Including if is a court against whose decisions there is no judicial remedy. Act éclairé doctrine (Da Costa 28,29,30/62): There is no need to refer a preliminary question if the question raised has already been subject of a preliminary ruling. Therefore, national courts can apply the already existing and consolidated case-law of the CJEU, that has already resolved the question raised. “Although the third paragraph of art. 177 (EEC) unreservedly requires courts or tribunals of a members state against whose decisions there in no judicial remedy under national law to refer to the court every question of interpretation raised before them, the authority of an interpretation under art.177 already given by the court may deprive the obligation of its purpose and thus empty it of its substance. Such is the case especially when the question raised is materially identical (emphasis added) with a question which has already been the subject of a preliminary ruling in a similar case.” The national court cannot decide not to apply the doctrine/case-law of the court of justice.

2. Preliminary rulings on validity

Communitarian Law The obligation to refer is unconditional. All national courts must refer a question to the Court when they have doubts about the validity of a Union instrument, whether there are or not judicial remedies against their decisions. The CJ made it clear that it alone has the power to reject illegal provisions of Union law. The national courts must therefore apply and comply with Union law until it is declared invalid by the CJ. That is why all the national courts are obliged in this case to refer the question to the CJ. The decision to refer or not the preliminary ruling to the CJ belongs to the national court (that is hearing the case). It will depend on the relevance of the point of Community law in issue for the settlement of the dispute before it. The parties can only request, not require, it to refer the case. The CJ will confirm if it has jurisdiction or not. The national court has a wide margin to consider if it has to refer the question or not, but always within the conditions established in art. 267 TFEU:

  • The doubt that is in the origin of the question must be a reasonable doubt regarding the interpretation or the validity of the EU law
  • It must be raised in a case pending before a court or tribunal, that leads to a judicial decision that solves a real dispute (e.g.: it can‟t be an hypothetical question)
  • The answer of the CJ must be necessary to resolve the main dispute.

3. Effects

Preliminary rulings on interpretation The sentence/judgement has the force of res judicata and binds: The judge/court that referred the question, that must apply the EU act in conformity with the interpretation given by the CJ. All the other national courts hearing the same case. All the other courts of the Member States that have to apply the act in any type of dispute. Preliminary rulings on validity The sentence/judgement binds:

  • The judge/court that referred the question, that cannot apply the act to the main dispute.
  • All the other courts, that must consider the act42 invalid. To sum up: Preliminary rulings on interpretation:
  • National courts against whose decisions there is not judicial remedy (last instance): They do not have to refer a preliminary ruling when there is case-law of the CJEU or when interpretation of EU law is so clear that no reference is needed
  • National courts whose decisions can be subject to appeal: They can decide which is the correct interpretation, specially when they understand that there is jurisprudence of the Court of Justice that gives enough indications. Preliminary rulings on validity: