THE COURT OF JUSTICE OF THE EUROPEAN UNION

 

THE COURT OF JUSTICE OF THE EUROPEAN UNION

1) What are the Institutions of the European Union?

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The European Union is governed by a quadripartite institutional system, unique in its assignment of powers, and different from all previous national and international systems:

– The Commission, an independent body with executive responsibility and powers;

– The Council, the political decision making centre with legislative function. It is representative of the Member States since its members are ministers delegated by the various governments;

– The Parliament, consisting of representatives of the people of Europe, exercises limited but growing supervisory powers;

– The Court of Justice, which plays the role of ensuring that the law is observed in the interpretation and application of the Treaties.

 

 

 

2) What is the composition and organisation of the Court?

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The Court is composed of thirteen judges and six advocates-general.

The judges are appointed by common accord of the governments of the Member States. Every three years there is a partial replacement of the Court’s membership. Seven or six judges and three advocates-general are replaced alternately. This ensures continuity of the Court’s decisions, especially as most of the judges have had their term of office renewed at least once and sometimes twice.

The Treaties require judges to be chosen “from persons whose independence is beyond doubt and who possess the qualification required for appointment to the higher judicial offices in their respective countries or who are jurisconsults of recognised competence”.

There is no specific nationality requirement, but at the present time the Court has one judge from each Member State.

Since, however, the number of judges is not the same as the number of Member States, the 13th post of judge is assigned at discretion of governments. Up to now, that judge has been chosen from the nationals of the large member States.

Because of the freedom of choose available, the members of the Court have come from widely differing professional backgrounds. Judges, politicians, diplomats, academics, advocates and senior officials have all brought with them their particular experience and thus made their own contribution the authority of the Court’s decisions.

The independence of the judges is guaranteed by their status and is expressed in certain fundamental rules of procedure: their deliberations are secret; the judges are irremovable; they are immune from legal proceedings, and their immunity can be waived only by a unanimous decision of the Court itself (the person concerned obviously being excluded from the deliberation).

The judges select one of their number to be President for a renewable term of three years. The President directs the work of the Court and, in keeping with the criteria laid down by the Court, assigns cases to the Chambers when the application is received, appoints a judge -rapporteur for each case and sets the schedule for the various stages of the procedure and the dates of hearing and deliberations. He also gives judgement in summary proceeding on applications for provisional measures, though the decision may be referred to the full Court.

The advocates-general are appointed on the same terms and have to satisfy the same criteria with respect to independence and training as the judges. Nationality is immaterial. In practise, until recently, the advocates general were all nationals of the larger Union countries, but lately, two posts of advocate-general have gone to a national of one of the smaller Member States.

The First Advocate-General, appointed by the Court for one year, assigns cases to individual advocates-general as soon as the Judge-Rapporteur has been appointed by the President.

The duties of the advocates-general should not be confused with those of a public prosecutor or similar kind of functionary such as the “parquet” in a French court; rather, this is the task of the Commission. The advocates-general do not represent the Union and can not initiate proceedings themselves. According to Treaties, the function of the advocate-general is “acting with complete impartiality and independence to make, in open court, reasoned submissions on cases brought before the Court, in order to assist the Court in the performance of the task assigned to it”.

At a separate hearing some weeks after the lawyers have addressed the Court, the advocate-general comments on the various aspects of the case, weighs up the provision of the Union’s law, compares the case in point with previous rulings and proposes a legal solution to the dispute. He does not participate in the Court’s deliberations.

Each judge and advocate-general is assisted by two law clerks – qualified lawyers who carry out research on question both of procedure and of substantive law, study the cases and prepare procedural documents on cases pending before the Court. The judges and advocates-general are free to choose their own law clerks.

 

Plenary sessions and chambers.

The Court normally sits in plenary session. It must do so when hearing cases brought before by a Member State or by one of the Union’s Institutions, or when a Member State or a Union’s Institution, being a party to a case, or having made written observations on a request for a preliminary ruling, has requested that the case be heard by the full Court. Its deliberations are only valid if there are an odd number of judges, the quorum being seven.

However, the Treaties and its own rules of procedure allow it to set up Chambers within the Court: there are currently four Chambers composed of three judges, and two Chambers composed of six judges. No Chamber specialises in any particular subject. The President of the Chambers is appointed annually by the Court, on the basis of an annual rotation.

Unlike cases brought by a Member State or an institution, the Court may refer to Chambers any request for a preliminary ruling, or any action brought by persons or firms, where, in the words of the rules of procedure, the difficulty or the importance of the case or particular circumstances are not such to require that the Court decide it in plenary session.

The decision to assign a case is taken by the Court as the end of the written procedure upon consideration of the preliminary report presented by the Judge-Rapporteur and after the advocate-general has been heard.

Actions brought by officials or other employees of the institutions against the institutions are assigned to the Chambers in rotation and irrespective of the nature of the case, except where cases are linked.

At any stage in the proceedings the Chamber may refer to the Court a case assigned to, or developing upon it, if it considers that the case raises points of law requiring decision by the full Court.

 

The Registry and administration.

The judges and advocates-general jointly appoint the Registrar of the Court, and one or more Assistant-Registrars for the renewable term of six years.

The Registrar acts as a kind of secretary-general to the Court, being responsible for the acceptance, transmission and custody of all documents and notifications. All pledging are entered in his register and he is responsible for drawing up the minutes of each hearing. The Registrar is also responsible for Court administration: he is in charge of the budget and supervises the management and operation of each department.

The Court ha his own language service, whose staff have to be proficient in several Union’s languages, and have a legal background as the written pleadings, the opinions of the advocates-general and the Court’s rulings must be properly translated into the ten procedural languages.

A special department provides interpreters for hearings.

The Court has a library and documentation service covering national and Union’s legislation, case law and legal literature, linked to the Union’s data-processing system (Celex); specialists can obtain access by this means to the whole of the Court’s case law.

 

A Court of first instance

By virtue of the “Single European Act” signed on 17 February 1986 in Luxembourg, at the request of the Court of Justice and after consulting the Commission and the European Parliament, the Council may, acting unanimously, attach to the Court of Justice a court of first instance, with jurisdiction to hear certain classes of action brought by natural or legal persons. Such a court would, in particular, be competent to hear actions for damages. It would not be competent to hear actions brought by Member States, or to deal with questions referred for preliminary rulings. Its decisions would be subject to appeal to the Court of Justice on points of law.

The Council is to determine the composition of the court of first instance. Its members are to be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office. Like the judges of the Court of Justice, they are appointed by common accord of the Governments renewed every three years, retiring members being eligible for reappointment.

 

 

 

3) What are the Court’s powers?

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The Court ensures the observance of Union law.

Each of the Treaties establishing the European Union uses the same broad terms to define the specific responsibilities of the Court of Justice, which is to “ensure that in the interpretation and application of this treaty the law is observed”.

The implication of this rather laconic formula is that the Court interprets and applies the whole corpus of Union law from the basic Treaties to the various regulations, directives and decisions issued by the Council and the Commission. Its task is not to apply national law, but it may sometimes have to rule on the conformity of national law with Union Law in an individual case concerning the failure of a member State to fulfil an obligation. It may also occur, though this is very rare, that the Court is asked to apply and interpret national law in disputes involving contracts to which the Union is a party.

Although its jurisdiction is principally concerned with Community law, the Court is not cut off from national law since it draws its inspiration from the legal traditions that are common to the member States and ensures respect both for the general principles of law and for fundamental human rights insofar as they have been incorporated into the Union legal order.

 

The supreme judicial authority

The Court is the Union’s supreme judicial authority; there is no appeal against its rulings. And yet it is not the only body which enforces Union law.

National courts at all levels likewise have jurisdictions to apply and interpret Union law, which, to use words taken from a number of rulings, “produce direct effects and create individual rights which national courts must protect”. Requests for preliminary rulings from the required link between the Court of Justice and the national courts (which may, and in some cases must) ask the Court to interpret Union law or to rule on the validity by the Council and the Commission.

 

 

 

4) How many various forms of action do we have?

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Recourse to the Court is simple, although there are a variety of ways in which it may be made.

A distinction may be drawn between proceedings against a Member State:

– For failure to fulfil an obligation;

– For annulment;

– Against an institution for failure to act;

– To establish liability, and references for a preliminary ruling.

 

Proceedings for failure to fulfil an obligation

In the first place it is for the Commission, as guardian of the treaties and of the decision taken by the institutions, to initiate proceedings for failure to fulfil an obligation. If it considers that any part of the administration of a member State has not honoured a Union obligation, it asks the Member State to make its comments and then issues a reasoned opinion. If the Member State does not act within the time allowed in the opinion, it may be taken to the Court.

After notifying the Commission, a Member State may also initiate this procedure. Again, the Commission asks the member State, against which the breach is alleged, to present its comments and then issues a reasoned opinion. If the Commission does not produce the opinion within three months from the date of the request, the matter may be referred directly to the Court. In practice, the Member States have tended to prefer settling their disputes within the Council or turning to the Commission. It was not until 1978 that a Member State complained that another Member State was impeding the free movement of sheep-meat.

This action was withdrawn when the Commission brought an action as a result of which the national regulations were declared to be contrary to the Treaties. In the second case, one Member State requested the Court to find that another had not complied with its Treaty obligations by taking certain restrictive measures concerning fisheries. The accusation was upheld by a judgement of the Court.

If the Court agrees that the case is well-founded, it declares that an obligation has not been fulfilled. All the authorities of the Member State concerned are required to take the necessary measures to comply with the Court’s judgement in their respective areas of competence. If the Court finds that certain legislation of a Member State is incompatible with the Treaties, the authorities involved in the exercise of the legislative power must amend the legislation so as to bring it into conformity with the requirement of the Union law.

The courts of the State concerned also have the obligation of ensuring in the course of their work that the judgement is observed.

If a State does not comply with the ruling, new proceedings may be brought for a declaration by the Court that the obligation arising from its decision has not been complied with.

The Treaties do not provide any sanction where a Member State fails to give effect to a judgement. The effectiveness of Union law, however, can be ensured by national courts and by means of references for preliminary rulings.

 

Proceeding for annulment.

Procedures for annulment are directed against binding Union acts, be they of a general nature (regulations and directives) or decisions addressed to individuals taken by the Council and the Commission.

Because opinions and recommendations do not have binding force, proceedings may not be brought in respect of them. In the words of the Treaties, grounds for annulment include lack of competence, infringement of an essential procedural requirement, infringement of treaties or of any rules of law relating to their application and misuse of powers.

Proceedings for annulment are a way of reviewing the legality under the Treaties and Union acts, and of Commission decisions, and regulations, and of settling conflicts between the institutions over their respective powers under the Treaties.

The Member States and the Union institutions can seek the annulment of any binding act of the institutions, including those which, like regulations and directives, are of general application.

A private individual may bring an action for annulment of a decision addressed to him, or a decision which, although in the form of regulation or of a decision addressed to another person, is of direct and individual concern to him.

Such actions must be commenced within two months.

 

Proceeding for failure to act

Proceedings for failure to act provide a means of penalising inactivity on the part of the Council or the Commission.

Should the Council or the Commission infringe the Treaties by failing to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice to have the infringement established.

Such actions are admissible only if the institution in question has previously been called upon to act. If the institution has not acted within two months of being invited to do so, an action may be brought within a further period of two months.

Proceedings for failure to act have rarely been successful.

The institutions have considerable scope for taking proceedings for failure to act, but such cases can also be brought under identical conditions by private individuals or firms, who can complain that a Union institution has failed to take a binding decision concerning them.

Admissibility is subject to the same conditions as those which apply to actions for annulment. The action not taken must have been of direct and personal concern to the applicant. Thus private individuals cannot bring action against the omission of acts of legislative nature.

 

 

Actions to establish liability

The Union can incur civil liability for damage caused by its institutions or servants in the performance of their duties in accordance with the general principles common to the laws of the Member States. The Treaties confer the Court of Justice the exclusive jurisdiction to order the Union to pay damages because of its actions or its legislative acts on the principle of non-contractual liability.

The Court decides the basis on which liability is to be determined, whether the damage is due to Union actions, the amount of damage caused and the sum to be paid in compensation.

By contrast, the Union’s contractual liability is subject to the general law of the Member States and to the jurisdiction of their courts. 

 

 

 

5) Are there any other actions?

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Cases involving staff

The Court rules on all disputes between the Union and its staff in accordance with the provision of the Staff Regulations. In this context it rules on the legality of the acts of the institutions in their capacity as employers. It annuls any decisions contrary to the Staff Regulations or the regulations implementing them. It may award damages or pecuniary compensation.

 

Request for preliminary rulings

The Court is, by its very nature, the supreme guardian of Union law.

But it is not the only court that has the power of applying and interpreting this body of law that is common to all Member States.

There is a mass of provisions in the Treaties themselves, and in secondary legislation, that is directly and immediately applicable in the legal systems of all Member States. Provisions confer individual rights on nationals of Member States; private individuals may invoke them in their national courts both in relation to other individuals and/or in relation to the national authorities.

The courts in each Member States have thus become Union courts. To avoid differing and even conflicting interpretations, the Treaties introduced a system of preliminary rulings, which, without creating any hierarchical relationship, has institutionalised a fruitful co-operation between the Court of Justice and national courts.

The Treaties distinguishes between two kinds of preliminary rulings:

 

a) Rulings on interpretation, i.e. on the content and scope of the various treaties and the acts of the institutions, and

b) Rulings on the validity of the acts of the Union institutions.

 

The term “Treaties” covers the whole of its provisions, including annexes and amendments, and the various treaties of accession.

The acts of the institutions are mainly regulations, directives, and decisions. International treaties concluded by the Union with non-member countries, or international organisations also form an integral part of the Union legal order.

Preliminary rulings may be given only on Union law, not on national law, nor can a ruling be given on the compatibility of national law with Union law. When confronted with such questions, the Court of Justice has always restricted itself to indicating how the Union law, applicable to the case, is to be interpreted, leaving it to national court to decide for itself the question of compatibility.

Where a national court from which appeals may be made (a court of first instance or even appeal) finds there is a problem regarding the interpretation of the Treaties or of measures taken by the institutions, or some question arises as to the validity of these measures, it may apply to the Court in Luxembourg for a preliminary ruling if it considers that it needs to do so in order to give a judgement.

When a problem or question of this type arises in a national court (Constitutional Court, Court of Cassation, Council of State, Supreme Court, House of Lords), against whose decisions there is no judicial remedy under national law, that court is obliged by the Treaties to refer the matter to the Court of Justice.

Preliminary rulings may be applied for only by a national court or tribunal. The national court alone decides in complete independence whether to refer a preliminary question and, if so, what its content should be. It may do so even if the parties have raised no question of Union law, and even if they are opposed to such a reference.

The national court alone, as the only tribunal with direct knowledge of the fact of the case and the arguments of the parties, evaluates them and determines the legal background against which its request for interpretation should be set. The question must concern a matter within the jurisdiction of the Court of Justice that it is to say, it must deal with the interpretation, or examination of the validity of Union law.

The Court is obliged to reply to any question raised within the limits of its own jurisdiction. If questions are incorrectly formulated, or relate to matters outside the jurisdiction of the Court of Justice, it extracts from all the material provided by the national court the points of Union law requiring interpretation or, as the case may be, an examination of their validity. Only the national court may, if it thinks it necessary, withdraw a question once it has been referred to the Court.

 

The effects of preliminary rulings

Opinions vary on the authority enjoyed by preliminary rulings, and particularly on whether they have general effect or are binding only on the parties concerned.

However, three points seem to have been accepted regarding references for interpretation:

a) the interpretation given by the Court is binding on the court that requested it, and in any other court of the Member State concerned, which may have to decide the same case; there is nothing to prevent it from referring a further question if it requires further clarification;

b) the interpretation serves as a basis for applying the relevant law in any subsequent case and other courts may invoke it without further reference to the Court of Justice;

c) a court may always ask the Court of Justice for new interpretations

 

As regards judgements given in response to requests for a preliminary ruling to assess validity, the general view is that, if the Court declares a Union provision invalid, the ruling is universally applicable: it is binding on all the courts or tribunals of the Member States, even if the judgement in question is not directly binding on them.

 

 

 

 

 

6) What else can you suggest to individuals and legal persons? 

Enforcement by the national courts

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As above stated, the European Union has at its disposal a number of instruments for applying and implementing Union policy.

Union rules, in the form of regulations and decisions are directly applicable and binding in the Member States. Regulations are generally applicable, while decisions are binding on those to whom they are addressed.

Treaties provisions and directives are also capable of conferring rights upon private litigants to the extent that they have direct effect as defined by the European Court of Justice.

In practical terms, it is now established that the Union competition rules, for example, create rights and obligations for private legal parties which may be raised in national legal proceedings. Accordingly, any company or individual, who claims to have suffered injury as a result of actions which were in breach of Union competition law, has access in principle to a national remedy and the level of damages available will vary according to local jurisdictional rules and procedures.

To date, undertakings concerned about a possible breach of the competition rules have tended to use Union’s own complaints procedure in preference to direct action against the alleged offenders in the national courts. This is despite the fact that the powers of the Commission and the Court of Justice, while extensive, do not include the award of damages to injured parties.

Where a person or company suffers loss, as a result of such infringement, it may therefore be appropriate to seek relief using available local remedies. In this connection, plaintiffs should be aware of the possibility, available to all national judges, of referring questions of Union law to European Court of Justice for a preliminary ruling. Courts of final appeal are obliged to seek a preliminary ruling, where a decision on the question is necessary to enable it to give judgement.

 

Enforcement by the Commission

Running parallel to the possibility of such actions before national courts is an elaborate procedure of application of the competition rules by the Commission. In some ways, this procedure has further-reaching consequences for the firms involved than actions at national level, in that, for example:

the Commission has the power of imposing administrative fines for infringement of the competition rules;

the Commission has extensive powers to collect the information it needs in order to determine whether an infringement is taking place;

only the Commission has the power to grant exemptions on the basis of Article 85(37 EEC;

the Commission can take interim measure to bring damaging behaviour to an immediate halt.

 

The procedure before Commission cannot, however, culminate in an award of damages to the victim. Fines imposed are paid to the Commission, not to the injured party.

There are a number of ways in which a procedure before the Commission involving the competition rules can be set in lotion:

(i) Notification for negative clearance or for exemption;

(ii) Complaints;

(iii) own-initiative action by the Commission;

(iv) Sector investigation by the Commission.

 

Those entitled to submit complaints are Member States authorities, individuals or legal person, such as companies or trade associations.

An essential requirement is that a complainant must have a legitimate interest in the termination of the objectionable behaviour. Parties to an agreement would in any event be deemed to have a legitimate interest. Furthermore, any third party who can show that the alleged anti-competitive behaviour is damaging -even potentially- to him will normally have a legitimate interest

When a complain is submitted by a party, having a legitimate interest in the matter, the Commission will examine whether a violation of the competition rules is in fact taking place. If the complaint turns out to be well-founded, the Commission can then take the necessary measures to put an end to the infringement. If, on the other hand, the Commission, after examining the matter, finds that the compliant is not justified, it must inform the complainant of its reasons for not pursuing the matter. The complainant must then be allowed a certain period of time to submit any further comments, after which the Commission will either continue its investigation, if new facts come to light, or definitely reject the complaint.

 

There is no specific requirement as to the form in which a complaint is made: a simple letter is sufficient. The complaint should in any event include:

 

a) The name and address of complainant;

b) The identity of the undertaking(s) which are the subject of the complaint;

c) Evidence which support the complainant’s claim to a legitimate interest in the matter;

d) a clear description of the substance of the complaint and, if possible, the reasons why the complainant believes the behaviour in question constitutes an infringement of Article 85 and/or 86 EEC;

e) If the complaint is signed by a representative, evidence of his authority to act on behalf of the complainant.

 

The party who is subject to the complaint will be informed of the complaint against him and will be given the opportunity of presenting his views. In this context, the complainants would be well advised to indicate clearly which parts of his complaint were to be considered as confidential and thus not to be transmitted to the party in question.

Enrico Furia
Enrico Furiahttps://www.aneddoticamagazine.com
Multilingual executive with experience in international finance, foreign investment, business development, negotiations, product planning, strategic planning, ICT, energy, academic and vocational teaching. Strategist with proven success in pinpointing profitable opportunities while realizing corporate objectives Established solid business relationship, maintaining a large network of international contacts. Motivational leader and team builder experienced in cross cultural teaching, management, and people development. Hands-on manager with sound technical skills and global perspective of potential markets Multifaceted financial advisor on information systems, project management, energy, banking, and investment analysis. Posts

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