- This article refers to the European Union court, not the European Court of Human Rights of the Council of
Europe
Official emblem of the ECJ
The Court of Justice of the European Communities, usually called the European Court of Justice (ECJ), is the
highest court in the European Union (EU). It has
the ultimate say on matters of EU law in order to ensure equal application
across the various European Union member states.[1]
The body was established in 1952 and is based in Luxembourg City — unlike most
other Union institutions which are based in Brussels. The court is composed of one judge per member state although only 13 of them hear a case
at any one time in the 'Grand Chamber'. The court is led by a president, since 2003 this has been Vassilios Skouris.[1]
The court is assisted by a lower court, the Court of First Instance, dealing
with certain issues. Two other courts deal with other responsibilities, the Civil Service Tribunal over employees of the Union's institutions and
Court of Auditors (an institution in its own right) over the Union's
accounts.[1][2] It should not be confused with the European Court of Human Rights in Strasbourg, which
is part of the Council of Europe.
History
- Further information: History of the European Union
The court was established in 1952, by the Treaty of Paris (1951), for the
European Coal and Steel Community.[1] It was established with seven judges, considered an ideal number
to allow for representation and an unequal number in case of a tie. One would be appointed from each member state and the seventh
would be elected by representatives of the trade unions in the coal and steel industries. It became an institution when the
Treaties of Rome established the European Economic
Community (EEC) and the European Atomic Energy Community
(Euratom). Although all three communities were separate, under the Convention of 25 March 1957 they shared some
common institutions; these being the Parliamentary Assembly and the Court. It was
with this that the Court of the ECSC became the Court of Justice of the European Communities.[3][4]
When in 1992 the Maastricht Treaty created the European Union, the name of the court did not change like the other institutions, with its powers
primarily being over the European Community pillar of the union. However the 1957
convention was replaced when the Treaty of Amsterdam outlined the court as an official
and separate institution with its clear powers and responsibilities. It was already established as the official law court of the
communities in 1988.[4]
Overview
The ECJ is the highest court of the European Union in matters of Community law, but not national law with each member having its own legal system. It makes
sure that EU-level legislation is interpreted and applied in the same manner across the whole of the EU. This is to avoid
national courts interpreting the same legislation differently. Its decisions are binding, ensuring member states, and institutions
follow the law. For example if a state fails to implement a directive or the
Commission acts outside its power. The court can also settle legal dispites between
states, institutions, businesses and individuals.[1]
There is a court below the ECJ called the Court of First Instance. It was
created in 1989 and is attached to the Court of Justice. It gives rulings on certain cases, particularly those brought by private
individuals, companies and some organisations. It also deals with competition law.
Attached to this court is the Civil Service Tribunal. Established
in 2005, it deals with disputes between the EU and the European civil service.[1] A number of high level judges have also called for a centralised EU
court to deal with the patent law of the European Union.[5]
Organisation
- Further information: List of Members of the European
Court of Justice
As of January 2007, the Court of Justice is made up of 27 Judges and 8 Advocates General. Should the Court so request, the
Council of the European Union may, acting unanimously, increase the number of Advocates General. The Judges and Advocates General
are appointed by common accord of the governments of the member states and hold office for a renewable term of six years. They
are chosen from legal experts whose independence is 'beyond doubt' and who possess the qualifications required for appointment to
the highest judicial offices in their respective countries or who are of recognised competence. Each member state of the European
Union has the power to nominate one judge, so their number coincides most of the time with the number of member states. However,
as the ECJ can only sit with an uneven number of judges, additional judges have been appointed at times when there was an even
number of member states.[3]
The President of the Court of Justice is elected from among the judges every three years (renewable term). The president
presides over hearings and deliberations, directing judicial business and administration (for example, the time table of the
Court and Grand Chamber). He or she also assigns cases to the chambers for inquiries and appoints a judge as a
rapporteur.[6] The Council may also appoint Assistant
Rapporteurs to assist the President in applications for the adoption of interim measures and to assist Judge-Rapporteurs in the
performance of their duties.[citation needed]
The court is assisted by eight advocates general who are responsible for presenting, with complete impartiality and
independence, an ‘opinion’ in the cases assigned to them. They can question the parties involved and then give their opinion on a
legal solution to the case before the judges deliberate and deliver their judgment. Officially, the opinion given does not have
to be followed by the Judges. Since 2003, advocates general are only required to give their opinion if the Court considered the
case raises a new point of law.[1][7]
5 of the 8 Advocates General are nominated as of right by the 5 big member states of the European Union: Germany, France, the United Kingdom,
Italy and Spain. The other 3 positions rotate in alphabetical order
between the 20 smaller member states; currently (2007), Slovenia, Slovakia and Portugal are thus represented. However, being only a little
smaller than Spain, Poland has repeatedly requested a permanent Advocate General. It achieved
this during negotiations on the Lisbon Treaty and the number of
positions being rotated with other members will be increased to five. Hence the number of Advocate Generals will increase to
eleven upon the entry into force of the Treaty, expected for 2009.[8][9]
Registry
The Registrar is the secretary general of the court. It manages departments under
the authority of the Court's President.[7] He or she also has same court duties as the registrar or clerk
of a national court and is appointed by the Court for a renewable term of six years. The Court may also appoint one or more
Assistant Registrars. He or she helps the Court, the Chambers, the President and the Judges in all their official functions. He
or she is responsible for the Registry as well as for the receipt, transmission and custody of documents and pleadings which have
been entered in a register initialled by the President. He or she is Guardian of the Seals and is responsible for the Court's
archives and publications. The Registrar is responsible for the administration of the Court, its financial management and its
accounts, and he is helped by an administrator. The operation of the Court is in the hands of officials and other servants who
are responsible to the Registrar under the authority of the President. The Court administers its own infrastructure; this
includes the language service, which plays a particularly important role.[citation needed]
Chambers
The Court of Justice may sit as a full Court, in a Grand Chamber (13 Judges), or in chambers of three or five Judges. It sits
in a Grand Chamber when a Member State or a Community institution that is a party to the proceedings so requests, or in
particularly complex or important cases. Other cases are heard by a chamber of three or five Judges. The Presidents of the
chambers of five Judges are elected for three years, the Presidents of the chambers of three Judges for one year. The Court sits
as a full Court in the very exceptional cases exhaustively provided for by the Treaty (for instance, where it must compulsorily
retire the European Ombudsman or a Member of the European Commission who has failed to fulfil his obligations) and where the
Court considers that a case is of exceptional importance.[1]
The quorum for the full Court is 15. The court acts as a collegiate body: decisions are those
of the court rather than of individual judges; no minority opinions are given and indeed the existence of a majority decision
rather than unanimity is never suggested.[citation needed]
Jurisdiction
It is the responsibility of the Court of Justice to ensure that the law is observed in the interpretation and application of
the Treaties of the European Union and of the provisions laid down by the
competent Community institutions. To enable it to carry out that task, the Court has wide jurisdiction to hear various types of
action. The Court has competence, inter alia, to rule on applications for
annulment or actions for failure to act brought by a Member State or an institution, actions against Member States for failure to
fulfil obligations, references for a preliminary ruling and appeals against decisions of the Court of First Instance.[citation needed]
Forms of action
Actions for failure to fulfil obligations
Such proceedings enable the Court of Justice to determine whether a Member State has fulfilled its obligations under Community
law. The commencement of proceedings before the Court of Justice is preceded by a preliminary procedure conducted by the
Commission, which gives the Member State the opportunity to reply to the complaints against
it. If that procedure does not result in termination of the failure by the Member State, an action for breach of Community law may be brought before the Court of Justice. That action may be brought by the Commission – as
is practically always the case – or by another Member State. If the Court finds that an obligation has not been fulfilled, the
Member State concerned must terminate the breach without delay. If, after new proceedings are initiated by the Commission, the
Court of Justice finds that the Member State concerned has not complied with its judgement, it may, upon the request of the
Commission, impose on the Member State a fixed or a periodic financial penalty.
Actions for annulment
By an action for annulment, the applicant seeks the annulment of a measure adopted by an
institution (regulations, directives, decisions). An action for annulment may be brought by a Member State, by the Community
institutions (Parliament, Council, Commission) or by individuals to whom a measure is addressed or which is of direct and
individual concern to them.
Actions for failure to act
The Court of Justice and the Court of First Instance may also review the legality of a failure to act on the part of a
Community institution. However, such an action may be brought only after the institution 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.
Application for compensation based on non contractual liability
In applications for compensation, based on non-contractual liability, the Court of First Instance rules on the
liability of the Community for damage caused to citizens and to undertakings by its institutions or servants in the performance
of their duties.
Appeals on points of law
Lastly, appeals on points of law only may be brought before the Court of Justice against
judgements given by the Court of First Instance. If the appeal is admissible and well founded, the Court of Justice sets aside
the judgement of the Court of First Instance. Where the state of the proceedings so permits, the Court may itself decide the
case. Otherwise, the Court must refer the case back to the Court of First Instance, which is bound by the decision given on
appeal.
References for a preliminary ruling
References for a preliminary ruling are specific to Community law. Whilst the Court of Justice is, by its very nature, the
supreme guardian of Community legality, it is not the only judicial body empowered to apply Community law.
That task also falls to national courts, in as much as they retain jurisdiction to review the administrative implementation of
Community law, for which the authorities of the Member States are essentially responsible; many provisions of the Treaties and of
secondary legislation - regulations, directives and decisions - directly confer individual rights on nationals of Member States,
which national courts must uphold. National courts are thus by their nature the first guarantors of Community law. To ensure the
effective and uniform application of Community legislation and to prevent divergent interpretations, national courts may, and
sometimes must, turn to the Court of Justice and ask that it clarify a point concerning the interpretation of Community law, in
order, for example, to ascertain whether their national legislation complies with that law.
A reference for a preliminary ruling may also seek review of the legality of an act of Community law. The Court of Justice’s
reply is not merely an opinion, but takes the form of a judgement or a reasoned order. The national court to which that is
addressed is bound by the interpretation given. The Court’s judgement also binds other national courts before which a problem of
the same nature is raised. References for a preliminary ruling also serve to enable any European citizen to seek clarification of
the Community rules which concern him. Although such a reference may be made only by a national court, which alone has the power
to decide that it is appropriate do so, all the parties involved – that is to say, the Member States, the parties in the
proceedings before national courts and, in particular, the Commission – may take part in proceedings before the Court of Justice.
In this way, a number of important principles of Community law have been laid down in preliminary rulings, sometimes in answer to
questions referred by national courts of first instance.
A 2005 study found that German, Belgian and Dutch judges made the most referrals for an interpretation of EU law to the ECJ.
Notable judgements and criticisms
-
The ECJ has made a number of notable decisions. Early on it ruled that European law took precedence over national law, and in
2005 it extended this to Criminal law.[10] In 1995 with the Bosman ruling court
made it illegal for there to be a limit on the number of foreign (EU) players in a football team. It also gave more rights to
players who wanted to switch clubs. This was because it restricted the free movement of people across the EU. The affect of this
ruling had a profound effect on the industry.[11] In 2001 it ruled that parts of the German Constitution were illegal according to the EU's treaties and had to
be amended. This related to the ban on women participating in military combat.[12]
This has drawn criticism from some who see the Court as extending the competencies of the EU with some national leaders
regularly criticising the court on this. One idea on where the problem stems from the way the treaties are written. Where there
were political differences over what the treaty should contain, the diplomats drafting the text camouflaged the differences by
using "mushy" language in the treaty in order to get an agreement. Hence when the Court has had to interpret the treaties and
what the articles actually meant, the judges reverted to what the defined purposes and objectives of the treaties were: "to
create an ever closer union among the peoples of Europe". However they have also become targets of criticism due to judges
generally being easy targets for politicians to lay blame upon, as they do not comment further than their judgements.[13]
Relationship with the Court of Human Rights
The Court of Justice is separate from the European Court of Human
Rights. The latter is based in Strasbourg as part of the Council of Europe. Since 1950, it has supervised compliance with the European Convention on Human Rights and thus functions as the highest European court
for human rights and fundamental freedoms. All EU members are members of the Council of Europe and have signed the Convention on
Human Rights. There are concerns about consistency in case law between the two courts. Hence the Court of Justice refers to the
case-law of the Court of Human Rights and treats the Convention on Human Rights as thought it was part of the EU's legal system.
Even though its members have joined, the EU as a whole has not. Hence EU institutions are not bound by it. However when the
Lisbon Treaty is ratified, the EU is expected to sign the convention.
This would make the Court of Justice bound by the Court of Human Rights and subject to its human rights law. This would solve the
problem of conflicting case law.[14][15]
Seat
- Further information: Location of European Union
institutions
Court of Justice building in Luxembourg
All the EU's judicial bodies are based in Luxembourg. Separate from the political
institutions in Brussels and Strasbourg. It is based in the
Palais building, currently under expansion, in the Kirchberg district of Luxembourg.
Luxembourg was chosen as the provisional seat of the Court on 1952-07-23 with the
establishment of the European Coal and Steel Community. Its first
hearing there was held on 1954-10-28 in a building down as Villa Vauban, the seat until 1959 when
it would move to the Côte d'Eich building and then to the Palais building in 1972.[16]
In 1965 the member states to establish Luxembourg as the permanent seat of the Court. Future judicial bodies (First Instance
and Auditors) would also be based in the city. The decision was confirmed by the European
Council at Edinburgh in 1992. However there was no reference to future bodies being in
Luxembourg. In reaction to this, the Luxembourgian government issued its own declaration stating it did not surrender those
provisions agreed upon in 1965. The Edinburgh decision was attached to the Amsterdam
Treaty. With the Treaty of Nice Luxembourg attached a declaration stating it did
not claim the seat of the Boards of Appeal of the Office for Harmonisation in the Internal Market - even if it were to
become a judicial body.[16]
Future
The Lisbon Treaty (and also the European Constitution that failed to ratify) will rename the Court of
Justice of the European Communities officially to "Court of Justice". The Court of
First Instance will be renamed "General Court", and the term "Court of Justice of the European Union" will officially
designate the two levels of jurisdiction taken together.[17] There would also be one extra Advocate General, put forward by Poland.[9]
See also
References
- ^ a b c d e f g h The Court of Justice. Europa (web portal).
Retrieved on 2007-07-13.
- ^ The European Court of Auditors. Europa (web
portal). Retrieved on 2007-07-13.
- ^ a b Muñoz, Susana. Composition of the Court of Justice, the Court of First Instance of the European Communities and
of the Civil Service Tribunal. Europa (web portal). Retrieved on 2007-07-13.
- ^ a b Muñoz, Susana. The Court of Justice and the Court of First Instance of the European Communities.
Europa (web portal). Retrieved on 2007-07-13.
- ^ Sherwood, Bob (2005-11-03). Europe’s top judges
start campaign on patent cases. Financial Times. Retrieved on 2007-08-27.
- ^ Muñoz, Susana. Organisation of the Court of Justice and the Court of First Instance of the European
Communities. European NAvigator. Retrieved on 2007-07-13.
- ^ a b The Court of Justice of the European Communities. Court of Justice. Retrieved on 2007-08-27.
- ^ Beunderman, Mark (2007-09-03).
Poland seeks EU court adviser post in treaty
talks. EU Observer. Retrieved on 2007-09-03.
- ^ a b Declaration ad Article
222 of the Treaty on the Functioning of the European Union on the number of Advocates-General in the Court of Justice (PDF).
Europa (web portal) (2007-10-19). Retrieved on
2007-09-03.
- ^ EU law
supremacy even in criminal matters. Euractiv (2005-06-17). Retrieved on 2007-07-13.
- ^ Fordyce, Tom (2005-12-14). http://news.bbc.co.uk/sport1/hi/football/4528732.stm. BBC News. Retrieved on
2007-08-27.
- ^ Germany votes for women in combat.
BBC News (2000-10-27). Retrieved on 2007-07-13.
- ^ Planzer, Simon (2007-09-29). The arrongant
judges in Luxembourg and what it is actually about. EU Observer. Retrieved on 2007-09-02.
- ^ Juncker, Jean-Claude (2006). Council of
Europe - European Union: "A sole ambition for the European continent" (PDF). Council of
Europe. Retrieved on 2007-07-28.
- ^ Draft treaty modifying the treaty on
the European Union and the treaty establishing the European community (PDF). Open Europe
(2007-07-24). Retrieved on 2007-07-28.
- ^ a b Muñoz, Susana. Seat of the Court of Justice and the Court of First Instance of the European Communities..
European NAvigator. Retrieved on 2007-07-28.
- ^ See SCADPlus: The
Institutions of the Union and article 2.3n of the Draft Reform Treaty of 23 July 2007
External links
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