Unit 27

 EU institutions  Composition of ECJ  Jurisdiction  Procedure  ECJ in the EU legal order

 The European Commission  The European Parliament  The Council of the European Union  The European Court of Justice  The European Court of Auditors

 Since the establishment of the Court of Justice of the European Union in 1952, its mission has been to ensure that "the law is observed" "in the interpretation and application" of the Treaties.

 As part of that mission, the Court of Justice of the European Union:  reviews the legality of the acts of the institutions of the European Union,  ensures that the Member States comply with obligations under the Treaties, and  interprets European Union law at the request of the national courts and tribunals.

 The Court constitutes the judicial authority of the European Union and, in cooperation with the courts and tribunals of the Member States, it ensures the uniform application and interpretation of EU law.

 Has its seat in Luxembourg, and consists of 3 courts:  1) Court of Justice of the EU,  2) General Court (created in 1988)  3) Civil Service Tribunal (created in 2004).  Since their establishment, cc judgments have been delivered by the three courts. 

 28 Judges and 9 Advocates General  Judges and Advocates General - 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.  appointed for a term of office of six years, which is renewable.

 Full court  Grand Chamber of 13 Judges  Chambers of 3 or 5 Judges

 in cases prescribed by the Statute of the Court (e.g. proceedings to dismiss the European Ombudsman or a Member of the European Commission)  where the Court considers that a case is of exceptional importance

 when a Member State or an institution which is a party to the proceedings so requests  in particularly complex or important cases

 Other cases: heard by Chambers of 3 or 5 Judges

 The Judges elect one of themselves as 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.

 Chosen from among individuals whose independence is beyond doubt and who posses the qualifications required for appointment to the highest judicial offices in their respective countries, or who are of recognized competence

 - assist the Court  - responsible for presenting, with complete impartiality and independence, an opinion in the cases assigned to them

 When a new case reaches the court, it is assigned by the First Advocate General to one of the advocates general  Studies the issue and undertakes legal research  The opinion is not binding but it will be considered with great care by judges  It is printed, together with the judgement, in law reports

 Represents neither the Community nor Member States; speaks only for the public interest  Gives a „second” opinion which is actually delivered first  Judges work in committees  Advocate general works on his own; completely independent  His opinion could be regarded as judgement of first instance which is subject to instant and invariable appeal

 A discussion of the facts  Reference to relevant legislative provisions  Full consideration of previous decisions of the Court  Sometimes: a short comparative survey on how the issue would be dealt with in the legal systems of the Member States  Analysis of arguments put forward by the parties  His own views on the issues before the Court

 1. References for preliminary rulings  2. Direct actions:  Actions for failure to fulfil obligations  Actions for annulment  Actions for failure to act  3. Appeals  4. Reviews

 ECJ cooperates with all the courts of the Member States  To ensure the effective and uniform application of EU legislation and to prevent divergent interpretations, national courts refer to the ECJ and ask it to clarify a point concerning the interpretation of EU law, so that they may ascertain whether their national legislation complies with that law

 ECJ's reply - not merely an opinion; takes the form of a judgment or reasoned order  The national court to which it is addressed - bound by the interpretation given  The Court's judgment likewise binds other national courts before which the same problem is raised

 Any national court or tribunal may make such a request  A court or tribunal from which there is no appeal must do so

 Of great importance because they concern the relationship between the EU law and national law  The doctrine of direct effect  Supremacy of EU law

 The issues which may be referred:  1. The interpretation of a provision of EU law  2. The effect of such a provision in the national legal system  3. The validity of a measure passed by the EU itself

 The proceedings – not contentious; the EC assists the national court  The parties cannot take the initiative; the national court sets the procedure in motion  The judgment of the ECJ is sent back to the national court where the case will continue its course

 When an order for reference reaches the Court, the Registrar transmits copies to the parties in the national proceedings and also to Member States, the Commission and to the Council (if its measure is in issue)  They may submit written observations to the Court  At the hearing, submissions are made  Advocate general submits his opinion  judgement

 Most important:  1. actions for judicial review (to annul an EU measure or oblige an EU to pass a measure which it had previously refused to pass; brought by a Member State, by another EU institution or by an individual)  2. actions for damages for non-contractual liability (torts): brought by a Member State or by an individual

 - enable the ECJ to determine whether a Member State has fulfilled its obligations under European Union law.  Before bringing the case before the ECJ, 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.

 Action may be brought by the Commission 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 ECJ finds that the Member State concerned has not complied with its judgment, it may impose on it a fixed or periodic financial penalty

 Applicant seeks annulment of a measure (e.g. a regulation, directive or decision) adopted by an institution, body, office or agency of the EU  ECJ - exclusive jurisdiction over actions brought by a Member State against the European Parliament and/or against the Council or brought by one EU institution against another

 enable the lawfulness of the failure of the institutions, bodies, offices or agencies of the EU to act to be reviewed.  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 ECJ against judgments and orders of the General Court.  If the appeal is admissible and well founded, the ECJ sets aside the judgment of the General Court.

 Where the state of the proceedings so permits, the ECJ may decide the case.  Otherwise, it refers the case back to the General Court, which is bound by the decision of the ECJ on the appeal

 Decisions of the General Court on appeals against decisions of the European Union Civil Service Tribunal may be reviewed by the ECJ as provided in the Protocol on the Statute of the Court of Justice of the EU

 4 stages:  1. the written proceedings  2. the preparatory inquiry  3. the oral hearing  4. judgement

 Direct actions begin with an application in which the applicant sets out the basis of his claim  The application is lodged with the Court; the Registrar serves it on the defendant who has one month to lodge his defence

 1. Whether the applicant has locus standi (=the right of a party to appear and be heard before a court) and  2. whether the proceedings were brought within the relevant time-limit

 The President assigns the case to one of the chambers and designates a ‘judge-rapporteur’  The First Advocate General decides which Advocate General will hear the case  Judge rapporteur prepares a preliminary report on the issues of fact  The Court will then decide which issues of fact need to be proved and what evidence is necessary  If necessary, witnesses are summoned

 After the main speeches, each side is allowed a brief reply  Judges and advocate general may address questions to the counsel  The advocate general prepares his opinion  and delivers it at a later date  The parties – no right to comment

 Judges meet in a special deliberation room to decide on their judgment; no one else may be present  The judge-rapporteur prepares a draft judgment; a vote is taken  Decision – signed by all judges  Formal ruling published in the Official Journal and the judgment, together with advocate general’s opinion in the official law reports (

 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 ECJ are taken by majority; no record made public of any dissenting opinions

 3 main parts:  1. based on the report of the judge- rapporteur and contains a statement of the facts and a summary of the argumets of the parties  2. the reasoning of the judgment  3. the actual ruling

 In most cases the defendant is either the Community (or an institution) or a Member State  The judgment – binding  The question of execution only arises where the defendant is a private individual  In these cases the creditor must go to the appropriate national court to obtain enforcement according to national procedure; national court – no right to question the judgement

 The Court follows its past decisions in most cases  If it doesn’t – the Court does not normally overrule the earlier case; it simply ignores it

 No court fees for proceedings before the CJ  The Court does not meet the fees and expenses of lawyers by whom the parties must be represented.  A party unable to meet all or part of the costs may apply for legal aid  Application must be accompanied by evidence establishing the party's lack of means

As each Member State has its own language and specific legal system, the ECJ is a multilingual institution. Its language arrangements have no equivalent in any other court in the world, since each of the official languages of the EU can be the language of a case. The Court is required to observe the principle of multilingualism in full, because of the need to communicate with the parties in the language of the proceedings and to ensure that its case-law is disseminated throughout the Member States.

 In direct actions, the language used in the application (which may be one of the 24 official languages of the EU) will be the ‘language of the case'.  References for preliminary rulings: the language of the case is that of the national court which made the reference to the ECJ

 Oral proceedings at hearings are interpreted simultaneously into official languages of the EU  The Judges deliberate, without interpreters, in a common language which, traditionally, is French.

 Policy considerations – prevail over the literal meaning  Linguistic discrepancies – treated in the same way as other obscurities in the text: the Court adopts the meaning which best accords with the purpose of the provision and the policy objectives pursued by the Court  All linguistic versions should be considered

 Although the official version of the judgment is in the language of the case, the French version is the one actually agreed on by the Court and represets the opinion of the Court more accurately

 1. strengthening the EU (and especially the federal elements in it)  2. increasing the scope and effectiveness of EU law  3. enlarging the powers of EU institutions

 In its case-law (starting with Van Gend & Loos in 1963), ECJ 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 EU law before their national courts

 The transport company Van Gend & Loos had imported goods from Germany to the Netherlands  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

 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, conferring on the transport company a direct guarantee of its rights under Community law before the national court

 “The Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, Community Law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage”

 In 1964, the Costa judgment established the primacy of Community law over domestic law

 Mr. Costa -an Italian citizen who owned shares in an electricity company and opposed the nationalisation of the electricity sector in Italy. He refused to pay his electricity bill, and was sued for nonpayment by the newly created state electricity company, ENEL. He argued that the nationalisation of the electricity industry violated the Treaty of Rome and the Italian Constitution. The Italian judge, referred the case first to the Italian Constitutional Court and then to the ECJ.  The Italian Constitutional Court ruled that while the Italian Constitution allowed for the limitation of sovereignty for international organisations like the European Economic Community, it did not upset the rule that where two statutes conflict the subsequent one prevails (lex posterior derogat legi anteriori). Thus the Treaty of Rome which was incorporated into Italian law in 1958 could not prevail over the electricity nationalisation law which was enacted in 1962.

 In light of the decision of the constitutional court, the Italian government submitted to the ECJ that the Italian court's request for a preliminary ruling was inadmissible on the grounds that as the Italian court was not empowered to set aside the national law in question, a preliminary ruling would not serve any valid purpose.

 The ECJ held the Treaty of Rome rule on an undistorted market was one on which the Commission alone could challenge the Italian government. As an individual, Costa had no standing to challenge the decision because that Treaty provision had no direct effect. However, Costa could raise a point of EC law against a national government in legal proceeding before the courts in that Member State: EC law would not be effective if Costa could not challenge national law on the basis of its alleged incompatibility with EC law

 ECJ 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

 „By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on an international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states of the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves...”

 “The law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the Community itself being called in question”

 In 1991, in Francovich v. Italy, 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 been able to bring an action for damages against a State which infringes a Community rule

 Under the Insolvency Protection Directive 80/987 (now 2008/94/EC) EU member states were expected to enact provisions in their national law to give a minimum level insurance for employees who had wages unpaid if their employers went insolvent.  Mr Francovich, who had worked in Venice for CDN Elettronica SnC, was owed 6 million Lira, and Mr Bonifaci and 33 of his colleagues were owed 253 million Lira together after their company, Gaia Confezioni Srl, had gone bankrupt.  The Directive was meant to be implemented by 1983, but five years later they had been paid nothing, as the company liquidators had informed them that no money was left. They brought a claim against the Italian state, arguing that it must pay damages to compensate for their losses on account of a failure to implement the Directive.

 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

 ECJ held that the Italian government had breached its obligations, and was liable to compensate the workers' loss resulting from the breach.  The Court further held that the damages for such breaches should be available before national courts, and that to establish state liability on the basis of the failure to implement a directive, claimants must prove that the directive conferred specific rights on them, and that there is a causal link between the state's failure to implement the directive and the loss suffered.

 The case concerned the sale of "Cassis de Dijon" in Germany by an importer and retailer (Rewe).  Crème de cassis is a blackcurrant liqueur produced in France containing 15% to 20% alchohol.The German government had a law stipulating that products sold as fruit liqueur had to contain at least 25% alcohol.  The Bundesmonopolverwaltung für Branntwein (a section of the German Federal Ministry of Finance told Rewe that the Cassis de Dijon might be imported, but it advised the importer that its marketing wasn't allowed in Germany. The importer argued that this represented an effect equivalent to a quantitative restriction on trade in breach of Article 30 of the Treaty of Rome.

 There is therefore no valid reason why, provided that they have been lawfully produced and marketed in one of the member states, alcoholic beverages should not be introduced into any other member state; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limit set by the national rules.

 Since the Cassis de Dijon judgment (1979) on the principle of free movement of goods, traders can import into their country any product coming from another EU country, provided that it was lawfully manufactured and marketed and that there is no overriding reason relating to the protection of health or the environment to prevent its importation into the country of consumption

 Bosman (1995) -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

 J.M. Bosman was a player for RFC Liege in the Belgian First Division whose contract had expired in  He wanted to change teams and move to Dunquerque, a French team. Dunkerque refused to meet his Belgian club's transfer fee demand, so Liège refused to let him go.  Meanwhile, Bosman's wages were reduced as he was no longer a first-team player. He took his case to the ECJ and sued for restraint of trade citing FIFA's rules regarding football, specifically Article 17.

 On 15 Dec the court ruled that the system, as it was constituted, placed a restriction on the free movement of workers and was prohibited by Article 39(1) of the EC Treaty (now Article 45 (1) of the Treaty on the functioning of the EU). Bosman and all other EU football players were given the right to a free transfer at the end of their contracts, with the provision that they were transferring from a club within one EU Association to a club within another EU Association.

 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)

 Mr Decker was refused reimbursement of the cost of spectacles which he had purchased from an optician established in Arlon, Belgium, on the ground that he had purchased them abroad without prior authorisation.  In Mr Kohll's case, his doctor established in Luxembourg had requested authorisation from the Union des Caisses de Maladie for his daughter to receive treatment from an orthodontist established in Trier, Germany. That request for authorisation, made in accordance with the Luxembourg Code of Social Insurance, was turned down on the grounds that the treatment was not urgent and could be provided in Luxembourg.

 Mr Kohll argued that the fact that reimbursement of the cost of medical services, in accordance with the legislation of the State of insurance, was subject to prior authorisation by the institution of that State where the services were provided in another Member State constituted a restriction on freedom to provide services.  The Court noted that the case concerned treatment by an orthodontist, outside any hospital infrastructure, and that such treatment was to be regarded as a service. It went on to hold that the rules in question deterred insured persons from approaching providers of medical services established in other Member States. Those rules therefore constituted, for them and their patients, a barrier to the freedom to provide services.

 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).

 Gabrielle Defrenne worked as a flight attendant for the Belgian national airline Sabena. Under Belgian law, female flight attendants were obliged to retire at the age of 40, unlike their male counterparts. Defrenne had been forced to retire from Sabena in Defrenne complained that the lower pension rights this entailed violated her right to equal treatment on grounds of gender under article 119 of the Treaty of the EC

 The ECJ held that article 119 of the Treaty was of such a character as to have horizontal direct effect, and therefore enforceable not merely between individuals and the government, but also between private parties. Article 157 TFEU (119 TEEC, 141 TEC) was invoked which stated "Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied"

 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 UK 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

 ECJ 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

 After numerous terrorist attacks against the police, police officers in Northern Ireland began carrying fire-arms.  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

 In respect of EU citizenship which is afforded to every person holding the nationality of a Member State under the Treaty on the Functioning of the EU, the Court has stated that such citizenship entails the right to reside in another Member State.

 Main institutions of the EU  Composition of the Court  Jurisdiction of the Court  The importance of ECJ for the development of EU law

 Court of Auditors  Revizorski sud  Review  Nadzor  Enhancement  Jačanje, povećanje, poticanje  Chamber  Sudsko vijeće

 Adjudicate  Suditi  Jurisdiction  Sudbena nadležnost  Preliminary ruling  Odluka o prethodnom pitanju, donošenje odluke o prethodnom pitanju, prethodna odluka

 A reference for a __ruling allows the courts and tribunals of the Member States, in __which have been brought before them, to __questions to the Court of Justice about the __ of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national __or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly ___ on other national courts or tribunals before which a similar issue is raised.

 A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.