2. European Court System Ljiljana Biukovic Faculty of Law, UBC Fall 2007

3. European Judicial Overview European Court of Human Rights (ECHR) Court of Justice of the European Communities (ECJ): - Court of Justice - CFI - Civil Service Tribunal European Court of Auditors EFTA Court (the court of the European Free Trade Association)

4. The International Context International Court of Justice (ICJ, the Hague court) International Labour Organization (ILO) World Trade Organization (WTO) International Criminal Court (ICC)

5. National Judicial Context Important and complex relationship between the European and national courts of MS No hierarchy and direct jurisdictional link between the European Courts and national courts of MS (none of the European Courts has an appellate role re: national courts) Effectiveness of the European Courts depends on their relationship with the national courts None of the European Courts (except to some extent the CFI) are available for direct litigation to private parties

6. Importance of ECJ in the System of EU law Differently described by different people: - Motor for EU integration or - Political court interfering in national sovereignty Created important EU law principles: -Direct effect (Van Gend en Loos, Ratti, Von Colson, Marshall, Marleasing, etc.) -Supremacy of EU law (Costa v. ENEL, Simmenthal) -Recognition and incorporation of fundamental rights (Internationale Handelsgesellscaft, Nold) -Requirement of the availability of remedies in the case of breach of EU law (Francovich, Brasserie de Pêcheur) -Rule of reason -Proportionality -Implied powers of the EC

7. The Court of Justice of the European Communities (ECJ, the Luxembourg Court; C)  Sits in Luxembourg, comprises 27 judges and 8 advocates -general (AG) appointed for a renewable six-year term by agreement between the Member States, which select them "from persons whose independence is beyond doubt“  The Amsterdam Treaty explicitly conferred jurisdiction on the ECJ to check that Community instruments respect fundamental rights and it extended the ECJ's jurisdiction to matters affecting the freedom and security of the people (limited powers for the ECJ in the intergovernmental second and third pillars)  Functions: constitutional, civil, administrative and arbitration

8. Advocate General 8 AGs work for 27 judges of the ECJ; only one AG per case; no specialization of AGs by subject matter Since 2003 (Nice) AG gives an opinion only if the ECJ considers that a case raises new points of law AG opinions not binding on ECJ but very important for development of EU law because: 1.AG is the laboratory for the new interpretation of EU law 2.AG helps the ECJ reshape its legal reasoning 3.AG provides the substitute of double examination 4.AG complements and completes decision of the ECJ 5.AG provides the critical perspective internal to the ECJ – something like a dissenting opinion in common law court systems

9. ECJ - Quasi Constitutional Court  The formal role of the ECJ and its exclusive power: to ensure that in the interpretation and application of this Treaty the law is observed (Art. 220) and to decide on the validity of instruments enacted by all other institutions (the first pillar): 1. Guardian of the objectives and the rules of law laid down in the treaties; appellate and final instance 2. Legality of secondary legislation 3. Preservation of equilibrium of institutions 4. Determines division of competencies between the EU and MS 5. Preliminary rulings-ensures uniform application and interpretation of EU law

10. ECJ - Rules and Actions The basic rules of the ECJ and CFI set out in the TEC Art. 220-245 The rules of procedure of the Court set out in the Statutes (attached to the Treaty as a Protocol) and the Rules of Procedure (drafted by the Court but approved by the Council) Actions before the ECJ could be divided into two types: –judgments and –opinions Two categories of judgments: - preliminary rulings (requested by national courts under Art. 234, ex Art. 177) and - direct actions by EC institutions, MS or individuals

11. ECJ - Preliminary Rulings Judgments made upon requests by any national court for interpretation of the Treaty or secondary legislation and the questions on the validity of secondary relations When a question of EU law is raised by the national court in which there is no appeal under national law, the national court is required to refer the matter to the ECJ (Art. 234(3)) This is not a formal decision of a case and its subject matter, but would be a binding guideline for the national court when decides the referred case NOTE: after Treaty of Nice the Statute allows the ECJ to entrust to the CFI the responsibility for preliminary rulings in certain matters (this has not yet happened)

12. Importance of Preliminary Rulings Opened the channel for litigation before the ECJ independent of the Commission Enhanced the position of individual in the system of EU law creating for them an access to the ECJ (it is not easy for individuals to get locus standi in direct actions-it is easier for individuals to raise cases in national courts) Giving such an indirect access to individuals reduces the tension between the Commission and MS (the Commission does not need to confront MS in cases of non-compliance because individuals would do that before national courts) Ensures the uniform interpretation of the EU law Mechanism of indirect judicial review by the ECJ of national legislation for its compatibility with EC law (even though the ECJ has no formal power for judicial review of national legislation the judgment indicate the extent to compatibility to national courts) Gives legitimacy to ECJ and also gives national courts the important role of enforcing EU law through sanctions available in national systems (giving the EU law “teeth”

13. Direct Actions Jurisdiction of the ECJ and CFI to hear those cases could be established by the operation of law (Treaty) or by agreement of the parties Jurisdiction established by the operation of law facilitates two basic categories of direct actions: 1.Actions against the EU institutions: review of the legality of acts by the institutions (Art. 230-231), challenge of a failure to act by the EU institutions (Art. 232-233) and claims for liability for damage caused by the EC institution (Article 235, 288(2) – brought by another institution or by a MS or individual 2.Enforcement actions against MS for failure to fulfill an obligation under the Treaty brought usually by the Commission (Art. 227- 228) or by other MS (Art. 227, 228 – very rare) but NOT by individuals

14. ECJ Procedure Admissibility of a case Written procedure Preliminary report of the Judge Rapporteur Oral procedure – day in Court (hearing) Opinion of the AG – important but not binding on ECJ Deliberation and judgment Compliance and Enforcement

15. ECJ’s Challenges Linguistic – French is the official languages in which the Court has to write judgments and opinions, but it is difficult to articulate sophisticated legal principles in a foreign language More judges after enlargement but the same number of AGs Potential of jeopardizing the unity of the court by increasing the number of judges (discord at ECJ re: Microsoft antitrust case) Complexity of issues – need for specialized tribunals Possible increase number of cases due to enlargement and extension of the court’s jurisdiction Potential overlap of jurisdiction with other international tribunals

16. The Court of First Instance (CFI; T)  set up in 1989  27 judges, no Advocate General  has jurisdiction, subject to further appeal to the Court of Justice on points of law, to deal with disputes between the Commission and individuals or businesses as well administrative disputes within the institutions between the Community and its staff.

17. The Court of Auditors  Has 27 members appointed for a six-year term by agreement between the Member States after consultation with the European Parliament  Checks that revenue is received and expenditure incurred "in a lawful and regular manner" and that the Community's financial affairs are properly managed.  The Maastricht Treaty gave the Court of Auditors the status of a Community institution, making it the fifth most important EU institution.

18. Civil Service Tribunal (F) Established by the Council Decision of November 2, 2004 Jurisdiction limited to staff cases (Art. 236 of the TEC) 7 judges for the Tribunal appointed for a renewable 6 year period by the Council Decision of January 18, 2005; chambers of 3 or 5 rarely full or 1 (so far 130 cases pending from 2005 and 46 cases pending from 2006)- they decide who will be the President of the Tribunal) The Council appointment is on the proposal of the special Committee (7 former ECJ or CFI judges) who reviewed the applications A judge must be a national of a MS and well know legal expert and the selection should reflect a broader geographical basis and legal cultures of the MS The parties have to appeal to CFI within 2 months after the decision of the Tribunal is rendered

19. Judicial Method and Analysis of the Judgments Teleological method of reasoning (justifies objectives of any provisions of EU law in the setting of the whole Treaty scheme; arguments based on analogy, general principles or law, contextual harmonization Format and discourse patterned on the French model Decisions are rather short, terse, offer condensed factual descriptions, often 3-8 pages, except in preliminary rulings No dissenting or concurring opinions, only one decision for the whole court Every judgment has reference to the legal basis for the court’s jurisdiction and the reference to the legislation upon which the decision is made No doctrine of stare decisis so precedents are mentioned but not referred to as to the legal basis of a decision (AG refers to them as to the case law or ECJ’s jurisprudence

20. Procedure Before the ECJ Preliminary Rulings 1. Written procedure: -Request order or judgement from the national court -Translation and service on the parties, MS and EU institutions -Publication of the request (notice of questions) in Official Journal -Notification to the parties, MS, EU institutions and EEA States -Written Observation of the parties, MS and EU institutions -Preliminary report of the Judge-Rapporteur -General Meeting of Judges and AG -Assignment of the case to a formation 2. Oral Procedure: -Hearing -Opinion of AG (comes in written form but after the hearing) 3. Deliberation (only after AG delivers her/his opinion) 4. Judgment (always delivered in French)

21. Procedure Before the ECJ Direct Actions 1. Written Procedure -Written application by a lawyer (in the language of the applicant) -Service of the application on the defendant -Publication of the application in OJ -Defense -Reply -Rejoinder -Preparatory Inquiry 2. Oral Procedure -Hearing -AG opinion 3. Deliberation (only after AG delivers her/his opinion) 4. Judgment (always delivered in French)

22. Enforcement of Judgments The MS are obliged to comply with the judgments of the ECJ (Art. 228 and 10) If the MS has not complied with a judgment, the Commission may ask the ECJ to impose the fine on MS (since Maastricht Treaty); Greece the first MS to be fined in July 2000; Commission v. Hellenic Republic (C-387/97) to pay € 20,000 for every day of delay in implementing the measures necessary to comply with the judgment If damages are awarded against private individual, the winning party must seek enforcement before the appropriate national court (Art. 244 and 256) If award has been given against the EU institution whose act has been declared void or who has failed to act that institution is required to take the necessary measures to comply with the judgment (Art. 233)

23. European Court of Human Rights (Strasbourg Court) Court established in 1959 to deal with disputes arising out of infringements of the European Convention For Human Rights (1953) The essence of the system is the right of individual petition against States (including their own) when an individual feels that she/he feels being a victim personally and directly of a violation of human rights and guarantees specified in the Convention Originally ECHR was assisted by the European Commission on Human Rights and then reaches the Court which filtered all applications but Protocol 11 in 1998 changed the process: the ECHR became the full time court dealing with applications (since 1999 number of cases has been increasing dramatically) Every member state of the Convention has a judge but they don’t represent their state; 6 year mandate; appointed by the Assembly of the Council of Europe Judges are divided into four sections, and they sit in chambers of 7 and committees of 3

24. ECHR Procedure Requirements: 1.An individual must be personally and directly victim of violation of the right specified in the Convention (not a general statement) – individual does not need to be a national of a Contracting Party of the convention but violation must me on the territory of the member state 2.All national remedies have to be exhausted and the application launched within 6 moths from the final decision at the national level ( Procedure: 1.Application could be simply mailed to the Court but must explain the fact, violations and remedies already used; no application fees; legal assistance preferable 2.Application goes to a section whose President appoints a judge rapporteur 3.Mainly written proceedings, oral hearings very rare (and public) 4.The Court would try to settle a dispute, if no settlement, if violations found, “just satisfaction” will be awarded (in English and French); Dissenting and concurring opinions allowed Enforcement: 1.Committee of Ministers of the Council of Europe supervises execution of the award by the Contracting Party