LECTURE No 6 - THE EUROPEAN UNION’s JUDICIAL SYSTEM I (courts) Erasmus 2018-2019 – European Union Law

Structure of EU judicial order Article 19(1) TEU provides that: “The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed”. Prior of the Lisbon Treaty, The Nice Treaty (2001) introduced a three level court system consisting of the Court of Justice (ECJ), the Court of First Instance (CFI), and judicial panels. The Union court structure is different from national systems of justice, which are characterised by decentralisation. In many member states, there are national courts for particular areas, such as tax, labour law and social security, and distinctions may be made between private law courts and administrative ones.

The Court of Justice (1) – Article 19 TEU The Treaties provide for the Union to have its own Court of Justice of the European Union to ensure that EU law is observed in the interpretation and application of the Treaties. The CJEU’s jurisdiction is specified in the Treaties. Article 19 TEU formulates rules concerning the general task of EU judiciary system. Additional provisions are to be found in articles 251-257 TFEU. It is the CJEU, as interpreter of the Treaties, which adjudicates on the limits of EU competence as against the Member States.

The Court of Justice (2) – Article 253 TFEU Article 19(2) TEU states that there shall be one judge per Member State in the CJEU. They are appointed ‘by common accord of the Governments of the Member States’, after consultation with a panel that reports on the suitability of the person to perform the function of an CJEU judge. Judges must be chosen from persons whose independence is beyond doubt, who possess the qualifications required for appointment to the highest judicial offices in their respective countries, or are jurisconsults of recognized competence (see also article 253 TFEU). The term of office is six years, but a retiring judge may be reappointed. The judges elect the President of the CJEU from amongst themselves for a three-year term. He may be re-elected (article 253 TFEU).

The Court of Justice (3) In the name of preserving ‘the rule of law’ the Court has developed principles of a constitutional nature as part of EU law, which bind the EU institutions and Member States when they act within the sphere of EU law. Also, the CJEU acknowledged principles of the EU legal order, such as direct effect, supremacy, and state liability in damages. These principles have defined the very nature of the EU, constitutionalizing it and distinguishing it from other international organisations. Furthermore, the role of CJEU as an institutional actor in the integration process should be recognized. It must be noted ECJ’s role in the creation of the internal market, requiring the removal of national trade barriers.

The Court of Justice (4) – Article 251 TFEU Article 251 TFEU states that the CJEU may sit: A) as a full Court, B) as a ‘Grand Chamber’ composed of fifteen judges, or C) in Chambers, in accordance with rules laid down by the Statute. It sits as a full Court either where the case is regarded as exceptionally important, or where the subject matter warrants, such as an action for dismissal of the Ombudsman or a Commissioner. The Grand Chamber is used when a Member State or an institution being party to the proceedings so requests (this does not apply to natural or legal persons), and in particularly complex or important cases.  

The Court of Justice (5) The procedure before the CJEU takes place in two stages, the written and the oral stages. At the written stage, all applications, statements of case and any submissions or relevant documents are communicated to the parties and institutions whose decisions are being contested. The oral stage, by contrast, is limited and short. The juge-rapporteur, the judge assigned in a given case, prepares and presents to the Court the ‘report for the hearing’, which summarizes the facts of the case and the arguments of the parties.

General Court (1) The Lisbon Treaty provides that the Court of Justice of the European Union shall include the General Court. Prior to the Lisbon Treaty, the Court of First Instance (CFI) was established in 1988 pursuant to the Single European Act. The CFI is now referred to as the General Court. The rationale for the creation of the General Court was to relieve the burden on the CJEU. It was initially given jurisdiction over staff cases and competition cases brought by individuals against EU Institutions. The General Court’s jurisdiction is determined by Article 256 TFEU.

General Court (2) – Article 254 TFEU The General Court sits in Chambers of three and five judges, or sometimes as a single judge. It may also sit as a Grand Chamber or full Court when the complexity or importance of the case demands it. The General Court comprises ‘at least’ one judge per Member State. The members of the General Court shall be chosen from ‘persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office’. They are appointed by common accord of the Member States for six years renewable, after consultation with the judicial panel that advises on judicial appointments. The General Court elects its own President from amongst its judges for a term of three years and he may be re-elected.

General Court (3) – Article 256 TFEU There is a right to appeal from the General Court to the Court of Justice within two months of notification of the decision. The appeal is limited on points of law, and this covers: lack of competence of the General Court, a breach of procedure before it which adversely affects the interests of the appellant and the infringement of Union law by the General Court.

Specialized Courts – Article 257 TFEU The establishment of specialized courts is governed by Article 257 TFEU. The principal rationale for this development, which dates from the Nice Treaty, was to ease the workload of the CJEU and General Court. Article 257 TFEU stipulates that the European Parliament and the Council, acting via the ordinary legislative procedure, may establish specialized courts attached to the General Court to hear at first instance certain classes of action in specific areas. The European Parliament and the Council act either on a proposal from the Commission after consultation with the Court of Justice, or at the request of the Court of Justice after consultation with the Commission.

The role of Advocate Generals (AG) The CJEU’s decision-making is assisted by the office of AG as article 252 TFEU states. The CJEU shall be assisted by eight AG. The AG is a full member of the Court and participates at the oral stage of the judicial hearing. The qualifications for selection, method of appointment, and conditions of office of the Advocate General are the same as for the CJEU judges. The role of the Advocate General is to make, in open court, impartial and independent reasoned submissions on any case brought before the Court. An Opinion of the AG is not required in every case and it is not binding for the CJEU. The AG’s opinion is intended to constitute impartial and independent advice in a pending case.