The Court of Justice of the European Union (ECJ) ‘the least known institution’

Famous cases?  The Bosman case  Union Royale belge des societes de football association ASBL v Bosman (1995) freedom of movement - of footballers, the transfer rules thrown out by ECJ as they were an obstacle to free movement of workers (ART 39 TEC)  Cassis de Dijon (1979) ECJ gave the Commission an opportunity to develop the principle of mutual recognition, underpinned the Single Market

Purpose of the ECJ  ‘to ensure that in the interpretation and application of [the treaties] the law is observed’ Art. 220 TEC

Sources of Community law  Primary Legislation: The original treaties, the treaties of accession, treaty amendments  Secondary Legislation: Laws made in accordance with the treaties

ECJ approach:  The original treaties: seen as the basis of a constitutional framework for the EU; ECJ has shown that the EU’s “constitution” is based on custom and shared values, as well as on treaties and secondary legislation

Basic rules of EC law (1)  Direct effect: Van Gend en Loos (1962): Art25TEC  the article in question had direct effect because it contained a ‘clear and unconditional prohibition’ ; … any unconditionally worded treaty provision, being ‘self-sufficient and legally complete’ Grad v. Finanzamt Traunstein (1970)  Directives also had direct effect if it contained a clear and unconditional obligation on a member state and had not been implemented by that state within the period prescribed in the directive

Basic rules of EC law (2)  Supremacy of Community law Costa v ENEL (1964)  Member states had definitively transferred sovereign rights to the Community and that Community law could not be overridden by domestic legal provisions without the legal basis of the Community itself being called into question Simmenthal v Commission (1978)  “every national court must … apply Community law in its entirety… and must accordingly set aside any provisions of national law which may conflict with it”

Types of cases: how do you get a case to the ECJ  Requests from national courts for ‘preliminary ruling’ on points of EC law  Actions brought directly to the Court by other institutions, member states, or natural and legal persons  Appeals against judgements of the Court of First Instance, the ECJ’s ‘lower court’

‘preliminary ruling’ (1)  If an individual argues before a national court that a national law or policy conflicts with EC law, if the court is unable/unwilling to resolve the dispute itself based on previous EC case law, court may seek authoritative guidance from the ECJ by making a preliminary ruling request.

Preliminary rulings (2)  Do national courts request p.rs. YES! National courts do use this mechanism In fact, it is surprising that so many lower national court judges do apply for preliminary rulings; “the National judge… in his capacity as Community Judge, becomes the upholder of Community Law in his own member state”  WHY? This ensures uniform interpretation and application of Community law in each member state  How useful? A powerful tool, strengthens Community law and the ECJ’s role within the system Citizens can use it to ascertain compatibility of national and Community law

Direct Actions  Cases brought by Commission against a member state, or by a member state against another member state for failing to fulfill a legal obligation 100 a year  Cases against the Commission, Council, EP or ECB concerning the legality of a particular regulation (Art. 241) Called proceedings for annulment; e.g. Isoglucose (1980)

Direct Actions  Cases brought by member states or other institutions against the Commission, Council, EP, for failure to act (Art. 232 Parliament v Council (1985)  Cases for damages against the EU for the wrongful act of an EU institution or an EU servant (Arts. 235, 288) Actions to establish liability  Staff cases – unfair dismissal…

Impact of EC Case law:  ‘EC case law has profoundly advanced the objectives of the treaties’ (1999,Dinan, P.308) Landmark rulings have been decisive in helping to achieve EU’s economic and social goals

Impact of EC Case law:  Some practical examples: Freedom of movement of goods; Cassis de Dijon (1979) Social policy – area of equality Defrenne 1971… Barber (1990) on equal rights for men and women in occupational pension schemes

Impact of the ECJ  the impact of the ECJ on the European policy process is undeniable and well embedded (1996 Wallace P. 61)  ECJ has endorsed a set of values to underpin European governance (Joseph Weiler, in Wallace P. 61)

ECJ: a source of ideas:  It is a source of ideas as it has explained general principles of European law: Equality Legal certainty Fundamental rights Direct effect Proportionality

Resistance to the ECJ  National courts, do not always accept easily supremacy of European law or its judgements on individual cases  National politicians do not always accept the constraints that the ECJ sets on them  Commission – it is not always easy to prove its interpretations…

Resistance to the ECJ – more focused and tenacious now, but no major challenges…  Ruling on TEU from Bundesverfassungsgericht, October 1993, suggested that acceptance of EU decisions and of ECJ rulings could not be taken for granted  Some governments might like to limit the influence of the ECJ by treaty amendment