International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Winter 2013 Issue
 

International Tribunal Spotlight

 

The European Court of Justice 

The European Court of JusticeBy: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

When the first contours of European unity began to show after World War II, which came in the form of the European Coal and Steel Community established in 1951, there was included the idea of a court to adjudicate disputes that would undoubtedly arise in this new international body. As a result, the European Court of Justice was established in 1952 by the Treaty of Paris and located in Luxembourg, where it has remained. The ECJ has changed considerably since its founding. It became the judicial organ of two other European “communities” established in 1957, the European Economic Community and the European Atomic Energy Community (collectively known as the European Community).

In 1989, because of the large number of cases filed in the ECJ, a second court was created, the European Court of First Instance, also located in Luxembourg. The authorities of these two courts were expanded by the Treaty of Maastricht in 1992, which created the European Union. Finally, in 2007-2009, the Treaty of Lisbon restructured and renamed the courts, all coming under the umbrella of the Court of Justice of the European Union, which had three parts. They were the Court of Justice (the old European Court of Justice), the General Court (formerly the Court of First Instance) and the Civil Service Tribunal.

The European Court of Justice is not a part of, or affiliated with the European Court of Human Rights in Strasbourg, France, which is the judicial organ of the Council of Europe, which was also established after World War II to promote democracy, human rights and the rule of law.

The jurisdiction of the Court of Justice “interprets EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between EU governments and EU institutions. Individuals, companies and organizations can also bring cases before the Court if they feel that their rights have been infringed by an EU institution.”

The General Court “deals with cases brought forward by private individuals” companies and some organizations, and cases relating to competition law.” Finally the Civil Service Tribunal “rules on disputes between the European Union and its staff.”

There are 27 judges, one from each member state, and eight “advocates general” at the Court of Justice. The position of advocate-general is unknown among common law countries.  Advocates-general, in the words of one commentary, “are responsible for presenting a legal opinion on 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 judgement. The intention behind having Advocates-General attached is to provide independent and impartial opinions concerning the Court’s cases.”  Some national court systems, such as the one in The Netherlands, use advocates-general. (The immediate question that may arise among common law judges and lawyers upon hearing the purposes of the advocate-general is: “Isn’t that what judges are supposed to do?”) Opinions of advocates-general are not binding on the Court.

Judges on the court are selected “by common accord of the governments of the member-states.” They are selected for a term of six years, which may be renewed. There has been from the beginning of the Court a President, who is selected by and from the judicial membership of the Court for a renewable term of three years. The President presides over the Court and also the administrative arm of the Court, the office of the Registrar. The current President is Vassilios Skouris from Greece, who was elected in 2003. His current term will expire in 2015.

In an amendment to the Statute of the Court of Justice adopted in 2012, the post of Vice- President of the Court was created to perform the duties of the President when the President is unable to perform his duties or the position of President is vacant. The current Vice-President of the Court is Judge Koen Lenaerts of Belgium, who will serve a term of three years.

  

There are generally five types of cases heard by the Court of Justice, described as follows:

a. A request for a preliminary ruling – this type of case arises when national courts ask the Court of Justice to interpret a point of European Union law. It would be similar to a request for an advisory opinion that is permitted in some national and international courts. This kind of case arises because the “national courts of each country are responsible for ensuring that EU law is properly applied in that country.”

b. An action for failure to fulfill an obligation – a case brought against European Union governments for not applying European Union law. This type of case is brought by the European Commission, which is the executive body of the European Union responsible for proposing legislation, implementing decisions, upholding EU treaties and day-to-day running of the EU.

c. An action for annulment – a case “against EU laws thought to violate EU treaties or fundamental rights.” It may be brought by any EU member-state, the European Council, the European Commission, European Parliament, or an individual.  In the latter instance the individual must be directly affected by the challenged law. The ability to hear this type of case essentially gives the Court of Justice the power of judicial review.

d. An action for failure to act – a case against European Union institutions for failing to make decisions or actions.

e. Direct action – a case brought by an individual, corporation, or organization who or which has suffered damages as a result of European Union decisions or actions.

Cases before the Court of Justice are heard in two stages, a written stage where all of the parties submit written memoranda to the judge responsible for the case, and an oral stage which is in the nature of a public hearing where advocates present their respective arguments to panels of three, five or 13 judges plus the advocate-general assigned to the case. The advocate general gives his opinion and then the judges meet and decide the case. The opinion of the judges is read in open court. Decisions are collegial, that is, dissenting opinions are not permitted.

While proceedings are conducted in a language chosen by the petitioner or applicant, the only working language of the Court, for purposes of discussion of cases and rendering opinions, is French. The Court of Justice is the only international court where French is the sole working language of the Court. This would seem to be a limiting factor in the operations of the Court, if for no other reason than the selection of judges for it would necessarily have to be limited to those in the individual member states who speak French.

In a very early case in 1963 the Court issues a landmark decision which created the principle of direct effect. The court stated that the European Community “constituted a new legal order, the subjects of which consist of not only member states but also their nationals.” In a case the next year, the Court of Justice held that “member states had definitively transferred sovereign rights to the Community and Union law could not be overridden by domestic law.”

These decisions and other similar ones have promoted integration of the member states, but they have also created controversy, with some critics arguing that the Court of Justice has exceeded the powers originally intended for it. One former President of an EU state made the acerbic argument that the European Court of Justice ignored “fundamental principles of Western interpretation of law,” ignored the will of the legislators, and invented legal principles which would serve as the basis for later judgments. Two other critics argued that the decisions of the Court posed a serious threat of “government by judges” whose decisions “fabricate rulings in important cases with severe financial consequences for governments.” This occurred, they said, because the decisions were made by foreign judges without any understanding of the “national rules.”

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© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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