The Workload of the Court of Justice of the European Union - European Union Committee Contents

CHAPTER 2: The Court of Justice of the European Union


9.  The CJEU is the collective term for the European Union's judicial arm,[8] but the single institution consists of three separate courts, each enjoying its own specific jurisdiction. Generally speaking the three courts' jurisdictions are defined by the types of cases they hear or by the status of the litigant bringing the action and whilst the CJEU does not operate on a formally hierarchical framework like, for example, the UK court structure, it is nevertheless split into three tiers. Forming the upper tier is the Court of Justice (CJ) which was formerly known as the European Court of Justice (ECJ); beneath the CJ is the General Court (GC) which was formerly known as the Court of First Instance (CFI); and the third tier consists of the Civil Service Tribunal (CST), which in the words of the Treaty constitutes the EU's single "specialised court".[9] Francis Jacobs, former Advocate General at the Court of Justice and presently Professor of Law at King's College London, considered this structure a good one.[10]

Rules governing the CJEU

10.  The rules governing all aspects of the CJEU are set out in the EU's two treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). Further detail is provided by the Statute of the Court of Justice of the European Union[11] and the CJEU's rules of procedure. The Member States are responsible for setting the rules in the Treaties governing the CJEU's operation through the usual process of negotiation associated with international treaties. Broadly speaking, the three courts are responsible for setting their own procedural rules,[12] though any measures for reform that the CJEU might suggest remain subject to approval by the Council.


11.  The CJEU's working language is French and consequently all documents, pleadings and judgments are translated into French.[13] Beyond that, the rules on translation differ depending on the court or the nature of the proceedings.

12.  CJ decisions tend to raise issues of general importance for all Member States so there is a greater need for preliminary ruling requests, Advocate General (AG)[14] opinions and the Court's judgments to be translated into all 23 languages. This enables Member States to intervene in proceedings, as is generally their right, and for citizens to understand and be aware of the law as it applies to them.[15]

13.  In relation to the GC, Judge Nicholas Forwood explained that not everything is translated into the 23 official languages of the EU. Unless a Member State intervenes, a case takes place in a single language of the applicant's choosing. If this language is not French then the case documents would be translated into it as the working language of the Court. As for their judgments, these are produced in French and if the Court decides that the case raises issues of general importance the decision will be translated into the other 22 languages.[16]

14.  Unlike the other two Courts, the decisions of the CST are not binding on the Member States and do not take effect within the national legal systems in the same way. As the jurisdiction and decisions of the CST are entirely internal to the EU, the need to translate the CST's decisions routinely is limited.

15.  In 2009 the translation department had to deal with around 800,000 pages of legal documents. Their translators had to identify the correct legal terminology in each of the 23 languages to ensure an accurate translation, all within a 20 working day deadline for each round of translation.[17]

16.  The language regime of the CJEU is a sensitive issue. As Professor Arnull said, "[t]he languages which the Court uses are important to its legitimacy"[18] and this importance is reflected in the unanimous voting requirement in the Council for amendment of the language rules. Included within the Statute of the CJEU is a provision addressing the language arrangements.[19] The relevant article is an aspiration that the Council will in future agree a Regulation unanimously, which will set out the Courts' language regime. Until this happens, the current rules are those set out in the relevant rules of procedure. The potential for these rules to delay the CJEU in its work and contribute to the backlog of cases is discussed in Chapter 3.


17.  The EU budget for 2011 shows the cost of running the CJEU to be just over €334m of which €40m is met from its own income. Out of the overall total EU budget for 2011 of €126,527m, the cost of the court represents 0.26%.[20]

The Court of Justice

18.  The CJ can broadly be described as the supreme or constitutional court of the EU with responsibility for examining the legality of EU acts and ensuring that Union law is interpreted and applied uniformly.

19.  The CJ has jurisdiction to hear:

(i)  infringement actions against Member States for non-compliance with EU law potentially leading to fines,[21] brought by either the Commission[22] or other Member States;[23]

(ii)  preliminary references[24]—providing interpretative judgments at the request of national courts in order to help them decide a case with an EU law dimension; and

(iii)  actions for annulment of EU legislation or to require an institution to act, brought by a Member State or by one of the institutions, similar to judicial review proceedings in the UK.

20.  The CJ also has jurisdiction to hear appeals from the GC.[25]


Preliminary References
The preliminary reference or preliminary ruling has been instrumental in the development of European law, with most of the Court's better known judgments being delivered under this mechanism. At the request of the national court,[26] the CJ gives its interpretation of the relevant EU law, but the Court does not actually decide the substance of the case. Having given its interpretation, the case returns to the national court for them to decide, based on the CJ's interpretation. On the whole, the CJ is obliged to deal with all cases referred to it.[27]


21.  The 27 judges, [28] one per Member State, [29] are supported in their work by the AGs of which there are currently eight.[30] Their most prominent role is to produce a written opinion for the Court[31] setting out their understanding of the applicable law and recommending how, in their view, the case ought to be decided. The opinion is not binding. AG opinions tend to offer a far more comprehensive discussion of the EU law governing the case than the CJ judgment. The Lisbon Treaty includes provision for more AGs to be appointed following a request from the CJ to the Member States, a request to which the Member States must agree unanimously.[32]

22.  CJ judges are appointed for a renewable term of six years[33] and they are partially replaced every three years[34] in alternate groupings of 13 and 14 judges. Similarly, AGs are replaced every three years in groups of four.[35]

23.  When they are hearing cases the judges of the CJ occasionally sit as the full court of 27 judges,[36] sometimes in a Grand Chamber of at least 11 judges presided over by the President or most commonly in chambers of five or three judges. The President of the CJ[37] is elected from among its membership by the judges and AGs of the Court for a renewable term of three years.

The General Court

24.  The GC has jurisdiction to deal with almost all cases against the institutions and the agencies of the EU. These include:

(1)  actions brought by an individual against an Institution;

(2)  actions seeking compensation or damages brought against an Institution;

(3)  actions brought by an individual for annulment of EU legislation or failure to act;

(4)  actions by Member States against the Council in the fields of State aid, anti-dumping and the Council's use of its implementing powers;

(5)  actions by a Member State against the Commission;

(6)  actions relating to Community Trade Marks i.e. against the decisions of the Office for Harmonisation in the Internal Market;

(7)  actions based on contracts entered into by the European Union conferring jurisdiction on the General Court;

(8)  actions brought against decisions of the Community Plant Variety Office or of the European Chemicals Agency; and

(9)  appeals against decisions of the Civil Service Tribunal.

25.  Cases before the GC tend to be more fact based and more likely to involve consideration of written and oral evidence than those before the CJ, whose cases are mostly limited to deciding questions of law, not fact.[38] Of particular complexity are the competition cases, challenges by undertakings to Decisions made by the Commission allowing or refusing mergers, or concerning anti-competitive behaviour. These types of cases comprised more than 10% of the new cases filed in the GC in 2008. Illustrating how document-heavy these competition cases can be, the CCBE, the European body representing legal practitioners, told the Committee that "[i]n large competition cases ... five, seven or 10 applicants may be challenging a Decision of the European Commission of 600 pages or more, and the file may consist of 20,000 pages".[39]

26.  The number of judges in the GC since its creation as the CFI in 1989 has always reflected the number of Member States.[40] However, unlike the CJ, the ratio of one judge per Member State is not specified in the Treaty which states that the number of judges in the GC shall be at least one judge per Member State.[41] There is a partial replacement of the judges every three years.[42] Unlike the CJ the GC is not supported by AGs but the Treaty does include provision for the GC to be assisted in this way by an AG drawn from amongst its own number.[43]

27.  The GC sits in Chambers of five or three or one. Occasionally it sits as a Grand Chamber of 13 judges or as a full Court of 27 if the complexity of the case calls for it. The judges of the GC also elect from amongst their membership a President who enjoys a similar role to that of the President of the CJ.[44]

The Civil Service Tribunal

28.  The CST was created partly to ease the workload of the GC. It deals only with disputes between the EU institutions and their employees. It is currently the EU's only specialised court and has been in existence since 2005. It comprises 7 judges[45] who are appointed for a renewable term of six years from "as broad a geographical basis as possible from among nationals of the Member States with respect to the national legal systems represented".[46] There is provision within the Treaty for the Member States in the Council to increase by qualified majority vote the number of judges serving the CST.[47] Like the other two Courts the judges at the CST elect from among their number a President who fulfils a similar role to the other Presidents.[48]

The Due Report[49]

29.  In early 1999, partly in anticipation of the EU's enlargement, the European Commission set up a Working Party on the Future of the European Court of Justice. The Working Party's remit was to examine how the Court was to maintain its quality and consistency in the light of the (then) expansion of jurisdiction and increase of workload as a result of EU expansion.

30.  The subsequent Due Report, so called after the chairman of the Working Party, former President of the Court of Justice of the European Communities, Mr Ole Due,[50] was published in January 2000.[51] In considering the litigation statistics for the Community courts up to 1998, the Due Report found that "since the end of 1998 the Community court system has not been able to face the constant growth of litigation and can no longer hear and determine the cases brought before it within an acceptable period of time".[52] In order to alleviate this problem the Working Party made a range of proposals[53] "intended to show what the system of Community courts could be like some fifteen years hence".[54]

31.  However, as discussed in the following Chapter, as 2015 approaches the statistical analysis included in the CJEU's Annual Report 2009, supported by the evidence submitted to this Committee, reveals an institution which continues to struggle to cope with its workload.

8   Article 19 TEU. Back

9   There is provision in the Treaty for the creation of further specialised courts in accordance with the ordinary legislative procedure. Back

10   Q 74. Back

11   Annexed to the TFEU, Protocol (No 3). Back

12   The detail is provided by Article 253 TFEU for the CJ, Article 254 TFEU for the GC and by Article 257 TFEU for specialised courts. Back

13   See Advocate General Sharpston's evidence at paragraph 1.6 in Appendix 5. Back

14   The Advocate General's role is discussed in paragraph 21. Back

15   The CCBE, Q 51. Back

16   Appendix 4 at p 53. Back

17   CJ, Appendix 4 at p 49. Back

18   Q 16. Back

19   Article 64 of the Statute of the CJEU. Back

20   These figures take no account of the fines levied by the Court that in turn contribute to the wider EU budget. Back

21   The Court can impose heavy fines on a Member State for failure to comply with a Treaty obligation. For example, in the case of the UK, this could result in a daily penalty of between €13,194 and €791,640. The basic lump sum which could be suggested against the UK would be €10,995,000. (See Doc SEC(2010) 1371: Commission Communication on the implementation of Article 260(3) TFEU.) Back

22   Article 258 TFEU. Back

23   Article 259 TFEU. Back

24   Discussed in detail in Chapter 6. Back

25   Article 56 Statute of the CJEU. Back

26   In the Area of Freedom, Security and Justice the Treaty of Lisbon expanded the CJ's jurisdiction to hear preliminary ruling requests from any court or tribunal, see paragraphs 42-44. Back

27   Except for limited exceptions developed by the case law and those occasions subject to the reasoned order process under Article 104(3) of the rules of procedure of the Court of Justice.  Back

28   All Member State nominees for judicial appointment to the CJEU, including AGs, are considered by the Judicial Appointments Committee introduced by the Lisbon Treaty which has seven members drawn from former members of the CJEU, national supreme courts and lawyers of recognised competence, one of whom is nominated by the European Parliament. Back

29   Article 19(2) of the TEU. Back

30   France, Germany, Italy, Spain, and the UK have a permanent AG; the remaining three positions rotate in alphabetical order between the other 22 Member States. Back

31   Under Article 44a of the Courts' Rules of Procedure the AG also plays a role, alongside the full College of Judges, in deciding whether an oral hearing is necessary in an individual case. Back

32   Article 252 TFEU. Back

33   Article 253 TFEU. Back

34   Ibid. Back

35   Article 9, Statute of the CJEU. Back

36   For example, see Commission v Edith Cresson [2006] ECR I 6387. Back

37   The current President of the CJ is Mr Vassilios Kouris. He is responsible for both the administrative and judicial organisation of the CJ and he presides over the Court's judicial deliberations. Back

38   For example, see Professor Takis Tridimas (WE 11) at paragraph 18; Government (WE 10) at paragraph 27; the CCBE Q 71. Back

39   Q 71. Back

40   In the 1990s the Member States tried, but failed, to increase the number of judges serving the GC by six, see paragraph 134Back

41   Article 19(2) TEU. Back

42   Article 254 TFEU. Back

43   Article 49, Statute of the CJEU. Back

44   The current President of the GC is Marc Jaeger who gave evidence to the Committee on its visit to the CJEU. Back

45   CST judges are also subject to the judicial appointments panel. Back

46   Article 3, Annex 1 of the Statute of the CJEU. Back

47   Article 2, Annex 1 of the Statute of the CJEU. Back

48   The current incumbent is Paul Mahoney from the UK who gave evidence to the Committee on its visit to Luxembourg. Back

49   The Due Report can be viewed by following this link: Back

50   Member of the Court of Justice from 1979-1994 (President from 1988-1994). Back

51   The Working Party consisted of five former judges and AGs of the Court of Justice of the European Communities, plus one lawyer and a Public Prosecutor from Spain. The British member of the Working Party was the late Lord Slynn of Hadley, former AG and judge at the Court of Justice of the European Communities. Back

52   Due Report at page 8. Back

53   The Working Party's five categories of proposals were: (i) Preliminary rulings; (ii) Direct actions; (iii) Categories of special cases; (iv) Procedural reforms; and (v) Membership of the Community Courts. See Due Report at page 11. Back

54   Due Report at page 11. Back

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