CHAPTER 2: The Court of Justice of the
European Union
Introduction
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.
THE LANGUAGE REGIME OF THE CJEU
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.
Cost
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]
BOX 1
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]
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THE JUDGES OF THE CJ
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 134. Back
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: http://ec.europa.eu/dgs/legal_service/pdf/due_en.pdf 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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