Politics and GovernanceThe European Court of Justice

The European Court of Justice (ECJ)

The Court of Justice of the European Union – known more usually as the European Court of Justice (ECJ) is the judicial arm of the EU. it has made decisions that have expanded and clarified the reach and the meaning of the EU, that have established key principles (such as direct effect and the supremacy of EU law), and that have helped transform the treaties into something like a constitution for Europe. It is one of the most clearly supranational of EU institutions.

How the European Court of Justice EvolvedThe European Court of Justice (ECJ) traces its roots back to the founding

in 1952 of the Court of Justice of the ECSC.

The treaties of Rome created separate courts for the EEC and Euratom, but

a subsidiary agreement gave jurisdiction over all three founding treaties to a

single seven-member Court of Justice of the European Communities.

As the membership of the Community grew, so did the number of judges on

the Court, with one more added for each new member state. But with the

work-load of the Court growing, so grew the backlog of cases and the Court

was taking up to two years to issue its more important judgments

As a result, a new subsidiary Court of First Instance was created in 1989

to review less complicated cases.

In 2004 the EU Civil Service Tribunal took over responsibility for cases

involving disputes between the EU institutions and their staff

How the European Court of Justice EvolvedA final change came with the Lisbon treaty:

the Court of Justice of the European Communities was

renamed the Court of Justice,

the Court of First Instance was renamed the General

Court,

and the two together are now formally known as the

Court of Justice of the European Union.

How the European Court of Justice EvolvedAmong the most important of the Court’s decisions, three in

particular stand out:

1. Direct effect: The principle that EU law is directly and

uniformly applicable in all EU member states, and that

challenges can be made to the compatibility of national law.

2. Supremacy of EU law: The principle that in areas where

the EU has competence (authority), EU law supersedes

national law in cases of incompatibility.

3. Mutual recognition: The principle that a product or service

provided legally in one member state cannot be barred from

provision in another member state.

How the EJC is StructuredA constitutional court is one created to issue judgments on questions of whether

or not the laws or actions of governments and government officials conflict with

the spirit or the letter of constitutionally established powers, rights and freedoms.

Not all states have constitutional courts, some choosing to delegate judicial

authority to supreme courts which deal also with issues of civil law (laws created

by legislatures) and common law (laws created and developed through court

decisions).

EU member states with constitutional courts: Austria, France, Germany,

Italy, and Spain, and all the eastern European states;

EU member states without constitutional courts: Britain, Denmark, Ireland,

Malta, the Netherlands, and Sweden.

The ECJ is more purely a constitutional court because it clarifies the meaning and

application of the treaties (the functional equivalent of a European constitution)

How the EJC is Structured Judicial arm of the EU

Headquartered in Luxembourg

Headed by a president elected from among its judges for renewable three-year

terms

Consists of 27 judges, each appointed for renewable six-year terms of office, with

each member state having control over one appointment

Judges rarely meet as a full court; more often meet as chambers of three or five

judges, or as a Grand Chamber of 1 3 judges

Assisted by eight advocates-general appointed for renewable six-year terms and

charged with reviewing cases, studying arguments, and delivering opinions

Further assisted by lower 27-member General Court, which hears less

complicated cases in selected areas, and by 7-member EU Civil Service Tribunal

which hears disputes between the EU institutions and their staff

Supranational in character

How the EJC is StructuredThe Court of Justice has five main components:

the judges,

the President,

the advocates general,

the General Court,

the EU Civil Service Tribunal.

How the EJC is StructuredThe Judges

For all 27 judges to hear cases together and to meet as a full court

would be an inefficient use of time and resources, so meetings of the

full court are reserved only for proceedings to dismiss a European

commissioner, a member of the Court of Auditors, or the European

Ombudsman.

All other cases are heard by chambers of three or five judges, or by a

Grand Chamber of 13 judges when a member state or another EU

institution makes a specific request.

To further help manage the workload, each judge has his or her own

cabinet of assistants and legal secretaries, equivalent to the cabinets

of European commissioners and responsible for helping with research

and keeping records.

How the EJC is StructuredThe Judges

Unlike the case with the College of Commissioners, the

European Parliament has almost no say in the

appointment process.

There is no requirement that the judges come from

different member states, nor even from any member state.

Theoretically, at least, they could all be Estonian or Polish

or Spanish, and the Court could even – in the words of

former President Lord McKenzie Stuart – be made up

‘entirely of Russians’

How the EJC is StructuredThe Judges

Nominees to the Court must first be evaluated by a seven-member panel

made up of former members of the ECJ, members of national constitutional

courts, and lawyers, of whom one is nominated by the European

Parliament.

The panel gives its opinion, leaving it to the member states to decide how

to proceed.

Once confirmed to the Court, judges – like members of the College of

Commissioners – must maintain their independence and avoid promoting

the national interests of their home states.

While they can resign from the Court, they can only be removed against

their will by the other judges and the advocates general (not by the

governments of member states or by the other EU institutions), and then

only as a result of an unanimous agreement.

How the EJC is StructuredThe President

is responsible for organizational matters such

as assigning cases to chambers, appointing

judge-rapporteurs (the Court judges

appointed to oversee the different stages

through which a case is reviewed. Equivalent

to rapporteurs in the European Parliament),

and deciding the dates for hearings.

In spite of the growing powers of the Court,

presidents are the least known of the senior

figures in the EU institutional hierarchy and

their work is subject to little public and

political scrutiny.

Vassilios Skouris

How the EJC is StructuredThe Advocates General

court officers whose job is to review cases as they come

to he Court of Justice, to study the arguments involved,

and to deliver independent opinions in court before the

judges decide which laws apply and what action to take.

The opinions of the advocates general are not binding

on the judges, but they provide a valuable point of

reference.

The Court has eight advocates general appointed to

renewable six-year terms.

How the EJC is StructuredThe Court General

A subsidiary court created in 1989 (as the Court of First

Instance) to review less complicated cases coming

before the Court of Justice.

It has roughly the same institutional structure as the

Court of Justice

The General Court has been particularly active in cases

dealing with competition, state aid, and intellectual

property.

How the EJC is StructuredThe EU Civil Service Tribunal

This is one of the EU’s newest institutions, created in

2004 to take over from the General Court any cases

involving disputes between the EU institutions and their

staff.

The subjects range from contracts to pensions, job

appraisals, promotions, discrimination, salaries, and

workplace facilities.

What the Court doesIf the Commission is the guardian of the treaties, the Court of Justice is

responsible for making sure that in their ‘interpretation and

application . . . the law is observed’, and that EU law is equally, fairly, and

uniformly applied throughout the member states.

Powers of the European Court of Justice are:

Supreme legal body of the EU and the final court of appeal on all

matters relating to EU law.

Issues preliminary rulings when national courts ask for a ruling on the

interpretation or validity of an EU law that arises in a national court

case.

Makes decisions on direct actions when an individual, corporation,

member state or EU institution brings proceedings directly before the

Court, usually with an EU institution or a member state as defendant.

What the Court doesThe whole process may take months, or years in more

complex disputes

Court decisions are technically supposed to be unanimous,

but votes are usually taken on a simple majority; all votes

are secret, so it is never publicly known who – if anyone –

dissented.

The work of the Court falls into two main parts:

preliminary rulings

direct actions

What the Court doesPreliminary rulings

In order to prevent EU laws being interpreted or applied differently

in different situations, national courts can (and sometimes must)

ask the Court of Justice for a ruling on the interpretation or validity

of an EU law that arises in a national court case.

EU institutions can also ask for preliminary rulings, but most

are made on behalf of a national court, which is then bound to

respect and apply the Court’s response.

The word preliminary is misleading, because the rulings are

usually requested and given during a case, not before it opens;

hence the rulings are actually concurrent rather than

preliminary.

What the Court doesDirect Actions

These are cases in which one party (which may be an individual,

corporation, member state, or EU institution) brings proceedings

against another (often a member state or an EU institution)

directly before the Court of Justice rather than a national court.

They can take one of five main forms:

Actions for failure to fulfil an obligation

Actions for annulment

Actions for failure to act

Actions for damages

Actions by staff

What the Court doesAppeals and other cases

In cases where the General Court has issued a judgment,

and one of the parties in the case is unhappy with the

outcome, an appeal can be lodged with the Court of Justice.

The Court can also be asked by the Commission, the Council

of Ministers or a member state to rule on the compatibility of

draft international agreements with the treaties.

the Court can be called in to arbitrate on contracts concluded

by or on behalf of the EU (conditional proceedings)

The European Court of Human RightsAlthough it is not part of the EU’s network of institutions, and works

entirely independently of the EU, no analysis of judicial life in the EU

can be complete without addressing the work of the European Court of

Human Rights (ECHR).

All member states of the EU – and the EU itself– are signatories of the

European Convention and members of the ECHR, which means that in

decisions dealing with human rights the Court of Justice must refer to

precedent created by the decisions of the ECHR.

Founded in 1959 and now headquartered in Strasbourg, the ECHR

was established under the terms of the 1950 European

Convention on Human Rights, which was in turn adopted under

the auspices of the Council of Europe in order to promote the

protection of human rights and fundamental freedoms.

The European Court of Human RightsAlthough it is not part of the EU’s network of institutions, and works

entirely independently of the EU, no analysis of judicial life in the EU

can be complete without addressing the work of the European Court of

Human Rights (ECHR).

All member states of the EU – and the EU itself– are signatories of the

European Convention and members of the ECHR, which means that in

decisions dealing with human rights the Court of Justice must refer to

precedent created by the decisions of the ECHR.

Founded in 1959 and now headquartered in Strasbourg, the ECHR

was established under the terms of the 1950 European

Convention on Human Rights, which was in turn adopted under

the auspices of the Council of Europe in order to promote the

protection of human rights and fundamental freedoms.

The European Court of Human Rights The Court consists of 47 judges, one for each of the member states of the Council of Europe.

As with the European Court of Justice, there is no requirement that each member state

should be represented by one of its nationals.

Judges are appointed by the Parliamentary Assembly of the Council of Europe for six-year

renewable terms of office, and they in turn elect a President and two vice-presidents.

The court is divided into five Sections, in which a Chamber is selected consisting of a

Section President and a rotating group. The more important cases are dealt with by a 17-

member Grand Chamber.

Any contracting state or any individual who claims to have been harmed by the actions of a

contracting state can bring a case to the Court.

Most cases are dealt with in writing, a small minority going before a formal hearing.

Each case s assigned to a Section, which can either declare it inadmissible or else decide to

review it, in which case a decision is made by a simple majority vote.

There is a right of appeal to a Grand Chamber, but otherwise a judgment becomes final

within three months, and the Committee of Ministers of the Council of Europe is responsible

for making sure that the state involved in the case has taken the necessary action to correct

the problem.

Politics and GovernanceSpecialized Agencies

Specialized Agencies Particularly since the early 1990s, and as the policy reach

of integration has spread, so specialized EU agencies have

been created in to order to encourage better policy

coordination.

There has been no template or overall plan for their

development, and their size, reach and powers vary. Some

are part of the EU structure, others are independent.

The creation of these agencies has mainly occurred below

the public radar, yet their growth is significant as they have

given the EU more of the trappings of a conventional

system of government.

Financial BodiesWith economic issues long at the heart of European

integration, banks have been at the heart of institutional

development.

The Luxembourg-based European Investment Bank

(1958) lends on favourable terms to capital projects that

support the goals of the EU.

The Bank does not make a profit and deals only in large loans,

rarely lending more than half the total investment cost of a

project, and often co-financing projects with other banks.

The EIB’s shareholders are the member states of the EU, which

each subscribe to the Bank’s capital of nearly €250 billion,

Financial BodiesThe Frankfurt-based European Central Bank (1998) is charged

with helping manage the euro by ensuring price stability and

setting interest rates.

The structure of the ECB is based on the model of the German

Bundesbank. Created in 1957, and based in turn on the model

of the US Federal Reserve, the Bundesbank was famous for

both its competence and its independence.

The ECB probably has more independence than the

Bundesbank or any existing national central bank; where their

powers can be changed by national law, the powers of the ECB

are based on a treaty whose terms can only be changed by

agreement of all the EU member states.

Financial BodiesNew regulatory institutions have been created as part of the EU’s response to the 2007-10

global economic crisis, with responsibility for monitoring the EU’s financial sector.

The European Systemic Risk Board (ESRB) is in charge of the macro-economic

supervision of the EU’s financial sectors, and responsible for identifying emerging risks in

hope of avoiding more financial crises.

The European System of Financial Supervisors (ESFS) is responsible for ensuring

stability in individual financial firms.

The European Banking Authority (headquartered in London) replaced the advisory

Committee of European Banking Supervisors, and has the task of encouraging consistent

regulation and supervision in the banking sector with a view to better protecting depositors

and investors.

The European Securities and Markets Authority (headquartered in Paris) oversees the

EU market for financial services, and has the power to investigate selected financial

products, such as credit default swaps, and ban them if needed.

The European Insurance and Occupational Pensions Authority (headquartered in

Frankfurt, along with the ESRB) encourages closer supervision of the EU insurance and

pensions market.

Regulatory (Decentralized) Agencies These are independent bodies set up under EU law (nearly

30 in all), mainly funded out of the EU budget, and given

technical, management, or informational responsibilities.

They cannot always regulate, but take decisions on the

application of EU standards, and influence policy through

the provision of information.

Headquartered in different EU capitals or regional cities,

they include agencies dealing with such issues as

vocational training, worker safety, registration of trade

marks, aviation and maritime safety, monitoring drug use,

and gathering environmental information.

Regulatory (Decentralized) AgenciesThe Commission (2008) divides them into four types:

Those with the power to adopt decisions legally binding on

third parties (such as the European Aviation Safety Agency

and the European Chemicals Agency).

Those that provide scientific and technical advice to the

Commission, and to the member states where needed (such

as the European Food Safety Authority).

Those with operational responsibilities (such as the European

GNSS Supervisory Authority, which manages Europe’s global

navigation satellite systems programme).

Those acting as a clearing house for information.

List of Regulatory Agencies

Executive AgenciesTemporary bodies set up by the Commission to help carry out

narrow and specific executive tasks. Some examples are:

Education, Audiovisual and Culture Executive Agency

(EACEA)

Executive Agency for Small and Medium-sized enterprises

(EASME)

European Research Council Executive Agency (ERC

Executive Agency)

Executive Agency for Health and Consumers (EAHC)

Research Executive Agency (REA)

Innovation & Networks Executive Agency (INEA)

Advisory BodiesThe two major advisory bodies are the European

Economic and Social Committee, a policy forum for key

economic and social groups, and the Committee of the

Regions, which gives a voice to the interests of local

government.

Both are based in Brussels, both have 344 members

divided up among the member states roughly in proportion

to population, and their role is limited to issuing opinions on

EU policy.

Other Bodies The European Court of Auditors is the EU’s financial watchdog,

charged with making sure that the EU’s accounts are correct, and

recognized since Maastricht as a formal EU institution.

Eurocorps is an independent body tracing its roots back to 1991

that maintains a multinational European military force for use

mainly in humanitarian and peacekeeping operations.

The European Space Agency is an independent body that

undertakes research and maintains Europe’s astronaut

programme.

Police and judicial cooperation are encouraged by Europol and

Eurojust, which help deal with serious forms of cross-border

crime.