The Court of Justice of the European Communities
The Court of Justice is composed of 25 Judges and eight Advocates General. The
Judges and Advocates General are appointed by common accord by
the governments of the Member States for a renewable term of six
years. They are chosen from among lawyers whose independence is
beyond doubt and who possess the qualifications required for appointment,
in their respective countries, to the highest judicial offices,
or who are of recognised competence.
The Judges of the Court elect one of themselves as President of the Court for
a renewable term of three years. The President directs the work
and staff of the Court and presides at hearings and deliberations
of the full Court or the Grand Chamber.
The Advocates General assist the Court. They are
responsible for presenting, with complete impartiality and independence,
an ‘opinion’ in the cases assigned to them.
The Registrar is the institution’s secretary general
and manages its departments under the authority of the President
of the Court.
The Court may sit as a full court, in a Grand
Chamber of 13 judges or in Chambers of three or five judges. The
Court sits as a full court in the particular cases prescribed by
the Statute of the Court (proceedings to dismiss the European Ombudsman
or a Member of the European Commission who has failed to fulfil
his or her obligations, etc.) and where the Court considers that
a case is of exceptional importance. It sits in a Grand Chamber
when a Member State or an institution which is a party to the proceedings
so requests, and in particularly complex or important cases. Other
cases are heard by Chambers of three or five judges. The Presidents
of the Chambers of five judges are elected for three years, and
those of the Chambers of three judges for one year.
To enable it properly to fulfil its task, the Court has been given clearly defined
jurisdiction, which it exercises on references for preliminary
rulings and in various categories of proceedings.
The various types of proceedings
- References for preliminary rulings
The Court of
Justice cooperates with all the courts of the Member States, which
are the ordinary courts in matters of Community
law. To ensure the effective and uniform application of Community
legislation and to prevent divergent interpretations, the national
courts may, and sometimes must, refer to the Court of Justice
and ask it to clarify a point concerning the interpretation
of Community law, so that they may ascertain, for example, whether
their national legislation complies with that law. A reference
for a preliminary ruling may also seek the review of the validity
of an act of Community law. The Court of Justice’s reply is not merely an
opinion, but takes the form of a judgment or reasoned order. The
national court to which it is addressed is, in deciding the dispute
before it, bound by the interpretation given. The Court of Justice’s
judgment likewise binds other national courts before which the
same problem is raised.
It is thus through references for preliminary
rulings that any European citizen can seek clarification of the
Community rules which affect him. Although such a reference can
be made only by a national court, all the parties to the proceedings
before that court, the Member States and the European institutions
may take part in the proceedings before the Court of Justice. In
that way, several important principles of Community law have been
established by preliminary rulings, sometimes in reply to questions
referred by national courts of first instance.
- Actions for failure to fulfil obligations
These actions
enable the Court of Justice to determine whether a Member State
has fulfilled its obligations under Community
law. Before bringing the case before the Court of Justice,
the Commission conducts a preliminary procedure in which the Member
State is given the opportunity to reply to the complaints against
it. If that procedure does not result in the Member State terminating
the failure, an action for infringement of Community law may
be brought before the Court of Justice. The action may be brought by the Commission —
as, in practice, is usually the case — or by a Member State. If
the Court finds that an obligation has not been fulfilled, the
State must bring the failure to an end without delay. If, after
a further action is brought by the Commission, the Court of Justice
finds that the Member State concerned has not complied with its
judgment, it may impose on it a fixed or periodic financial penalty.
By an action
for annulment, the applicant seeks the annulment of a measure (regulation,
directive or decision) adopted by an institution.
The Court of Justice has exclusive jurisdiction over actions
brought by a Member State against the European Parliament and/or
against the Council (apart from Council measures in respect
of State aid, dumping and implementing powers) or brought by one
Community institution against another. The Court of First Instance
has jurisdiction, at first instance, in all other actions of
this type and particularly in actions brought by individuals.
- Actions for failure
to act
These actions
enable the lawfulness of Community institutions’ failures to act
to be reviewed. However, such an action may
be brought only after the institution concerned has been called
on to act. Where the failure to act is held to be unlawful,
it is
for the institution concerned to put an end to the failure
by
appropriate measures. Jurisdiction to hear actions for
failure to act is shared
between the Court of Justice and the Court of First Instance
according to the same criteria as for actions for annulment.
Appeals
on points of law only may be brought before the Court
of Justice against judgments and orders of the Court
of First Instance.
If the appeal is admissible and well founded, the Court of
Justice sets aside the judgment of the Court of First
Instance. Where
the state of the proceedings so permits, the Court may itself
decide the case. Otherwise, the Court must refer the case back
to the Court of First Instance, which is bound by the decision
given on the appeal.
Decisions
of the Court of First Instance on appeals against decisions
of the European Union Civil Service Tribunal may, in exceptional
circumstances, be reviewed by the Court of Justice. Whatever the type of case, there is always a written stage and usually an oral
stage, which takes place in open court. However, a distinction
must be drawn between, first, references for preliminary rulings
and, second, other actions, known as ‘direct actions’.
Commencement of proceedings before the Court and the written procedure
- In references for preliminary rulings
The national court submits questions to the Court of Justice about
the interpretation or validity of a provision of Community law,
generally in the form of a judicial decision in accordance with
national procedural rules. When that request has been translated
into all the Community languages by the Court’s translation service,
the Registry notifies it to the parties to the national proceedings,
and also to all the Member States and the institutions. A notice
is published in the Official Journal of the European Union stating,
inter alia, the names of the parties to the proceedings and the
content of the questions. The parties, the Member States and
the institutions of the European Union have two months within
which to submit written observations to the Court of Justice.
An action
before the Court must be brought by application addressed to
the Registry. The Registrar publishes a notice of the action
in the Official Journal, setting out the applicant’s claims
and
arguments. At the same time, the application is served on the
party sued, who has one month within which to lodge a defence.
The applicant may lodge a reply and the defendant a rejoinder,
the time allowed being one month in each case. The time-limits
for lodging these documents must be complied with unless an
extension is granted by the President. In both types of action, a Judge-Rapporteur and
an Advocate General, responsible for monitoring the progress of
the case, are appointed by the President and the First Advocate
General respectively.
Preparatory inquiries and the report for the hearing
In all proceedings, once the written procedure
is closed, the parties are asked to state, within one month, whether
and why they wish a hearing to be held. The Court decides, after
reading the report of the Judge-Rapporteur and hearing the views
of the Advocate General, whether any preparatory inquiries are
needed, what type of formation the case should be assigned to,
and whether a hearing should be held for oral argument, for which
the President will fix the date. The Judge-Rapporteur summarises,
in a report for the hearing, the facts alleged and the arguments
of the parties and any interveners. The report is made public in
the language of the case at the hearing.
The public hearing and the Advocate General’s
opinion
The case is argued at a public hearing, before
the bench and the Advocate General. The judges and the Advocate
General may put to the parties any questions they consider appropriate.
Some weeks later, the Advocate General delivers his opinion before
the Court of Justice, again in open court. He or she analyses in
detail the legal aspects of the case and suggests completely independently
to the Court of Justice the response which he or she considers
should be given to the problem raised. This marks the end of the
oral procedure. If it is decided that the case raises no new question
of law, the Court may decide, after hearing the Advocate General,
to give judgment without an opinion.
Judgments
The judges deliberate on the basis of a draft
judgment drawn up by the Judge-Rapporteur. Each judge of the formation
concerned may propose changes. Decisions of the Court of Justice
are taken by majority and no record is made public of any dissenting
opinions. Judgments are signed by all the judges who took part
in the deliberation and their operative part is pronounced in open
court. Judgments and the opinions of the Advocates General are
available on the Court’s Internet site on the day they are pronounced
or delivered. They are, in most cases, subsequently published in
the European Court Reports.
Special forms
of procedure
Where a question
referred for a preliminary ruling is identical to a question
on which the Court has already been called on to
rule, or where the answer to the question admits of no reasonable
doubt or may be deduced from existing case-law, the Court of
Justice may, after hearing the Advocate General, give its decision
by reasoned order, citing in particular a previous judgment
relating to that question or the relevant case-law.
The expedited
procedure enables the Court to give its rulings quickly in
very urgent cases by reducing the time-limits and omitting
certain steps in the procedure. On application by one of the
parties, the President of the Court may decide, after hearing
the other parties, whether the particular urgency of the case
requires the use of the expedited procedure. Such a procedure
can also be used for references for preliminary rulings. In
that case, the application is made by the national court seeking
the
preliminary ruling.
- Applications for interim measures
Applications
for interim measures seek suspension of the operation of
measures which an institution has adopted and which form
the
subject matter of an action, or any other interim order necessary
to prevent serious and irreparable damage to a party. The costs of proceedings
There are no court fees for proceedings before
the Court of Justice. On the other hand, the Court does not meet
the fees and expenses of the lawyer entitled to practice before
a court of a Member State by whom the parties must be represented.
However, a party unable to meet all or part of the costs of the
proceedings may, without having to instruct a lawyer, apply for
legal aid. The application must be accompanied by all necessary
evidence establishing the need.
The linguistic regime
In all direct actions, the language used in the
application (which may be one of the 21 official languages of the
European Union) will be the ‘language of the case’, that is to
say the language in which the proceedings will be conducted. With
references for preliminary rulings, the language of the case is
that of the national court which made the reference to the Court
of Justice. Oral proceedings at hearings are interpreted simultaneously,
as required, into various official languages of the European Union.
The judges deliberate, without interpreters, in a common language
which, traditionally, is French.
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The
Court of Justice of the European Communities in the Community
legal order
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For the purpose of European construction, the Member States (now
25 in number) concluded treaties creating first the European
Communities and then a European Union, with institutions which
adopt laws in specific areas.
The Court of Justice of the European Communities is the judicial institution
of the Community. It is made up of three courts: the Court of Justice,
the Court of First Instance and the Civil Service Tribunal. Their
main task is to examine the legality of Community measures and
ensure the uniform interpretation and application of Community
law.
Through its case-law, the Court of Justice has
identified an obligation on administrations and national courts
to apply Community law in full within their sphere of competence
and to protect the rights conferred on citizens by that law (direct
application of Community law), and to disapply any conflicting
national provision, whether prior or subsequent to the Community
provision (primacy of Community law over national law).
The Court has also recognised the principle of
the liability of Member States for breach of Community law which,
first, plays an important part in consolidating the protection
of the rights conferred on individuals by Community provisions
and, secondly, may contribute to more diligent application of Community
provisions by Member States. Infringements committed by Member
States are thus likely to give rise to obligations to pay compensation
which may, in some cases, have serious repercussions on their public
funds. Moreover, any breach of Community law by a Member State
may be brought before the Court and, where a judgment finding such
an infringement is not complied with, the Court can order payment
of a periodic penalty and/or a fixed sum.
The Court of Justice also works in conjunction
with the national courts, which are the ordinary courts applying
Community law. Any national court or tribunal which is called upon
to decide a dispute involving Community law may, and sometimes
must, submit questions to the Court of Justice for a preliminary
ruling. The Court must then give an interpretation or review the
legality of a rule of Community law.
The development of its case-law illustrates the
Court’s contribution to creating a legal environment for European
citizens by protecting the rights which Community legislation confers
on them in various areas of their daily life.
Fundamental principles established by case-law
In its case-law (starting with Van
Gend & Loos
in 1963), the Court has introduced the principle of the direct
effect of Community law in the Member States, which enables European
citizens to rely directly on Community provisions before their
national courts.
The transport company Van Gend & Loos
had imported goods from Germany to the Netherlands and had to pay
customs duties which it considered to be incompatible with the
rule in the EEC Treaty prohibiting increases in customs duties
in trade between Member States. The action raised the question
of the conflict between national legislation and the provisions
of the EEC Treaty. The Court decided the question referred by a
Netherlands court by stating the doctrine of direct effect, thus
conferring on the transport company a direct guarantee of its rights
under Community law before the national court.
In 1964, the Costa judgment established the primacy
of Community law over domestic law. In that case, an Italian court
had asked the Court of Justice whether the Italian law on nationalisation
of the production and distribution of electrical energy was compatible
with certain rules in the EEC Treaty. The Court introduced the
doctrine of the primacy of Community law, basing it on the specific
nature of the Community legal order, which is to be uniformly applied
in all the Member States.
In 1991, in Francovich and Others, the Court developed
another fundamental concept, the liability of a Member State to
individuals for damage caused to them by an infringement of Community
law by that State. Since 1991, European citizens have therefore
been able to bring an action for damages against a State which
infringes a Community rule.
Two Italian citizens who were owed pay by their insolvent employers
had brought actions for a declaration that the Italian State
had failed to transpose Community provisions protecting employees
in the event of their employers’ insolvency. On a reference from
an Italian court, the Court stated that the directive in question
was designed to confer on individuals rights which they had been
denied as a result of the failure to act of the State which had
not implemented the directive. The Court thus opened up the possibility
of an action for damages against the State itself.
The Court in the life of European citizens
Of the thousands of judgments given by the Court, the majority,
particularly preliminary rulings, clearly have important consequences
for the daily life of European citizens. Some of these judgments
are cited below as examples from the most important areas of
Community law.
Free movement of goods
Since the Cassis de Dijon judgment in 1979 on
the principle of free movement of goods, traders can import into
their country any product coming from another country within the
Community, provided that it was lawfully manufactured and marketed
there and that there is no overriding reason relating, for example,
to the protection of health or the environment to prevent its importation
into the country of consumption.
- Freedom of movement of persons
Many judgments have been given in the field of
freedom of movement of persons.
In the judgment in Kraus (1993), the Court held
that the situation of a Community national who holds a postgraduate
academic title, which was awarded in another Member State and facilitates
access to a profession or the pursuit of an economic activity,
is governed by Community law, even as regards the relations between
that national and his Member State of origin. Accordingly, if a
Member State can make use of that title in its territory subject
to an administrative authorisation, the authorisation procedure
must be intended solely to verify whether the title was properly
awarded.
One of the most
well-known cases in this field is Bosman (1995), in which the Court
gave a ruling on a reference from a Belgian
court on the compatibility of rules of football federations with
freedom of movement of workers. It stated that professional sport
is an economic activity whose exercise may not be hindered by
rules governing the transfer of players or restricting the number
of
players who are nationals of other Member States. That principle
was extended in subsequent judgments to the situation of professional
sportsmen from third countries which had entered into an association
agreement (Deutscher Handballbund, 2003) or a partnership agreement
(Simutenkov, 2005) with the European Communities.
- Freedom to provide services
A judgment of 1989 on freedom to provide services
concerned a British tourist who was assaulted and seriously injured
in the Paris metro. On a reference from a French court, the Court
held that, as a tourist, he was the recipient of services outside
his country and was covered by the Community law principle of non-discrimination
on grounds of nationality. He was therefore entitled to the same
compensation as a French national could claim (Cowan).
In cases referred by the Luxembourg courts, the
Court declared that national provisions having the effect that
an insured person cannot obtain reimbursement of the cost of dental
treatment on the ground that it was given in another Member State
constitute an unjustified restriction on freedom to provide services
(Kohll, 1998), and that refusal to reimburse costs related to the
purchase of spectacles abroad is regarded as an unjustified restriction
on free movement of goods (Decker, 1998).
- Equal treatment and social rights
An air hostess brought an action against her employer
on the grounds of discrimination in the pay she received compared
with her male colleagues who did the same work. On a reference
from a Belgian court, the Court held in 1976 that the Treaty rule
requiring equal pay for men and women for equal work had direct
effect (Defrenne).
In its interpretation of the Community rules on
equal treatment for men and women, the Court has played a part
in protecting women against dismissal linked to pregnancy. A woman
who was unable to continue work because of difficulties connected
with her pregnancy was dismissed. In 1998, the Court held that
that dismissal was contrary to Community law. Dismissal of a woman
during pregnancy for absences linked to pregnancy-related illness
is unlawful discrimination on grounds of sex (Brown).
In order to ensure the protection of the health
and safety of workers, workers must have paid annual leave. In
1999, BECTU, a British trade union, challenged United Kingdom legislation
which denied that right to workers on short-term contracts on the
ground that it was incompatible with a Community directive on the
organisation of working time. The Court held (BECTU, 2001) that
the right to paid annual leave is a social right directly conferred
on every worker by Community law and that no worker may be denied
that right.
By holding that respect for fundamental rights
is an integral part of the general principles of law it safeguards,
the Court has made a considerable contribution to improving the
standards of protection of those rights. In this respect, it looks
to the constitutional traditions common to the Member States and
to international treaties on the protection of human rights, on
which the Member States have collaborated or which they have signed,
in particular the European Convention on Human Rights.
After numerous terrorist attacks against the police,
police officers in Northern Ireland began carrying fire-arms. However,
on the grounds of public safety, women police officers were not
authorised to carry fire-arms (on the basis of a certificate issued
by the competent minister which could not be challenged before
the courts). As a result, full-time contracts in the Northern Ireland
police were no longer offered to women. On a reference from a United
Kingdom court, the Court held that excluding any power of review
by the courts of a certificate issued by a national authority runs
counter to the principle of effective judicial control which may
be relied upon by all persons who consider themselves wronged by
discrimination on grounds of sex (Johnston, 1986).
In respect of European citizenship, which the
Treaty establishes for every Member State national, the Court has
stated that such citizenship entails the right to reside in another
Member State. Accordingly, a minor who is a Member State national,
is covered by sickness insurance and has available to him or her
sufficient resources also has that right to reside. The Court noted
that Community law does not require the child itself to have the
necessary resources and that refusal to grant at the same time
to its mother, who is a third-country national, a right to reside
would render redundant the child’s right to reside (Zhu and Chen,
2004).
In the same judgment the Court stated that, even
where the purpose of acquiring the nationality of a Member State
is to obtain for a third-country national a right of residence
pursuant to Community law, it is not permissible for a Member State
to restrict the effects of the grant of the nationality of another
Member State.
See also:.....................................The
Court of First Instance
....................................................The
Civil Service Tribunal
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