Unit 27

EU institutions Composition of ECJ Jurisdiction Procedure ECJ in the EU legal order

The European Commission The European Parliament The Council of the European Union The European Court of Justice The European Court of Auditors

Court of Justice of the EU General Court (formerly: Court of First

Instance) Civil Service Tribunal

EU: has legal personality and has acquired the competences previously conferred on the European Community

Community law European Union Law

28 Judges and 8 Advocates General Judges and Advocates General: appointed

by governments of Member States

Appointed for a term of office of 6 years, which is renewable

Chosen from among individuals whose independence is beyond doubt and who posses the qualifications required for appointment to the highest judicial offices in their respective countries, or who are of recognized competence

The Judges elect one of themselves as President for a renewable term of three years.

The President directs the work of the Court and presides at hearings and deliberations of the full Court or the Grand Chamber.

- assist the Court

- responsible for presenting, with complete impartiality and independence, an opinion in the cases assigned to them

Full court Grand Chamber of 13 Judges Chambers of 3 or 5 Judges

in cases prescribed by the Statute of the Court (e.g. proceedings to dismiss the European Ombudsman or a Member of the European Commission)

where the Court considers that a case is of exceptional importance

when a Member State or an institution which is a party to the proceedings so requests

in particularly complex or important cases

Other cases: heard by Chambers of 3 or 5 Judges

References for preliminary rulings  Actions for failure to fulfil obligations Actions for annulment Actions for failure to act Appeals Reviews

ECJ cooperates with all the courts of the Member States

To ensure the effective and uniform application of EU legislation and to prevent divergent interpretations, national courts refer to the ECJ and ask it to clarify a point concerning the interpretation of EU law, so that they may ascertain whether their national legislation complies with that law

ECJ's reply - not merely an opinion; takes the form of a judgment or reasoned order

The national court to which it is addressed - bound by the interpretation given

The Court's judgment likewise binds other national courts before which the same problem is raised

Action may be brought by the Commission 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 ECJ finds that the Member State concerned has not complied with its judgment, it may impose on it a fixed or periodic financial penalty

Applicant seeks annulment of a measure (e.g. a regulation, directive or decision) adopted by an institution, body, office or agency of the EU

ECJ - exclusive jurisdiction over actions brought by a Member State against the European Parliament and/or against the Council or brought by one EU institution against another

where the failure to act is held to be unlawful, the institution concerned must put an end to the failure by appropriate measures

Appeals on points of law only may be brought before the ECJ against judgments and orders of the General Court.

If the appeal is admissible and well founded, the ECJ sets aside the judgment of the General Court.

Where the state of the proceedings so permits, the ECJ may decide the case.

Otherwise, it refers the case back to the General Court, which is bound by the decision of the ECJ on the appeal

Decisions of the General Court on appeals against decisions of the European Union Civil Service Tribunal may be reviewed by the ECJ as provided in the Protocol on the Statute of the Court of Justice of the EU

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 ECJ are taken by majority; no record made public of any dissenting opinions

Judgments are signed by all the Judges who took part in the deliberation and pronounced in open court.

Judgments and the Opinions of the Advocates General are available on the CURIA Internet site on the day they are delivered (www.curia.europa.eu)

In most cases, subsequently published in the ECJ Reports.

No court fees for proceedings before the CJ The Court does not meet the fees and

expenses of lawyers by whom the parties must be represented.

A party unable to meet all or part of the costs may apply for legal aid

Application must be accompanied by evidence establishing the party's lack of means

In direct actions, the language used in the application (which may be one of the 24 official languages of the EU) will be the ‘language of the case'.

References for preliminary rulings: the language of the case is that of the national court which made the reference to the ECJ

Oral proceedings at hearings are interpreted simultaneously into official languages of the EU

The Judges deliberate, without interpreters, in a common language which, traditionally, is French.

In its case-law (starting with Van Gend & Loos in 1963), ECJ introduced the principle of the direct effect of Community law in the Member States, which now enables European citizens to rely directly on rules of EU law before their national courts

The transport company Van Gend & Loos had imported goods from Germany to the Netherlands

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

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, conferring on the transport company a direct guarantee of its rights under Community law before the national court

“The Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, Community Law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage”

In 1964, the Costa judgment established the primacy of Community law over domestic law

An Italian court asked the ECJ whether the Italian law on nationalisation of the production and distribution of electrical energy was compatible with certain rules in the EEC Treaty

ECJ 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

By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on an international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states of the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves...

“The law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the Community itself being called in question”

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 a breach of Community law by that State.

Since 1991, European citizens have 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

Since the Cassis de Dijon judgment (1979) on the principle of free movement of goods, traders can import into their country any product coming from another EU country, provided that it was lawfully manufactured and marketed and that there is no overriding reason relating to the protection of health or the environment to prevent its importation into the country of consumption

Bosman (1995) -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

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 ensured 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).

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 UK 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

ECJ 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.

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 (Johnston, 1986).

In respect of EU citizenship which is afforded to every person holding the nationality of a Member State under the Treaty on the Functioning of the EU, the Court has stated that such citizenship entails the right to reside in another Member State.

Main institutions of the EU Composition of the Court Jurisdiction of the Court The importance of ECJ for the development

of EU law

Court of Auditors Revizorski sud Review Nadzor Enhancement Jačanje, povećanje, poticanje Chamber Sudsko vijeće

Adjudicate Suditi Jurisdiction Sudbena nadležnost Preliminary ruling Odluka o prethodnom pitanju, donošenje

odluke o prethodnom pitanju, prethodna odluka

A reference for a __ruling allows the courts and tribunals of the Member States, in __which have been brought before them, to __questions to the Court of Justice about the __ of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national __or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly ___ on other national courts or tribunals before which a similar issue is raised.

A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.