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Week 1- Institution CJEU
Topics
I. Institutions of the EU; the CJEU
II. Role CJEU in the EU Constitutional Order: Its Tasks and Competences
III. Judicial activism?
IV. CJEU and ECHR
-
-
Exam:
- Week 1 & 2
- direct actions
- preliminary reference procedure
- everything
I. Institutions of the EU
Before Lisbon 5 EC/EU institutions:
● Council (of the European Union)
● European Parliament
● Commission (of the European Communities)
● Court of Justice (of the European Communities); ECJ
● European Court of Auditors
● One ‘truly’ EU institution:
○ European Council→ head of states of the governments
According to the Lisbon Treaty (2007; entry into force 1.12.2009), 7 EU institutions:
● Council
● European Parliament
● (European) Commission
● Court of Justice of the European Union; CJEU
● European Court of Auditors
● European Council
● European Central Bank
→ Article 13 TEU; see further the courses Principles & European Constitutional Law
I. The ECJ/CJEU
● Seated in Luxembourg
● Institution ECJ used to consist of three ‘components’/’bodies’
, ○ Court of Justice (ECJ)
○ Court of First Instance (CFI) – Since SEA 1987
■ Mainly competition law
○ Judicial Chambers
● After Lisbon, Institution CJEU consists of (see Article 19 TEU):
○ Court of Justice (CoJ; ECJ)
○ General Court (GC)
○ Specialized courts (from 2004-2016: EU Civil Service Tribunal (CST) - see
Regulation 2016/1192 said now the GC can again do the job. So since 2016
the General Court is competent again, text in Syllabus)
● Worst case scenario:
○ (cf. Strack judgment, text in Syllabus)
○ - Whether an EU civil service can carry over an annual year into the next
academic year? Concluded in the course to show that different institutions
can come to different conclusions.
○ CST said that Strack was right.
○ The Commission said Strack was wrong and carried over the appeal.
○ The GC said that Strack was wrong
○ ECJ said that Strack was right, he could carry over his days of annual leave.
○ Now it will only be possible for the GC to hold a different view than the ECJ
because the CST no longer exists.
● ECJ: 28 judges after accession Croatia on 1.7.2013 - after Brexit (1.2.2020) again 27
judges; plus 11 Advocates General.
○ General Court: from 28 to 56 judges, and since Brexit back to (2 x 27 =) 5
judges
● Independent; they must be very good lawyers; appointed by the Member States for
6 years (Article 253 TFEU)
● New under Lisbon Treaty: a panel, consisting of 7 ‘wise (wo)men’, was set up (Article
255 TFEU): they give a non-binding opinion on suitability.
● “In order to give an opinion on candidates' suitability to perform the duties of Judge
and Advocate-General of the Court of Justice and the General Court”
● “The panel shall comprise seven persons chosen from among former members of the
Court of Justice and the General Court, members of national supreme courts and
, lawyers of recognised competence, one of whom shall be proposed by the European
Parliament"
● The A-G: impartial and independent; makes reasoned submissions (called ‘Opinions’)
on cases before the ECJ, not the GC (Article 252 TFEU)
● Number of A-G’s after the Treaty of Lisbon: from 8 to 11.
● Declaration (no. 38) ad Article 252 TFEU regarding the number of Advocates General
in the Court of Justice
● The Conference declares that if […] the Court of Justice requests that the number of
Advocates-General be increased by three [eleven instead of eight], the Council will,
acting unanimously, agree on such an increase.
● In that case, the Conference agrees that Poland will, as it is already the case for
Germany, France, Italy, Spain and the United-Kingdom, have a permanent Advocate-
General and no longer take part in the rotation system, while the existing rotation
system will involve the rotation of five Advocates-General instead of three.
○ So 6 + 5 - but after Brexit: 6-/-1 = 5 permanent A-Gs and 5+1 = 6 rotating A-Gs
II. Role CJEU in the EU Constitutional Order: Its Tasks and Competences
● General task before Lisbon: “The Court of Justice shall ensure that in the
interpretation and application of this Treaty the law is observed” (ex Article 220 EC)
● More or less the same after Lisbon: “It shall ensure that in the interpretation and
application of the Treaties [= TEU and TFEU] the law is observed” (Article 19(1) TEU).
● So it must ensure that EU law is correctly applied, and EU law is not only the
Treaties.
● In order to perform its main task it has been given certain competences/jurisdiction
Three categories of competencies
1. Direct actions, dispute settlement A versus B
- institution vs. institution
- member state vs. member state (directly to the court, not a national court
Article 259 TFEU)
- member state vs. institution (or vice versa)
- private individuals vs. institution first GC, then ECJ
2. Giving preliminary rulings at the request of national judges (article 267 TFEU)
only ECJ, not GC (Art. 256(3) TFEU)
- private individuals vs. member state
, - private individuals vs. private individuals see next slide
3. Various other tasks, e.g. giving advisory opinions on draft agreements EU-third
countries/IOs (Article 218(11) TFEU). Here you notice it is not really a binding
opinion. If it is a negative opinion the draft will not come into force.
After Lisbon, these three heads of jurisdiction are clearly laid down in the Treaty text:
“The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on
the interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.”
- (Article 19(3) TEU – see for more details, next week), it confirms that the above is
correct.
III. Judicial activism?--> See exam question
● Interesting discussion, does the CJEU merely interpret and apply EU law or does it
sometimes make EU law?
■ Many different opinions on this -> Schuetze (p. 136): “This ‘activist’
jurisprudence has attracted severe criticism – from academics and
politicians alike”.
● First illustration: Case law on the (active and passive) standing of the EP before the
ECJ
● Initially, EP was not mentioned at all in the Treaty text = old Article 173 EEC, later
Article 230 EC, now Article 263 TFEU (action for annulment)
● Nevertheless, the ECJ ruled in Les Verts (Case 294/83, text in your Syllabus):
○ Action against an EP measure “intended to have legal effects vis-à-vis third
parties” is admissible
Week 1- Institution CJEU
Topics
I. Institutions of the EU; the CJEU
II. Role CJEU in the EU Constitutional Order: Its Tasks and Competences
III. Judicial activism?
IV. CJEU and ECHR
-
-
Exam:
- Week 1 & 2
- direct actions
- preliminary reference procedure
- everything
I. Institutions of the EU
Before Lisbon 5 EC/EU institutions:
● Council (of the European Union)
● European Parliament
● Commission (of the European Communities)
● Court of Justice (of the European Communities); ECJ
● European Court of Auditors
● One ‘truly’ EU institution:
○ European Council→ head of states of the governments
According to the Lisbon Treaty (2007; entry into force 1.12.2009), 7 EU institutions:
● Council
● European Parliament
● (European) Commission
● Court of Justice of the European Union; CJEU
● European Court of Auditors
● European Council
● European Central Bank
→ Article 13 TEU; see further the courses Principles & European Constitutional Law
I. The ECJ/CJEU
● Seated in Luxembourg
● Institution ECJ used to consist of three ‘components’/’bodies’
, ○ Court of Justice (ECJ)
○ Court of First Instance (CFI) – Since SEA 1987
■ Mainly competition law
○ Judicial Chambers
● After Lisbon, Institution CJEU consists of (see Article 19 TEU):
○ Court of Justice (CoJ; ECJ)
○ General Court (GC)
○ Specialized courts (from 2004-2016: EU Civil Service Tribunal (CST) - see
Regulation 2016/1192 said now the GC can again do the job. So since 2016
the General Court is competent again, text in Syllabus)
● Worst case scenario:
○ (cf. Strack judgment, text in Syllabus)
○ - Whether an EU civil service can carry over an annual year into the next
academic year? Concluded in the course to show that different institutions
can come to different conclusions.
○ CST said that Strack was right.
○ The Commission said Strack was wrong and carried over the appeal.
○ The GC said that Strack was wrong
○ ECJ said that Strack was right, he could carry over his days of annual leave.
○ Now it will only be possible for the GC to hold a different view than the ECJ
because the CST no longer exists.
● ECJ: 28 judges after accession Croatia on 1.7.2013 - after Brexit (1.2.2020) again 27
judges; plus 11 Advocates General.
○ General Court: from 28 to 56 judges, and since Brexit back to (2 x 27 =) 5
judges
● Independent; they must be very good lawyers; appointed by the Member States for
6 years (Article 253 TFEU)
● New under Lisbon Treaty: a panel, consisting of 7 ‘wise (wo)men’, was set up (Article
255 TFEU): they give a non-binding opinion on suitability.
● “In order to give an opinion on candidates' suitability to perform the duties of Judge
and Advocate-General of the Court of Justice and the General Court”
● “The panel shall comprise seven persons chosen from among former members of the
Court of Justice and the General Court, members of national supreme courts and
, lawyers of recognised competence, one of whom shall be proposed by the European
Parliament"
● The A-G: impartial and independent; makes reasoned submissions (called ‘Opinions’)
on cases before the ECJ, not the GC (Article 252 TFEU)
● Number of A-G’s after the Treaty of Lisbon: from 8 to 11.
● Declaration (no. 38) ad Article 252 TFEU regarding the number of Advocates General
in the Court of Justice
● The Conference declares that if […] the Court of Justice requests that the number of
Advocates-General be increased by three [eleven instead of eight], the Council will,
acting unanimously, agree on such an increase.
● In that case, the Conference agrees that Poland will, as it is already the case for
Germany, France, Italy, Spain and the United-Kingdom, have a permanent Advocate-
General and no longer take part in the rotation system, while the existing rotation
system will involve the rotation of five Advocates-General instead of three.
○ So 6 + 5 - but after Brexit: 6-/-1 = 5 permanent A-Gs and 5+1 = 6 rotating A-Gs
II. Role CJEU in the EU Constitutional Order: Its Tasks and Competences
● General task before Lisbon: “The Court of Justice shall ensure that in the
interpretation and application of this Treaty the law is observed” (ex Article 220 EC)
● More or less the same after Lisbon: “It shall ensure that in the interpretation and
application of the Treaties [= TEU and TFEU] the law is observed” (Article 19(1) TEU).
● So it must ensure that EU law is correctly applied, and EU law is not only the
Treaties.
● In order to perform its main task it has been given certain competences/jurisdiction
Three categories of competencies
1. Direct actions, dispute settlement A versus B
- institution vs. institution
- member state vs. member state (directly to the court, not a national court
Article 259 TFEU)
- member state vs. institution (or vice versa)
- private individuals vs. institution first GC, then ECJ
2. Giving preliminary rulings at the request of national judges (article 267 TFEU)
only ECJ, not GC (Art. 256(3) TFEU)
- private individuals vs. member state
, - private individuals vs. private individuals see next slide
3. Various other tasks, e.g. giving advisory opinions on draft agreements EU-third
countries/IOs (Article 218(11) TFEU). Here you notice it is not really a binding
opinion. If it is a negative opinion the draft will not come into force.
After Lisbon, these three heads of jurisdiction are clearly laid down in the Treaty text:
“The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on
the interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.”
- (Article 19(3) TEU – see for more details, next week), it confirms that the above is
correct.
III. Judicial activism?--> See exam question
● Interesting discussion, does the CJEU merely interpret and apply EU law or does it
sometimes make EU law?
■ Many different opinions on this -> Schuetze (p. 136): “This ‘activist’
jurisprudence has attracted severe criticism – from academics and
politicians alike”.
● First illustration: Case law on the (active and passive) standing of the EP before the
ECJ
● Initially, EP was not mentioned at all in the Treaty text = old Article 173 EEC, later
Article 230 EC, now Article 263 TFEU (action for annulment)
● Nevertheless, the ECJ ruled in Les Verts (Case 294/83, text in your Syllabus):
○ Action against an EP measure “intended to have legal effects vis-à-vis third
parties” is admissible
