JUDICIAL PROTECTION OF THE EUROPEAN UNION: MANDATORY READINGS
TOPIC 1: The judicial architecture of the EU
1) Tridimas: The CJEU (2018)
1. ROLE AND CONSTITUTIONAL FUNCTION OF THE CJEU
The Court of Justice of the European Union (CJEU) plays a central role in the development of EU law
and functions in practice as a constitutional court of the Union.
Core function (Article 19 TEU):
→ Ensure that “the law is observed” in the interpretation and application of the Treaties.
Key contributions: Constitutionalization of EU law; Development of fundamental rights;
Establishment of the internal market; Expansion of EU competences
Foundational doctrines: Direct effect (Van Gend en Loos); Primacy (Costa v ENEL); Fundamental
rights (Internationale Handelsgesellschaft)
The Court has driven “integration through law”, supported by national courts and political institutions.
2. ARTICLE 19 TEU AND THE RULE OF LAW
Article 19 TEU establishes the EU as a rule-based legal order and reflects the principle of separation
of powers.
Key implications: The Court supervises both EU institutions and Member States; The CJEU is the
ultimate interpreter of EU law; The Court is also bound by limits of its own competences
Article 19 TEU does not provide substantive standards but enables the Court to: Develop general
principles of EU law; Draw from common constitutional traditions of Member States
This provision underpins the Court’s role in developing EU constitutional doctrine.
3. THE BIFURCATED EU JUDICIAL SYSTEM
The EU judicial system is dual (bifurcated):
Central level: Court of Justice (ECJ); General Court
Decentralized level: National courts
National courts are the primary enforcers of EU law because: EU law is largely implemented at
national level; Individuals litigate mainly before national courts
Key mechanism: Preliminary reference procedure (Article 267 TFEU)
Functions: Ensures uniform interpretation of EU law; Creates judicial dialogue between national
courts and the CJEU; Allows indirect review of EU acts
Problem of access to justice: Strict standing rules under Article 263(4) TFEU, Individuals often rely
on indirect challenges via national courts
Concept of “dual vigilance”: Private enforcement (individuals invoking EU law); Public enforcement
(Commission infringement actions)
,4. RELATIONSHIP BETWEEN THE CJEU AND NATIONAL COURTS
The relationship is cooperative but structurally fragile.
National courts: Apply EU law; Initiate preliminary references; Ensure enforcement of CJEU rulings
They also act as a check on the Court’s authority.
Key point: The system depends on continued cooperation of national courts; Without this cooperation,
the EU legal order cannot function effectively
5. COMPOSITION OF THE COURT
Court of Justice: One judge per Member State; Eleven Advocates General
General Court: At least one judge per Member State; No permanent Advocates General
Rationale for one judge per Member State: Ensures legitimacy and representation; Reflects diversity
of legal traditions; Promotes acceptance of judgments
Drawbacks: Large size requires operation in chambers; Risk of inconsistency in case law
6. APPOINTMENT AND TENURE
Appointment: By common accord of Member State governments (unanimity)
Requirements: Independence beyond doubt; High legal competence
Term: Six years, renewable; Partial renewal every three years
Article 255 Panel: Reviews suitability of candidates before appointment; Provides non-binding
opinions
Functions: Limits politicization; Promotes professional standards
Limitations: Opinions not public; Limited transparency
7. ROLE OF THE ADVOCATE GENERAL
The Advocate General (AG) provides independent, reasoned opinions on cases.
Characteristics: Acts with complete independence; Opinion is not binding; Does not participate in
final deliberation
Functions: Proposes legal solution; Provides detailed legal reasoning; May critique existing case law;
Suggests future developments
Importance: Influential in development of EU law; Particularly relevant for general principles
The Court is not bound by the AG and may depart from the opinion.
,8. JURISDICTION OF THE CJEU
Three main types of jurisdiction:
(1) Direct Actions
Main categories: Infringement proceedings (Articles 258–259 TFEU); Annulment actions (Article 263
TFEU); Failure to act (Article 265 TFEU); Damages (Article 268 TFEU); Staff cases; Contractual
disputes
General Court: Hears most direct actions, especially those brought by individuals
Court of Justice: Handles institutional and constitutional cases
(2) Preliminary Rulings (Article 267 TFEU): Interpretation of EU law; Review of validity of EU acts
Obligation: Courts of last instance must refer
Exceptions: Acte clair (no reasonable doubt); Irrelevance to the case; Already interpreted by the Court
(3) Opinions on International Agreements: Article 218(11) TFEU; Court reviews compatibility of
agreements with EU law
Effect: Binding; Agreement cannot be concluded if incompatible
9. EXCLUSIVITY OF JURISDICTION (ARTICLE 344 TFEU)
Rule: Member States may not submit EU law disputes to other dispute settlement mechanisms
Purpose: Safeguard autonomy of EU law; Ensure uniform interpretation
Scope: Applies to both actual and potential conflicts
Key cases: Opinion 1/91 (EEA Court rejected); Mox Plant (arbitration proceedings incompatible with
EU law)
10. AUTONOMY OF EU LAW
The Court increasingly emphasizes autonomy rather than mere exclusivity.
Autonomy means: EU law forms an independent legal order; The CJEU has final authority over its
interpretation; The Court adopts a strict approach: Even potential threats to autonomy are prohibited
Key case: Opinion 1/09 (Patent Court rejected)
Reason: Undermined role of national courts; Threatened preliminary reference system
, 2. JUDICIAL ARCHITECTURE OF THE EU (BOBEK 2023)
1. CORE ISSUE: TRANSFER OF PRELIMINARY RULINGS TO THE GENERAL COURT
The article analyses the proposal to transfer part of the preliminary ruling jurisdiction (Article 267
TFEU) from the Court of Justice to the General Court under Article 256(3) TFEU.
Key objective: Reduce workload of the Court of Justice
Key problem: Risks undermining coherence, authority, and structure of the EU judicial system
2. STRUCTURE OF THE PROPOSAL
Transfer system: Certain categories of preliminary rulings transferred to the General Court (GC);
Court of Justice retains: Important cases; Questions of principle
Three layers of control over the GC:
1. Ex ante control (case allocation)
o Court decides whether case is transferred
2. Mid-procedure control (Article 256(3) TFEU)
o GC may refer case back if it raises important issues
3. Ex post control (review procedure)
o Court may review GC decisions
→ System described as:
“transferring without letting go”
3. “MINI-COURT” WITHIN THE GENERAL COURT
To ensure consistency, the GC must operate like the Court of Justice when handling preliminary
rulings: Specialized chambers; Use of Advocates General; Chambers of five judges; Possibility of
larger formations (“mini Grand Chamber”)
Implication: GC becomes a functional extension of the Court, not an autonomous body
Key critique: Indicates lack of trust in the GC; Overregulation undermines GC independence;
Institutional duplication
4. REVIEW PROCEDURE
Review mechanism: Based on risk to “unity or consistency of EU law”
Problems: Difficult to detect inconsistencies; Requires significant resources; Previously used rarely
(staff cases); Likely to be triggered more often in preliminary rulings
Practical issues: Legal uncertainty during review; Possible “legal void” before final decision; Risk of
conflicting partial decisions; Increased procedural complexity
TOPIC 1: The judicial architecture of the EU
1) Tridimas: The CJEU (2018)
1. ROLE AND CONSTITUTIONAL FUNCTION OF THE CJEU
The Court of Justice of the European Union (CJEU) plays a central role in the development of EU law
and functions in practice as a constitutional court of the Union.
Core function (Article 19 TEU):
→ Ensure that “the law is observed” in the interpretation and application of the Treaties.
Key contributions: Constitutionalization of EU law; Development of fundamental rights;
Establishment of the internal market; Expansion of EU competences
Foundational doctrines: Direct effect (Van Gend en Loos); Primacy (Costa v ENEL); Fundamental
rights (Internationale Handelsgesellschaft)
The Court has driven “integration through law”, supported by national courts and political institutions.
2. ARTICLE 19 TEU AND THE RULE OF LAW
Article 19 TEU establishes the EU as a rule-based legal order and reflects the principle of separation
of powers.
Key implications: The Court supervises both EU institutions and Member States; The CJEU is the
ultimate interpreter of EU law; The Court is also bound by limits of its own competences
Article 19 TEU does not provide substantive standards but enables the Court to: Develop general
principles of EU law; Draw from common constitutional traditions of Member States
This provision underpins the Court’s role in developing EU constitutional doctrine.
3. THE BIFURCATED EU JUDICIAL SYSTEM
The EU judicial system is dual (bifurcated):
Central level: Court of Justice (ECJ); General Court
Decentralized level: National courts
National courts are the primary enforcers of EU law because: EU law is largely implemented at
national level; Individuals litigate mainly before national courts
Key mechanism: Preliminary reference procedure (Article 267 TFEU)
Functions: Ensures uniform interpretation of EU law; Creates judicial dialogue between national
courts and the CJEU; Allows indirect review of EU acts
Problem of access to justice: Strict standing rules under Article 263(4) TFEU, Individuals often rely
on indirect challenges via national courts
Concept of “dual vigilance”: Private enforcement (individuals invoking EU law); Public enforcement
(Commission infringement actions)
,4. RELATIONSHIP BETWEEN THE CJEU AND NATIONAL COURTS
The relationship is cooperative but structurally fragile.
National courts: Apply EU law; Initiate preliminary references; Ensure enforcement of CJEU rulings
They also act as a check on the Court’s authority.
Key point: The system depends on continued cooperation of national courts; Without this cooperation,
the EU legal order cannot function effectively
5. COMPOSITION OF THE COURT
Court of Justice: One judge per Member State; Eleven Advocates General
General Court: At least one judge per Member State; No permanent Advocates General
Rationale for one judge per Member State: Ensures legitimacy and representation; Reflects diversity
of legal traditions; Promotes acceptance of judgments
Drawbacks: Large size requires operation in chambers; Risk of inconsistency in case law
6. APPOINTMENT AND TENURE
Appointment: By common accord of Member State governments (unanimity)
Requirements: Independence beyond doubt; High legal competence
Term: Six years, renewable; Partial renewal every three years
Article 255 Panel: Reviews suitability of candidates before appointment; Provides non-binding
opinions
Functions: Limits politicization; Promotes professional standards
Limitations: Opinions not public; Limited transparency
7. ROLE OF THE ADVOCATE GENERAL
The Advocate General (AG) provides independent, reasoned opinions on cases.
Characteristics: Acts with complete independence; Opinion is not binding; Does not participate in
final deliberation
Functions: Proposes legal solution; Provides detailed legal reasoning; May critique existing case law;
Suggests future developments
Importance: Influential in development of EU law; Particularly relevant for general principles
The Court is not bound by the AG and may depart from the opinion.
,8. JURISDICTION OF THE CJEU
Three main types of jurisdiction:
(1) Direct Actions
Main categories: Infringement proceedings (Articles 258–259 TFEU); Annulment actions (Article 263
TFEU); Failure to act (Article 265 TFEU); Damages (Article 268 TFEU); Staff cases; Contractual
disputes
General Court: Hears most direct actions, especially those brought by individuals
Court of Justice: Handles institutional and constitutional cases
(2) Preliminary Rulings (Article 267 TFEU): Interpretation of EU law; Review of validity of EU acts
Obligation: Courts of last instance must refer
Exceptions: Acte clair (no reasonable doubt); Irrelevance to the case; Already interpreted by the Court
(3) Opinions on International Agreements: Article 218(11) TFEU; Court reviews compatibility of
agreements with EU law
Effect: Binding; Agreement cannot be concluded if incompatible
9. EXCLUSIVITY OF JURISDICTION (ARTICLE 344 TFEU)
Rule: Member States may not submit EU law disputes to other dispute settlement mechanisms
Purpose: Safeguard autonomy of EU law; Ensure uniform interpretation
Scope: Applies to both actual and potential conflicts
Key cases: Opinion 1/91 (EEA Court rejected); Mox Plant (arbitration proceedings incompatible with
EU law)
10. AUTONOMY OF EU LAW
The Court increasingly emphasizes autonomy rather than mere exclusivity.
Autonomy means: EU law forms an independent legal order; The CJEU has final authority over its
interpretation; The Court adopts a strict approach: Even potential threats to autonomy are prohibited
Key case: Opinion 1/09 (Patent Court rejected)
Reason: Undermined role of national courts; Threatened preliminary reference system
, 2. JUDICIAL ARCHITECTURE OF THE EU (BOBEK 2023)
1. CORE ISSUE: TRANSFER OF PRELIMINARY RULINGS TO THE GENERAL COURT
The article analyses the proposal to transfer part of the preliminary ruling jurisdiction (Article 267
TFEU) from the Court of Justice to the General Court under Article 256(3) TFEU.
Key objective: Reduce workload of the Court of Justice
Key problem: Risks undermining coherence, authority, and structure of the EU judicial system
2. STRUCTURE OF THE PROPOSAL
Transfer system: Certain categories of preliminary rulings transferred to the General Court (GC);
Court of Justice retains: Important cases; Questions of principle
Three layers of control over the GC:
1. Ex ante control (case allocation)
o Court decides whether case is transferred
2. Mid-procedure control (Article 256(3) TFEU)
o GC may refer case back if it raises important issues
3. Ex post control (review procedure)
o Court may review GC decisions
→ System described as:
“transferring without letting go”
3. “MINI-COURT” WITHIN THE GENERAL COURT
To ensure consistency, the GC must operate like the Court of Justice when handling preliminary
rulings: Specialized chambers; Use of Advocates General; Chambers of five judges; Possibility of
larger formations (“mini Grand Chamber”)
Implication: GC becomes a functional extension of the Court, not an autonomous body
Key critique: Indicates lack of trust in the GC; Overregulation undermines GC independence;
Institutional duplication
4. REVIEW PROCEDURE
Review mechanism: Based on risk to “unity or consistency of EU law”
Problems: Difficult to detect inconsistencies; Requires significant resources; Previously used rarely
(staff cases); Likely to be triggered more often in preliminary rulings
Practical issues: Legal uncertainty during review; Possible “legal void” before final decision; Risk of
conflicting partial decisions; Increased procedural complexity
