Week 1
Legal Remedies
4/2/19
Today’s objectives:
- Institutions of the EU: the CJEU
- Role CJEU in the EU Constitutional Order: Its Tasks and Competences
- Judicial Activism
- CJEU and ECrtHR
Before Lisbon: 5 EC/EU institutions
- Council
- European Parliament
- Commission
- Court of Justice
- European Court of Auditors
One truly EU institution: European Council
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
I. The ECJ/CJEU
See article Barents on Canvas site
- Seated in Luxembourg
- Institution ECJ used to consist of three ‘components’/’bodies’
- Court of Justice (ECJ)
- Court of First Instance (CFI)
- Judicial Chambers
- After Lisbon, Institution CJEU consists of (Article 19 TEU)
- Court of Justice (CoJ; ECJ)
- General Court (GC)
- Specialised courts (from 2004-2016: EU Civil Service Tribunal (CST) - see Reg.
2016/1192)
Worst case scenario: (text judgment in Syllabus)
Guido Strack vs. the European Commission
ECJ: Strack, you’re right
1
,GC: Strack, you’re wrong
CST: Strack, you’re right
Isn’t it strange how the same institution can come up with so many different decisions?
More about the CJEU:
- ECJ: 28 judges after accession Croatia on 1.7.2013 - but soon 27 judges…; 11 Advocates
General.
- General Court (prior to Lisbon: Court of first instance): from 28 to 56 judges, and soon back to 54
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):
- “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"
Is this too political? Not as much as the U.S. Court but there is something to say for it.
The Advocate General:
- The AG: impartial and independent; makes reasoned submissions (Opinions) on cases before the
Court of Justice (Article 252 TFEU)
- Number of AG’s after the Treaty of Lisbon: from 8 to 11 (back to 10).
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.
II. Tasks and competences of the CJEU
- 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).
The Court’s competences/jurisdiction - Three categories:
2
,1. Direct actions, dispute settlement A versus B. Competent to do so in the following situations:
- institution vs. institution
- member state vs. member state
- member state vs. institution (or vice versa)
- private individuals vs. institution
Note: the court has to actually settle this dispute. It has to give a clear answer: A or B is right. It directly
gives its judgment.
2. Giving preliminary rulings at the request of national judges (article 267 TFEU)
- private individuals vs. member state
- private individuals vs. private individuals
These cases are dealt with by the national courts of the Member States. Only competent courts.
The link to the ECJ is exclusively through Article 267 TFEU.
3. Various other tasks, e.g. giving advisory opinions on draft agreements EU-third countries/IOs
(Article 218(11) TFEU)
Article 19(3) TEU:
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.”
III. Judicial Activism?
- Interesting discussion, but many different opinions
- First illustration: Case law on the standing of the EP before the ECJ
- Initially, EP was not mentioned at all in 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 Syllabus):
- Action against an EP measure “intended to have legal effects vis-à-vis third parties” is
admissible - Argument of increased EP powers
- Les Verts is codified in Article 263.
Moreover, in Chernobyl I (Case 70/88, text in Syllabus) the ECJ ruled:
- EP may bring an action for annulment in order to protect its own prerogatives - argument of
institutional balance
- Even though ECJ had ruled two years earlier that such action is inadmissible (Case 302/87,
‘Comitology’)
- Subsequently, both Les Verts and Chernobyl I were codified by the Treaty of Maastricht, see
now Article 263(1) and 263(2) TFEU, respectively
Many other examples of (putative) ‘law making’ by the CJEU:
A. Frankovich:
3
, The principle of state liability for breaches of EU law (Francovich case law)
Not only does the Court come up with the principle of state liability, it also gives three conditions:
1. A right conferred upon an individual
2. A sufficiently serious breach
3. Causality: a direct link
B. Mangold/Kücükdeveci case law:
No discrimination on the grounds of age, a principle with VDE and HDE (despite Article 19 TFEU).
➔ “Stoppt den Europäischen Gerichtshof”, Herzog & Gerken (English translation on Canvas)
Solution: a second court that controls the European Court when it acts ultra vires.
Subsequently:
- Danish constitutional court in AJOS: With all due respect, but we refuse to apply
Mangold/Kücükdeveci
- But CJEU: same principle, with VDE and HDE, regarding religion/belief exists (Vera
Egenberger)
C. The Nelson case
- Regulation 261/2004 on rights of aircraft passengers: only in case of denied boarding or
cancellation of the flight passenger entitled to financial compensation of 250, 400 or 600 euro
(Art. 7 of the Regulation) .
- CJEU in Sturgeon (2006), confirmed in Nelson (judgment 23 October 2012; text in your
syllabus): delay of at least 3 hours = denied boarding/cancellation of the flight delayed passengers
also entitled to financial compensation!
The CJEU does not take it too literally but looks at the Regulation from a broader perspective. The
consequence of this approach: hundreds of complaints from passengers.
IV. CJEU and ECtHR
At present: two different ‘supreme’ courts in Europe, belonging to two different international
organizations (EU, CoE)
Usually very friendly towards each other, see e.g. M.S.S. of the ECtHR and, subsequently, the N.S.
judgment of the Luxembourg court (text of both judgments in your syllabus)
1. EU Dublin Regulation: only one MS responsible for dealing with asylum requests, usually the MS of
first entry (read: Greece and Italy…)
Article 3
1. Member States shall examine the application of any third-country national who applies at the border or
in their territory to any one of them for asylum. The application shall be examined by a single Member
State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
2. ECtHR in M.S.S. case: because of the very bad detention and living situation, asylum seekers should
4
Legal Remedies
4/2/19
Today’s objectives:
- Institutions of the EU: the CJEU
- Role CJEU in the EU Constitutional Order: Its Tasks and Competences
- Judicial Activism
- CJEU and ECrtHR
Before Lisbon: 5 EC/EU institutions
- Council
- European Parliament
- Commission
- Court of Justice
- European Court of Auditors
One truly EU institution: European Council
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
I. The ECJ/CJEU
See article Barents on Canvas site
- Seated in Luxembourg
- Institution ECJ used to consist of three ‘components’/’bodies’
- Court of Justice (ECJ)
- Court of First Instance (CFI)
- Judicial Chambers
- After Lisbon, Institution CJEU consists of (Article 19 TEU)
- Court of Justice (CoJ; ECJ)
- General Court (GC)
- Specialised courts (from 2004-2016: EU Civil Service Tribunal (CST) - see Reg.
2016/1192)
Worst case scenario: (text judgment in Syllabus)
Guido Strack vs. the European Commission
ECJ: Strack, you’re right
1
,GC: Strack, you’re wrong
CST: Strack, you’re right
Isn’t it strange how the same institution can come up with so many different decisions?
More about the CJEU:
- ECJ: 28 judges after accession Croatia on 1.7.2013 - but soon 27 judges…; 11 Advocates
General.
- General Court (prior to Lisbon: Court of first instance): from 28 to 56 judges, and soon back to 54
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):
- “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"
Is this too political? Not as much as the U.S. Court but there is something to say for it.
The Advocate General:
- The AG: impartial and independent; makes reasoned submissions (Opinions) on cases before the
Court of Justice (Article 252 TFEU)
- Number of AG’s after the Treaty of Lisbon: from 8 to 11 (back to 10).
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.
II. Tasks and competences of the CJEU
- 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).
The Court’s competences/jurisdiction - Three categories:
2
,1. Direct actions, dispute settlement A versus B. Competent to do so in the following situations:
- institution vs. institution
- member state vs. member state
- member state vs. institution (or vice versa)
- private individuals vs. institution
Note: the court has to actually settle this dispute. It has to give a clear answer: A or B is right. It directly
gives its judgment.
2. Giving preliminary rulings at the request of national judges (article 267 TFEU)
- private individuals vs. member state
- private individuals vs. private individuals
These cases are dealt with by the national courts of the Member States. Only competent courts.
The link to the ECJ is exclusively through Article 267 TFEU.
3. Various other tasks, e.g. giving advisory opinions on draft agreements EU-third countries/IOs
(Article 218(11) TFEU)
Article 19(3) TEU:
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.”
III. Judicial Activism?
- Interesting discussion, but many different opinions
- First illustration: Case law on the standing of the EP before the ECJ
- Initially, EP was not mentioned at all in 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 Syllabus):
- Action against an EP measure “intended to have legal effects vis-à-vis third parties” is
admissible - Argument of increased EP powers
- Les Verts is codified in Article 263.
Moreover, in Chernobyl I (Case 70/88, text in Syllabus) the ECJ ruled:
- EP may bring an action for annulment in order to protect its own prerogatives - argument of
institutional balance
- Even though ECJ had ruled two years earlier that such action is inadmissible (Case 302/87,
‘Comitology’)
- Subsequently, both Les Verts and Chernobyl I were codified by the Treaty of Maastricht, see
now Article 263(1) and 263(2) TFEU, respectively
Many other examples of (putative) ‘law making’ by the CJEU:
A. Frankovich:
3
, The principle of state liability for breaches of EU law (Francovich case law)
Not only does the Court come up with the principle of state liability, it also gives three conditions:
1. A right conferred upon an individual
2. A sufficiently serious breach
3. Causality: a direct link
B. Mangold/Kücükdeveci case law:
No discrimination on the grounds of age, a principle with VDE and HDE (despite Article 19 TFEU).
➔ “Stoppt den Europäischen Gerichtshof”, Herzog & Gerken (English translation on Canvas)
Solution: a second court that controls the European Court when it acts ultra vires.
Subsequently:
- Danish constitutional court in AJOS: With all due respect, but we refuse to apply
Mangold/Kücükdeveci
- But CJEU: same principle, with VDE and HDE, regarding religion/belief exists (Vera
Egenberger)
C. The Nelson case
- Regulation 261/2004 on rights of aircraft passengers: only in case of denied boarding or
cancellation of the flight passenger entitled to financial compensation of 250, 400 or 600 euro
(Art. 7 of the Regulation) .
- CJEU in Sturgeon (2006), confirmed in Nelson (judgment 23 October 2012; text in your
syllabus): delay of at least 3 hours = denied boarding/cancellation of the flight delayed passengers
also entitled to financial compensation!
The CJEU does not take it too literally but looks at the Regulation from a broader perspective. The
consequence of this approach: hundreds of complaints from passengers.
IV. CJEU and ECtHR
At present: two different ‘supreme’ courts in Europe, belonging to two different international
organizations (EU, CoE)
Usually very friendly towards each other, see e.g. M.S.S. of the ECtHR and, subsequently, the N.S.
judgment of the Luxembourg court (text of both judgments in your syllabus)
1. EU Dublin Regulation: only one MS responsible for dealing with asylum requests, usually the MS of
first entry (read: Greece and Italy…)
Article 3
1. Member States shall examine the application of any third-country national who applies at the border or
in their territory to any one of them for asylum. The application shall be examined by a single Member
State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
2. ECtHR in M.S.S. case: because of the very bad detention and living situation, asylum seekers should
4
