Topic 1 – Judicial architecture of the EU
Text 1: Tridimas – The court of justice of the EU
I. Introduction
● Pivotal Role of the Court: The CJEU (Court of Justice of the European Union) has profoundly
shaped EU law in an unprecedented way, helping to establish core doctrines and the very
nature of the EU as a legal order.
● How this happened:
○ Treaty design enabled institutional empowerment—fostering "integration through
law."
○ The Court proactively positioned itself as a normative force for post-war European
integration.
○ Cooperation (or tolerance) from Member States, national courts, and EU institutions
allowed the Court to assume a central role.
● Early landmark rulings that laid the foundation:
○ Van Gend en Loos (1963): Established the principle of direct effect—EU law can
create rights enforceable by individuals before national courts.
○ Costa v ENEL (1964): Introduced the principle of primacy—EU law takes precedence
over national law.
○ Internationale Handelsgesellschaft (1970): Confirmed that fundamental rights are
general principles of EU law.
● The Court's early ambition: It saw itself as curing the fragmentation caused by
nationalism—drawing inspiration from constitutional traditions to build a supranational,
rule-based order.
● Today: The CJEU is effectively the supreme court of the EU legal system, combining
constitutional and administrative functions.
II. Article 19 TEU: Rule of Law and Judicial Structure
● Art. 19(1) TEU: Entrusts the CJEU with the task of ensuring that "in the interpretation and
application of the Treaties, the law is observed."
○ Originates from Article 164 EEC Treaty.
○ Although its wording is seemingly tautological, it affirms core principles: rule of law
and separation of powers.
● Supervisory Role:
○ Gives the Court oversight over both EU institutions and Member States.
○ Signifies a shift from politics based on power to politics based on law.
● Self-limiting and enabling:
○ The Court itself must respect the limits of its powers.
○ But it also has a mandate to elaborate general principles of law—especially where
treaties are silent.
● Decentralization:
○ EU justice is bifurcated—split between the ECJ and national courts.
○ Most EU law is applied by national courts in national proceedings.
○ The preliminary reference procedure (Art. 267 TFEU) ensures uniform interpretation.
○ Combined with direct effect, this creates a system of dual vigilance: citizens and
institutions both enforce EU law.
● Lisbon Treaty innovation:
1
, ○ Art. 19(1), second subparagraph: obliges MS to provide remedies sufficient to ensure
effective legal protection.
○ Designed to compensate for the limited standing of individuals under Art. 263(4)
TFEU.
● Tense cooperation:
○ National courts, especially supreme courts, are both allies and limits to the ECJ.
○ They provide enforcement but also a check against judicial activism.
○ Without national court cooperation, ECJ authority could collapse.
III. Composition, Appointment, and Tenure
A. Composition
● Court of Justice (ECJ):
○ 1 judge per MS + 11 Advocates General (AGs).
○ Designed to ensure inclusiveness of all national legal systems.
● General Court (GC):
○ Minimum 1 judge per MS, no AGs.
● Why so many judges?
○ Legitimacy: Member States want representation.
○ Acceptance: Citizens are more likely to trust a court in which they are represented.
○ Minoritarian protection: Counterbalances majoritarian politics in Council.
● Problems:
○ High number → danger of inconsistency in chamber judgments.
○ Collegiality is harder with 28+ judges. ECJ functions mostly in smaller chambers (3
or 5).
○ Grand Chamber (15 judges) is key to preserving consistency.
B. Appointment and Tenure
● Appointed by: Unanimous agreement of MS governments.
● Term: 6 years, renewable. Half the bench replaced every 3 years.
● Eligibility:
○ Judges and AGs must be persons of "independence beyond doubt."
○ ECJ: must be eligible for highest national courts or be legal experts (jurisconsults).
○ GC: must have high-level qualifications (not necessarily national judges).
● Article 255 Panel:
○ Established under Lisbon Treaty.
○ 7-member panel assesses candidate suitability.
○ Role is consultative but influential: many candidates rejected.
○ Composed of ex-judges, senior lawyers, 1 EP appointee.
○ Operates in private, gives reasoned opinions to Coreper (not public).
● Impact:
○ Encourages professionalism.
○ Adds objectivity and deters purely political appointments.
C. Advocate General (AG)
● Origin: French Conseil d'Etat model.
● Role:
○ Delivers independent, reasoned opinions in open court.
○ Helps the Court by proposing legal solutions and contextualizing cases.
○ Offers more detailed legal analysis than the final judgment.
2
, ● Not binding: AG does not vote or deliberate. Opinion is advisory.
● Wide discretion:
○ Can present multiple legal routes.
○ May include comparative analysis or critique prior case law.
● Influence:
○ Especially important in complex or new areas of law.
○ Can inspire doctrinal development.
● Controversy:
○ Criticized under ECHR Art. 6 (right to fair trial) for lack of reply rights.
○ ECJ has rejected this critique; parties can request reopening of hearings (Art. 83
RoP).
IV. Jurisdiction
A. Types of Jurisdiction
1. Direct actions:
○ Art. 258/259: Infringement actions (Commission/MS v MS).
○ Art. 263: Annulment actions (judicial review).
○ Art. 268: Damages actions.
○ Art. 272: Contractual disputes.
○ Art. 261: Unlimited jurisdiction on penalties.
○ Art. 270: Staff disputes.
○ Art. 271: ECB and EIB oversight.
○ Art. 269: Review of Art. 7 sanctions procedure.
○ Art. 262: IP rights.
○ Art. 273: Disputes between MS (by special agreement).
○ Art. 279: Interim measures.
○ Art. 256(3): Review jurisdiction over GC rulings (in theory).
2. Preliminary references (Art. 267):
○ Interpretation and validity of EU law.
○ Discretionary (267(2)) or mandatory (267(3)).
○ National courts are linchpins of enforcement.
3. Advisory opinions (Art. 218(11)):
○ On draft international agreements.
○ If agreement incompatible → must amend treaties.
B. Exclusivity (Art. 344 TFEU)
● MS must not use other fora to resolve EU law disputes.
● Rationale: Preserve consistency, protect ECJ jurisdiction.
● Key cases:
○ Opinion 1/91: Struck down EEA court.
○ MOX Plant: Ireland violated exclusivity by using UNCLOS tribunal.
C. Autonomy of EU Law
● Stronger claim than exclusivity.
● Principle: Only ECJ can interpret EU law.
● Opinion 2/13: Draft ECHR accession treaty blocked.
○ Strasbourg Court could interfere with ECJ monopoly.
○ Threat to mutual trust and Art. 267 system.
● BIT cases: Pre-accession treaties conflicted with EU law.
3
, ● Key ideas:
○ ECJ determines its own role.
○ Autonomy invoked flexibly—sometimes to protect rights (Kadi), sometimes to limit
them (Opinion 2/13).
V. Organization and Procedure
A. Structure
● Leadership: President + Vice-President (elected by judges).
● Chambers:
○ 3-judge, 5-judge, Grand Chamber (15), or Full Court (rare).
○ Grand Chamber used when MS or institution requests or importance justifies.
B. Procedure
● Two stages:
○ Written: pleadings, replies, rapporteur report.
○ Oral: brief, often only to clarify.
● Case management:
○ Assigned to judge rapporteur and AG.
○ Deliberation is secret.
● Efficiency tools:
○ No AG opinion if no new law (Art. 20(5) Statute).
○ Reasoned orders if issue already settled (Art. 99 RoP).
○ Urgent procedures (e.g. custody cases).
● Standing rules:
○ Representation by lawyer mandatory.
○ In-house lawyers excluded for independence reasons.
● Access:
○ No public access to pleadings.
○ Limited transparency compared to ECtHR or US SCOTUS.
● Language regime:
○ Working language = French.
○ Procedural language = language of referring court or applicant.
C. Collegiality
● No dissenting opinions.
○ Pros: unity, authority, acceptance.
○ Cons: lack of transparency, unclear reasoning.
● AG opinions sometimes provide the missing analytical depth.
● ECJ style is formal, abstract—contrasts with common law courts.
VI. Judicial Architecture and the 2015 Reform
A. Structural Developments
● 1989: Court of First Instance (now GC).
● 2004: Civil Service Tribunal (CST).
● 2016: CST abolished → tasks moved to GC.
B. Role of the General Court
● Handles most direct actions.
● Expanded jurisdiction over time.
● Plays a key role in competition, trade, IP.
4
Text 1: Tridimas – The court of justice of the EU
I. Introduction
● Pivotal Role of the Court: The CJEU (Court of Justice of the European Union) has profoundly
shaped EU law in an unprecedented way, helping to establish core doctrines and the very
nature of the EU as a legal order.
● How this happened:
○ Treaty design enabled institutional empowerment—fostering "integration through
law."
○ The Court proactively positioned itself as a normative force for post-war European
integration.
○ Cooperation (or tolerance) from Member States, national courts, and EU institutions
allowed the Court to assume a central role.
● Early landmark rulings that laid the foundation:
○ Van Gend en Loos (1963): Established the principle of direct effect—EU law can
create rights enforceable by individuals before national courts.
○ Costa v ENEL (1964): Introduced the principle of primacy—EU law takes precedence
over national law.
○ Internationale Handelsgesellschaft (1970): Confirmed that fundamental rights are
general principles of EU law.
● The Court's early ambition: It saw itself as curing the fragmentation caused by
nationalism—drawing inspiration from constitutional traditions to build a supranational,
rule-based order.
● Today: The CJEU is effectively the supreme court of the EU legal system, combining
constitutional and administrative functions.
II. Article 19 TEU: Rule of Law and Judicial Structure
● Art. 19(1) TEU: Entrusts the CJEU with the task of ensuring that "in the interpretation and
application of the Treaties, the law is observed."
○ Originates from Article 164 EEC Treaty.
○ Although its wording is seemingly tautological, it affirms core principles: rule of law
and separation of powers.
● Supervisory Role:
○ Gives the Court oversight over both EU institutions and Member States.
○ Signifies a shift from politics based on power to politics based on law.
● Self-limiting and enabling:
○ The Court itself must respect the limits of its powers.
○ But it also has a mandate to elaborate general principles of law—especially where
treaties are silent.
● Decentralization:
○ EU justice is bifurcated—split between the ECJ and national courts.
○ Most EU law is applied by national courts in national proceedings.
○ The preliminary reference procedure (Art. 267 TFEU) ensures uniform interpretation.
○ Combined with direct effect, this creates a system of dual vigilance: citizens and
institutions both enforce EU law.
● Lisbon Treaty innovation:
1
, ○ Art. 19(1), second subparagraph: obliges MS to provide remedies sufficient to ensure
effective legal protection.
○ Designed to compensate for the limited standing of individuals under Art. 263(4)
TFEU.
● Tense cooperation:
○ National courts, especially supreme courts, are both allies and limits to the ECJ.
○ They provide enforcement but also a check against judicial activism.
○ Without national court cooperation, ECJ authority could collapse.
III. Composition, Appointment, and Tenure
A. Composition
● Court of Justice (ECJ):
○ 1 judge per MS + 11 Advocates General (AGs).
○ Designed to ensure inclusiveness of all national legal systems.
● General Court (GC):
○ Minimum 1 judge per MS, no AGs.
● Why so many judges?
○ Legitimacy: Member States want representation.
○ Acceptance: Citizens are more likely to trust a court in which they are represented.
○ Minoritarian protection: Counterbalances majoritarian politics in Council.
● Problems:
○ High number → danger of inconsistency in chamber judgments.
○ Collegiality is harder with 28+ judges. ECJ functions mostly in smaller chambers (3
or 5).
○ Grand Chamber (15 judges) is key to preserving consistency.
B. Appointment and Tenure
● Appointed by: Unanimous agreement of MS governments.
● Term: 6 years, renewable. Half the bench replaced every 3 years.
● Eligibility:
○ Judges and AGs must be persons of "independence beyond doubt."
○ ECJ: must be eligible for highest national courts or be legal experts (jurisconsults).
○ GC: must have high-level qualifications (not necessarily national judges).
● Article 255 Panel:
○ Established under Lisbon Treaty.
○ 7-member panel assesses candidate suitability.
○ Role is consultative but influential: many candidates rejected.
○ Composed of ex-judges, senior lawyers, 1 EP appointee.
○ Operates in private, gives reasoned opinions to Coreper (not public).
● Impact:
○ Encourages professionalism.
○ Adds objectivity and deters purely political appointments.
C. Advocate General (AG)
● Origin: French Conseil d'Etat model.
● Role:
○ Delivers independent, reasoned opinions in open court.
○ Helps the Court by proposing legal solutions and contextualizing cases.
○ Offers more detailed legal analysis than the final judgment.
2
, ● Not binding: AG does not vote or deliberate. Opinion is advisory.
● Wide discretion:
○ Can present multiple legal routes.
○ May include comparative analysis or critique prior case law.
● Influence:
○ Especially important in complex or new areas of law.
○ Can inspire doctrinal development.
● Controversy:
○ Criticized under ECHR Art. 6 (right to fair trial) for lack of reply rights.
○ ECJ has rejected this critique; parties can request reopening of hearings (Art. 83
RoP).
IV. Jurisdiction
A. Types of Jurisdiction
1. Direct actions:
○ Art. 258/259: Infringement actions (Commission/MS v MS).
○ Art. 263: Annulment actions (judicial review).
○ Art. 268: Damages actions.
○ Art. 272: Contractual disputes.
○ Art. 261: Unlimited jurisdiction on penalties.
○ Art. 270: Staff disputes.
○ Art. 271: ECB and EIB oversight.
○ Art. 269: Review of Art. 7 sanctions procedure.
○ Art. 262: IP rights.
○ Art. 273: Disputes between MS (by special agreement).
○ Art. 279: Interim measures.
○ Art. 256(3): Review jurisdiction over GC rulings (in theory).
2. Preliminary references (Art. 267):
○ Interpretation and validity of EU law.
○ Discretionary (267(2)) or mandatory (267(3)).
○ National courts are linchpins of enforcement.
3. Advisory opinions (Art. 218(11)):
○ On draft international agreements.
○ If agreement incompatible → must amend treaties.
B. Exclusivity (Art. 344 TFEU)
● MS must not use other fora to resolve EU law disputes.
● Rationale: Preserve consistency, protect ECJ jurisdiction.
● Key cases:
○ Opinion 1/91: Struck down EEA court.
○ MOX Plant: Ireland violated exclusivity by using UNCLOS tribunal.
C. Autonomy of EU Law
● Stronger claim than exclusivity.
● Principle: Only ECJ can interpret EU law.
● Opinion 2/13: Draft ECHR accession treaty blocked.
○ Strasbourg Court could interfere with ECJ monopoly.
○ Threat to mutual trust and Art. 267 system.
● BIT cases: Pre-accession treaties conflicted with EU law.
3
, ● Key ideas:
○ ECJ determines its own role.
○ Autonomy invoked flexibly—sometimes to protect rights (Kadi), sometimes to limit
them (Opinion 2/13).
V. Organization and Procedure
A. Structure
● Leadership: President + Vice-President (elected by judges).
● Chambers:
○ 3-judge, 5-judge, Grand Chamber (15), or Full Court (rare).
○ Grand Chamber used when MS or institution requests or importance justifies.
B. Procedure
● Two stages:
○ Written: pleadings, replies, rapporteur report.
○ Oral: brief, often only to clarify.
● Case management:
○ Assigned to judge rapporteur and AG.
○ Deliberation is secret.
● Efficiency tools:
○ No AG opinion if no new law (Art. 20(5) Statute).
○ Reasoned orders if issue already settled (Art. 99 RoP).
○ Urgent procedures (e.g. custody cases).
● Standing rules:
○ Representation by lawyer mandatory.
○ In-house lawyers excluded for independence reasons.
● Access:
○ No public access to pleadings.
○ Limited transparency compared to ECtHR or US SCOTUS.
● Language regime:
○ Working language = French.
○ Procedural language = language of referring court or applicant.
C. Collegiality
● No dissenting opinions.
○ Pros: unity, authority, acceptance.
○ Cons: lack of transparency, unclear reasoning.
● AG opinions sometimes provide the missing analytical depth.
● ECJ style is formal, abstract—contrasts with common law courts.
VI. Judicial Architecture and the 2015 Reform
A. Structural Developments
● 1989: Court of First Instance (now GC).
● 2004: Civil Service Tribunal (CST).
● 2016: CST abolished → tasks moved to GC.
B. Role of the General Court
● Handles most direct actions.
● Expanded jurisdiction over time.
● Plays a key role in competition, trade, IP.
4
