Week 1
Legal Remedies: The CJEU as an Institution
Chapter 6 § 2: The Court of Justice of the European Union
The court: the judicial branch of the EU. It is composed of various courts:
- Court of Justice
- General Court
- Specialized courts
The Court’s task: to ensure that in the interpretation and application of the Treaties the law is observed =
Article 19(1) TEU. However, it is not the only one to interpret and apply EU law - so do the national
courts.
- From a functional perspective, national courts are decentralized European courts.
- From an institutional perspective, they are distinct and there is no institutional bridge from the
national courts to the ECJ
a. Judicial architecture
When the EU was born: only one court - the Court of Justice. Due to the heavy workload, the Court of
First Instance was created. With the Lisbon Treaty, it has been renamed to the General Court. It is no
longer confined to first instance cases. See for its function: Art. 256(2) TFEU.
The specialized courts: only one so far - the Civil Service Tribunal.
The CJEU thus has a three-tiered system of courts.
aa. The Court of Justice: Composition and Structure
The Court of Justice consists of one judge from each Member State - Article 19(2) TEU. However, the
judges are not representatives of the Member States and must be completely independent. The term of
appointment is for 6 years.
From the very beginning, the Court has set up chambers. It does not always decide in plenary session (a
full court of all judges). The Court’s chambers enjoy the power of the full Court. This allows the Court to
spread its workload. This operation constitutes the norm for all categories of cases. See also the wording
of Article 251 TFEU. Rule: chambers, exception: full court.
Questions about the chambers are answered in the ‘Statute of the Court of Justice of the EU’ and the
‘Rules of Procedure of the CJEU’. According to the former, the Court will normally sit in chambers
consisting of three and five judges. Exceptionally, the Court can sit in a Grand Chamber consisting of 15
judges, where a Member State or a Union institution as a party to the procedure so requests. Very
exceptionally, the Court shall sit as a ‘full Court’ in limited categories of constitutional cases: Art. 16(4)
and (5).
1
,bb. The General Court: composition and structure
The GC shall include at least one judge per MS. The GC will - like the Court of Justice - generally sit in
chambers of three and five judges. In exceptional cases, it may sit in a full court or Grand Chamber. In
easy circumstances, the GC may also assign cases to a single-judge chamber.
What is the jurisdiction of the GC? Its jurisdiction has always been smaller than that of the Court of
Justice. It was originally confined to cases brought directly by natural or legal persons. Today, Article 256
TFEU distinguishes between three scenarios.
- First, the GC will have jurisdiction to hear cases at first instance, with the exception of those
assigned to a specialized court or those cases reserved to the Court of Justice, Article 256(1)
TFEU
- Secondly, the GC will have jurisdiction to hear appeals against decisions of specialized courts
- Thirdly, the GC may have jurisdiction for preliminary references from national courts in specific
cases laid down by the Statute (note: Article 256(3))
Decisions of the GC can be appealed or reviewed. Appeals can be launched by any party that was (partly)
unsuccessful. However, they are limited to points of law and must be on the grounds of lack of
competence, breach of procedure or infringement of EU law by the GC. If the appeal is well-founded, the
CJEU will squash the decision of the GC. it can choose one of two options:
- Act like a court of cassation: cancel the previous judgment and send the case back to the GC
- Act as a court of revision: give final judgment in the matter itself
See the Court Statutes.
Similar are reviews: the Court of Justice is entitled to review a judgment of the GC on its own motion in
two situations:
- It can review a decision of the GC, where that court acts in its own appellate capacity
- It can review a decision by the GC where it gives a preliminary ruling for a national court
However, review is limited to situations where there is a serious risk of the unity or consistency of EU
law being affected.
cc. The Advocate General
The Court shall be assisted by Advocates-General. They are appointed as officers of the Court. Their duty
is not to judge. Article 252(2) TFEU: it shall be the duty of the AG, acting in complete impartiality and
independence, to make, in open court, reasoned submissions. It is an independent advisor to the Court,
who produces an opinion that is not legally binding on the Court. It informs the Court of ways to decide a
case, and in this respect, the AG acts like an academic amicus curiae. Cases can be determined without a
submission from the AG. For the GC, absence is the rule.
dd. The specialized Court(s): The Civil Service Tribunal
Judicial specialization allows judges to develop and employ legal expertise in an area that requires special
knowledge. Article 257 TFEU opens the way for specialized jurisdictions below the GC. The jurisdiction
2
,of such a court will be defined by its constituting act and its decisions may be subject to a right of appeal.
Unlike the higher European Courts, the judges will not be appointed by the Member States, but by the
Council - unanimously.
So far, only one specialized Court has been established: the Civil Service Tribunal.
b. Judicial procedures
The procedure before the ECJ consists of two parts:
- Written part
- Oral part
The written part precedes the oral part and dominates the procedure. A case begins when brought before
the Court by a written application by the applicant. Two steps structure the written procedure:
- The assignment of the case
- Chamber or full court - depending on the importance
- Designation of a reporting judge and AG
- Preparatory inquiry needed?
- Preparatory inquiry = the Court may hear witnesses
This leads to the oral part of the procedure. There will be a hearing, AG opinion, and then a judgment.
How will the Court make a judgment? It takes place in secrecy. The basis of the deliberation is not the
AG opinion, but a draft made by the reporting judge. Every participating judge will state its opinion and
the reasons behind it. Voting will take place in reverse order of seniority. The final judgment will be
reached by a majority of judges. There are no dissenting opinions. This protects the independence of the
European judiciary.
In addition to judgments, the Court also has the power to give orders and opinions. The former may result
from an application of interim measures, which are sometimes necessary, for actions brought before the
court have no suspensory effect. An order will thus typically precede a judgment. By contrast, opinions
can be requested in the context of international agreements. The Court’s opinion is here more than
advisory.
c. Judicial reasoning: methods of interpretation
Courts are not democratic institutions. Courts are therefore not allowed to make law. They must only
interpret and apply the law.
The CJEU stands in this civilian tradition. According to Article 19 TEU, the Court shall ensure that in the
interpretation and application of the Treaties the law is observed. The European Court is here portrayed as
an active interpreter and as a passive applier of European law. It must apply law when the meaning is
clear, and interpret law when the meaning is not clear.
There are four common methods that judges use to justify their decisions:
- Historical interpretation
- Literal interpretation
3
, - Systematic interpretation
- Teleological interpretation
There exists no hierarchy between these methods and their parallel use may lead to conflicting results.
Each method grants a different degree of freedom to the Court in deciding a case. The first two methods
are conservative, the second two progressive.
Theoretically, the smallest interpretative room is given to the historical method. This searches for the
original meaning of a law. However, this originalism encounters problems. It presumes that there was a
clear meaning when the norm was created, which might not be the case. A historical reading of a rule may
make it lose touch with the social reality to which it applies.
Literal interpretation starts with the written text and gives it its ordinary contemporary meaning. The
problem is in the EU legal order that there is not a single text.
Systematic interpretation tries to construct the meaning of a norm by reference to its place within the
general scheme of the legislative or constitutional system.
Teleological interpretation is the judicial method that allows the court to search for the purpose or spirit or
useful effect - the telos - of a legal norm.
The EU courts use all four methods. The Court generally finds it to consider the spirit, the general schema
dn the wording of provisions. It generally uses the teleological and systematic interpretation method. This
‘activist’ interpretation has attracted severe criticism.
d. Jurisdiction and judicial powers
The traditional role of courts in modern societies is to act as independent arbitrators between competing
interests. Their jurisdiction may be compulsory, or not. The jurisdiction of the ECJ is compulsory within
the limits of the powers conferred onto it by the Treaties. While compulsory the jurisdiction is limited.
Based on the principle of conferral, the ECJ has no inherent jurisdiction.
The functions and powers of the Court are stated in Article 19(3) TEU:
Article 19 TEU
3. 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.
The provision classifies the judicial tasks by distinguishing between direct and indirect actions. The
former are brought directly before the European Court. The latter arrive at the Court indirectly through
preliminary references from national courts. The powers of the Court under the preliminary reference
procedure are set out in a single article: Article 267 TFEU.
4
Legal Remedies: The CJEU as an Institution
Chapter 6 § 2: The Court of Justice of the European Union
The court: the judicial branch of the EU. It is composed of various courts:
- Court of Justice
- General Court
- Specialized courts
The Court’s task: to ensure that in the interpretation and application of the Treaties the law is observed =
Article 19(1) TEU. However, it is not the only one to interpret and apply EU law - so do the national
courts.
- From a functional perspective, national courts are decentralized European courts.
- From an institutional perspective, they are distinct and there is no institutional bridge from the
national courts to the ECJ
a. Judicial architecture
When the EU was born: only one court - the Court of Justice. Due to the heavy workload, the Court of
First Instance was created. With the Lisbon Treaty, it has been renamed to the General Court. It is no
longer confined to first instance cases. See for its function: Art. 256(2) TFEU.
The specialized courts: only one so far - the Civil Service Tribunal.
The CJEU thus has a three-tiered system of courts.
aa. The Court of Justice: Composition and Structure
The Court of Justice consists of one judge from each Member State - Article 19(2) TEU. However, the
judges are not representatives of the Member States and must be completely independent. The term of
appointment is for 6 years.
From the very beginning, the Court has set up chambers. It does not always decide in plenary session (a
full court of all judges). The Court’s chambers enjoy the power of the full Court. This allows the Court to
spread its workload. This operation constitutes the norm for all categories of cases. See also the wording
of Article 251 TFEU. Rule: chambers, exception: full court.
Questions about the chambers are answered in the ‘Statute of the Court of Justice of the EU’ and the
‘Rules of Procedure of the CJEU’. According to the former, the Court will normally sit in chambers
consisting of three and five judges. Exceptionally, the Court can sit in a Grand Chamber consisting of 15
judges, where a Member State or a Union institution as a party to the procedure so requests. Very
exceptionally, the Court shall sit as a ‘full Court’ in limited categories of constitutional cases: Art. 16(4)
and (5).
1
,bb. The General Court: composition and structure
The GC shall include at least one judge per MS. The GC will - like the Court of Justice - generally sit in
chambers of three and five judges. In exceptional cases, it may sit in a full court or Grand Chamber. In
easy circumstances, the GC may also assign cases to a single-judge chamber.
What is the jurisdiction of the GC? Its jurisdiction has always been smaller than that of the Court of
Justice. It was originally confined to cases brought directly by natural or legal persons. Today, Article 256
TFEU distinguishes between three scenarios.
- First, the GC will have jurisdiction to hear cases at first instance, with the exception of those
assigned to a specialized court or those cases reserved to the Court of Justice, Article 256(1)
TFEU
- Secondly, the GC will have jurisdiction to hear appeals against decisions of specialized courts
- Thirdly, the GC may have jurisdiction for preliminary references from national courts in specific
cases laid down by the Statute (note: Article 256(3))
Decisions of the GC can be appealed or reviewed. Appeals can be launched by any party that was (partly)
unsuccessful. However, they are limited to points of law and must be on the grounds of lack of
competence, breach of procedure or infringement of EU law by the GC. If the appeal is well-founded, the
CJEU will squash the decision of the GC. it can choose one of two options:
- Act like a court of cassation: cancel the previous judgment and send the case back to the GC
- Act as a court of revision: give final judgment in the matter itself
See the Court Statutes.
Similar are reviews: the Court of Justice is entitled to review a judgment of the GC on its own motion in
two situations:
- It can review a decision of the GC, where that court acts in its own appellate capacity
- It can review a decision by the GC where it gives a preliminary ruling for a national court
However, review is limited to situations where there is a serious risk of the unity or consistency of EU
law being affected.
cc. The Advocate General
The Court shall be assisted by Advocates-General. They are appointed as officers of the Court. Their duty
is not to judge. Article 252(2) TFEU: it shall be the duty of the AG, acting in complete impartiality and
independence, to make, in open court, reasoned submissions. It is an independent advisor to the Court,
who produces an opinion that is not legally binding on the Court. It informs the Court of ways to decide a
case, and in this respect, the AG acts like an academic amicus curiae. Cases can be determined without a
submission from the AG. For the GC, absence is the rule.
dd. The specialized Court(s): The Civil Service Tribunal
Judicial specialization allows judges to develop and employ legal expertise in an area that requires special
knowledge. Article 257 TFEU opens the way for specialized jurisdictions below the GC. The jurisdiction
2
,of such a court will be defined by its constituting act and its decisions may be subject to a right of appeal.
Unlike the higher European Courts, the judges will not be appointed by the Member States, but by the
Council - unanimously.
So far, only one specialized Court has been established: the Civil Service Tribunal.
b. Judicial procedures
The procedure before the ECJ consists of two parts:
- Written part
- Oral part
The written part precedes the oral part and dominates the procedure. A case begins when brought before
the Court by a written application by the applicant. Two steps structure the written procedure:
- The assignment of the case
- Chamber or full court - depending on the importance
- Designation of a reporting judge and AG
- Preparatory inquiry needed?
- Preparatory inquiry = the Court may hear witnesses
This leads to the oral part of the procedure. There will be a hearing, AG opinion, and then a judgment.
How will the Court make a judgment? It takes place in secrecy. The basis of the deliberation is not the
AG opinion, but a draft made by the reporting judge. Every participating judge will state its opinion and
the reasons behind it. Voting will take place in reverse order of seniority. The final judgment will be
reached by a majority of judges. There are no dissenting opinions. This protects the independence of the
European judiciary.
In addition to judgments, the Court also has the power to give orders and opinions. The former may result
from an application of interim measures, which are sometimes necessary, for actions brought before the
court have no suspensory effect. An order will thus typically precede a judgment. By contrast, opinions
can be requested in the context of international agreements. The Court’s opinion is here more than
advisory.
c. Judicial reasoning: methods of interpretation
Courts are not democratic institutions. Courts are therefore not allowed to make law. They must only
interpret and apply the law.
The CJEU stands in this civilian tradition. According to Article 19 TEU, the Court shall ensure that in the
interpretation and application of the Treaties the law is observed. The European Court is here portrayed as
an active interpreter and as a passive applier of European law. It must apply law when the meaning is
clear, and interpret law when the meaning is not clear.
There are four common methods that judges use to justify their decisions:
- Historical interpretation
- Literal interpretation
3
, - Systematic interpretation
- Teleological interpretation
There exists no hierarchy between these methods and their parallel use may lead to conflicting results.
Each method grants a different degree of freedom to the Court in deciding a case. The first two methods
are conservative, the second two progressive.
Theoretically, the smallest interpretative room is given to the historical method. This searches for the
original meaning of a law. However, this originalism encounters problems. It presumes that there was a
clear meaning when the norm was created, which might not be the case. A historical reading of a rule may
make it lose touch with the social reality to which it applies.
Literal interpretation starts with the written text and gives it its ordinary contemporary meaning. The
problem is in the EU legal order that there is not a single text.
Systematic interpretation tries to construct the meaning of a norm by reference to its place within the
general scheme of the legislative or constitutional system.
Teleological interpretation is the judicial method that allows the court to search for the purpose or spirit or
useful effect - the telos - of a legal norm.
The EU courts use all four methods. The Court generally finds it to consider the spirit, the general schema
dn the wording of provisions. It generally uses the teleological and systematic interpretation method. This
‘activist’ interpretation has attracted severe criticism.
d. Jurisdiction and judicial powers
The traditional role of courts in modern societies is to act as independent arbitrators between competing
interests. Their jurisdiction may be compulsory, or not. The jurisdiction of the ECJ is compulsory within
the limits of the powers conferred onto it by the Treaties. While compulsory the jurisdiction is limited.
Based on the principle of conferral, the ECJ has no inherent jurisdiction.
The functions and powers of the Court are stated in Article 19(3) TEU:
Article 19 TEU
3. 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.
The provision classifies the judicial tasks by distinguishing between direct and indirect actions. The
former are brought directly before the European Court. The latter arrive at the Court indirectly through
preliminary references from national courts. The powers of the Court under the preliminary reference
procedure are set out in a single article: Article 267 TFEU.
4
