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p. 917. The Court of Justice of the European Unionlocked

  • Anthony Arnull

Abstract

‘The Court of Justice of the European Union’ explains that the basic duty of the CJEU is to ensure that ‘the law is observed’ in the interpretation and application of the EU Treaties. Most cases brought before the CJEU are either direct actions that start and finish in Luxembourg, or references for preliminary rulings which originate in a national court that needs guidance on the effect of EU law before giving judgment. The most important parts of the CJEU are the Court of Justice and the General Court. These are described, along with the judicial approach of the CJEU.

I’d now like to take a closer look at another of the EU’s institutions, the CJEU. The basic duty of the CJEU is to ensure that ‘the law is observed’ in the interpretation and application of the Treaties (Article 19(1) TEU). That duty is reinforced by the inclusion of the rule of law among the values on which the EU is founded (see Article 2 TEU). Located in Luxembourg, the CJEU mustn’t be confused with the European Court of Human Rights, which is based in Strasbourg, France, and is not an institution of the EU.

Most of the cases brought before the CJEU fall into one of two categories. Direct actions start and finish in Luxembourg. By contrast, references for preliminary rulings originate in a national court which finds itself in need of guidance on the effect of EU law before giving judgment. It therefore asks the CJEU for a ruling which it then applies to the facts of the case.

The CJEU has three component parts, the most important of which are the Court of Justice and the General Court.

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The Court of Justice

The Court of Justice consists of one judge from each Member State (Article 19(2) TEU). It may sit as a chamber of three or five p. 92judges, a Grand Chamber of 15 judges, or a full Court comprising all the judges (see Figure 6). Normally the larger the formation, the more difficult or important the case is thought to be. A party may not object to the composition of the Court of Justice on the basis of the presence or absence of a judge of a particular nationality. In 2015, the Court of Justice received 713 new cases and decided 616. It had a backlog of 884 cases.

6. A hearing before a five-judge chamber of the Court of Justice.

The Court of Justice is assisted by eleven Advocates General, who enjoy the same status as judges. They have counterparts in some of the Member States of continental Europe. The Treaties do not say anything about the nationality of the Advocates General. However, it is the practice of the Member States that there should always be an Advocate General from the six largest Member States (France, Germany, Italy, Poland, Spain, and for the time being the UK), the remaining posts rotating among the other Member States.

p. 93The role of an Advocate General is to deliver an opinion to the Court of Justice on the case under consideration. This is done after any hearing has taken place and before the Court of Justice begins its deliberations. The contribution made by Advocates General to the comprehensibility and even coherence of the case law of the Court of Justice is widely recognized. The Court of Justice delivers a single collegiate judgment whose main purpose is to declare what the law is. The reasons it gives for its conclusions are often terse and sometimes the result of compromise between the judges involved. Dissenting judgments, where a judge expresses his or her disagreement with the view of the majority, are not permitted. By contrast, an Advocate General’s Opinion is the work of a single author and often provides a more thorough analysis of the issues raised by a case than the judgment.

Until the Treaty of Nice, an Advocate General’s Opinion was required in each case brought before the Court of Justice. However, the preparation of an Opinion causes delay and it came to be accepted that in simple cases Opinions were unnecessary. The default position remains that an Advocate General will assist the Court in all cases. However, the Court of Justice may now decide to do without an Opinion where it thinks that a case ‘raises no new point of law’ (Statute, Article 20). In 2015, around 43 per cent of judgments were given without an Opinion.

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The General Court

The General Court (formerly the Court of First Instance) was set up in 1988 to relieve pressure on the Court of Justice resulting from its growing workload and to create a specialized fact-finding tribunal. In 2015 the General Court received 831 new cases and decided 987. It had a backlog of 1,267 cases. These figures show that its capacity to manage its own workload is becoming problematic.

p. 94The General Court deals at first instance with all direct actions brought by private applicants. It also handles direct actions brought by Member States against: (a) certain acts of the Council; (b) nearly all acts of the Commission; and (c) all acts of the ECB. The General Court has no jurisdiction at present to give preliminary rulings, though this may change in the future.

Decisions of the General Court on questions of fact are final, but on points of law can be taken on appeal to the Court of Justice. The appeal rate in 2015 was 27 per cent. The success rate is relatively low: of the 134 appeals decided by the Court of Justice in 2015, only 25 were wholly or partly upheld. These figures are a measure of how successful the General Court has been.

The General Court must include ‘at least one judge per Member State’ (Article 19(2) TEU). The precise number is laid down in Article 48 of the Statute of the CJEU, which may be amended by the European Parliament and the Council acting in accordance with the OLP on a request from the Court of Justice or a proposal from the Commission (Article 281 TFEU). Following a request from the Court of Justice, the Council agreed in December 2015 to increase the number of judges from one to two per Member State over a period ending on 1 September 2019. The aim was to help the General Court cope with its workload and reduce the EU’s potential liability in damages if the General Court failed to give judgments within a reasonable period of time, as required by Article 47 of the EU’s Charter of Fundamental Rights.

Most cases brought before the General Court are dealt with by a three- or five-judge chamber. The General Court may also be constituted as a single judge or sit as a Grand Chamber or full court, but this hardly ever happens. There are no full-time Advocates General in the General Court, but judges may be asked to perform the role of Advocate General in difficult or complex cases. This is rarely done.p. 95

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Members of the CJEU

Judges and Advocates General of the Court of Justice must be ‘persons whose independence is beyond doubt’. They must either ‘possess the qualifications required for appointment to the highest judicial offices in their respective countries’ or be ‘jurisconsults of recognised competence’ (Article 253 TFEU). In practice the members of the Court of Justice have come from a range of professional backgrounds, from the national judiciaries and the Bar to the civil service and universities (see Figure 7). British critics have sometimes objected to members without judicial experience, but the House of Lords EU Committee has cautioned against ‘trying to impose on other Member States a particularly British view of the best background for senior judicial office’.

7. The members of the Court of Justice (February 2016).

Members of the General Court must also be ‘persons whose independence is beyond doubt’. They must ‘possess the ability required for appointment to high judicial office’ (Article 254 TFEU).

Members of both the Court of Justice and the General Court serve for renewable terms of six years (with the exception of Advocates General from Member States which do not have such a post permanently and whose terms are not in practice renewed). They are appointed by agreement among the governments of the Member States. In theory, this means that a national nominee could be blocked by other Member States but they hardly ever seem to have done so. This led to concerns that some individuals were being appointed for reasons other than their legal aptitude.

Article 255 TFEU therefore introduced a requirement that a panel should be consulted by national governments before appointments to the Court of Justice or the General Court were made. The panel comprises seven individuals ‘chosen from among p. 97former 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’. Its members are appointed by the Council for terms of four years, renewable once. It deliberates in private but must give reasons for its opinions. Although not formally binding, they are in practice followed.

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Judicial approach

The approach of the CJEU has been heavily influenced by the civil law tradition of the six original Member States, although the influence of the common law began to be felt with the accession in 1973 of the UK and Ireland. The civil law and the common law are two of the world’s great legal ‘families’. To oversimplify, the characteristic feature of the civil law is its reliance on codified abstract rules; that of the common law, the importance attached to decided cases.

While the activities of the General Court are of interest mainly to specialists, the Court of Justice is more controversial. This is because of the role it has played in crafting many of the fundamental principles of EU law and its approach to the interpretation of the Treaties. This has given it a reputation in some quarters as an activist or political court. One critic asserted:

The Court of Justice has indulged in ‘creative jurisprudence’ on many occasions. The Treaty texts and directives agreed between the Member States may at any time be given by the Court a meaning and impetus that may not have been contemplated by the negotiators.

The problem with this sort of criticism is that activism is often in the eye of the beholder: if you disapprove of the outcome of a case from a policy perspective, you are more likely to consider it activist. Moreover, those who accuse the Court p. 98of Justice of activism often fail to give sufficient weight to ‘the characteristic features of [EU] law and the particular difficulties to which its interpretation gives rise’ (CILFIT v Ministry of Health (1982)). Prominent among these are the gaps and ambiguities in the Treaties, especially in their original form, and their multilingual nature. There are now official versions of the TEU, the TFEU, and EU acts in twenty-four languages, each of which has the same status. The Court of Justice therefore had little choice but to interpret them in the light, not just of their wording, but also of their objectives and legal context.

Another objection sometimes voiced by critics is that the Court of Justice does not adequately engage with the arguments of the parties or show how its decisions fit with previous case law. The way the Court of Justice handles its own previous decisions is partly attributable to its civil law origins. While the Court of Justice endeavours to respect its established case law, it does not treat it as binding or feel compelled to reconcile new decisions with previous judgments in the manner of a common law court. Be that as it may, its reasoning is sometimes inadequate to explain changes in the direction of its case law. An example is the Mangold case, where the Court of Justice offered only meagre justification for its radical conclusion that there was a general principle prohibiting discrimination on the grounds of age that individuals could invoke in the national courts.