European Court of Justice (ECJ)
by Jörg Pirrung
The Court of Justice of the European Union (ECJ) shall ensure, within the limits of its jurisdiction, that the law is observed in the interpretation and application of the treaties including the Euratom Treaty as well as of the secondary laws of the Union (Art 19(1) EU (formerly Art 220(1) EC), Art 136(1) EAEC, the parallel provisions of which will not be mentioned in the following text). The ECJ is, in substance, the ‘constitutional court’ of the Union. Its most important functions are the issuance, on request of a court of a Member State, of a preliminary ruling on the interpretation of EU law or the validity and interpretation of acts of the Union institutions, proceedings it undertakes based on actions for infringement of obligations under Union law and on actions of the institutions against each other or against Member States, Arts 258 ff TFEU/226 ff EC, and, finally, giving opinions on the compatibility of envisaged international agreements with the EU Treaty (Art 218(11) TFEU/300(6) EC). The ECJ acts as the last instance of Community jurisdiction. Each decision of the General Court of the European Union (GC), the former Court of First Instance of the EC (CFI), is subject to appeal, although solely on a point of law based on the violation of EU law (Art 256(1)(I)2 TFEU/ 225(1)(I)2 EC). Even in cases where the GC decides on appeals lodged against decisions of the Civil Service Tribunal or eventually—in the future—on questions referred to it for a preliminary ruling in specific areas, its decisions may, exceptionally, be subject to review by the ECJ, on request of the First Advocate General of the ECJ, where there is a serious risk of the unity or consistency of EU law being affected (Art 256(2)2, (3)2 TFEU/225(2)2, (3)2 EC). In its judgment of 17 December 2009 in Case C‑197/09 – RX‑II, M v European Medicines Agency (EMEA) (nyr) the ECJ, for the first time, decided that a judgment of the (then-titled) CFI affects this unity and consistency. Namely, the ECJ remanded and set aside certain parts of a CFI judgment where the CFI, as appeal court, had interpreted the expression ‘where the state of the proceedings … permits’ in Art 61 of the ECJ Statute as allowing it to dispose of the case in question, rule as to the substance on the claim and order the EMEA to pay damages, despite the fact that the appeal before it concerned only the examination of the treatment given at first instance to a plea of inadmissibility and that, as regards the aspect of the case which was disposed of, there had been no exchange of arguments before it or before the European Union Civil Service Tribunal as the court seized at first instance.
In 1952, the ECJ came into function in Luxembourg as the court established by the ECCS Treaty which expired in 2002. In the beginning, it had seven judges and an Advocate General. On 1 January 1958 the court’s jurisdiction was extended to the EEC and Euratom Treaties. Up to 1989 the ECJ was the only court of the Union; so it also had jurisdiction in civil and administrative matters including those regarding EC officials. Since then, more and more administrative and civil matters have been transferred to the GC. The ECJ remains the Union court essentially responsible for principal questions of Union law and its eventual development as well as its interpretation, specifically, among others, in harmonized civil law areas. As was the case for the whole Union, the extension of the EU in 2004/2007 by 12 new Member States was a great challenge for the European judicial instances.
The ECJ comprises one judge per Member State, Art 19(2)(1) EU/221(1) EC. Since 1 January 2007, it has, consequently, consisted of 27 judges and (as before) eight Advocates General (Art 252 TFEU/222 EC). It is the duty of an Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the ECJ, require his involvement. Such reasoned submissions are given on the same basis as the decisions of the ECJ itself, normally some weeks after the oral hearing. These opinions are extensive reports on the factual and legal situation of the case, concluding with a proposition for the operative provisions of the future judgment of the ECJ. As a rather general rule of thumb the ECJ decides in accordance with the report of the Advocate General in about 80 per cent of the cases.
Judges and Advocates General must be persons whose independence is beyond doubt and who possess the qualifications required for the appointment to the highest judicial offices in their country or who are jurisconsults of recognized competence. Before fulfilling their function with the ECJ, most of them were high ministerial officials, politicians, judges, university professors, barristers or advocates. They are appointed by common accord of the governments of the Member States for a term of six years with partial replacement every three years. They may be reappointed, even repeatedly. On average, the duration of their function with the ECJ is slightly more than nine years. Four members of the ECJ were first Advocates General before becoming judges; eight were former judges of the GC.
The organization of the ECJ is regulated in the Protocol on its Statute and in Rules of Procedure established by the ECJ with approval of the Council, acting by a qualified majority (Art 253(6) TFEU/223(6) EC). The judges elect, in a plenary session, the President of the court from among their number for a term of three years; re-election is possible. Presidents of the ECJ in the past have been: Massimo Pilotti, Italy (1952–58), Andreas Matthias Donner, the Netherlands (1958–64), Charles Leon Hammes, Luxembourg (1964–67), Robert Lecourt, France (1967–76), Hans Kutscher, Germany (1976–80), Josse J Mertens de Wilmars, Belgium (1980–84), Alexander J Mackenzie Stuart, United Kingdom (1984–88), Ole Due, Denmark (1988–94) and Gil Carlos Rodrigues Iglésias, Spain (1994–2003). Since October 2003 Vassilios Skouris, Greece, has been President.
The judges also elect the registrar who is responsible for the administration of the ECJ, for a renewable mandate of six years. He stands at the head of four general directions competent for personnel and finance; infrastructure; library, scientific service and documentation; and translation, also having this directing role insofar as they fulfil their functions with regard to the GC and the Civil Service Tribunal. The scientific service has, among others, the task of establishing compilations of comparative law on request of the chambers of the three jurisdictions or the respective full courts. The results of these compilations cannot be regularly seen externally, except where there are some hints to them in submissions of the Advocates General. More than half the personnel of the ECJ are working in the translation and interpretation services.
According to Art 251(1), (2) TFEU/221(2), (3) EC, Art 16 of the Statute, the ECJ sits in chambers normally comprising five judges, but only three in less important cases. In very important matters or on request of a Member State or an institution of the EU, the grand chamber composed of 13 judges decides under the presidency of the President of the ECJ; it consists of the presidents of the chambers with five judges, the judge-rapporteur and additional judges determined by a list established in advance. Proceedings considering a breach of obligations or compulsory retirement are conducted before the full court when in respect of Commission members, Court of Auditors members or the Ombudsman. The decision also lies with the full court if an ECJ judge is to be deprived of his office (the concerned judge not taking part in the deliberations and the decision to remove requiring the unanimity of the other judges) (Arts 6, 16 of the Statute). All 27 judges elect the presidents of the respective chambers from among their number: presidents of the extended chambers deciding with five judges have a term of three years with only one re-election being possible. In addition to four extended chambers, each of which comprises a total of six or seven judges, there are four chambers deciding with three judges. These chambers comprise the five or six assisting judges of the four extended chambers; one judge acts as president of the chamber for one year and two others during the following two years. Which of the assisting judges sits in an individual case shall be determined according to a list published in advance in the Official Journal. The preliminary report of the judge-rapporteur chosen by the President of the ECJ has to be presented to the plenary, which on the basis of the propositions of the judge-rapporteur decides on the assignment of the case to the extended chamber, of which the reporting judge is a member, or to a chamber comprising a different number of judges.
The procedure is regulated by the treaties, especially Arts 263 ff/TFEU/230 ff EC, in the Statute of the ECJ, according to Art 281 TFEU/245 EC laid down in a separate Protocol, and in the Rules of Procedure of the ECJ. The most important procedure before the ECJ is the preliminary procedure according to Art 267 TFEU/234 EC, Art 23 of the Statute; nearly half the matters to be dealt with by the ECJ represent this kind of procedure. Where a question concerning the interpretation of the TFEU or of secondary law of the Communities or concerning the validity and interpretation of acts of the institutions of the Community is raised in a case pending before any court (or tribunal) of a Member State, that jurisdiction may request the ECJ to provide a ruling on the question if it considers that this is necessary to enable it to render judgment. An exception to this provision was contained in Art 68(1) EC (abolished by the Lisbon Treaty), according to which, especially in cases of judicial cooperation in civil matters, only courts against whose decisions there is no judicial remedy under national law are enabled to request the ECJ to give such a ruling. Where any such question is raised in a case pending before a court against whose decision there is no judicial remedy, that court shall bring the matter before the ECJ.
The request, formulated in the language of the requesting court, must present the subject matter of the originating proceedings and contain the questions to be answered. It should also indicate the claims of the parties to the dispute before it and give reasons for the request. The requesting court is, however, not obliged to make proposals as to the answers it thinks the ECJ should give to the questions. The national court should follow the guidelines given by the ECJ in its information note of 2009 (OJ C 297/1) on references for a preliminary ruling. The request shall be communicated to the Member States in the original version, accompanied by a translation into their official language; where a complete translation would be inappropriate because of its length, it can be replaced by a summary of the essential elements (Art 104(1) of the Rules of Procedure). The Member States, the Commission and the institution having made the act in question as well as the parties to the originating proceedings are entitled to submit statements or observations. Where a question is identical to a question on which the ECJ has already ruled or where the answer may be clearly deduced from existing case law or where it admits no reasonable doubt, the ECJ may give its decision by reasoned order. Although in principle an oral hearing has to take place, the ECJ, after having informed the persons entitled to submit observations, may decide otherwise (Art 44a of the Rules of Procedure). In certain matters states parties to the Agreement on the European Economic Area (AEEA) or non-Member States parties to an agreement relating to a specific subject matter may lodge statements or observations (Art 23(4) of the Statute).
The ECJ renders its judgment on the request in the language of the requesting court on the basis of the written and oral statements or observations submitted to it and the reasoned submissions of the Advocate General which are given some time after the oral hearing in a language that may be different from the language of the proceedings. In preliminary proceedings the ECJ can only answer questions of law, but cannot decide on the originating proceedings themselves. Its judgment is, in the proceedings that led to the request, binding on the requesting court; if necessary, that court can however formulate additional questions in a new request. Though there is no formal binding force as to the interpretation or the validity of a decision of the ECJ in other cases or before other courts, in conformity with the aims of the procedure according to Art 267 TFEU/234 EC courts of the Member States may not decide otherwise. If, nevertheless, they should wish to do so, they could only try to convince the ECJ by way of a new preliminary request with new arguments, but such an attempt has no great chance of success. As procedures according to Art 267 TFEU/234 EC will, in spite of their preliminary character, normally last for more than 18 months because of their conception and of the necessities of translation, they do not conform to the necessity of an expeditious decision, especially in proceedings of judicial cooperation concerning divorce and parental responsibility cases or concerning penal matters. For such cases Arts 104a, 104b of the Rules of Procedure provide an accelerated as well as an urgent procedure derogating from the normal provisions.
Among the direct actions, by far the most frequent proceedings are those concerning infringements of the TFEU introduced by the Commission against Member States according to Art 258 TFEU/226 EC. They are mostly based on irregular, especially belated, transformation of directives into national legislation and adjudication of the case is normally not very difficult. Most actions on annulment fall under the jurisdiction of the GC. Appeal procedures form about 12.5 per cent of the decisions of the ECJ; appeals are lodged against, approximately, one out of four decisions of the GC, with a certain success occurring in every fourth case. Opinions of the ECJ on the compatibility of envisaged agreements with the treaties are rarely obtained, representing only about 0.2 per cent of all the cases before the ECJ, but the results of these procedures are for the most part extremely important. Requests for interim measures are dealt with by the President of the ECJ acting as single judge.
As regards the course of the procedure, especially regarding direct actions and appeals, the parties have to follow the Instructions to the registrar of the ECJ and the Practice Directions relating to these remedies, compare also the Notes for the guidance of counsel. Private parties have to be represented or assisted by a lawyer authorized to practice before a court of a Member State or a state party to the AEEA. Member States and institutions shall be represented by officials as agents appointed for each case who may be assisted or advised by a lawyer. In principle, the language of the case shall be chosen by the applicant. Actions against Member States or nationals of Member States are lodged in their official language. Member States intervening or taking part in preliminary procedures are entitled to use their own official language. In all cases, the judge-rapporteur presents, with the assistance of his collaborators (each judge has three référendaires, ie academic assistants), his purely internal preliminary report in the French working language to the general assembly of the ECJ, when the written procedure consisting of application, defence and, normally, reply and rejoinder has been completed. This report contains recommendations as to whether preparatory steps should be undertaken and to which form of chamber the case should be assigned. The judge-rapporteur also prepares a report for the hearing.
4. Important contributions of the ECJ to the development of Union law
Especially during periods of relative standstill in the development of Union legislation, the ECJ has shown itself to be a driving authority for improvement and reinforcement of EU law. On the other hand, its interpretation of the rules on the competence of the Union in their relationship to the Member States has not always been accepted free of fundamental criticism. For example, had the court shown a greater willingness to embrace ideas closer in spirit to the subsidiarity principle, a less ‘EU friendly’ and more ‘Member State friendly’ interpretation could have resulted in preliminary judgments in cases such as C-285/88 – Tanja Kreil  ECR I-69 and C-144/04 – Mangold  ECR I-9981. Yet, on the whole, the very existence of the ECJ as an EU-wide acting institution responsible for a uniform understanding of European law is such an important element of the movement towards European unity that the fact that some individual judgments may not be entirely immune from doubt must be accepted in the interest of the idea of uniformity.
Already at an early stage, the ECJ had decided that Union law was (also) to be applied directly in favour of individual persons subject to the law and not only with regard to Member States (ECJ Case 26/62 – van Gend & Loos/Nederlandse Administratie der Belastingen  ECR 1), and this with priority in relation to the law of the Member States (ECJ Case 6/64 – Costa v ENEL, judgment of 15 July 1964  ECR 585, in German 1251, in French 1141). Individuals may claim damages for legislative inaction (ECJ Case 6/90 – Francovich and Others  ECR I-5357) and for the inappropriate action of a judge (ECJ Case C-224/01 – Köbler  ECR I-10290) in a Member State when (not) applying Union law. Within certain limits a citizen can also invoke the fact that directives have not been transformed in due time into national law.
The ECJ has developed clear definitions of the five fundamental freedoms of EU law in many judgments: so the free movement of goods (ECJ Case 120/78 – REWE v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon)  ECR I-649; ECJ Case C-267/91 – Keck and Mithouard  ECR I-6097), the free movement of capital and payments (ECJ Case C- 302/97 – Konle  ECR I-3122), the free movement of services (ECJ Case 158/96 – Kohll/Union des Caisses de Maladie  ECR I-1931), the free movement of persons (ECJ Case C-415/93 – Union Royale Belge des Sociétés de Football Association v Bosman and Others  ECR I-4921) and the freedom of establishment of legal persons (ECJ Case C-212/97 – Centros v Erhvervs- og Selskabsstyrelsen  ECR I-1459; ECJ Case C-208/00 – Überseering  ECR I-9919; ECJ Case C-167/01 – Inspire Art  ECR I-10155). Similarly, this assessment also applies to the prohibition of discrimination because of nationality, eg in connection with the German garnishment procedure (§ 917(2) of the German Code of Civil Procedure, CFI Case C-398/92 – Mund & Fester v Hatrex Internationaal Transport  ECR I-474). The opinion of the ECJ on the new Lugano Convention (of 2 February 2006 – Opinion 1/03  ECR I-1145) has clarified the limits of the competence of the Member States in relation to the Commission in matters of judicial cooperation. In more than 150 judgments the ECJ has interpreted the notions of the Brussels Convention on jurisdiction and enforcement of judicial decisions in civil and commercial matters and afterwards the Brussels I Regulation 44/2001 which has replaced that Convention. In doing so, the ECJ has, overwhelmingly, applied the principle of uniform international interpretation, initially with regard to the notion of civil and commercial matters (ECJ Case 29/76 – LTU v Eurocontrol  ECR 1541). It was, however, an unfortunate coincidence that no judges from any of the common law Member States participated in the judgments declaring the principle of forum non conveniens inapplicable under the Convention (ECJ Case C-281/02 – Owusu  ECR I-1383) and affirming the inadmissibility of anti-suit injunctions with regard to proceedings in other Member States (ECJ Case C-159/02 – Turner  ECR I-3565), though in both cases the results of the decisions should not be criticized.
5. Tendencies for reform
The functions of the ECJ increasingly concentrate on those corresponding to a ‘constitutional court’ of the EU. To introduce a special institution alongside the ECJ with jurisdiction in all matters of competence of the EU would weaken the ECJ and consequently do harm to the acquis of European judicature. It will, however, become increasingly difficult to take adequate account of the legal systems of all 27 (and, eventually, in the near future more than 30) Member States in fundamental questions. As a minimum, certain categories of infringement procedures could be transferred to the GC as soon as this court were to dispose of more capacities, achievable, for example, by increasing its number of judges (a reform not permitted for the ECJ itself, Art 254 TFEU/224 EC). Similarly, at least some preliminary proceedings in matters of judicial cooperation in penal and civil matters could be transferred to the GC, taking into account that the restrictions in civil matters contained in former Art 68 EC have been abolished by the Lisbon Treaty.
If the tendency towards accelerated and urgent procedures continues to prove the utility of these variations in favour of fast decisions, especially in divorce and parental responsibility matters as well as in other preliminary proceedings concerning Arts 67 ff TFEU/61 ff EC where there is a need for expeditiousness, such procedures might provide a path to more effective judicial protection. Recent experiences are encouraging: in a first accelerated procedure with the participation of five Member States, the grand chamber rendered an important decision on basic questions of the Brussels IIbis Regulation concerning the return of a child illegally retained (ECJ Case C-195/08 PPU – Rinau  ECR I-5271) on 11 July 2008 less than two months after reception of the preliminary request from a court in Lithuania. Immediately thereafter, only four months after the introduction of a request in an accelerated procedure featuring many parties and comments from 10 governments, another judgment of the grand chamber decided equally important questions regarding Dir 2004/38 concerning the right of Union citizens and their family members who are nationals of non-member countries to move and reside freely in the territory of a Member State (ECJ Case C-127/08 – Metock and Others v Minister for Justice, Equality and Law Reform  ECR I-6241).
Richard Plender (ed), European Courts: Practice and Precedents (1997); Mark Brealey and Mark Hoskins, Remedies in EC law: Law and Practice in the English and EC Courts (2nd edn, 1998); Henry G Schermers and Denis F Waelbroeck, Judicial Protection in the European Union (6th edn, 2001); Joël Rideaux and Fabrice Picod, Code des procédures juridictionnelles de l’Union européenne (2nd edn, 2002); Hans-Werner Rengeling, Andreas Middeke and Martin Gellermann (eds), Handbuch des Rechtsschutzes in der Europäischen Union (2nd edn, 2003); KPE Lasok and Timothy Millett, Judicial Control in the EU: Procedures and Principles (2004); Waltraud Hakenberg and Christine Stix-Hackl, Handbuch zum Verfahren vor dem Europäischen Gerichtshof, vol 1 (3rd edn, 2005); Koen Lenaerts, Piet van Nuffel and Robert Bray (eds), Constitutional Law of the European Union (2nd edn, 2005); Koen Lenaerts, Dirk Arts, Ignace Maselis and Robert Bray (eds), Procedural Law of the European Union (2nd edn, 2006); Ulrich Everling, ‘Zur verfehlten Forderung nach einem Kompetenzgericht der Europäischen Union’ in Festschrift Günter Hirsch (2008) 63; Karol PE Lasok, Lasok’s European Court Practice and Procedure (3rd edn, 2011); Court of Justice of the European Communities, Annual Report 2010 (2011).