European Court of Justice

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The European Court of Justice (ECJ) was formed out of the court of the European Coal and Steel Community (ECSC), which was created to ensure that ECSC member states complied with their treaty obligations. The modern ECJ has largely the same function, although it has a vastly expanded competence, and a particular European view of law. For most purposes, the Court of First Instance (CFI) now has equivalent jurisdiction to the ECJ, although the ECJ also has appellate jurisdiction from the CFI on points of law. So most of the following applies to the CFI as well, unless otherwise stated.

Composition

The ECJ currently has 27 judges, one from each member state (Art. 221), or 'at least one' for the CFI (Art. 224). There are also eight advocates-general, whose job is to present a reasoned opinion to the judges of the ECJ on the issues at stake. The AG's opinion is not binding, but seems to be followed more often than not. The judges, despite being appointed by the member states, are expected to be impartial, and not favour the interests of their own states. AGs are not formally attached to the CFI, but they can be requested by the CFI where necessary.

The judges of the ECJ are selected from lawyers of the members states 'entitled to hold the highest judicial office'. This means that in the UK selection is from judges of the Court of Appeal or House of lords.

Purpose

The overarching purpose of the ECJ is to provide definitive rulings on the scope, effect, and interpretation of the EC Treaty and the legislation created under its authority. In many respects, the ECJ appears to exercise similar functions to a 'supreme court' in federal states, ensuring that the laws of subordinate jurisdictions are in compliance with the constitution (the constitution in this case being the EC Treaty, as amended under the Treaty of Lisbon 2009). However, despite the similarities between, for example, the ECJ and the United States Supreme Court, the jurisdiction of the latter to subject Federal law (rather than state law) to judicial review is still somewhat contentious (despite Marbury v Madison). Here, there is no doubt that the ECJ has jurisdiction to rule on the compliance of EU legislation with the Treaty (see, for example, Art. 230).

Technically, the ECJ does not hear appeals from decisions of the courts of member states. Instead it offers interpretations of EC legislation and the Treaties. However, these interpretations are in the context of real cases between real parties, and it is almost unthinkable now that a national court would make a decision against a clear ruling of the ECJ. This means that, in practice, the ECJ does act as a kind of appellate jurisdiction over national courts.

Procedure

The ECJ normally sits in a 'chamber' of 3-7 judges. The full or 'plenary' court is 11-15 judges, and sits only very occasionally. Unlike, for example, the UK Supreme Court (or House of lords), judgments of the ECJ are collegiate; there are no published dissenting views. The published judgment is supposed to represent the consensus view. Of course, there must undoubtedly be dissent on some issues, and this may account for why the published judgments are often not closely reasoned, and do not repay intense scrutiny. Odd as this collegiate decision making may seem to UK lawyers, it has the undoubted benefit of freeing individual judges to decide against their own states' national interests where it seems proper to do so. Moreover, since the ECJ will frequently be taking decisions that go against the national interests of states with entirely different legal traditions, it would be (it is argued) unhelpful to provide dissenting views that member states could try to rally behind.

Jurisdiction

In general, the ECJ (but not the CFI) has jurisdiction to hear the following categories of case:

  • (i) Actions bought by the Commission against member states for noncompliance with its obligations under EC law. (Art. 226)
  • (ii) Actions bought by one member state against another for noncompliance with EC law. (Art. 227) (In practice these actions are rare, as the Commission has proven itself to be an enthusiastic litigator, and it is more 'cost effective' for the member states to allow the Commission to deal with matters of this sort.)
  • (iii) Actions bought against a member state by the Commission for failing to comply with an earlier ruling of the ECJ or CFI (Art. 228, under which the ECJ may now impose financial penalties.)
  • (iv) A whole heap of actions brought against the EU's banking machinery (Art. 237)

The CFI, along with the ECJ, has jurisdiction to hear the following types of case:

  • (i) Actions for annullment of legislation brought under Art. 230-1 (see action for annullment).
  • (ii) Actions against the organs of the EU for failing to act in accordance with their obligations. (Art. 232)
  • (iii) Preliminary rulings on the interpretation of EC law (see preliminary reference procedure). (Art. 234)
  • (iv) Actions against the organs of the EU in tort. (Art. 235, 288)
  • (v) Actions brought against the organs of the EU by its employees. (Art. 236)

Note that although only Art. 230 allows legislation to be annulled, the grounds for annulment articulated in Art. 230 (misuse of powers, etc) may be cited in any action before the ECJ in order to have a particular piece of legislation declared invalid. However, such a declaration of invalidity applies only to the current proceedings; it does not annul the measure itself. This is important because annulment has very significant consequences for everyone in the EU: Art. 230 actions for annulment must be brought within two months. If a declaration of invalidity has the effect of annulling the legislative measure, it would mean that any piece of legislation could be annulled at any point after it was made.

Retroactive Nature of ECJ Decision Making

If an action is brought to the ECJ, and the ECJ makes a decision on the interpretation of EC law, is it deciding 'what the law is presently', or 'what the law has always been'? This is the same problem of retroactive (or retrospective) decision making that bedevils pretty much all legal systems that treat precedent as legal authority (see the problem with precedent for a detailed discussion). If the court sees itself as deciding 'what the law has always been', and that decision conflicts with an earlier decision of the same court, then it is effectively ruling that it erred in past decisions on the matter. If, instead, it sees itself as deciding 'what the law is presently', while allowing the old decision to stand, then the court is effectively creating new law. For some, this admission of judicial legislation would be similarly unsettling.

Much like English courts, whenever the ECJ has considered the matter it has tended to express the view that it is declaring 'what the law has always has been', and not 'what the law is just now'. If that is the case, then its decisions must have retractive effect. But this means that every decision of the ECJ that appears to change, or at least modify, the law thereby creates an opportunity for a litigant to bring an action on the basis that he suffered loss in having following an earlier interpretation of the same law.

The EC Treaty contains certain provisions that act to contain this problem. In particular, if a piece of legislation is annulled under Art. 230, Art. 231 provides that the court may decide how far-reaching that annulment should be. In fact, it is even open to the court to declare that the decision will not be retroactive. Note that such a decision would probably not be as illogical for the ECJ as it would for an English court because, although the ECJ respects precedent, it is not formally bound by precedent.

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