The Court of Justice of the European Union (ECJ)

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The Court of Justiceof the European Union (ECJ)

• the least known institution

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Famous cases?

• The Bosman case
• Union Royale belge des societes de football
  association ASBL v Bosman (1995)
• freedom of movement - of footballers, the
  transfer rules thrown out by ECJ as they were an
  obstacle to free movement of workers (ART 39 TEC)

• Cassis de Dijon (1979)
• ECJ gave the Commission an opportunity to develop
  the principle of mutual recognition, underpinned
  the Single Market

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Purpose of the ECJ

• to ensure that in the interpretation and
  application of the treaties the law is
  observed Art. 220 TEC

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Sources of Community law

• Primary Legislation
• The original treaties, the treaties of accession,
  treaty amendments
• Secondary Legislation
• Laws made in accordance with the treaties

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ECJ approach

• The original treaties seen as the basis of a
  constitutional framework for the EU ECJ has
  shown that the EUs constitution is based on
  custom and shared values, as well as on treaties
  and secondary legislation

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Basic rules of EC law (1)

• Direct effect
• Van Gend en Loos (1962) Art25TEC
• the article in question had direct effect because
  it contained a clear and unconditional
  prohibition any unconditionally worded
  treaty provision, being self-sufficient and
  legally complete
• Grad v. Finanzamt Traunstein (1970)
• Directives also had direct effect if it contained
  a clear and unconditional obligation on a member
  state and had not been implemented by that state
  within the period prescribed in the directive

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Basic rules of EC law (2)

• Supremacy of Community law
• Costa v ENEL (1964)
• Member states had definitively transferred
  sovereign rights to the Community and that
  Community law could not be overridden by domestic
  legal provisions without the legal basis of the
  Community itself being called into question
• Simmenthal v Commission (1978)
• every national court must apply Community law
  in its entirety and must accordingly set aside
  any provisions of national law which may conflict
  with it

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Types of cases how do you get a case to the ECJ

• Requests from national courts for preliminary
  ruling on points of EC law
• Actions brought directly to the Court by other
  institutions, member states, or natural and legal
  persons
• Appeals against judgements of the Court of First
  Instance, the ECJs lower court

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preliminary ruling (1)

• If an individual argues before a national court
  that a national law or policy conflicts with EC
  law, if the court is unable/unwilling to resolve
  the dispute itself based on previous EC case law,
  court may seek authoritative guidance from the
  ECJ by making a preliminary ruling request.

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Preliminary rulings (2)

• Do national courts request p.rs.
• YES! National courts do use this mechanism
• In fact, it is surprising that so many lower
  national court judges do apply for preliminary
  rulings
• the National judge in his capacity as Community
  Judge, becomes the upholder of Community Law in
  his own member state

• WHY?
• This ensures uniform interpretation and
  application of Community law in each member state
• How useful?
• A powerful tool, strengthens Community law and
  the ECJs role within the system
• Citizens can use it to ascertain compatibility
  of national and Community law

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Direct Actions

• Cases brought by Commission against a member
  state, or by a member state against another
  member state for failing to fulfill a legal
  obligation
• 100 a year

• Cases against the Commission, Council, EP or ECB
  concerning the legality of a particular
  regulation (Art. 241)
• Called proceedings for annulment e.g. Isoglucose
  (1980)

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Direct Actions

• Cases brought by member states or other
  institutions against the Commission, Council, EP,
  for failure to act (Art. 232
• Parliament v Council (1985)

• Cases for damages against the EU for the wrongful
  act of an EU institution or an EU servant (Arts.
  235, 288)
• Actions to establish liability
• Staff cases unfair dismissal

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Impact of EC Case law

• EC case law has profoundly advanced the
  objectives of the treaties (1999,Dinan, P.308)
• Landmark rulings have been decisive in helping to
  achieve EUs economic and social goals

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Impact of EC Case law

• Some practical examples
• Freedom of movement of goods Cassis de Dijon
  (1979)
• Social policy area of equality Defrenne 1971
  Barber (1990) on equal rights for men and women
  in occupational pension schemes

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Impact of the ECJ

• the impact of the ECJ on the European policy
  process is undeniable and well embedded (1996
  Wallace P. 61)
• ECJ has endorsed a set of values to underpin
  European governance (Joseph Weiler, in Wallace P.
  61)

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ECJ a source of ideas

• It is a source of ideas as it has explained
  general principles of European law
• Equality
• Legal certainty
• Fundamental rights
• Direct effect
• Proportionality

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Resistance to the ECJ

• National courts, do not always accept easily
  supremacy of European law or its judgements on
  individual cases
• National politicians do not always accept the
  constraints that the ECJ sets on them
• Commission it is not always easy to prove its
  interpretations

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Resistance to the ECJ more focused and
tenacious now, but no major challenges

• Ruling on TEU from Bundesverfassungsgericht,
  October 1993, suggested that acceptance of EU
  decisions and of ECJ rulings could not be taken
  for granted
• Some governments might like to limit the
  influence of the ECJ by treaty amendment