The European Court of Justice

Contents

1. Introduction

2. Members of the European Court of Justice

3. The development of the Court of Justice

4. Area of responsibility
4.1. Action for failure to fulfil Treaty obligations
4.2. Actions for annulment
4.3. Actions for failure to act
4.4. Actions for damages
4.5. Preliminary rulings

5. Activism
5.1. General Principles of Law
5.2. Cases
5.2.1. The new legal order
5.2.2. State liability for breach of EC law
5.2.3. Vertical and horizontal direct effects
5.2.4. Indirect effect

6. Problems and proposals

7. Bibliography

1. Introduction

The great innovation of the European Community in comparison with previous attempts at European unification lies in the fact that the Community uses only the rule of law to achieve that end.

The six founding Member States, aware that unification, if it was to have any chance of lasting success, must be achieved and maintained through legal means, determined that the European Communities should be conceived in a legal instrument - the Treaties of Paris and Rome.

Like any legal system the Community legal system needs a body that will make a determination when Community law is challenged or must be applied. To fulfil that role, the Court of Justice has jurisdiction to hear disputes which can be bought by the Member States, the Community institutions, undertakings or individuals.

2. Members of the European Court of Justice

The Court of Justice comprises 15 judges and 9 advocates general. The judges and advocates general are appointed by common accord of the governments of the Member States and hold office for a renewable term of six years. They are chosen from jurists whose independence is beyond doubt and who are of recognized competence.

The judges select one of their number to be President of the Court for a renewable term of three years. The President directs the work of the Court and presides at hearings and deliberations.

The advocates general assist the Court in its task. They deliver, in open court and with complete impartiality and independence, opinions on the cases brought before the Court.

Their duties should not be confused with those of a prosecutor or similar official - that is the role of the Commission, as guardian of the Community's interests.

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Gil Carlos Rodriguez Iglesias,

President of the European Court of Justice

3. The development of the Court of Justice

Since it was set up in 1952, more than 8,600 cases have been brought before the Court. There were already 200 new cases a year by 1978, and 1985 saw more than 400 cases brought. To cope with the increase while still dealing with cases with reasonable despatch, the Court of Justice amended its Rules of Procedure to enable it to deal with cases more rapidly and requested the Council to set up a new judicial body. In response to that request, the Council set up a Court of First Instance.

The aim of the creation of the Court of First Instance in 1989 was to strengthen the judicial safeguards available to individuals by introducing a second tier of judicial authority and enabling the Court of Justice to concentrate on its essential task, the uniform interpretation of Community law.

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4. Area of responsibility

It is the responsibility of the Court of Justice to ensure that the law is observed in the interpretation and applications of the Treaties establishing the European Community and of the provisions laid down by the competent Community institutions. To enable it to carry out that task, the Court has wide jurisdiction to hear various types of action and to give preliminary rulings.

4.1. Action for failure to fulfil Treaty obligations (Commission against a Member State or Member State against another Member State)

Such proceedings enable the Court of Justice to determine whether a Member State has fulfilled its obligations under Community law. An action may be brought by the Commission - as is practically always the case - or by another Member State. If the Court finds that the obligation has not been fulfilled, the Member State concerned must comply without delay.

However, if, after new proceedings are initiated by the Commission, the Court of Justice finds that the Member State concerned has not complied with its judgment, the Member State has to pay a penalty.

4.2 . Actions for annulment (judicial review of the legality of Community acts)

A Member State, the Council the Commission and, in certain circumstances, the Parliament, may apply to the Court of Justice for the annulment of all or part of an item of Community legislation, and individuals may seek the annulment of a legal measure which is of direct and individual concern to them.

The Court may thus review the legality of the acts of the Community institutions. If the action is well-founded, the contested measure is declared void.

4.3. Actions for failure to act (against the Parliament, Council or Commission

The Court of Justice may also review the legality of a failure to act by a Community institution, and penalize silence or inaction.

4.4. Actions for damages (against Community institutions or servants)

In an action for damages, based on non-contractual liability, the Court of Justice rules on the liability of the Community for damage caused by its institutions or servants in the performance of their duties.

4.5. Preliminary rulings on the interpretation or validity of Community law (references from national courts)

The Court of Justice also has jurisdiction in another very important kind of procedure.

Although the Court is, by its very nature, the supreme guardian of Community legality, it is not the only judicial body empowered to apply Community law.

In cases involving Community law, national courts, if in doubt as to the interpretation or validity of that law, may, and in some cases must, seek a preliminary ruling from the Court of Justice on the relevant questions.

That system, the benefits of which have been amply demonstrated by the large number of questions referred to the Court since it was set up, ensure that Community law is interpreted and applied uniformly throughout the Community.

It is a procedure which, by ensuring permanent cooperation between national courts and the Court of Justice, clearly demonstrates that national courts too are the guardian of Community law.

5. Activism

Whether and how the European Court of Justice starts actions depends on a lot of different factors. Nowadays, times of political changes and European dynamic, the European Court of Justice is more restrained than in the 1970's where the Court has to seek to be activist because of political stagnation. However, activism means in case of Court of Justice, making law. Cases are authoritative interpretations of the Treaty and, as such, are a source of EC Law. The Treaty is only a framework and case law fills in the gaps.

Also, as policy-maker, the Court has developed some basic principles implied in the Treaty, eg direct applicability and direct effect of -EC Law.

5.1. General Principles of Law

One of the general principles of law is recognition of fundamental human rights. These general principles are:

1. They may be invoked as an aid to interpretation of EC Law. EC Law must not be interpreted to conflict with general principles of Law.
2. May be used by States and individuals to challenge the action of EC institutions under ART 230 or 234 or inaction under ART 232
3. May be used to challenge the action of a Member State, where the action is performed under a right or obligation arising from EC Law.
4. May be used as the basis of a claim for damages against the EC under ART 288.

General principles are unwritten law of the EC. The Court bases the incorporation of these principles into EC Law by virtue of 3 Articles in EC Treaty.

ART. 230: Court of Justice may review the legality of EC acts on the basis of... "any rule of Law relating to the application of the Treaty".

ART. 288(2): EC liable in tort - Liability to be determined "in accordance with general principles common to the laws of Member States".

ART 220: The Court of Justice shall ensure that "in the interpretation and application of this Treaty the Law is observed".

5.2. Cases

Following cases reflect the possibility of making law by the European Court of Justice and shows how case law can fill the gaps of the European framework.

5.2.1. The new legal order

Key Principle: The objective of the E.C. is to establish a common market, the operation of which directly concerns interested parties in the Community.

Van Gend en Loos v. Nederlande Admninistratie der Belastinge (Case 26/62) 1963

The Van Gend en Loos company, imported glue from Germany into the Netherlands and was required to pay customs duty under a law adopted after the creation of the EEC. The importers challenged the payment in the Dutch courts on the basis that the extra duty infringed Article 25 of the Treaty. The Dutch court referred questions to the Court of Justice for interpretation under Article 234 procedure.

Held: The EEC is a new legal order in international law, on behalf of which states have limited their sovereign rights in certain fields and whose subjects comprise not only Member States but also individuals; Article 25 of the Treaty produces direct effects in the relationship between the Member States and their subjects, creating individual rights which national court must protect.¹⁹⁶³ E.C.R. 1.

Comment: The "new legal order" is recognised in international law as a treaty between sovereign states but also takes effect within the domestic legal systems of the Member Sates. The order is characterised by the concepts of direct effect and the supremacy of E.C. law over national law. Where a provision of E.C. law is directly effective it creates rights and duties which are directly enforceable by individuals before the national courts. The European Court of Justice stated in Van Gend en Loos that to create direct effects a provision must be clear, unconditional and require no further action by Member States.

5.2.2. State liability for breach of EC law

Key Principle: A Member State will be liable for non-implementation of a directive in certain circumstances.

Francovich, Bonifaci and others v Italy (Case C-6 & 9/90) 1991

Italy had failed to implement Directive 80/987 on the protection of workers in the event of insolvency. (The directive required the guarantee of payments of outstanding claims for remuneration and the creation of guarantee institutions to meet those claims.) Italy's breach was established by the European Court of Justice in Commission v. Italy (Case 22/87).

Francovich and Bonifaci had outstanding claims against a company declared bankrupt in 1985.

Unable to recover against the company they brought actions in the Italian courts against Italy, requesting that Italy should pay them compensation in the light of the obligation in the directive. Both national courts referred questions to the European Court of Justice to determine the extent of a Member State's liability.

Held: (ECJ) Member States are obliged to compensate individuals for breaches of EC law for which they are responsible if three conditions are satisfied:

1. The objective of the directive must include the conferring of rights for the benefit of individuals.
2. The content of the rights must be identifiable from the directive.
3. There must be a causal link between the breach and the damage.¹⁹⁹¹ E.C.R. I- 5357.

Comment: The European Court of Justice in Francovich stated that the full effectiveness of E.C. law would be impaired if individuals were unable to obtain compensation when their rights were infringed by a breach attributable to a Member State. The principle of state liability is inherent in the scheme of the Treaty. The duty on Member States to compensate derives from Article 10 (ex 5) which obliges them to ensure fulfilment of their obligations under E.C. law.

State liability under Francovich applies to obligations which may not be directly effective and provides a remedy in the event of non-implementation (or inadequate implementation) of EC law.

5.2.3. Vertical and horizontal direct effects

Vertical Effect means, that individuals are given the right against the Member State to whom the Directive is addressed.

Horizontal Effect means that individuals are given rights by Directive against other individuals - Thus, the Directive imposes obligations on these individuals.

Regulations are enforceable vertically and horizontally but Directives are only binding on Member States - They have direct effect only when Member States are at fault in implementing them.

Key Principle: Directives are capable of creating direct effects vertically but not horizontally. Marshall v. South West Area Health Authority (No.1) (Case 152/84)1986

Ms M sought to rely on Article 5 of the Equal Treatment Directive 76/207 when she was required to retire at 60 when men did not have to retire until the age of 65. The House of Lords referred questions to the European Court of Justice.

Held: (ECJ) (1) Differentiating between retirement ages for men and women contravenes Article 5 of the Directive. (2) The obligation in a directive is addressed to Member States and cannot be enforced against individuals. (3) As an area health authority is a public body, the obligation not to discriminate may be enforced directly against that body.¹⁹⁸⁶ E.C.R. 723.

Commentary: Marshall established for the first time that directives could not be enforced directly against individuals, unless the individual is a public body

This judgment shows that individuals, which are employed by public bodies can refer to the direct effect of directives. This raises to the question of equal treatment to private employer. The following case shows how to solve this problem.

5.2.4. Indirect effect

Key Principle: Where a directive is indirectly effective (i.e. not directly effective) national legislation must be interpreted in the light of the wording and purpose of the directive.

Von Colson and Kamann v. Land Nordhein-Westfalen (Case 14/83) 1984

Ms Von Colson and Ms Kamann had applied for posts as social workers in a German prison. The officials responsible for recruitment refused to appoint the two women because of the risks with working in a male prison. They claimed that they should be granted a contract of employment or damages under Article 6 of Directive 76/207. The German courts made an Article 234 reference.

Held: (ECJ) (1) Article 6 of Directive 76/207 does not satisfy the requirements for creating direct effects. (2) The duty of Member States to achieve the results envisaged by the directive and their duty under Article 5 to ensure fulfilment of that obligation binds all authorities within the Member States including the courts. National courts must interpret and apply legislation adopted to implement a directive in the light of the wording and purpose of the directive in order to achieve the objective of the directive.¹⁹⁸⁶ E.C.R. 1891.

Commentary: Rather than treating the question as one concerned with the supremacy of E.C. law over national law, the European Court of Justice developed a rule of construction in Von Colson derived from Article 249 and Article 10.

Through instruction from the European Court of Justice that domestic law, particularly that introduced to implement a directive, must be interpreted by national Courts to achieve the results required by the Directive whether the Defendant was the State, or a private party. This is called indirect effect of directives and the order granted the equal treatment.

6. Problems and proposals

As already shown at the beginning of this paper, the members of the European Court of Justice, the judges and advocates general, are appointed by common accord of the governments of the Member States. That means they are not elected. Secondly, the above explanation has shown, that the European Court of Justice acts on two different fields. They act in a legislative and in a judicial capacity i.e. to both form the law and to interpret and apply the law to cases. With contemplation it is possible to identify the biggest weak point - Missing separation of powers.

In countries like United Kingdom and Germany the separation of powers is well established. The latest history gives examples what could happen, if a state has no separation of powers (German Democracy Republic). Through the separation of legislative, judicative and executive functions it is inherent, that all the power is not in one hand.

The next weak point concerns the power of law making. The European Court of Justice has the power to make law although its judges are not elected. Also, the European Commission, which makes the most of the European law is not elected. In above mentioned countries only elected institutions have the power to make law if unelected bodies decide law and policy. Citizens have no influence over who is responsible.

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Nowadays the number of cases is increasing incredibly. That is one major reason why the European Court of Justice needs reform. The Commission proposes that infringement proceedings against Member States should be ruled upon by the Commission (rather than by the ECJ, as at present). Additionally, the introduction of a filtering system, designed to weed out at a preliminary stage cases of lesser importance from the point of view of the uniformity and development of Community law would prompt national courts and tribunals to exercise selectivity in choosing which questions to refer, and would thus encourage them to exercise yet more fully their functions as Community courts of general jurisdiction.

To solve all these problems it is necessary to change the whole system and not simply the European Court of Justice. The separations powers and the introduction of an election process for the members of the E.C. and the judges of the European Court of Justice would help justify the erosion of member state sovereignty by making the legislative process more fair and transparent in the eyes of all European people and the would serve to promote the harmonisation of Europe.

7. Bibliography

Books:

Cuthbert, M (2000), "Nutshells - EU Law in a Nutshell", 3rd edition, Sweet and Maxwell, London

Kent, P (2000), "Nutcases - European Union Law", 2nd edition, Sweet and Maxwell, London

Craig and de Búrca (1998), "EU Law - Text, Cases and Materials", 2nd edition, Oxford University Press, Oxford

Moussis, N (1997), "Access to European Union", 7th edition, Euroconfidentiel, Genval

Papers:

Elwes, S (2000), "European Community Law 1", Luton

Anonymous (1999), `The future of the judicial system of the European Union', Luxembourg

Anonymous (2000), `The EC Court of Justice and the Institutional reform of the EU', Luxembourg

Miscellaneous:

http://www.curia.eu.int/de/pres.htm http://www.europa.eu.int

http://www.kids.infoplease.lycos.com

http://www.mispatim.mscc.huji.ac http://www.lawreports.co.uk

http://www.parliament.the-stationery-office.co.uk