ECJ
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 29 September 2021
Principle of conferral: TEU
Article 4
1. In accordance with Article 5, competences not conferred upon the Union in the Treaties
remain with the Member States.
…
Article 5
1. The limits of Union competences are governed by the principle of conferral. The use of
Union competences is governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the
competences conferred upon it by the Member States in the Treaties to attain the
objectives set out therein. Competences not conferred upon the Union in the Treaties
remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive
competence, the Union shall act only if and in so far as the objectives of the proposed
action cannot be sufficiently achieved by the Member States …
4. Under the principle of proportionality, the content and form of Union action shall not
exceed what is necessary to achieve the objectives of the Treaties.
ECJ’s role
• Review of all European law measures
• Review of the acts of member states
• Infringement proceedings (enforcing the law)
• Actions for annulment (annulling EU legal acts)
• Actions for failure to act (ensuring the EU takes action)
• Preliminary rulings (interpreting the law)
• Actions for damages (sanctioning EU institutions)
Infringement
Article 258 TFEU
• If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it
shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to
submit its observations.
• If the State concerned does not comply with the opinion within the period laid down by the
Commission, the latter may bring the matter before the Court of Justice of the European Union.
Article 259 TFEU
• A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring
the matter before the Court of Justice of the European Union.
• Before a Member State brings an action against another Member State for an alleged infringement of an obligation under
the Treaties, it shall bring the matter before the Commission.
• The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to
submit its own case and its observations on the other party's case both orally and in writing.
• If the Commission has not delivered an opinion within three months of the date on which the matter was brought before it,
the absence of such opinion shall not prevent the matter from being brought before the Court.
Infringement
Article 260 TFEU
1. If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation
under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of
the Court.
2. If the Commission considers that the Member State concerned has not taken the necessary measures to
comply with the judgment of the Court, it may bring the case before the Court after giving that State the
opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be
paid by the Member State concerned which it considers appropriate in the circumstances.
• If the Court finds that the Member State concerned has not complied with its judgment it may impose a
lump sum or penalty payment on it.
3. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the
Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted
under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or
penalty payment to be paid by the Member State concerned which it considers appropriate in the
circumstances.
• If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the
Member State concerned not exceeding the amount specified by the Commission. The payment obligation
shall take effect on the date set by the Court in its judgment.
Infringement
• Most famous cases?
Infringement
• Most famous cases?
• Article 258 (initiated by the Commission)
• Poland & Hungary: violation of LGBQI rights
• Commission v Poland (C-791/19)
• Article 259 (initiated by the Member State)
• Hungary v Slovak Republic (C-364/10)
• Spain v United Kingdom (C-145/04)
• Dutch Tweede Kamer resolution?
• Commission v Poland (C-791/19) intervention of 5 member states
• Sanctions?
Annulment
Article 263 TFEU
• The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the
Council, of the Commission and of the European Central Bank, other than recommendations and
opinions, and of acts of the European Parliament and of the European Council intended to produce legal
effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the
Union intended to produce legal effects vis-à-vis third parties.
• It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament,
the Council or the Commission on grounds of lack of competence, infringement of an essential procedural
requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of
powers.
• Any natural or legal person may, under the conditions laid down in the first and second paragraphs,
institute proceedings against an act addressed to that person or which is of direct and individual concern
to them, and against a regulatory act which is of direct concern to them and does not entail implementing
measures.
• The proceedings provided for in this Article shall be instituted within two months of the publication of the
measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the
knowledge of the latter, as the case may be.
Annulment
Article 264 TFEU
If the action is well founded, the Court of Justice of the European Union shall declare the act concerned to be
void.
However, the Court shall, if it considers this necessary, state which of the effects of the act which it has
declared void shall be considered as definitive.
Article 266 TFEU
The institution whose act has been declared void or whose failure to act has been declared contrary to the
Treaties shall be required to take the necessary measures to comply with the judgment of the Court of
Justice of the European Union.
Annulment
• i.e. Review of legality of
• Legislative acts
• Acts of Council, European Commission and ECB
• Acts of European Parliament and European Council intended to produce legal effects vis-à-vis 3rd
parties
• Applicants
• Privileged (MS, EP, Council, Commission)
• Semi-privileged (Court of Auditors, Committee of Regions)
• Non-privileged (individuals)
• Grounds
• Lack of competence
• Infringement of procedural requirement (C-138/79 SA Roquette Frères v Council and C-139/79
Maizena GmbH v Council)
• Infringement of Treaties or Charter
• Infringement or RoL related to the application of Treaties
• Misuse of powers
• Famous cases?
Action for Failure to Act
• Article 265 TFEU
Should the European Parliament, the European Council, the Council, the Commission or the European
Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the
Union may bring an action before the Court of Justice of the European Union to have the infringement
established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union
which fail to act.
The action shall be admissible only if the institution, body, office or agency concerned has first been called
upon to act. If, within two months of being so called upon, the institution, body, office or agency concerned
has not defined its position, the action may be brought within a further period of two months.
…
Article 266 TFEU
The institution whose act has been declared void or whose failure to act has been declared contrary to the
Treaties shall be required to take the necessary measures to comply with the judgment of the Court of
Justice of the European Union.
Preliminary Ruling Procedure
Article 267
• The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
• (a) the interpretation of the Treaties;
• (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
• Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may,
if it considers that a decision on the question is necessary to enable it to give judgment, request the Court
to give a ruling thereon.
• Where any such question is raised in a case pending before a court or tribunal of a Member State against
whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter
before the Court.
• If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a
person in custody, the Court of Justice of the European Union shall act with the minimum of delay.
HR in the enlargement process
• Matthews v Doego case
• ‘Article 237 of the EEC Treaty must be interpreted as meaning that, in
addition to the requirements which it lays down for the application and
agreement, it permits the accession of a State to the European Economic
Community only if that State is a European State; and its constitution
guarantees, on the one hand the existence and continuance of a
pluralistic democracy and, on the other hand, effective protection of
human rights.’
• The Draft Treaty establishing the European Union 1984 (Spinnelli)
• 1989 EP resolution Declaration of Fundamental Rights and Freedoms –
one of EC tasks is to contrinute to the propagation of democracy based on
respect of FR
• Democratic reunification of Europe
Copenhagen Criteria
• Definition of fundamental values and political conditions of membership
• Take over the definition of democratic character imposed by A237 EEC
Treaty
• To minimize the risk of backsliding
• Democracy
• Rule of law
• Functioning of market economy
• 1998: transformed into Council Regulation EC No 622/98
• The very same year, democratic principles in Preamble and Article F TEU
= new Grundnorm
• Amsterdam: transfer of Copenhagen criteria into Article 7
• And membership criteria: Article 49
ECJ and European Integration
• Conventional prototype of courts
• Independent courts
• Decide cases on the basis of preexisting rules
• Adversary procedure, dichotomous ruling (i.e. winners x losers)
• who are the parties?
• Appeal
• Triadic resolution of conflicts
Courts
Ginsburg – Versteeg 2014
Why are states willing to have independent judicial
review?
Theories
• Ideational
• Strategic
• Diffusion of norms
Questions about courts
• What influences their position in a political system?
• What influences courts in their decisions?
• What influences judges in their decisions?
Questions about courts
• Strategic approach (Epstein – Knight)
• Behavioral approach (Gillman)
Gibson: “Judge’s decisions are a function of what they prefer to do,
tempered by what they think they ought to do, but constrained by what they
perceive is feasible to do.”
Critique of courts
• Bickel: non-majoritarian difficulty
• Bork: juristocracy
• Hirschl: judicialization of politics
• Dahl: Decision-making in a democracy
• Ely: protection of minorities
• Checks and balances
• Dworkin: rights as trumps
EU Law
• Primary
• Treaties (IL)
• Secondary
• Directives
• Regulations
• Decisions
• Opinions
• Tertiary
• Recommendations, soft law
Court of Justice of the European Union
• Court of Justice
• General Court (Court of First Instance, CFI 1988)
• Civil Service Tribunal (2004, 2016 -> GC)
• Why not Supreme Court, High Court, etc.?
Court of Justice - 2019
Court of Justice - 2019
Court of Justice of the European Union
• Eric Stein (1981 AJIL)
“Tucked away in the fairyland Duchy of Luxemburg and blessed until
recently, with the benign neglect by the powers that be and the mass media,
the Court of Justice of the European Communities has fashioned a
constitutional framework for a federal-type structure in Europe.”
Composition CoJ
• Luxembourg
• 27 judges
• 11 advocate generals
• Registrar
• Grand chamber
• Chamber of 3
• Chamber of 5
• Full sitting
Core principles
• Direct effect
• (su)premacy
• State liability
• Fundamental rights
CJEU Annual Report 2020
CJEU Annual Report 2020
CJEU
CJEU
CJEU
CJEU
CJEU
CJEU
CJEU
CJEU
CJEU
How to Read a Legal Opinion
• Orin KERR: How to Read a Legal Opinion
• Caption Costa v ENEL
• Case Citation European Court of Justice, Judgment of 15 July 1964, Cost a /
E.N.E.L.
• Author The Court: A.M. Donner, President, Ch.L. Hammes and A. Trabucchi,
Presidents of Chambers, L. Delvaux and R. Lecourt (rapporteur), judges; Advocategeneral:
K. Roemer; Registrar: A Van Houtte
• Facts of the Case
• Law of the Case
• Separate (Concurring and/or Dissenting Opinions)
How to Read a Legal Opinion
• Facts
• Legal Arguments by the Parties
• Disposition (the action the court took – affirm, reverse, etc.)
• Reasoning
• Source of the law
• Method of reasoning (following statute, precedent, public policy ground, morality)
• Significance of the Opinion
• Final ruling
• Separate Opinion
CJEU and domestic courts
• Possibility v obligation
• Change of the case law
• Validity of EU acts
• C-293/12 and C-594/12 Digital Rights Ireland
• Interpretation of the EU law by the court of the last instance
• 283/81 CILFIT – CILFIT criteria
• there is no obligation if
• a) the interpretation of EU law has no connection to the result of the dispute
• b) acte clair doctrine
• c) acte éclairé doctrine
• Herculean judge?
• What about constitutional courts?
CJEU and domestic courts
• What preliminary rulings are courts referring?
• 1) Do provisions of EU law have direct effect?
• Van Gend en Loos
• 2) How to interpret provisions of EU law?
• 3) Conformity of domestic legislation with EU law
CJEU and domestic courts
• Who refers and why?
• Judicial attitudes and educational background
• Patterns of transnational economic exchange
• Public support for integration
• Democratic aversion to judicial power
• Legal culture
• Economic clusters
• Institutional differences among domestic courts
• strategic behavior of lower courts
• “[O]ver the entire life of the Community, appellate courts have been more active
than lower courts in referring questions to the European Court. If we consider the
fact that there are many more lower than appellate courts, and that lower courts
process the vast bulk of national litigation, this discrepancy is all the more striking.
Because a core function of appellate judging is to resolve disputes involving legal
interpretation and conflict of law, we would expect the appellate courts to be far
more involved in the construction of the legal system than Alter imagines them to
be.” (Stone Sweet and Brunell 1998: 90)
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