ECJ
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 03 October 2022

ECJ’s role
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•Review of all European law measures
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•Review of the acts of member states
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•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)
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EU Competences
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•Why is it important? Compared to nat.parliament, if EU legislates, it needs to justify its
authority to do so
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•EU does not have INHERENT powers, they must be conferred
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•i.e. constitutional principle of conferral
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•Legislative competence = material field within which an authority (EU) can act (legislate)
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•Problem: instead of list, different types of competences in individual policies
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EU Competences
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•Understanding of these thematic competences further complicated by
1.Spill-over into other policy areas (i.e. the list is not definitive)
2.Rise of EU’s general competences according to A 114 and A 352
- These are two different additions to thematic competences EU has
3.Doctrine of implied powers
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EU Competences
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•1. Spill-over
•Follows from a soft conferral principle (EU has authority to interpret whether it has a
competence)
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•The Working Time Directive (C-84/94), includes provision that allows the Union to encourage
improvements, especially in the working environment, as regards the health and safety of workers.
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•Can EU adopt legislation on general organization of working time?
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EU Competences
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EU Competences
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•Case Casagrande C-9/74
•Abolishment of discrimination between diff. MS  as regards employment, remuneration and other
conditions of work – in order to facilitate the free movement of persons in the internal market. EU
legislation also facilitates integration of worker and his/her family into the host state (children
shall be admitted to general educational etc. courses under the same conditions as the nationals of
that state, if such children are residing in the state’s territory.
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•ECJ interpreted admission of workers’ children as related also to general measures intended to
facilitate educational attendance: including educational grants
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EU Competences
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EU Competences
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•3. Implied powers
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•= treaty-making powers, or external powers
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Infringement
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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.
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•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.
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Article 259 TFEU
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•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.
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•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.
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•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.
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•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.
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Infringement
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Article 260 TFEU
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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.
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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.
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•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.
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•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.
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Infringement
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•Most famous cases?
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Infringement
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•Most famous cases?
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•Article 258 (initiated by the Commission)
•Poland & Hungary: violation of LGBQI rights
•Commission v Poland (C-791/19)
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•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
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•Sanctions?
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https://www.thenewfederalist.eu/the-enemy-within-article-259-and-the-union-s-intergovernmentalism?l
ang=fr
Hungary vs Slovakia: Slovak Republic Did Not Violate EU Law in Banning the President of Hungary
from Entering Its Territory. Hungarian President László Sólyom was scheduled to travel on August
21, 2009, to the Slovakian town of Komárno, where he was to help inaugurate a statue of Saint
Stephen, founder and first king of the Hungarian State.7 The timing of the trip was notable for
both countries. In Hungary, August 20 is a national holiday celebrating Saint Stephen, while in
Slovakia, August 21 is considered a “sensitive date” because on August 21, 1968, Czechoslovakia was
invaded by five Warsaw Pact countries, including Hungary
the public security exception to Directive 2004/38
“EU law must be interpreted in the light of the relevant rules of international law, since
international law is part of the EU legal order and is binding on [those] institutions.”37 Thus,
the court reasoned, the relevant inquiry was whether President Sólyom’s status as the Hungarian
head of state “constitute[d] a limitation, on the basis of international law,” on his free movement
rights.
Right to vote - Commonwealth citizens residing in Gibraltar and not having citizenship of the
Union. Spain v. UK concerns the Spanish allega-tion that an extension of the right to vote for the
European Parliament to cer-tain inhabitants of the Crown Colony of Gibraltar who do not have
British nationality (the so-called Qualifying Commonwealth Citizens) is an infringe-ment of EU law.

Annulment
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Article 263 TFEU
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•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.
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•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.
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•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.
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•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.
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Annulment
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Article 264 TFEU
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If the action is well founded, the Court of Justice of the European Union shall declare the act
concerned to be void.
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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.
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Annulment
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•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
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•Applicants
•Privileged  (MS, EP, Council, Commission)
•Semi-privileged (Court of Auditors, Committee of Regions)
•Non-privileged (individuals)
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•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
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•Famous cases?
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Action for Failure to Act
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•Article 265 TFEU
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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.
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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.
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Article 266 TFEU
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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.
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European Commission v. European Parliament and European Council, European Union Court of Justice
(2014, no. C‑427/12)
472 cases

Preliminary Ruling Procedure
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Article 267
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•The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings
concerning:
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•(a) the interpretation of the Treaties;
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•(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of
the Union;
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•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.
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•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.
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•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.
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ECJ and European Integration
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•Conventional prototype of courts
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•Independent courts
•Decide cases on the basis of preexisting rules
•Adversary procedure, dichotomous ruling (i.e. winners x losers)
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• who are the parties?
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•Appeal
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•Triadic resolution of conflicts

Courts
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Ginsburg – Versteeg 2014

Why are states willing to have independent judicial review?
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Theories
•Ideational
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•Strategic
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•Diffusion of norms

Ideational accounts instead emphasized the importance of rights protection and the rule of law, or
the need to be protected from the vagaries of government action . one of the core premises of the
ideational story is that a “mature democracy,” in Ronald Dworkin’s (1990) words, must protect
itself from the tyranny of the majority through judicial protection of rights
In addition, there is a recent but growing literature on cross-national diffusion of constitutional
norms, which suggests that provisions might be adopted in response to constitutional developments
in foreign states

Questions about courts
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•What influences their position in a political system?
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•What influences courts in their decisions?
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•What influences judges in their decisions?

Questions about courts
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•Strategic approach (Epstein – Knight)
•Behavioral approach (Gillman)
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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
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•Bickel: non-majoritarian difficulty
•Bork: juristocracy
•Hirschl: judicialization of politics
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•Dahl: Decision-making in a democracy
•Ely: protection of minorities
•Checks and balances
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•Dworkin: rights as trumps

In Taking Rights Seriously, Ronald Dworkin develops his idea of rights as trumps. His main idea is
that there are some moral rights against Government.According to him, not all Constitutional rights
represent such moral rights, “[b]ut those Constitutional rights that we call fundamental like the
right of free speech, are supposed to represent rights against the Government in the strong sense;
that is the point of the boast that our legal system respects the fundamental rights of the
citizen” (DWORKIN, 1977, p. 191).

EU Law
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•Primary
•Treaties (IL)
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•Secondary
•Directives
•Regulations
•Decisions
•Opinions
•Tertiary
•Recommendations, soft law

Court of Justice of the European Union
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•Court of Justice
•General Court (Court of First Instance, CFI 1988)
•Civil Service Tribunal (2004, 2016 -> GC)
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•Why not Supreme Court, High Court, etc.?

Court of Justice - 2019
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https://curia.europa.eu/jcms/upload/docs/image/jpeg/2020-01/2019_01_15_photo_chorale_cour.jpg

Court of Justice - 2019
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Court of Justice of the European Union
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•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.”
Palais de la Cour de Justice CJEU July 2021 Sign and Towers B and C.jpg
https://upload.wikimedia.org/wikipedia/commons/thumb/d/d7/Villa_Vauban_Luxembourg_02.jpg/250px-Vill
a_Vauban_Luxembourg_02.jpg

Composition CoJ
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•Luxembourg
•27 judges
•11 advocate generals
•Registrar
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•Grand chamber
•Chamber of 3
•Chamber of 5
•Full sitting

Core principles
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•Direct effect
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•(su)premacy
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•State liability
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•Fundamental rights

CJEU Annual Report 2020
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CJEU Annual Report 2020
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CJEU
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CJEU
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CJEU
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CJEU
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CJEU
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CJEU
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CJEU
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CJEU
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CJEU
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How to Read a Legal Opinion
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•Orin KERR: How to Read a Legal Opinion
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•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; Advocate-general: K. Roemer; Registrar: A Van
Houtte
•Facts of the Case
•Law of the Case
•Separate (Concurring and/or Dissenting Opinions)
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How to Read a Legal Opinion
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•Facts
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•Legal Arguments by the Parties
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•Disposition (the action the court took – affirm, reverse, etc.)
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•Reasoning
•Source of the law
•Method of reasoning (following statute, precedent, public policy ground, morality)
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•Significance of the Opinion
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•Final ruling
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•Separate Opinion
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CJEU and domestic courts
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AC: no scope for reasonable doubt, equally obvious to other member state courts, analysis using
authentic interpretation of the EU law, language equivalence, contextual reading

CJEU and domestic courts
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Van Gend: dutch preliminary question, on article 12 TEC
Set out the authority of ECJ

CJEU and domestic courts
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•Who refers and why?
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•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
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•“[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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Van Gend: dutch preliminary question, on article 12 TEC
Set out the authority of ECJ

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