EU’S JUDICIAL SYSTEM

“The European Economic Community is a Community based on the rule of law inasmuch neither its member states nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter the Treaty” (ECJ, The Green Party v. Parliament, 1986)

2 consequences:

a)both EU institutions and member states must respect EU law, infringements are controlled by the Court of Justice

b)a hierarchy is established between primary and secondary EU law: the later must respect the former

The EU rule of law is ensured by a complex judicial system including both EU and national judges.

On the EU level, judicial review is assigned to the Court of Justice of the European Union, established in 1952. Under this generic name, the Court of Justice of the EU actually consists of threecourts:

the Court of Justice,

the General Court (established in 1988) and

the Civil Service Tribunal (created in 1994).

On the member state level, all national courts and tribunals are bound to review cases within the scope of application of the EU law and ensure that the later is well respected. In other words, the national judge acquires a new function: he becomes a decentralized EU judge. According to the Simmenthal ruling (1978), any provision of national law conflicting EC law should be set aside.

Even if the Court of Justice has no jurisdiction on reviewing national courts’ rulings on EU law cases, judicial cooperation between the EU level and the national one is achieved through the preliminary rulings procedure. This procedure establishes, among others, a channel of dialogue which regulates the relation between the Member State legal system and the EU one.

EU law review by the Court of Justice (I), National law review when conflicting EU law by the national judge (II) and judicial dialogue European and member state courts (III) will be examined as the three basic components of the EU’s judicial system.

I. PROCEEDINGS BEFORE THE ECJ

Starting with the proceedings before the EU’s Court of Justice, we will examine separately four types of actions:

  1. The action for annulment
  2. The proceedings for failure to fulfill an obligation
  3. The action for damages
  4. The proceedings for failure to act
  1. ACTION FOR ANNULMENT (263 and 264TFEU)

The action for annulment consists of a review of the legality of European acts which may lead to the annulment of the act concerned.

This action may be brought against:

•all legal acts;

•acts adopted by the Council, the Commission, the European Central Bank, the European Parliament and the European Council where these acts are intended to produce legal effects vis-à-vis third parties;

•acts adopted by European bodies, offices or organisations where these acts are intended to produce legal effects vis-à-vis third parties;

•measures adopted by the Board of Governors or the Board of Directors of the European Investment Bank, under the conditions of Article 271 of the Treaty on the Functioning of the EU.

In addition, Article 263 of the Treaty on the Functioning of the EU excludes recommendations and opinions from the scope of the CJEU’s jurisdiction. Logically, primary EU law is excluded as well.

Therefore, the action for annulment is brought against all legal binding acts of the EU secondary law.

These acts may be declared void on four different grounds, that is on the 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;

misuse of powers.

The most common ground of annulment is the third one, which is the infringement of EU’s primary law (treaty provisions, additional protocols and declarations,Charter of fundamental rights). Basically, the Court of justice enables and enforces the hierarchy established between primary and secondary EU law.

Example: Directive allowing the conservation of information concerning private phone discussions was challenged with an annulment action for breaching the right to privacy (art.7 Charter) and has been declared void.

PROCEDURAL RULES

When?

Plaintiffs have a period of two months in which to bring an action for annulment. This period begins either from the date of publication of the measure, or of its notification to the plaintiff, or of the day on which it came to the knowledge of the latter.

Where?

The Court of Justice shall have jurisdiction in:

actions brought by Member States against the European Parliament or the Council;

actions brought by an institution against another institution.

The General Court shall have jurisdiction to hear and determine at first instance all other types of action, in particular actions brought by individuals.

The decision rendered by the General Court can then be brought in review before the CJ.

Who?

The question of who can bring an action for annulment to the EU judge is the most controversial one.

The Treaty establishes three types of plaintiffs:

  1. Specific plaintiffs: The Court of Auditors, the European Central Bank and the Committee of the Regions may bring actions against European acts which, in their view, undermine their prerogatives + national parliaments and the Committee of the Regions may henceforth bring actions for annulment against acts which they consider to be contrary to the principle of subsidiarity.
  2. Preferential plaintiffs:EU institutions and Member states and
  3. Non-preferential plaintiffs: individuals

Preferential and non-preferential plaintiffs can both challenge an EU act in annulment, under different conditions though.

  1. PREFERENTIAL PLAINTIFFS:

ANNULMENT ACTION BY EU INSTITUTIONS AND MEMBER STATES

Certain EU institutions (the Commission, the EP and the Council) and Member States can bring an action for annulment before the CJEU without having to demonstrate any interest in taking action.

Indirectly, we hold for granted that both EU institutions and Member states share a common interest in erasing any illegal acts from the EU’s legal order.

  1. NON-PREFERENTIAL PLAINTIFFS:

ANNULMENT ACTION BY INDIVIDUALS

Contrary to the EU institutions mentioned above and Member states, individuals must demonstrate an interest in taking action in order to request the annulment of a European act. Thus, the contested act must be addressed to the plaintiff or must concern him or her directly and individually.

Namely, a natural or a legal person may contest in annulment an individual act (a decision) or an act which, adopted as a regulation, that is a general applied act, actually concerns him directly and individually.

  • Direct concern means that the contested act brings a new obligation for the plaintiff or deprives him of a legal claim, directly that is without any discretional interference of national legislation. An EU Directive cannot be challenged by an individual plaintiff, because of the national implementing act needed.
  • Individual concern means that, despite its formal appearance as a regulation, the act is destined to the specific plaintiff. According to the Plaumann ruling (ECJ, 1963): “ Persons other than those to whom a decision is addressed may only claim to be individually concerned if this decisions affects them by reason of certain attributes which are particular to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed”.

This condition relating to the individual concern renders the exercise of an action for annulment rather difficult for non-preferential plaintiffs (most actions are considered non-admissible on the grounds of the Plaumann case law), questioning the effectiveness of the right to judicial review.

That’s the reason why, in the 2002 Jego-Quere case, the General Court initiated a softer interpretation of art.230EC (263TFEU), opening up the individual concern condition.

First, the General Court relied on the right to effective judicial review, which in prior EU jurisprudence (Johnston, 1986) had been qualified as a general principle of law, bearing henceforth a primary EU law stance.

Secondly, and on this ground, the General Court simplified the individual concern condition stating that a non-preferential plaintiff is indeed individually concerned when the contested EU act affects his legal condition, in a certain and actual manner, by limiting his rights or by imposing new obligations to him.

Invited to review the General Court’s case, the Court of Justice maintained its former jurisprudence in the Jego-Quere ruling (2004).

The Lisbon treaty preparation was seen as a chance to bring a remedy to this limited access of individuals to the Court of Justice. Nevertheless, despite the initial ambitious claims, the amendment brought to art.263TFEUhas a very limited impact: when challenging a regulatory act (i.e an act adopted on implementation of a general legislative act), a non-preferential plaintiff has to demonstrate only the direct concern (and no longer the individual one).

A more substantive remedy can be foreseen in the adherence of the EU in the ECHR, which opens up the perspective of judicial review of EU legal acts by the ECourtHR through actions brought by individual plaintiffs.

Article 263

(ex Article 230 TEC)

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.

The Court shall have jurisdiction under the same conditions in actions brought by the Court of Auditors, by the European Central Bank and by the Committee of the Regions for the purpose of protecting their prerogatives.

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 personor 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.

Acts setting up bodies, offices and agencies of the Union may lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them.

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.

Article 264

(ex Article 231 TEC)

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.

2. Proceedings for failure to fulfill an obligation (258 to 260TFEU)

Proceedings for failure to fulfill an obligation are one of the actions which may be brought before the Court of Justice of the European Union (CJEU). They enable the Court of Justice to control Member States’ compliance with their obligations under European law.These proceedings may be brought by the Commission or by a Member State against a Member State which has not complied with European Union (EU) law.

Nature of the failure

The failure to comply with EU law is broadly interpreted. It can stem from instruments (laws, decrees, administrative decisions, etc.) or be the result of facts (administrative practices, etc.).It can be the consequence of positive behavior (actions) or negative behavior (abstentions, omissions). Thus, actions can, for instance, consist of the adoption of a text contrary to European law or the express refusal to repeal a national measure that is contrary to European law. Abstentions or omissions can, for example, consist of delays in transposing a directive or failure by Member States to notify national implementing measures to the Commission.

The Commission v.France (1997) case concerned the passivity demonstrated by French authorities for more than a decade in face of violent acts committed by private individuals and by protest movements of French farmers directed against agricultural products from other Member States. Those acts consist, inter alia, in the interception of lorries transporting such products in France (particularly strawberries from Spain) and the destruction of their loads, violence against lorry drivers, threats against French supermarkets selling agricultural products originating in other Member States, and the damaging of those goods when on display in shops in France. The Court held that the French Government had manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to the acts of vandalism which jeopardize the free movement of products on its territory and had thus failed to comply to the Treaty.

The act must be attributable to the Member State. For this reason, the concept of State is interpreted broadly by the Court of Justice in that it may mean all of the State bodies such as the government, the parliament, federated entities or sub-national bodies, etc.

Procedural rules

Only the Court of Justice is competent to hear proceedings for failure to fulfill an obligation. Proceedings may be brought either by the Commission, which is most often the case in practice, or by a Member State:

•when the Commission initiates proceedings, it must first address a reasoned opinion to the Member State which has not complied with Union law. If, after a certain period, the Member State has still not rectified its failure to fulfill its obligation, the Commission may then bring proceedings against the Member State before the Court of Justice;

•when a Member State initiates proceedings, it must first bring the matter before the Commission. The Commission then delivers a reasoned opinion after having heard the arguments of the Member States concerned. The plaintiff Member State may then bring the matter before the Court of Justice.

In practice, Member states initiating a proceeding for infringement has been very rare: States tend to solve their differences through diplomatic channels, which offer more space for negotiation, rather than go to Court, which entails publicity. There has been only one case of infringement action brought by a member state in Ireland v. UK (1978).

Once the matter has been referred, if the Court of Justice finds that there has been a failure to fulfill an obligation, it shall deliver its first infringement ruling which includes the measures to be adopted by the Member State in order to rectify the situation.

Subsequently, if the Commission considers that the Member State has not taken the necessary measures, it shall bring the matter before the Court of Justice for a second infringement ruling. If the Court confirms that the Member State has not complied with its first judgment, it may then impose a fine on it.The possibility to impose financial sanctions was added by the Maastricht Treaty, in order to ensure the effectiveness of the infringement proceedings. The fine can either be a lump sum payment or daily penalty payment, or both in cases of serious and persistent failure to comply with EU Law.

Commission v. France (2005): the case concerned compliance by France with Community measures for fisheries conservation. Already in 1991, the ECJ had held, on an application by the Commission, that between 1984 and 1987, France had infringed Community law by letting undersized fish be offered for sale (Judgment of 11 June 1991 in Case C-64/88, Commission v France = first infringement judgment). Following inspection at certain French ports in the course of the subsequent 11 years, the Commission took the view that France was still not yet complying fully with its obligations. Undersized fish were still offered for sale, and the French authorities maintained a lax attitude in enforcing EC rules.After France had not complied with two reasoned opinions addressed to it by the Commission, the Commission finally brought on 27 August 2002 a further action against France before the ECJ. Because of the persisting failure (from 1984 to 2002) to comply with EU law, the Court decided to impose both a penalty payment and a lump sum.

Despite the determination of the Commission and the Court of Justice to ensure a strict application of EU law by Member States, infringement proceedings can prove to be ineffective because of the long procedure they entail. It normally takes years before the Court of justice can impose a financial sanction.

That’s why the Lisbon Treaty introduces a shortcut when the infringement is about the obligation to transpose a directive (the failure to comply with this obligation concerns the vast majority of infringement proceedings). When a Member State does not communicate the measures for transposing a directive to the Commission or when a Member State has transposed a directive not fully or incorrectly, the Court may impose a pecuniary penalty on the Member State concerned from the date of the first judgment on the failure to fulfill an obligation. This can either be a daily penalty or a lump sum payment, or both in case of severe infringement.