1 - The CJEU as an Institution Flashcards by Eline D'hoore

Outline of the lecture? (4)

1/ institutions of the EU, the CJEU

2/ role of the CJEU in the EU constitutional order (tasks and competences)

3/ judicial activism?

4/ the CJEU and the ECtHR

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What were the 6 EC/EU institutions before Lisbon?

1/ Council of the EU

2/ EP

3/ Commission of the European Communities

4/ Court of Justice of the European Communities (ECJ)

5/ European Court of Auditors

6/ European Council

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Which Article of the TEU codifies the different EU institutions?

Article 13 TEU

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Which are the 7 EU institutions according to TEU (i.e. after Lisbon)?

1/ Council

2/ EP

3/ European Commission

4/ Court of Justice of the EU (CJEU)

5/ European Court of Auditors

6/ European Council

7/ ECB

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Where is the CJEU seated?

Luxemburg

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Which were the 3 components of the ECJ (i.e. pre-Lisbon)?

1/ Court of Justice

2/ Court of First Instance

3/ Judicial chambers

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After Lisbon, what does the CJEU as an institution consist of? (3)

See Article 19 TEU

1/ Court of Justice

2/ General Court

3/ Specialised courts (e.g. EU Civil Service Tribunal until 2016)

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What did the Strack judgment illustrate? (2)

1/ worst case scenario of agreement/disagreement (EC -> CST -> GC -> ECJ)

2/ shows that the different components of the CJEU can come to very different solutions although they form part of the same institution

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What is the ECJ composed of? (2)

1/ 27 judges

2/ 10 Advocates General

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What is the GC composed of?

54 judges

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Characteristics of judges at the CJEU? (4)

1/ see Article 253 TFEU

2/ independent

3/ very good lawyers

4/ appointed by MS for 6 years

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What is new under Lisbon Treaty regarding judges of the CJEU? (3)

1/ see Article 255 TFEU

2/ there now exists a panel of 7 members

3/ task: give an opinion on candidates’ suitability to be a judge/AG

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Characteristics of Advocates General? (3)

1/ see Article 252 TFEU

2/ impartial and independent

3/ make reasoned submissions (‘Opinions’) on cases before the Court of Justice

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How many AGs are there in the Court of Justice? (3)

1/ see Declaration no. 38 and Article 252 TFEU

2/ 5 permanent AGs (Germany, France, Italy, Spain, Poland)

3/ 5 rotating AGs

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What is the general task of the CJEU? (2)

1/ see Article 19(1) TEU

2/ ensure observance of the law in interpretation + application of the Treaties (i.e. TEU and TFEU)

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What are the 3 categories of competences/jurisdiction of the CJEU?

See Article 19(3) TEU

1/ direct actions, dispute settlement

2/ preliminary rulings at request of national judges

3/ other tasks (e.g. advisory opinions on draft int. agreements)

Which types of disputes can be object of a direct action before the CJEU? (4)

1/ Institution vs. institution

2/ MS vs. MS

3/ MS vs. institution (or vice versa)

4/ Private individuals vs. institution (first GC, then ECJ)

Which institution is competent to give preliminary rulings? (2)

1/ see Arts. 256(3) and 267 TFEU

2/ only the ECJ, never the GC

Who can be involved in cases leading to requests for a preliminary ruling? (2)

1/ private ind. vs MS

2/ private ind. vs private ind.

Which Article clearly lays down the 3 heads of the CJEU’s jurisdiction?

Article 19(3) TEU

What is an interesting discussion regarding the CJEU and judicial activism? (4)

1/ does CJEU merely interpret and apply EU law?

2/ or does CJEU sometimes make the law?

3/ there are many different opinions on this

4/ cf Schutze: ‘activist jurisprudence’

What are illustrations of the discussion on the CJEU’s judicial activism? (4)

1/ case law on standing of the EP before the ECJ

2/ pcple of State liability for breaches of EU law

3/ case law on vertical and horizontal direct effect of pcple of non-discrimination on the grounds of age

4/ case law on rights of aircraft passengers, extending their right of financial compensation to situations of delay (on top of denied boarding or cancellation flight)

Considerations surrounding case law on standing of EP before ECJ? (4)

1/ initially, EP not mentioned in Treaties

2/ in Les Verts, ECJ ruled that action against an EP measure ‘intended to have legal effects vis a vis 3rd parties’ is admissible

3/ in Chernobyl I, ECJ ruled that EP may bring an action for annulment in order to protect its own prerogatives

4/ both these rulings were codified by Treaty of Maastricht (cf Art. 263(1)(2) TFEU)

Underlying argument in Les Verts?

Increased EP powers

Underlying argument in Chernobyl I?

Institutional balance

Considerations surrounding case law on State liability for breaches of EU law? (2)

1/ not a word about it in Treaties 2/ see however Francovich case law

Considerations surrounding case law on non-discrimination on grounds of age? (3)

1/ see Mangold and Kucukdeveci 2/ no direct effect of Article 19 TFEU and Directive 2000/78/EG in Mangold case 3/ however, pcple of non-discrimination on grounds of age was ruled to have both vertical and horizontal direct effect and could be invoked by individuals

What happened subsequently to Mangold and Kucukdeveci case law? (2)

1/ see Danish CC in AJOS 2/ refused to apply Mangold/Kucukdeveci

Considerations surrounding case law on rights of aircraft passengers? (2)

1/ Regulation 261/2004: passengers entitled to financial compensation only in case of denied boarding/cancellation of flight 2/ in Sturgeon, confirmed in Nelson: CJEU ruled that delay of at least 3 hours = denied boarding/cancellation of flight => financial compensation

Considerations surrounding CJEU and ECtHR? (4)

1/ they are 2 different 'supreme' courts in Europe 2/ they belong to 2 different IOs 3/ they are usually very friendly towards each other (e.g M.S.S./N.S. rulings) 4/ but sometimes, they disagree or seem to disagree (e.g. Emesa Sugar)

What did ECtHR rule in M.S.S. case? (3)

1/ very bad detention and living situation in Greece and Belgium 2/ therefore asylum seekers should not be sent back there 3/ otherwise, violation of Article 3 ECHR (inhuman and degrading treatment)

What did ECJ rule in N.S. case? (3)

1/ although Dublin Regulation not recognised invalid 2/ ruled that MS must use the possibility of Art. 3(2) DR, i.e. examine application for asylum although not its primary responsibility under Dublin criteria 3/ N.S. ruling now codified in Article 3(2) Dublin III

Considerations surrounding apparent disagreement btwn ECtHR and CJEU in Emesa Sugar case law? (4)

1/ ECtHR in Vermeulen: private litigant has a right to respond to opinion of the AG in national courts 2/ ECJ in Emesa Sugar: private litigant may not respond to opinion of the AG at the ECJ, ECtHR case law is not transposable 3/ ECtHR in Emesa Sugar: action is inadmissible 4/ as such, it is unclear whether a serious disagreement exists

What can be said about the future relations between the CJEU and the ECtHR? (4)

1/ CFR is legally binding since Lisbon (Art. 6(1) TEU) 2/ HR are GPEULs (Art. 6(3) TEU) 3/ at the same time, EU has an obligation to accede to the ECHR (Art. 6(2) TEU) 4/ but negative Opinion 2/13 of the ECJ