1 - The CJEU as an Institution

Question 1

Outline of the lecture? (4)

Answer 1

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

Question 2

What were the 6 EC/EU institutions before Lisbon?

Answer 2

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

Question 3

Which Article of the TEU codifies the different EU institutions?

Answer 3

Article 13 TEU

Question 4

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

Answer 4

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

Question 5

Where is the CJEU seated?

Answer 5

Luxemburg

Question 6

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

Answer 6

1/ Court of Justice

2/ Court of First Instance

3/ Judicial chambers

Question 7

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

Answer 7

See Article 19 TEU

1/ Court of Justice

2/ General Court

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

Question 8

What did the Strack judgment illustrate? (2)

Answer 8

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

Question 9

What is the ECJ composed of? (2)

Answer 9

1/ 27 judges

2/ 10 Advocates General

Question 10

What is the GC composed of?

Answer 10

54 judges

Question 11

Characteristics of judges at the CJEU? (4)

Answer 11

1/ see Article 253 TFEU

2/ independent

3/ very good lawyers

4/ appointed by MS for 6 years

Question 12

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

Answer 12

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

Question 13

Characteristics of Advocates General? (3)

Answer 13

1/ see Article 252 TFEU

2/ impartial and independent

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

Question 14

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

Answer 14

1/ see Declaration no. 38 and Article 252 TFEU

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

3/ 5 rotating AGs

Question 15

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

Answer 15

1/ see Article 19(1) TEU

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

Question 16

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

Answer 16

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)

Question 17

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

Answer 17

1/ Institution vs. institution

2/ MS vs. MS

3/ MS vs. institution (or vice versa)

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

Question 18

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

Answer 18

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

2/ only the ECJ, never the GC

Question 19

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

Answer 19

1/ private ind. vs MS

2/ private ind. vs private ind.

Question 20

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

Answer 20

Article 19(3) TEU

Question 21

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

Answer 21

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’

Question 22

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

Answer 22

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)

Question 23

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

Answer 23

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)

Question 24

Underlying argument in Les Verts?

Answer 24

Increased EP powers

Question 25

Underlying argument in Chernobyl I?

Answer 25

Institutional balance

Question 26

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

Answer 26

1/ not a word about it in Treaties

2/ see however Francovich case law

Question 27

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

Answer 27

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

Question 28

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

Answer 28

1/ see Danish CC in AJOS

2/ refused to apply Mangold/Kucukdeveci

Question 29

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

Answer 29

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

Question 30

Considerations surrounding CJEU and ECtHR? (4)

Answer 30

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)

Question 31

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

Answer 31

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)

Question 32

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

Answer 32

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

Question 33

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

Answer 33

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

Question 34

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

Answer 34

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