The Institutions of the EU - The Court of Justice of the European Union (CJEU)

Question 1

What are the main legislative provisions for the CJEU?

Answer 1

Article 19 TEU and Articles 251-281 TFEU

Protocol (No 3) on the Statute of the Court of Justice of the European Union

Rules of Procedure of the Court of Justice

Rules of Procedure of the General Court

Question 2

Discuss the composition and functions of the CJEU.

Answer 2

Article 19(1) TEU :
- CJEU = CoJ, GC and Specialised Courts
- Ensure that EU law is observed in the interpretation and application of the Treaties
Article 19(3) TEU:
a) Rule on actions brought by MS/ EU institutions/natural or legal persons
b) Preliminary rulings
c) Rule in other cases provided in the Treaties

Question 3

Who does the CJEU act as a referee between?

Answer 3

1. MS/Institution disputes e.g. Article 258 prosecutions and Germany v Council with the First Tobacco Advertising Directive
2. Interinstitutional disputes – e.g. Tariff case (EP early holiday case)
3. Individual person or Legal entity/EU institution disputes e.g. Apple and the EC state aid case; Google search engine case; Microsoft search engine case

Question 4

Discuss the President of the ECJ.

Answer 4

• Directs the business of the court
• Elected by secret ballot by the other judges for a 3 year term

Question 5

Discuss ECJ appointments.

Answer 5

• 6 year term and independence

Question 6

Discuss the types of sittings of the ECJ.

Answer 6

• Structure altered by Treaty of Nice in 2003 (Article 251 TFEU)
  1. Full 27 judge court
• Defined in Article 16 Statute of the Court of Justice
• Used for cases of exceptional importance e.g. Pringle and certain things e.g. compulsory retiring an EU commissioner
  2. Grand Chambers (13 or 15 judges)
• Big cases
• Can be requested by an MS or EU institution
• Around 10% of cases
  3. 3 Judge Chambers or 5 Judge Grand Chambers/Plenary sitting
• 90% of cases
• President – 1 year for a 3 court chamber 3 years for 5 court chamber

Question 7

Name the three most important kinds of cases heard by the CJEU

Answer 7

1. Advisory opinions
2. Preliminary references
3. Direct actions

Question 8

Discuss the legal basis and procedure for advisory opinions.

Answer 8

Article 218(11) TFEU - EU political institutions may get the CJEU’s opinion on whether an international agreement is compatible with the Treaties.
Adverse opinion = Must amend the agreement or the Treaties e.g. EEA court and ECHR court
- Exceedingly important and exceedingly rare

Question 9

Discuss the legal basis and procedure for preliminary references.

Answer 9

Article 267 TFEU - PR for Treaty interpretation and the validity/interpretation of EU acts
NC may refer but courts of final instance must refer; In custody - Act without delay
- Uniform interpretation of EU law across MS
- About 50% of CJEU cases

Question 10

Name 4 types of direct actions (start and end in CJEU).

Answer 10

1. Article 258 Commission Prosecutions of MS
2. Review actions
3. Actions for failure to act
4. Damage claims

Question 11

Discuss Commission prosecutions of member states.

Answer 11

For failure to fulfil Treaty obligations
Articles 258 & 260 TFEU
Article 258 - MS submits observations, Reasoned Opinion, MS failure to comply with RO in specified time limit = EC to CJEU
Article 260(1) - Where CJEU finds Treaty non-compliance, State must take necessary measures to comply with its judgment
Article 260(2) - EC notifies MS thinks failed to comply with judgment, MS can submit observations, CJEU - Lump sum or penalty payment suggested by EC and CJEU can impose it or more?

Question 12

Discuss Article 259 TFEU prosecutions for failure to fulfil Treaty obligations.

Answer 12

Article 259 = MS prosecutes another MS
- MS brings matter to EC for RO after both MS’ submissions (3 month EC deadline)

Question 13

Discuss the CJEU’s role in review actions.

Answer 13

Articles 263 & 264 TFEU
- Article 263 - CJEU reviews legality of institutions’ legislative acts with legal effects for third parties
- Jurisdiction for 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
- Legal persons take proceedings for acts of direct and individual concern to them
- Strict 2 months time limit

Article 264 - Act or effects of the Act declared void

Question 14

Discuss Actions for failure to act.

Answer 14

• Article 265 & 266 TFEU
• Action if EU failed to act where under a duty to act e.g. equality legislation proceedings not brought in
• Must call on the institution to act – The institution or body has two months to act
• Required to take necessary measures to comply with the Court’s judgment

Question 15

Discuss damage clauses.

Answer 15

Article 268 TFEU - CJEU jurisdiction as per Article 340 TFEU = EU pays damages where due to its institutions or servants in the performance of their duties in cases of non-contractual liability

Question 16

Discuss the TFEU provisions for the role of the CJEU in other kinds of proceedings.

Answer 16

Article 269 - Legality of acts adopted by the European Council or by the Council by MS concerned in one month
Article 270 - Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union
Article 272 - Arbitration clauses in EU contracts
Article 273 - MS disputes relating to the subject matter of the Treaties if the dispute is submitted to it under a special agreement between the parties.

Question 17

Discuss exclusions from the CJEU.

Answer 17

Article 275 TFEU - No CFSP jurisdiction but
allowed to review the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.
Article 276 - No jurisdiction for internal MS law enforcement actions

Question 18

Outline the structural hierarchy of the CJEU

Answer 18

1. European Court of Justice
2. General Court
3. Specialised courts

Question 19

Discuss the composition of the CJEU.

Answer 19

Article 19(2) TEU:
- ECJ = One judge per MS
- AGs assist ECJ
- GC = Minimum of one judge per MS

Question 20

Discuss the conditions for appointment of CJEU judges and AGs.

Answer 20

Article 19(2) TEU:
- Independence beyond doubt
- Satisfy Article 253/254 conditions
- Governments agree appointments
- 6 year term
- Reappointments permitted
Article 253 TFEU:
- Independence beyond doubt
- Highest judicial office in own country qualifications or jurisconsults of recognised competence
- MS common accord
- Appointed for a 6 year term on a staggered basis
- President
- Rules of procedure approved by Council
Article 254 TFEU:
- Number of GC judges determined by the Statute (Also AGs)
- Qualifications
Article 255 TFEU:
- Panel
Article 256 TFEU:
- Jurisdiction

Question 21

Discuss the Role of the Advocate General (AG).

Answer 21

Article 252 TFEU:
- 8 AGs or more if Council unanimously agrees
- Complete impartiality and independence - Reasoned submission on cases requiring involvement under the Statute of the CJEU.

Question 22

Discuss Specialised Courts.

Answer 22

Article 257 TFEU

Question 23

Discuss the General Court and Preliminary Rulings.

Answer 23

• Regulation 2024 2019 – Amending Protocol No.3
• Preliminary references continue to come before ECJ for analysis but certain categories of subject matters will go to the GC after the analysis
• Article 50b) in Statute of the Court of Justice – Says cases now being transferred – Relatively technical areas e.g. VAT, excise duties, customs duties, tariffs, compensation for airline passengers for cancelled flights or denied boarding, greenhouse gas something

Preview and review provisions:
- Preview = GC can find no jurisdiction, itself refers the matter to the ECJ and send it back to the ECJ
- Review = GC decision on PR can be exceptionally on a proposal from the first AG where thinks there is a seriouis to the unity or consistency of EU law, then wait until ECJ has ruled on that proposal for the GC decision to become final or be overturned. Any proposal for review must come within one month or the GC decision is final
- Applies since 1st October 2024???