Today I have decided to go back to the series that I have started about a year ago regarding the functioning and attributions of the EU-institutions: after having reviewed the Council, the Parliament and the Commission, we are going to talk about the Court of Justice of the European Union (CJEU), currently composed of the European Court of Justice (ECJ) and the European General Court (EGC).
The functioning of the CJEU (originally called the Court of Justice of the European Communities CJEC) is determined by the treaties. The protocols setting its status are annexed to the treaties and must hence be taken into account since protocols have the same status as treaties since the judgement „Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority of the European Coal and Steel Community“ dating from 1956. The treaties also contemplated the creation of a jurisdiction of first instance, and so on October, 24th 1988, a decision of the Commission set the record straight by creating the Court of First Instance (CFI). As you may have understood, there were hence two different jurisdictions (the CJEC and the CFI), and the EU was hence forced to define a set of links and rules regarding the powers of each of these instances: the Treaty of Maastricht inserts provisions related to the CFI via art. 254, and the CJEC was modified by the Lisbon Treaty to become the Court of Justice of the European Union (CJEU) – remember that the Lisbon Treaty first replaced the term „European Communities“ with „European Union“. However, it does not exactly represent the same jurisdiction: the CJEU encompasses the former CJEC (now called European Court of Justice ECJ), the CFI (now European General Court EGC) and the European Union Civil Service Tribunal (dissoluted in 2016, so we will leave it aside) – yes, the Lisbon Treaty was meant to make things simpler. There are hence two jurisdictions within the CJEU that we will study: the ECJ and the EGC.
Now, regarding the inner organization of the jurisdictions of the EU, there is one basic principle that you need to bear in mind: the principle of independance, which stems from the treaties.
Let’s start with the European Court of Justice (ECJ). Normally, there is one judge per Member State. Now, it is not a problem when the EU is made of an odd number of countries – which was the case until Croatia joined the club in 2013 – but now that we are 28 – and soon 27 again with the Brexit, really the EU is hard to keep track of – things are slightly different: when one more judge is needed to achieve an odd number, the Member States take turns by alphabetical order – as it is the case with many things regarding the EU. Every three years, half of the judges change. However – and oddly enough – treaties do not refer to the nationality of the judges, and a non-written agreement enables the repartition. The goal, however, is that every legal system of the Member States be represented. That still looks suspicious to us: the ECJ is supposed to be independent from the States, so who cares where they come from, right? And if we care where they come from, why the heck not enshrine it in the treaties? Anyways, there are in addition to the judges 11 advocates general: every big country has one, and the six other ones take turns between the remaining 23 States by alphabetical order. These advocates are also independent and impartial and give conclusions that are very detailed, to say the least. They are elected for six-years (renewable once), and until Lisbon they were designated through the reaching of a common agreement of all Member States – even though they were supposed to be independent. Nowadays, there is a previous examination phase by a committee composed of former members of the ECJ and the European General Court (EGC), members of national supreme jurisdictions and legal experts known for their EU-laws skills. EU-wide, only France does not possess an organ competent for sorting the applications. Furthermore, each advocate and judge is assisted by a few advisers, and their status implies a few conditions: competency, since they have to gather all conditions that are necessary in their home country to practice the highest jurisdictional functions OR be a legal adviser that has inarguable competencies; independence because they are not allowed to request or accept instructions; no other job; principle of reserve; taking of an oath; and obligation to reside in the city where the ECJ is located – that is in Luxemburg. Their mandate can end prematurely in case of death or required end of term (the other judges can observe that a judge does not comply with the necessary conditions any longer). As far as the EGC is concerned, the election of a judge is linked to his quality of magistrate. There are no advocates general – so to speak, for it can happen that a judge needs to call on a specialist when a case is particularly complex.
The presidents of the ECJ and the EGC are designated by their respective jurisdiction, meaning that there should be no interference from outside. The judges designate a president for a mandate of three renewable years, and the voting system used is the secret ballot with relative majority-vote. The President of the ECJ is currently Koen Lenaerts from Belgium, while the President of the EGC is Marc Jaeger from Luxemburg (a lot of power for Luxemburg between him and J.C. Juncker). The president bears responsibilities related to the jurisdictional function, as well as attributions linked to the procedure proceedings: he presides over the hearings, allocates the cases to the chambers, sets the dates of the hearings and adopts provisional measures and particular measures called orders.
The way the ECJ and the EGC work is pretty simple: the principle is to attribute a case to the chambers – sometimes during a plenary session. It has always been so as far as the EGC is concerned, and since the Maastricht Treaty, it also works that way for the ECJ. The ECJ meets in chambers of three up to five judges most of the time, and of 11 judges whenever the case is more complicated – the smaller the chambers, the more chambers have to gather together. The ECJ sits collegially when it wants to dismiss the European Ombudsman or when it must announce the deposition of a European Commissioner – which (unfortunately) quite frankly never happens. The EGC usually sits in chambers of three to five judges too, the difference being that the EGC can sit with only one sole judge when the case is really easy.
All services are independent from the Registry, which is presided by a registrar – duh! – for six years. The voting system, again, is the secret ballot with relative majority-vote. The registrar is responsible for assisting during jurisdictional activities: he attends the hearings, ensures the reception, transmission and custody of the judicial documents, is guardian of the Seals and is responsible for the Court’s archives and publications. The EGC can make use of the services of the ECJ for it practically has none – the services of the ECJ have 1,200 employees, while those of the EGC only have 80.
Let’s come to the links between the ECJ and the EGC. The Treaty of Nice has established some satisfying criteria by setting that the EGC was competent in four cases: actions for annulment, for failure to act, for damages and regarding litigations of the European public service. All of these actions must be filed at the EGC itself except when the case is given to a specific jurisdictional chamber by the Council unanimously. The EGC is supposed to know the decisions of the jurisdictional chambers. Normally, prejudicial matters (questions asked by a national judge to the European jurisdiction) are also within its scope of attributions. In 2010 for example, 268 judgements have been given, and the average length to solve a case was two years – which is similar to the ECJ.
An appeal to the ECJ must be based on the violation of a legal rule, whose starting point runs from the moment the EGC has ruled a decision. Member States and institutions are allowed to file an appeal, even when they did not intervene in front of the EGC. An appeal can be valid when a judgement is not sufficiently motivated – that is if the solution is not sufficiently explained – or if the EGC did not answer a point risen by one of the parties. If the appeal is valid, the ECJ nullifies the decision of the EGC: either it gives a new ruling itself, or it returns the case to the ECJ so that the latter can rule again
Now let’s jump to the last part of our article: the procedure proceedings to the jurisdictions of the EU. The jurisdictions are multilingual, and there are 24 official languages within the EU (four countries speak the same languages as others: Cyprus, Austria, Luxemburg and Belgium). The language of the procedure is normally chosen by the claimant, with a couple of “exceptions”: if the defendant is a State or a private person, the language used is the one of the State or of the State where the person resides. The general principle only applies if the defendant is an EU-institution – meaning that the general principle is the exception and the exception is the general principle, but who cares? Second exception: the language can stem from an agreement between the two parties. Statements of cases, decisions, etc. must be given into the chosen language. A deliberation (the procedure that precedes a decision) is given either in English or in French since these are the two working languages of the jurisdictions. A publication has to be made in all 24 official languages, while an appeal is given in the language of the procedure of the appeal to the Court.
Now, as far as the representation of the parties is concerned, the EU-institutions are represented by a member of their legal service, the States by a public servant from the Ministry of foreign affairs, physical and moral persons by a lawyer or a teacher of law that is a citizen of a State, whose legislation allows him to plead (this is the case in France for instance).
The legal costs are the sums of money that are invested and recoverable (amounts due to the witnesses and the experts, the necessary costs for the parties, etc.). In case the institution is represented by an agent, this does not count as a legal cost; however, if it is represented by a lawyer, then it does. The losing party has to pay all of the legal costs, “except” for the Member States and the institutions, which always pay for their own legal costs; however, the jurisdiction can sentence the winning party to refund the “vexatious” costs to the losing party. Legal costs are calculated according to the level of difficulty of the case, to the current economy situation, etc. Usually, no more than €-100/hour are granted to a witness or an expert.
Regarding the outcome of a legal procedure, the jurisdiction issues judgements or orders. Judgements are given after a three-step process: the presentation of the facts, arguments and conclusions, the reasoning of the jurisdiction, and the decision of the jurisdiction. If you try to read some of them, you will probably find that they are way too long, but there is a fair explanation to that: EU-laws are very recent and complicated, so that the jurisdictions feel like they have to justify and motivate their decisions – all the more so as some Member States argue with their competencies. Orders are given whenever they are provided for by the rules of procedure of the relevant jurisdiction. They are given by the president himself and are justified more succinctly.
This is how we finish our article regarding the Court of Justice of the European Union. It can seem like it is a bit complicated by reading this text, but bear in mind that I gave you the detailed version and that it is not much more complicated than national courts. The EU-jurisdictions are presented with more and more cases, which is why it is important that you understand how it works and what it is they are doing. Generally speaking, they are doing quite a good job to be honest, and no one can really argue with its usefulness to settle disputes between entities or persons from two different countries.