The Court

The Court of Justice of the European Union consists of three courts: the Court of Justice (hereinafter also referred to as ‘the Court’), previously known as the European Court of Justice, or EC Court, which is the highest court in the EU legal system; the General Court, created in 1988 and formerly known as the ^[1]

Court of First Instance; and the Civil Service Tribunal, which is a specialised court created in 2004. The Court shall ensure that law and order are observed in the interpretation and application of the Treaties (Art 19 TEU). ‘Law and order’ indicates not only the requirement to ensure that the Treaties and secondary legislation are properly applied, but concerns an entire legal system including generally accepted legal principles. The Court has jurisdiction over the whole of EU law. It settles disputes regarding the division of competences between EU bodies, and stipulates the limits of EU law as a whole. Member States may not settle disputes concerning the interpretation or application of the Treaties in a way other than as provided for therein, that is, mainly by submitting disputes to the Court (Art 344 TFEU). The Court has jurisdiction to review the legality of legislative acts such as regulations and directives, and can declare them invalid (Arts 263 and 264 TFEU). This makes the Court uniquely powerful among international courts. In addition to the Treaties, particularly Articles 19 TEU and 251—281 TFEU, the Court’s organisation and procedures are regulated in the Statute of the Court, which is annexed as a protocol to the Treaties^ and the Court’s Rules of Procedure.

The Court has played a catalytic role in the development of EU law and thus in the integration of the Member States. Without clear ground in the Treaties, the Court has spelled out such fundamental principles for EU law as the direct applicability of Treaty provisions and the primacy of EU law over national law. The Court’s position in developing such principles has been that they are necessary to give effect to the Treaties’ overall objectives. The Court has also established a number of general legal principles that are now an integral part of the EU legal order.2³ This has, not surprisingly, given rise to criticism that the Court is ‘activist’ and sometimes creates, rather than interprets, EU law. The boundary between interpretation and judicial activism is in many cases difficult to draw, especially when applying the Treaties’ brief and general provisions to complex situations or tackling issues where the Member States have been unable or unwilling to articulate a clear policy or rule, but where the Court is still expected to be able to spell out what the applicable law is.

The Court is composed of one judge per Member State. These are assisted by eleven advocates-generalTh The judges and advocates-general are appointed among persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their home country, or who are of recognised competence. They are appointed by common accord of the governments of Member States and hold office for a renewable term of six years (Art 19 TEU and Art 252 TFEU).

The task of the advocates-general is to make reasoned proposals for decisions in the cases heard by the Court. This was previously done for all cases, but now applies ^{[2] [3] [4]}

to about half of the cases before the Court. Advocates-general give their views to the Court on how the case should be assessed. Their suggestions often contain extensive reviews of past practice and interesting principled discussions.

Proceedings before the Court are essentially written. Member States and some other stakeholders may intervene by submitting observations and explaining their views on the matters at issue in a case.

The Court entertains different types of case, which are initiated in different ways. The most common are infringement proceedings, in which the Commission initiates proceedings against a Member State for, inter alia, failure to implement a directive in time or for other violation of an obligation under the Treaties. Member States may also bring actions against each other on this basis. However, the latter is in practice highly unusual (Arts 258 and 259 TFEU). The Court is also competent to review the legality of binding legislative acts adopted by EU institutions, mainly the EP and the Council. Such reviews may be initiated by the EP, the Council, the Commission, or a Member State. Member States and EU institutions may also bring what are termed failure-to-act actions if an institution, in contravention of its obligations under the Treaties, fails to act. A similar possibility also exists, under certain conditions, for natural and legal persons. (Arts 263 and 265 TFEU.)

Another type of case is the preliminary rulings that the Court issues pursuant to requests by Member State courts. These may relate to the interpretation of the Treaties themselves or to the validity or the correct interpretation of acts decided under the Treaties. The different types of case are discussed further in Chapter 5.

The Court has so far judged more than 15,000 cases and entertains nowadays about 500 per year. Judgments and the advocates-generals’ opinions from 1997 onwards are available on the Court’s website.25

The General Court (formerly the Court of First Instance) was established in 1988, mainly to relieve the Court. Its jurisdiction, which is defined in Article 256 TFEU, covers a variety of cases. However, it primarily decides cases between the EU institutions and natural or legal persons, for example competition cases, claims for damages against the EU, and cases relating to decisions to include or not to include a substance on a list of prohibited and permitted substances. Judgments of the General Court may be appealed to the Court of Justice with respect to points of law.

Disputes between the EU institutions and their employees are settled by a special court, the Civil Service Tribunal, which is a lower instance to the Court.

• [1] ° Protocol on the role of the national parliaments in the European Union [2007] OJ C 306/147.21 Protocol on the application of the subsidiarity and proportionality principles [2007] OJ C 306/148. On this principle, see section 2.4.2.
• [2] OJ C 306/148 (n 21).
• [3] Some of these principles such as the legality principle and the proportionality principle are dealtwith in some detail in Chapter 2.
• [4] 24 See also Court of Justice of the European Union, Press Release No 139/13 (23 October 2013).