The Court of Justice of the European Union (CJEU) is the European Union’s court. It is a significant and controversial institution and has been responsible for a number of substantial developments in the European Union’s history. It has taken very seriously the task given to it under the Treaties of ensuring that the law is observed, and has developed various mechanisms to make enforcement more effective. It has, for example, held that EU law takes precedence over national law, can be used in cases before national courts and that individuals can sue the government in national courts for the government’s failure to comply with EU law.
Decisions of the Court have taken EU law into new areas, such as company mergers, fundamental rights and the power for the EU to sign international agreement in fields other than trade, such as the environment or transport. It has established significant new principles, such as ‘the right to be forgotten’ in data protection, it has advanced individual rights significantly, most notably the rights of working women.
When people talk about the CJEU, they are usually referring to the European Court of Justice (ECJ). However, the CJEU is actually comprised of three courts: the European Court of Justice, the General Court and the European Civil Service Tribunal. They all serve different purposes. The ECJ has twenty eight judges, one from each Member State.
The General Court has thirty five judges, and the Tribunal seven judges. The General Court’s main task is to consider cases brought by companies and individuals against the EU institutions, and by member states against the European Commission or the European Central Bank. Its most important work is in the field of competition, intellectual property and external trade law. The Civil Service Tribunal hears disputes involving employees of the EU institutions.
There are two further sources of confusion. Firstly, the ECJ is often confused with the European Court of Human Rights. The latter is a different court which is not part of the EU. It was the court which gave the judgment on voting rights for prisoners. Its judgments are often controversial and because it may rule that the British or other legal systems has not sufficiently protected human rights.
Secondly, each ECJ judges is assisted by an Advocate General whose job is to provide an independent opinion on each case. These opinions offer impartial advice to the judges to help them reach their decision, and are not binding – the Court may reach the same conclusion as the Advocate General but for different reasons. The issue is that, too often, this opinion is either presented as a judgment of the ECJ or as something the ECJ will almost certainly follow. Neither is true.
So, what does the ECJ do? It has four key functions.
Firstly, it settles disputes between the EU institutions. For example, if the European Commission or the European Parliament are unhappy with the Council and believes it has acted illegally they can take it to the ECJ.
Secondly, member states can challenge EU legislation before the ECJ if they think it conflicts with the EU treaties or the Charter of Fundamental Rights of the European Union. For example, the United Kingdom unsuccessfully tried to get EU legislation on bankers’ bonuses overturned on the grounds that the European Union did not have the power to adopt that law.
Thirdly, if the European Commission believes a member state is not following EU law, it can take it before the Court for a declaration that the member state has not complied with EU law. If the member state fails to meet the terms of the judgment, the European Commission can take it back before the ECJ and the member state can be fined. It is common that the European Commission receives complaints about member states breaching EU law. For example, in 2014, the European Commission received 3,715 complaints. However, very few cases actually reach the ECJ with only 31 judgments were given to member states in 2015. Fourthly, national courts can send questions to the ECJ about the meaning of EU law.
In some cases, the national court has to seek its opinion. These are called ‘preliminary references’ and made up over 70% of its workload in 2015. The ECJ makes a judgment on the point or points of EU law, and then sends it back to the national court. The national court will then decide the dispute in the light of the ECJ’s judgment. The preliminary reference procedure is also the procedure which gives rise to many of the Court’s most ground-breaking or controversial judgments.
In 2015 alone, through this route the Court of Justice ruled on the legality of the Scottish Parliament’s minimum pricing rules for alcohol; when jobless EU citizens can claim benefits in other EU member states; ‘integration tests’ for non-EU nationals; and whether states could apply criminal penalties to non EU nationals who entered the EU irregularly.
Written by Damian Chalmers, Professor of European Union Law and senior fellow at The UK in a Changing Europe.