N. Nugent

1. N. Nugent The Government and Politics of the European Union 2010 Chapter 12 European Union Law and the EU’s Courts

2. The Need for EU Law • An enforceable legal framework is the essential basis of decision-making and decision application in all democratic states. • Need for a body of law setting out the powers and responsibilities of the institutions and the member states of the EU, and need for an authority to give independent rulings on what that law is and how it should be interpreted. • EU policies can be fully effective only if they are based on common laws that are capable of uniform interpretation in all member states.

3. The sources of EU Law The sources of EU legal order are to be found in: • The treaties • EU legislation • Judicial interpretation • International law • General Principles of law

4. A. The treaties • The EU’s treaty structure is made up of two main component parts: TEU and TFEU • The treaties do not formally constitute a constitution in that they do not set out in a single and readily understandable document that is called a constitution the fundamental bases of the EU’s principles and powers. • They nonetheless have many clear constitutional features. Amidst the political heat and debate around Constitutional Treaty, sight was sometimes lost of the fact that in important respects the EU may be said to already have a constitution, although a non-traditional one.

5. B. EU legislation • Laws adopted by the EU institutions under Art.288 TFEU constitute secondary legislation. • They are concerned with translating the general principles of the treaties into specific rules and are adopted by the EP and the Council, by the Council or by the COM. • EP & Council, and Council legislation tend to be broader in scope, to be concerned with more important matters and aimed at laying down a legal framework in a policy sphere. • COM legislation – much more in volume than EP and Council and Council-only legislation – is largely of implementing, administrative, and technical nature and is usually subject to tight guidelines laid down in enabling EP and Council or Council legislation.

6. Types of EU legislation • The TFEU post-Lisbon distinguishes between the following types of legislation: • Regulations • Directives • Decisions • Recommendations and Opinions

7. Regulations • Most regulations are adopted by the COM and concern highly specific and technical adjustments to existing EU law (majority relaty to CAP). A regulation under Art.288 TFEU is: • Of “general application”. It contains general and abstract provisions that may be applied to particular persons and circumstances. • “Binding in its entirely”. It bestows rights and obligations upon those to whom it is addressed, and m-e must observe it in full and as written. • “Directly applicable in all m-s”. There is no need for national implementing measures to be taken in order for a regulation to have binding force within m-s. Regulations specify the date on which they are to take legal effect (usually after being published in the Official Journal of the EU (1-2 days after being adopted).

8. Directives • A directive “shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. • It is not binding in its entirely but only in the result to be achieved. • It is addressed to m-s and does not claim general applicability. • It is not necessarily addressed to all m-s. • Appropriate national measures need to be taken to give the directive legal effect. • Tend to be rather more general in nature than regulations. • They are less concerned with the detailed and uniform application of policy and more with the laying down of policy principles that m-s must seek to achieve but can pursue under their respective national constitutional and legal systems.

9. Directives (cont.) The distinction between regulations and directives should not be exaggerated for four reasons: • Directives are almost invariably addressed to all states (since frequently are concerned with harmonisation or approximation of laws and practices in fields of EU activity). • Some directives are drafted so tightly that there is very little room for national authorities to incorporate adjustments when transposing directives into national law. • Directives contain a date by which the national procedures for giving them effect must have been completed and m-s that fail to comply are liable to have proceedings initiated against them. • Court has ruled that directivesmay be directly applicable when national implementing legislation has been unduly delayed or departed from intent of original directive.

10. Decisions • “A decision has to be binding in entirely upon those to whom it is addressed”. • May be addressed to any or all m-s, to undertakings, or to individuals. • Many decisions are highly specific and, in effect, are administrative rather than legislative acts. • Others are of a more general character and can be akin to regulations or even, occasionally, directives. • Decisions are adopted in a whole range of circumstances (e.g. to enforce competition policy; to allow an exemption from an existing measure; to counter dumping from a third country).

11. Recommendations and opinions • Recommendations and opinions have no binding force but this does not mean lack of legal effect. Indeed, on occasions the Court has referred to them. • The same applies to some of the other non-binding devices used by the EU institutions including memoranda, communications, conventions, programmes, guidelines, agreements, declarations, and resolutions.

12. A flexible legislative framework • EU uses a variety of formal and quasi-formal legislative instruments. • There are considerable variations between directives regarding the time periods permitted for incorporation into national law. E.g. amending directives may have to be incorporated immediately, whereas innovative or controversial directives may not be required to be incorporated for some years. • Devices that allow adaptation to local conditions are often either attached to legal texts or authorised by the COM after an act has come into force (exemptions, derogations, and safety clauses). • Provided COM is satisfied that relevant provisions are not a means of arbitrary discrimination, disguised restriction on trade, or an obstacle to the functioning of the internal market, m-s are permitted to apply national legislation that is “tougher” than EU legislation in respect of certain matters where there is not complete harmonisation (e.g. protection of the environment ).

13. C. Judicial interpretation • The Court of Justice of the EU consists of two main courts: the Court of Justice and the General Court. • The Court of Justice is the more senior of the two courts in that it deals with most cases raising major issues and in that also General Court judgments are, subject to specified conditions, subject to appeal to the Court of Justice. • The rulings of the EU courts have played an important part in shaping and making EU law. This stems partly from the courts’ duty to ensure that EU law is interpreted and applied correctly, but also from the fact that much of EU statute law is far from clear or complete. • Inevitably, EU courts often go beyond merely giving technical and grammatical interpretation of written rules. They fill the gaps in the law and thus not only clarify the law but also extend it.

14. D. International law • Although international law is notoriously vague and weak, EU’s courts have had occasional recourse to it when developing principles embodied in EU law. • As the EU has been increasingly developing an international personality of its own and taken over powers from the states, same rules of international law apply to it as apply to them. • The many international agreements to which the EU is a party are sometimes viewed as another dimension of international law. However since they are implemented by legislative acts they are better viewed as constituting part of EU legislation, even though the Court of Justice has ruled that they are superior in the hierarchy of EU law than secondary law.

15. E. The general principles of law • Article 19 TEU states that “The Court of Justice of the European Union… shall ensure that in the interpretation and application of the Treaties the law is observed”. • The implication of this and certain other articles is that the EU’s courts need not regard written EU law as the only source of law to which they may refer. • In practice, this has meant that the courts, when making their judgments, have had regard to general principles of law when these have been deemed relevant and applicable. • Exactly what these general principles of law are is a matter of controversy. • Principles that have been cited include non-discrimination, adherence to legality, and respect for procedural rights.

16. The Content of EU Law • EU law is not as wide-ranging as national law (e.g. it is not much concerned with criminal law, property law, or family law). • In virtually all policy areas EU law sits side-by-side with national law. • The range of EU law has broadened considerably over the years.

17. The Status of EU Law • EU law constitutes an autonomous legal system, imposing obligations and rights on both individuals and m-s, and limiting the sovereignty of m-s. There are two main pillars to this legal system: direct effect and primacy.

18. Direct effect • Also called direct applicability and refers to the principal whereby certain provisions of EU law may confer rights or impose obligations on individuals that national courts are bound to recognise and enforce. • The Court in a series of judgments has gradually strengthened and extended the scope of direct effect so that now applies to most secondary legislation except when discretion is explicitly granted to the addressee. • Many of the provisions of the treaties have also been established as having direct effect, although the Court has ruled that it does not apply to all spheres.

19. Primacy • Until LT there was no explicit reference in the treaties to the primacy or supremacy of EU law over national law. • From an early stage, the Court took an active role in establishing the primacy of EU law. • National courts, it consistently asserted, must apply EU law in the event of any conflict, even if the domestic law was part of the national constitution. • In general, national courts have accepted this view and given precedence to EU law. A few problems have remained (notably in relation to fundamental rights guaranteed by national constitutions) but for the most part the authority and binding nature of EU law has been fully established. • The LT consolidated the principle by giving it explicit treaty recognition for the first time.

20. The Court of Justice of the European Union • The Court of Justice of the European Union consists of three courts: the Court of Justice, the General Court (formerly called the Court of First Instance), and the European Union Civil Service Tribunal (just deals with internal EU staffing disputes). • All of the courts are located in Luxembourg. None of them should be confused with the Strasbourg-based European Court of Human Rights which is part of the Council of Europe institutional system.

21. Membership • The Court of Justice and the General Court both consists of 27 judges – one from each m-s. The Court of Justice is assisted by 8 advocates-general. All the judges and advocates-general are appointed for a 6-year term of office that may be, and frequently is, renewed. To ensure continuity, turnover is staggered in three-yearly cycles. • The judges and advocates-general are appointed by “common accord of the governments of the Member States” from amongst persons “whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are juriconsults of recognised competence” (Art. 253 TFEU).

22. Membership (cont.) • The LT added a preliminary stage under which, before appointed by the m-s the suitability of nominated candidates must be considered by a 7-member panel consisting of former EU and national supreme court judges and legal experts, one proposed by the EP. • In practice there is a gap between the treaty provisions and reality. Each m-s is actually permitted one nomination to both the Court of Justice and the General Court and these nominations are automatically accepted. • M-s have tended not to be overly worried about the judicial qualifications or experience of their nominations and have instead looked for a good background in appropriate professional activities and public service. • Each judge is assisted by three legal secretaries and each advocate-general by four. The three courts together employ a staff of around 1,500 in permanent posts and 450 in temporary posts.

23. Organisation • The judges elect one of their number to be President of the Court for a term of 3 years. • The President’s principal function is to oversee the overall direction of the Court by assigning cases to the Court’s chambers and appointing judge-rapporteurs. The President is also empowered, upon application of a party, to order the suspension of Union measures and to order such interim measures as he deems appropriate. • An advocate-general, on being assigned to a case, must make a thorough examination of all issues, take account of all relevant law, and then present his conclusions to the Court. Conclusions are likely to include observations on the key points of the case, an assessment of EU law touching on the case, and a proposed legal solution.

24. Number of cases and organisation • In the 1960s there were around 50 cases in an average year, today there are approaching 600 new cases each year. • Most cases are dealt with by one of the Court’s 8 chambers. • A matter is referred to a chamber of three judges if it is based upon relatively straightforward facts, raises no substantial points of principle, or where the circumstances are covered by existing case law. More complex cases are assigned to a chamber of five judges. • The Court is obliged to sit in a full plenary session for only a very restricted number of cases, though it may also decide to sit as the full Court when cases are deemed to be of “especially importance”. • The main organisational difference between the Court of Justice and the General Court is that no advocates-general are appointed to the latter. This task, when necessary, is undertaken by one of the judges who cannot therefore take part in the judgment of the case.

25. The procedure of the Courts • Relevant documentation and evidence is assembled. The Court under the direction of a duly appointed judge-rapporteur, may have to take a proactive role in gathering information. • A public hearing is likely to be (not always) held at which the essentials of the case are outlined. • The advocate-general examines the case in detail and, after a few weeks, presents his submission to an open session of the Court. • Acting on the advocate-general’s submission, and on the basis of a draft up by the judge-rapporteur, the Court prepares its decision. • Deliberations are in secret and if there is disagreement the decision is made by majority voting. Judgments must be signed by all the judges and no dissenting opinions may be published.

26. Three problems • There is a lengthy gap between cases being lodged and final decision being issued. • Lawyers’ fees usually mean that going before the Courts in direct action cases can be an expensive business, even though there is no charge for the actual proceedings in the Court itself. This does not place much a restriction to national governments or EU institutions but it can be a problem for individuals and small firms. • The use of majority voting, coupled with the lack of opportunity for dissenting opinions, has encouraged a tendency for judgments sometimes to be less concise, and occasionally even to be fudged.

27. Types of cases before the Courts • Case coming before the courts take a number of forms, the most important of which are: • Failure to fulfill an obligation • Application for annulment • Failure to act • Action to establish liability • Reference for a preliminary ruling • Staff cases • Appeals • The seeking of an opinion

28. Impact and influence of the Courts • The Court of Justice has clarified and strengthened the status of EU law. • EU policy competence has been strengthened and extended by Court judgments (especially in regard to the internal market). • Judgments have saved the EU the need to make law in existing areas of competence. • The powers and functioning of the institutions have been clarified, and in important respects have been significantly affected by the Court. • The independent influence of the courts should not, however, be overstated since its judgments are constrained by an existing policy framework and since the Court cannot initiate cases itself.