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It is perhaps curious that it appears to have taken us some time to appreciate how the European Union (EU) and its institutions work. The EU is not new – it has been around for some time. Is it simply the case that it is harder to appreciate the workings of something as an apparent bystander than if we had been fully involved much earlier? That is perhaps another question but such slow hesitant beginnings have not helped make it any easier when it comes to talking about the Court of Justice of the European Union for the first time. In the same way that, for many, discussing its role does not appear to come easily at first.
According to the EU it boasts that unlike other institutions the EU itself is unique and stresses that member states remain independent, sovereign nations who come together or 'pool' their national identity, as they put it, to gain strength in numbers and influence around the world.
It is worth mentioning that such a coming together has resulted in what some see as an enormous bureaucratic 'united states of Europe'. On closer examination we can see that the EU has provided a means whereby member states operate through European institutions of which the Court of Justice of the European Union is one. Albeit somewhat cumbersome the EU does operate upon a democratic principle, and the institutions are a means of ensuring that member states are able to participate democratically in the decision making process. Recent events around the world, where citizens feel they have been denied a legitimate voice, serve as a reminder that the founding fathers of the EU had very good reason not to vest all powers in any single entity or leader.
The Court of Justice of the European Union has one judge from each EU country and it is assisted by a number of advocates-general. The role of the advocate-general is to present, publicly and impartially, opinions on the cases which come before the Court of Justice. Because of the large number of cases the Court must deal with, a ‘General Court’ will deal with some of the workload, mainly those brought by private individuals, companies and some organisations, and cases relating to competition law.
Any examination of the role of the Court of Justice of the European Union quickly shows that the Court is an EU institution and that its work is closely linked to the interests of the EU as a whole. The Court of Justice of the European Union is based in Luxembourg and includes three distinct courts, the Court of Justice, the General Court, and the Civil Service Tribunal. Between them they apply the judicial functions of the European Union aiming to achieve greater political and economic integration among EU Member States.
There are five common types of cases which will come before the Court and they are:
Requests for a preliminary hearing – when national courts ask the Court of Justice to interpret a point of EU law.
Actions for failure to fulfil an obligation – brought against EU governments for not applying EU law.
Actions for annulment – against EU laws thought to violate the EU treaties or fundamental rights.
Actions for failure to act – against EU institutions for failing to make decisions required of them.
Direct actions – brought by individuals, companies or organisations against EU decisions or actions
Requests for a preliminary hearing
If a domestic court is in any doubt about the interpretation or validity of an EU law it may, and sometimes must, ask the Court of Justice for advice. This advice is called a ‘preliminary ruling’. The effect of the use of such a procedure is to temporarily suspend the action before the national court until the Court of Justice of the European Union has ruled on the matter.
An example of a case where a UK court felt that a preliminary ruling was necessary can be found in Torfaen Borough Council v B & Q (1990) when the local Magistrates Court sought a ruling on whether the Sunday trading laws they then operated under, according to the Shops Acts, were in breach of Articles 30 and 36 of the EEC Treaty which allowed the free movement of goods around the EU. The Court of Justice of the European Union decided that UK measures did not infringe the Treaty and the matter then proceeded to be dealt with in the UK court.
The first case which involved a preliminary ruling by the Court of Justice of the European Union under Article 234 was the case of Van Duyn v Home Office (1974). This was a highly significant ruling which recognised the principle of direct applicability under which a citizen can enforce a right under a Treaty in the event that it confers rights on individuals.
Actions for failure to fulfil an obligation
The Court of Justice is charged, under Article 220, with the interpretation of EU law to make sure it is applied in the same way in all EU countries. The Commission or another Member state can initiate proceedings if it has reason to believe that a Member State is failing to fulfil its obligations under EU law. The Court will investigate the allegations and gives its judgment. If the Member State is found to be in the wrong then it will have to rectify matters immediately.
It also settles legal disputes between EU governments and EU institutions. The Court of Justice of the European Union is the arbiter in such situations and this reflects the weight that must be given to this aspect of the work of the Court. In view of events which led up to the formation of the initial European Community, the EU has indeed got every good reason to encourage the avoidance of conflict at national level. It strives to do this by the setting up of a higher level body which is internationally recognised. In any event the Court will investigate the complaint and give its judgement. The judgement may include the requirement that if a country is at fault it must put the matter right. The Court can also impose a fine.
Ordinarily proceedings of this nature are brought by the European Commission although they can be started by another EU country.
An instance of when the Commission initiated a complaint that a member state had failed in its obligations under the treaties can be found in the case of Re Tachographs: The Commissioners v United Kingdom (1979). The matter was eventually taken up by the Court of Justice of the European Union and concerned the UK government's failure to implement a Council regulation imposing the requirement that mechanical recording devices had to be installed in goods vehicles. The problem was that drivers were driving for considerable periods of time and as a result there was evidence that this was the cause of drivers falling asleep at the wheel or otherwise being responsible for road traffic accidents. The UK government were too slow to comply and were held to account over the matter.
The key task of ensuring uniformity throughout the EU is paramount to the success of the work of the Union and its aims and objectives. The work of the European commission could be undermined if rights secured through international negotiation and treaties were not recognised and enforced uniformly.
Actions for annulment
The Court of Justice of the European Union h00as the power to annul EU laws on the basis that they contravene EU treaties. If any of the Member States, the Council, Commission or (under certain conditions) Parliament believes that a particular EU law is illegal they may ask the Court to annul it. If the Court finds that the law in question was not correctly adopted or is not correctly based on the treaties, the Court can declare the provision null and void so that it is of no effect and cannot be applied. Private individuals who believe that a particular law is directly and adversely affecting them can also apply to the Court to cancel that law.
Actions for failure to act
The European Parliament, the Council and the Commission are obliged to make certain decisions under certain circumstances. Failure to do so enables Member States, the other EU institutions and (under certain conditions) individuals or companies to lodge a complaint with the Court and the violation will be officially recorded.
Individuals, companies or organisations can also bring direct actions before the Court if they feel their rights have been harmed by an EU institution. The purpose of such actions would be to seek suitable compensation.
There are some notable differences in approach between the Court of Justice and UK domestic courts. The CJEU is not bound by their own past decisions. This makes for flexibility and is in stark contrast to our own common law system which is heavily reliant upon the principles of judicial precedent in order to achieve consistency and fairness.
One might be forgiven for thinking that if a matter relates to anything at all connected to an EU right or benefit or decision an action must be brought in the Court of Justice of the European Union– this is not the case. The idea is that EU principles and concepts which are intended to give rise to identifiable rights and benefits become part of national domestic law and enforceable as such. How does this work?
The EU recognises that the national courts in each EU country are perfectly capable of undertaking the responsibility for ensuring that EU law is properly applied in their country. Any system which meant that EU rights were somehow separate and only enforceable in other courts would not only be expensive but completely unworkable. The EU recognises that there may be some occasions when a difficulty may arise over the correct interpretation of EU law and provides for this under Article 234.
The EU was originally formed by a number of founding treaties between member states setting out fundamental concepts and principles. These concepts and principles bind the way in which the union operates to this day. If the EU was to succeed it had to provide a way of ensuring that these treaties were followed and not only paid lip service to and otherwise confined to the archives. This task has fallen on the shoulders of the Commission. The Commission has the clear role to act as 'guardian of the treaties'.
This is an extremely important role as individual rights as well as rights of member states are at stake. The Commission is, in effect, the custodian of these rights and needs to be seen to be acting for the greater good of the Union. It could be said that the Commission is a form of 'whistle-blower' operating at a European level. This enforcement role is shared with the Court of Justice of the European Union and is a further reminder that the Court of Justice of the European Union has the task of acting in the EU's overall interests.
The CJEU also has a much broader approach to interpretation than our own courts. The CJEU's approach is more akin to the purposive approach than any of the narrower and more traditional approaches, such as the literal or golden rule, adopted by some of our judges. There is probably very good reason for this and more than likely to do with the difficulty of relying too much on language and individual words. Bearing in mind that treaties and other directives and regulations have to be drafted and mindful of the difficulties that can arise when interpreting from one language to another and capturing the nuances of particular words and phrases. The European approach is more to do with interpreting the spirit of the law than the letter of the law.
Finally it was Lord Irvine in his article 'The case for the European Court' (The Times, 1998) who acknowledged the importance of the work of the CJEU as being a key institution which enabled each and every individual who is entitled to benefit from European rights to pursue those rights in the domestic courts of their own country.
The Court of Justice can only decide matters of EU law it is not a court of appeal against decisions of national courts.
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