The European Court of Justice (“ECJ”)
The ECJ is based in Luxembourg. It is composed of judges drawn from national legal professions but once appointed, they sit as judges of their Community Court, and are independent of their national allegiances. The Court ensures that the implementation of the Treaties is in accordance with the rule of European law.
There are six Advocate Generals, whose role is to analyse the relevant Community law and give a view about how the Court should decide the case. A single advocate general advises in each case. Once their opinion is given they play no further part in the case.
The Court will consider the Advocate General’s opinion, but is not bound by it. The opinion should show that issues of Community law have been properly canvassed before the Court takes its decision and may contain ideas that are adopted by the Court as part of Community law. Even if it is not followed, it will be published as part of the ECJ case report. It can be used in argument in future cases, and repeated by a subsequent Advocate General to persuade the Court to change its position.
LEGISLATION
The Commission, Council and Parliament act jointly to make Regulations, issue Directives, make decisions and Recommendations and deliver Opinions. The significance of each is considered below:-
Regulations When delivered Regulations are automatically binding in their entirety and apply to the domestic law of all Member States. No further steps are required to incorporate them into National law, i.e. they are “directly applicable” and have “direct effect”1.
Directives A Directive sets out a general policy goal but leaves it to each Member State to implement the directive into its own domestic law. It only has legal effect once it has been implemented. Therefore, Directives only ever have “direct effect”
Recommendations/Opinions Recommendations and Opinions have no binding force.
Decisions are binding in their entirety upon those to whom they are addressed. For instance the Commission may tell a Member State, or firm, to terminate a practice that is unlawful under Community Law.
THE LEGISLATIVE PROCEDURE
The Commission is responsible for the initiation of Community policy. For example, Sweden wishes to reintroduce the principle of the International Exhaustion of Rights, a system which would allow the parallel importation of goods into the EC from anywhere in the world. The Parliament has a right to be consulted in relation to legislative provisions and also has a limited right to veto some provisions. The European Council always decides whether or not to pass a measure as a new piece of Community Legislation. Decisions require a unanimous vote of its members.
THE NATURE OF COMMUNITY LAW
Actions Against Member States
The ECJ has jurisdiction to hear cases brought against Member States to ensure that they comply with their obligations under Community law.
The Commission may bring infringement proceedings for breach of Community law against a Member State: There are four stages; informal discussions between the Commission and the Member State; a letter of Formal Notice from the Commission to the Member State; a reasoned Opinion by the Commission; and finally reference to the ECJ.
Member States who consider that another Member State has failed to fulfil a Treaty obligation may also bring the matter before the ECJ. This procedure is rarely involved, as Member States prefer the Commission to take action against their fellow Member States rather than doing it themselves. This saves the diplomatic embarrassment attached to taking a close ally to court.
Judicial Review of EC Acts
The ECJ can review the legality of all acts of the Council and the Commission other than Recommendations.
Preliminary Rulings
National courts and tribunals may refer questions of Community law that need to be decided in cases before them, to the ECJ for a ruling.
The ECJ’s ruling on points of Community law is referred and is used by the national court or tribunal in reaching a decision on the case. This process has proved to be a springboard for the development of some key concepts in Community law. For example, the concept of “direct effect” (see below) in the legal systems of the Member States can be traced back to a reference from a Member State.
National Courts do not have to refer questions of Community law to the ECJ. They may decide to determine the issue themselves, particularly if they regard a matter as ‘acte clair’ i.e. so clear that there is no room for ambiguity. Some national Courts are more ready to refer matters to the ECJ than others; and some are more able then others; that is one of the reasons for disparities between member States.
The UK Courts are highly regarded by the ECJ which encourages the UK judges to decide matters themselves. UK judges tend to be fairly robust where they think the law is clear, and to refer anything when they think it is not.
The average length of time that a national court or tribunal has to wait for a ruling is over seventeen months. (Thus, we expect the Glaxo Dowelhurst case to be back before Mr Justice Laddie next year or early 2002.)
The ECJ can be asked questions on the interpretation of the Treaty, it can be asked to interpret acts of the institutions of the Community or rule on their validity. The function of the ECJ is to ensure a unity of interpretation of Community law within Member States. ECJ decisions on Community law are conclusive.
SOME PRINCIPLES OF EC LAW
The European Court has developed its own substantial body of principles. including those set out below:
Supremacy
Community Law is ‘supreme’. In other words, Community Law prevails in the event of conflict with National Law.
Direct Applicability
Regulations are automatically Law in all Member States and Member States must not bring into force legislation which interferes with the direct applicability of them.
The Principle of Pre-emption
In some fields the competence of community law is exclusive. In order to maintain the force of Community Law all Member States have lost the power to act independently on some issues.
Direct Effect
Nationals in individual Member States may rely on European Law to uphold their rights in their domestic courts. In other words, a UK citizen may bring an action against a UK public or private body based on European legal principles.
COURT OF FIRST INSTANCE (“CFI”)
The CFI began to hear cases in November 1989. It is situated in Luxembourg, near the ECJ. It is an inferior court to the ECJ. It consists of twelve members. Normally, judges are not assisted by an Advocate General. But if an opinion is required then a member of the CFI is designated to act as an Advocate General in a particular case.
The CFI has a limited jurisdiction to hear cases. It cannot hear and determine actions brought by Member States, or by Community institutions, or individuals or questions referred by national courts or tribunals for a preliminary ruling. These issues are considered by the ECJ. It may hear staff cases (disputes between servants of the Community and its institutions) and actions brought by persons concerning competition law applicable to businesses. (It also hears appeals for decisions of the Commission.)
Decisions of the CFI may be appealed on points of law to the ECJ . On appeal, the ECJ may give final judgment and quash the CFI’s decision or it may refer the matter back to the CFI. The CFI is bound by the ECJ’s decisions
Although the CFI was established to decrease the ECJ’s workload, sadly, due to its limited jurisdiction to hear cases, it has had little effect.
The jurisdiction of the CFI has been extended by recent reforms made by the Maastricht Treaty, which allow for the Council, acting unanimously, and after consulting the Commission and Parliament, to transfer any matter from the ECJ to the CFI, except for preliminary rulings. In the long term this makes sense but change is bound to be gradual.
The Commission is also the Union's administrative body, overseeing member state implementation of directives and enforcing regulations. It has a rule-making authority granted by the Council in legislation or derived directly from the Treaties. It issues regulations for the day-to-day management of the , conducts and and imposes provisional dumping duties, fines companies for uncompetitive practices and decides on merger applications. Methodological Index to the Official Journal, issued monthly and cumulated annually, lists regulations, directives, other acts and Court decisions by number. The numbers for issues containing written questions are listed. With the exception of Court of Justice cases, no indexing is done for other items published in the C Series of the OJ.
Draft:
34. Draft Article III – 161 permits the Council of Ministers acting unanimously to adopt
European regulations or decisions establishing mechanisms to evaluate Member
States’ implementation of Chapter IV on an area of freedom, security and justice.
Independent monitoring of compliance is vital to ensure full respect for fundamental
rights. JUSTICE regrets that the draft article does not explicitly require such
evaluation to include an assessment of compliance with international human rights
standards. Further, the article should be revised to ensure that these assessments
are conducted by independent experts with the full participation of the national and
European parliaments and that they will operate on the basis of peer review rather
than self assessment in order to achieve greater accountability and independence.
Bibliography
~ Nigel G. Foster (Editor) -- (Paperback - 14 August, 2003)
~John McCormick
Palgrave Macmillan
~Jo Steiner, et al
Oxford University Press
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~Timothy Bainbridge
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~ Andrew Geddes -- (Paperback - 28 November, 2003)
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~John Pinder
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~Neill Nugent
Palgrave Macmillan
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~Andrew Christie (Editor), Stephen Gare (Editor)
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~Loukas Tsoukalis
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~Weatherill
Oxford University Press
Paperback - 11 September, 2003
http://www.google.co.uk/search?q=cache:dzUUvzInILkJ:www.justice.org.uk/images/pdfs/igc2003.pdf+draft+constitutional+bill&hl=en&ie=UTF-8
EU Law, Text, Cases and Materials, Paul Craig and Grainne de Burca, 2003, 3rd Ed, Oxford Press
Kay Munro, Law Official Publications and Statistics Librarian University of Glasgow