Etapa de investigaci´on

General

The Court of Justice (and its adjunct, the Court of First Instance) represents the judicial arm of the Community – at least in the narrow sense. In the broader sense, every national judicial body of the Member States is also a Community Court, since it is capable of having rules of Community law relied upon before them. These rules can confer rights on individuals which the national courts are compelled to respect and uphold (below, p 198 et seq).

The most important function expected of the Court of Justice is that it should act as a unifying force in the application and interpretation of Community law.

In addition to this potentially heavy workload, the ECJ was also expected to settle all disputes between the institutions themselves, between the institutions and the Member States, and between individuals and the institutions. The latter task involves settling staff disputes. It is clear that too many demands were being placed on the Court, which is why the SEA provided it with some reinforcement in the shape of the Court of First Instance (CFI).

However invaluable has been the contribution by the CFI in providing relief for the Court, there is still a good deal of evidence that the latter has too heavy a workload. The changes to be introduced by the ToN may alleviate this burden to a certain extent, although it would be unwise to be over-optimistic in this regard. It is, however, difficult to formulate alternative solutions. To create several Community Courts would risk losing the unity of interpretation and approach which forms such an important reason for the Court’s existence. The number of judges – and therefore also of chambers – could be increased considerably, but this could also have a negative effect on the unity of purpose expected of the ECJ.

Composition and appointment

As has been mentioned before, the Court now has two organs: the Court as such, and the Court of First Instance which, as is stated in Article 225 (ex Art 168a(1)) EC treaty, is ‘attached’ to the ECJ. The former is composed of 15 judges (Article 221(1) (ex Art 165(1)) EC Treaty). Although the Treaty does not lay down any requirements as to the nationality of these judges, it has hitherto been deemed politic for each nationality of the Member States to be represented.¹⁰ These judges are assisted by eight Advocates-General (Article 222(1) (ex Art 166(1)) EC Treaty) and by a registrar (Article 224 (ex Art 168) EC Treaty). They appoint one of their number to act as President (Article 223(6) (ex Art 167(6)) EC Treaty).

Advocates-General are representative of a phenomenon which is intrinsic to civil law systems, which is that a governmental representative should be in attendance in a court case whenever the public interest so demands. In criminal cases, this governmental representation takes the form of a public prosecutor, who brings the case against the accused on behalf of the public interest.¹¹ In civil and administrative cases, it takes the form of an expert opinion delivered by the representative in question, from a viewpoint representing the public interest. Before the supreme administrative court of France, the Conseil d’Etat, this role is assumed by the Commissaire du gouvernement. The Advocate-General of the Court has been modelled very closely on this French institution.

The task of the Advocates-General is to deliver reasoned submissions on all cases brought before the Court, in order to assist the latter with the discharge of its responsibilities. They must do so in open court, and in a spirit of complete independence and impartiality (Article 222(2) (ex Art 166(2)) EC Treaty). These submissions (also known as Opinions) are always issued before the Court delivers judgment. In most cases the ECJ will follow this opinion, although there have been celebrated instances where this has not been the case.¹² Both judges and Advocates-General are appointed for a term of six years, by common agreement between the Member States’ governments (Article 223(1) (ex Art 167(1)) EC Treaty). Normally these appointments are quite uncontentious. No specific qualifications are stipulated for holding either office.

The EC Treaty (Article 223(1) (ex Art 167(1))) confines itself to requiring that

10 Previously, care had always been taken to ensure that the ECJ consisted of an uneven number of judges. Thus when there were 6, 10 and 12 members, the Court consisted of 7, 11 and 13 members respectively (the ‘odd’ judge being called the ‘floating judge’). The reason for this was to avoid a tie when the full court was in session.

11 The nearest equivalent which exists in common law jurisdictions is the Scottish Procurator-Fiscal.

12 Perhaps the best known case in which this occurred was Case 26/62, Van Gend en Loos v Nederlandse Adminstratie der Belastingen [1963] ECR 1. Here, the Court formulated the principle of direct effect against the express advice of the Advocate-General. See below, p 99–100.

they should be:

... chosen from 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 jurisconsults of recognised competence.

Practising judges and academics account for the majority of these appointments.

In order to ensure the continuity of approach which is expected of it, the Court is renewed on a staggered basis. Accordingly, there occurs a partial replacement every three years, alternatively by eight and seven judges (Article 223(2) (ex Art 167(2)) EC Treaty). Similarly, the Advocates-General are also subject to partial replacement, by four members on each occasion (Article 223(3) (ex Art 167(3)) EC Treaty).

The CFI, for its part, consists of judges who are also appointed by common accord of the Member States’ governments for a period of six years (Article 225(3) (ex Art 168a(3)) EC Treaty). It has the same number of judges as the full Court, although this is not laid down in the Treaty itself. The qualifications required for judicial office with the CFI are roughly the same as those to which the judges of the full Court are subjected. Their membership is also partially renewed every three years (Article 225(3) (ex Art 168a(3)) EC Treaty). The CFI was introduced in order to relieve the Court of Justice of some of the routine cases requiring adjudication by a Community court, thus releasing it for the more important decisions. Essentially, it deals with disputes between the Community institutions and its staff, competition cases, ECSC disputes, actions brought by individuals under Article 230(2) (ex Art 173(2)) (action for annulment) and Article 232(3) (ex Art 175(3)) (actions for failure to act), as well as anti-dumping and intellectual property rights cases brought by individuals.

Its decisions are capable of appeal to the full Court, but only on points of law (Article 225(1) (ex Art 168a(1)) EC Treaty).

The President

In civil law systems, the President of a court has an extremely important function which goes well beyond the allocation of cases and a variety of administrative functions. It is normal for the President to have powers in his or her own right.

This is particularly the case in relation to measures which require a good deal of urgency and for which there is no time to convene a court hearing.

This characteristic is fully reflected in the position of the President of the Court. Under Article 30 (ex Art 36) of the Statute of the Court, the President may hold summary proceedings which may differ from some of the normal rules applicable to the Court. In the course of such summary proceedings, he or she may adjudicate in applications to suspend enforcement or execution of a judgment, or to prescribe such interim measures as are allowed by the Statute.

Organisation and procedure

In principle, the Court sits in plenary session (Article 221(2) (ex Art 165(2)) EC Treaty). This does not mean that for a decision to be valid, all judges must be in attendance; however, a quorum of seven judges applies. The Court may also form chambers of three or five judges, and it is a fact that in practice, most ECJ decisions are arrived at in chambers. However, for some types of proceeding (eg preliminary rulings) the Court must sit in plenary session. Decisions of the Court may only be said to have been validly adopted where an uneven number of judges are in attendance (Article 15 Statute of the Court). No judge or Advocate-General is allowed to take part in the adjudication of a case in which he or she had previously taken part as agent or adviser, or where he or she has acted for one of the parties. A similar estoppel arises where the that judge of Advocate-General has been required to pronounce judgment as a member of another court, tribunal, commission of enquiry, or some similar body (Article 16 Statute of the Court).

The procedure of the Court also bears all the hallmarks of civil law systems, in that there is an emphasis on the written part of the proceedings, and that the case may involve a preliminary investigation. It is described in Title III of the ECJ Statute in conjunction with Title II of the Court’s Rules of Procedure, and involves four stages:

Written procedure

The case is set in motion by a written application addressed to the Registrar. It must contain various particulars, including the name and address of the applicant, the name of the defendant, the subject matter of the dispute, and the applicant’s submissions. Where appropriate, it must be accompanied by documentary evidence which is specific to a particular action (eg the decision whose annulment is being sought under Article 230 (ex Art 173) EC Treaty). In the case of preliminary rulings, it is the referring court which makes the formal application. Within a month of the application having been served on him or her, the defendant must respond by providing certain particulars, including a statement of the arguments of fact and law on which he or she bases his or her defence. This may be the subject matter of a rejoinder by the applicant.

The President then fixes the date on which one of the judges involved, called the Judge-Rapporteur, will present a preliminary report to the Court. This report will contain a recommendation as to whether a preparatory investigation, or any other form of preparatory measure, must be taken before proceeding to the oral part. If no preliminary inquiry is deemed necessary, the President will fix a date for the oral hearing.

Preliminary inquiry

Cases in which the Judge-Rapporteur calls for a preliminary enquiry tend to be the exception rather than the norm. However, it is sometimes necessary to involve this stage, particularly in cases involving complex questions of a technical nature. The measures in question can take the form of a personal appearance by the parties, oral testimony, the commissioning of an expert report, etc. The Court may also decide to summon and examine witnesses and/or experts. The parties may respond by submitting written observations.

The President then fixes a date for the oral hearing.

Oral procedure

The oral procedure commences with the reading of the report presented by the Judge-Rapporteur. The Court then hears Counsel for both parties, as well as any witnesses and/or experts. Finally the Opinion of the Advocate-General is read out.

The judgment

Following the conclusion of the oral proceedings, the judges retire to consider their verdict. They do so in secret, and therefore no one is supposed to know in what language they deliberate. However, it has become a matter of common knowledge that French is used throughout. Consonant with Continental practice, the judgment is a highly formal affair, and must contain a number of particulars stated in Article 63 of the Rules of Procedure. Prominent amongst these are the grounds for the decision.

The Court decides as a collegiate body. This means that the decision is deemed to represent the collective will of all the judges taking part in the decision. There is therefore no scope here for a dissenting opinion in the common law tradition. The major advantage of this approach is that no judge can be accused of bias in favour of the nationality of any of the parties. Where a judgment is made in a preliminary ruling, the national court making the reference is bound by the Court’s ruling. In all other cases, however, the rulings of the Court are not binding, either on the national courts or on the Court itself.

Nevertheless, the Court has endeavoured to adhere to a consistent line in its decisions, thus giving rise to what is known as the ‘established case law’ of the Court.

Costs

The unsuccessful party is ordered to pay the costs of the proceedings. If there is more than one unsuccessful party, the Court decides how costs are to be shared.

If each party succeeds on some points and fails on others, or in exceptional circumstances, the Court may order that the costs be shared or that the parties should bear their own costs (Article 69 Rules of Procedure).

Special review procedures

The judgment is not necessarily the last word in the case. If third parties feel that their rights have been prejudiced by a certain decision, they may challenge it on that basis (Article 97 Rules of Procedure). Second, if facts come to light which could materially affect the decision, the party affected may apply for revision of the Court’s decision (Articles 98 and 99 Rules of Procedure).

Interpretation techniques

There are in principle several techniques open to the Court when interpreting provisions of Community law. The first is the literal interpretation technique, whereby the meaning of the text is derived from its wording rather than from its context. The Court has found this method to be of limited use, for two main reasons. First, provisions of Community legislation are equally authentic in all official Community languages, and differences between the various linguistic versions of an instrument obviously make it difficult for one uniform interpretation to emerge.¹³Second, Community legislation is very often framed in very broad terms, making it very difficult for the Court to gauge its intrinsic meaning. What, for example is the Court to make of the term ‘worker’ in Article 48 EC Treaty when applying the literal method?¹⁴

This is why in most cases the Court has applied a more context-based technique, called the teleological method. Here, the Court attempts to establish what was the intention of the authority which issued the rule in question. This method was best expressed by the Court in the CILFIT decision,¹⁵ where it explained that:

... every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.

Functions and powers

The general role of the Court of Justice is to ‘ensure that in the interpretation and application of this Treaty the law is observed’. The ECJ discharges this responsibility by means of the actions which can be brought before it. These are either direct actions, whereby an applicant brings an action to the Court on one of the grounds specified in the Treaty, or indirect actions, whereby a national

13 Case 29/69, Stauder v Ulm [1970] ECR 420, in which a difference had been noted between the German and Dutch versions of a provision.

14 Weatherill and Beaumont, 1999, p 192.

15 Case 283/81, CILFIT v Italian Ministry of Health [1982] ECR 3415.

court seeks from the ECJ a ruling on an issue of Community law which has arisen in a case brought before it. These are discussed in detail in Chapter 6 below. The Court has certain other functions, such as acting as an appeal instance in relation to decisions made by the CFI.

Does the Court have a ‘political’ role?

This is an accusation which has frequently been flung at the Court, but which is hard to sustain in the light of the available evidence. Unfortunately, the Court has itself sometimes given ammunition to those who have sought to attack its role in this manner. It is certainly true that the Court has sometimes strayed from the path of judicial principle onto the uncertain wastelands of political expediency. Thus there was a suspicion in the Van Duyn case¹⁶ that the Court had allowed itself to be influenced by the forthcoming referendum on British membership of the Community, and thus returned a verdict in favour of the British government in a manner which went against all its principles of interpretation. However, these are isolated events and in no way indicate a consistent departure from judicial orthodoxy for political expediency (below, p 300).

On the other hand, it must also be conceded that the Court has been responsible for developing new concepts and theories which have given a completely new dimension to Community law. The manner in which the Court developed the principle of direct effect is a case in point (below, p 198 et seq).

However, in many cases the Court has no choice but to do this. Very often the provisions of Community law are very broad and, sometimes, rather vague, so that the Court is forced to avail itself of a certain degree of creativity in order to arrive at a decision. This is entirely consistent with Continental practice, and it is significant that hardly any accusation to this effect ever emanates from across the Channel.