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Lectures 'Institutions of the European Union' Final exam - extensive summary!
In this document, you'll find lectures 8 till 12, covering all you need to know for the final exam!
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- Very difficult to estimate the precise effect, because a great deal of EP persuading andlobbying cannot be monitored -> lots of persuading & lobbying is carried out via informal
contacts with Commission and Council representatives
› Often before a Commission proposal is even officially launced
- Some indication of the EP's influence: under the ordinary procedure, hardly any
legislative proposals now go to the final conciliation stage
› So almost all procedures were in an acceptable form to the EP well before the
end of the second reading
- While the EP hardly blocks legislative procedures, the EP does alter proposals
significantly, including matters of political significance
- So: the EP does have a significant legislative influence - an influence that many national
parliaments cannot match
Weaknesses of the EP
- The EP cannot overthrow a government
- The EP does not have full legislative powers like a national parliament has: it doesn't
have the final say over what is an what is not to become law
- In some important spheres of EU policy (EMU and CFSP), the EP is largely confined to
information-receiving and consultative roles
- It is not unusual for the Council to take preliminary decisions or to adopt common
positions before the opinion of the EP has been delivered
› This is especially common when the initial referral to the EP is delayed, when the
matter is urgent or when the Council is anxious to push the proposal through
› When this happens, the EP's opinion - especially under the consultation
procedure - is reduced
- The EP does not have full powers over administrative legislation
Assertion of power by the EP (examples)
- Forced resignation of the Santer Commission in 1999
- Forced redesignation of the Barroso Commission in 2004
- Rejection of the SWIFT agreement with the US in 2010
- Rejection of the ACTA agreement in 2012
Open questions
- Euroscepticism
› Lowest turnout in EP elections in 2014 (42.54%)
› Slightly better in 2019 (50.62%), but with a rise of Eurocritical and
Eurosceptic parties
› No European demos?
› No European political party system, mere pan-European associations of domestic
parties
- The democratic deficit
› EP has a co-decision right in most, but not in all legislative procedures
› EP has no formal power to initiate legislation
Lecture 8
The Court of Justice of the EU
Today
- Introduction
- Composition of the courts
- Proceedings
- Major decisions
, - Open questions
Introduction
- The legal framework of the CJEU constitutes the single most important feature
distinguishing the EU from other international organizations
› The MS do not just cooperate with each other on an intergovernmental basis, but
have developed common laws designed to promote near uniformity
› The supremacy that applies the interpretation, application and adjudicatation of
these laws constitutes a central element of the supranational character of the EU
› This has involved the MS surrendering some of their sovereignty, since
they are obliged to submit to a legal system over which they only have
partial control over
› This has led to some MS being obliged to apply laws they do not want &
not being able to introduce some laws they did want
- The EU's courts have played an extremely important part in establishing the EU's legal
order in three ways:
› They play the role of constitutional court, where the ECJ adjudicates inter-
institutional disputes and disputes about the division of powers between EU
institutions and MS
› They play the role of supreme court: there are preliminary rulings that have as
their purpose the uniform interpretation and application of EU law
› They play the role of administrative court, when the ECJ and the GC are called
upon by private parties to offer protection against illegal/dubious executive acts
by EU institutions
Relevant Provisions
- Article 19 TEU
- Articles 251 et seq. TFEU
- Further procedures, e.g. Articles 218(11), 228(2), 245(2), 247, 286(6) TFEU
- Protocol no. 3 on the Statute of the Court of Justice of the European Union
- Rules of Procedure
The Court of Justice of the European Union (CJEU)
- Established in 1952 as the Court of Justice of the ECSC
- Seated in Luxembourg
- Judicial branch of the EU: shall ensure that in the interpretation and application of the
Treaties the law is observed
› In the EU, common laws are needed that are capable of uniform interpretation in
all MS, and in order to guarantee this happens, the ECJ was created
- The Court of Justice, and:
› The General Court (formerly CFI)
› Main organizational differences between ECJ and GC:
The GC doesn't have advocates-general
The number of cases coming before and dealt with by the GC are
somewhat higher than the numbers of the ECJ
Whereas in the ECJ, 50% of all cases are dealt with by chambers
of 5 judges, in the GC around 85% of all cases are dealt with by
chambers of 3 judges
› Main differences in cases that come before the ECJ and GC:
The ECJ mainly deals with matters that are of considerable
importance to the EU's legal order, while the GC deals with
matters that are generally more routine in nature
, ECJ: deals with failures of MS to fulfil obligations,
preliminary references from courts in MS, appeals against
GC decisions in direct actions
GC: has responsibility for annulments, failures to act &
staff cases
› Specialized courts attached to the GC, Article 257 TFEU
Composition of the ECJ
- 27 judges, one from each MS
› Appointed for six years
› Term is renewable once, Article 253 TFEU
- Supported by 11 Advocates General: making reasoned submissions ('opinions') on
particular cases
› An AG, on being assigned to a case, must make a thorough examination of all the
issues involved in the case, take account of all relevant law, and then present his
conclusions to the Court
- No concurring or dissenting opinions (<-> European Court of Human Rights)
- The Court may sit as a full court, in a Grand Chamber of 15 judges or in Chambers of 3 or
5 Judges
› Article 16 of the Statute of the Court
› The increasing number of cases coming before the Court have made it impossible
for everything to be dealt with in full plenary session
› Cases that involve complex findings, or novel or important points of law
and which do not require a full plenary session, ar ehandeld by chambers
of 5 judges (ca. half of all cases)
› Virtually all other cases (cases that are based upon straightforward facts,
raise no substantial points of principle, or already covered by existing
law) are dealt with by chambers of 3 judges
› The Court is required to sit in full plenary sessions only in very restricted
circumstances & only does so rarely (15 judges)
- Article 255 TFEU panel: before being appointed by the MS, the suitability of the
nominated candidates is considered by a seven-member panel, known as the '255 panel'
› The judges and advocates-general are appointed by common accord of the
governments of the MS 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
recognized competence
Composition of the General Court
- 54 judges, two from each MS from 2019 on (decided in 2015)
› Previously, only 1 judge from each MS, but with the incorporation of the Civil
Service Tribunal into the GC, its size was expanded
› Because of the sudden heavy workload on the GC alone, its size was expanded
- The GC does not have permanent AGs -> that task may, in exceptional circumstances, be
carried out by a judge
› Article 49 of the Statute of the Court
- May sit as a full court, as a Grand Chamber (15 judges), as chambers of 5 or 3 judges or as
a single judge
› Article 50 of the Statute of the Court
› 85% of cases before 3 judges
Procedure of the courts
- Most of the work of the ECJ and the GC are conducted away from the public eye - not
much happens in open court
, - The way cases are channeled through the ECJ:
1. Relevant documentation and evidence is assembled (in the ECJ, but mainly in the GC by
the judgde rapporteur)
2. A public hearing is likely to be held at which the essentials of the case are outlined, the
various parties are allowed to present their views orally, and the judges and advocates-
general may question the parties' lawyer
3. The advocate-general appointed to the case examines it in detail
4. the advocate-general presents his submission to an open session of the Court
5. Acting on the advocate-general's submission, and on the basis of a draft drawn up by
the judge rapporteur, the Court prepares its decision
- Problems with proceedings of both courts:
› There is a lengthy gap between the cases being lodged and a final decision being
issued
› Takes on average almost 18 months
› Lawyer's fees usually mean that going before the Court in direct action cases can
be an expensive business
› This can be a huge problem for individuals and small firms
› The use of majority voting and the lack of opportunity for dissenting opinions has
encouraged a tendency for judgements sometimes to be very lengthy & vague
Sources of EU law
- The treaties (primary legislation): the EU's treaty structure is made up of two main
component parts: the Treaty on European Union (TEU) and the Treaty on the
Functioning of the European Union (TFEU)
› Do these treaties make up the EU's constitution? They kind of do, because:
› The content of the treaties is very similar to that of national constitutions
(also establish an institutional structure for decision-making and set out
the freedoms to which citizens are entitled and restrictions on the power
of decision-makers over the citizenry), and;
› The status of their contents and how they are determined are kind of
constitutional too
› But, the treaties do not formally constitute the EU's constitution, because:
› The treaties are mainly concerned with policy (setting out general
principles & identify policy sectors and activities that are to be
developed, mainly concerned with economics), which is not very normal
for constitutions
› They do not set out, in a single & readily understandable document that is
officially called a 'constitution', the fundamental bases of the EU's
principles and powers
› So although the treaties do not formally make up the EU's constitution, they have
many clear constitutional features
- EU legislation (secondary legislation): concerned with translating the general principles
of the treaties (primary legislation) into specific rules and are adopted by 1) the EP and
the Council, 2) the Council, or 3) the Commission, according to the corresponding
procedures
› Secondary legislation is constituted of all the laws adopted by the EU institutions
under Article 288 TFEU
› The post-Lisbon TFEU distinguishes between (just like previous treaties have)
different types of legislation:
› Regulations
› Directives
› Decisions
› Recommendations
› Opinions
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