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Lecture Notes European Judicial Protection
Elaborated on slides in class. In-depth notes for exam preparation.
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Lecture 1: In search of EU procedural law: Nationalprocedural autonomy and its limits
Agenda
- European judicial protection – what’s in a name?
- The way you can make use of EU law in courts – don’t normally see this in national law
courses
- Course information and outline
- Introduction to the Court of Justice of the EU as an institution
- Constitutional principles: the rule of law and a complete system of judicial remedies
- The ambition the EU tries to attain
- National procedural autonomy
- Effective judicial protection
European judicial protection – what’s in a name?
- Protection before EU and/or national courts?
- Complementary
- Not just protection before court of justice, but also before national courts
- EU law, first and foremost, emerges in national courts
- Protection of which standards?
- Focus on laws and safeguards in EU law
- Secondary law – Regulations, Directives, Decisions, Recommendations →
derived from primary law
- In the Treaties there are bases for EU to adopt these, so these are
secondary laws
- Implementing decisions or delegating decisions → Treaties call these regulatory
acts; tertiary law
- Situations that exclusively revolve around national law(s) excluded
- Many cases before national courts, EU law is there → EU law is pervasive;
almost always involves some form of EU law
- But: judicial protection of EU law operates in a multi-leveled legal system
- Always references to ECHR – different from the EU but binds all the MS
- National constitutional law – have a role to play as well, so should not dismiss
- When and how to benefit from judicial protection?
- Which avenue of judicial protection is the right one?
- What deadlines apply?
- Who has standing?
,Course information and outline
- Lecturers
- Materials
- For each week, there will be mandatory reading materials (literature and case law)
available in Brightspace
- access to the documents either through a hyperlink or an uploaded pdf
- Additional reading materials are not obligatory to read but may help students to further
research into a topic
- Method
- Only lectures, no working groups
- But revision at the start of every week, based on fictional or real-life cases
- Assessment
- Open book exam
- Outline
- Lecture 1: European judicial protection: National procedural autonomy and its limits
- Lecture 2: Preliminary reference procedure
- Lecture 3: Annulment procedure and failure to act
- Lecture 4: Guest lecture by Marc van der Woude (online)
- Lecture 5: Annulment procedure, second part
- Lecture 6: Infringement procedure
- Lecture 7: plea of illegality, action for damages and revision
Introduction to the Court of Justice of the EU as an institution
- Art. 19(1) TEU: ‘The Court of Justice of the European Union shall include the Court of Justice,
the General Court and specialised courts.’
- Institution by definition because listed as one in art. 13 TEU
- Art. 19 TEU more specific one on the CJEU
- For the purposes of this lecture, we will use the following abbreviations:
- CJEU = the Court of Justice of the EU, i.e., the institution as such
- ECJ = the Court of Justice, i.e., the adjudicatory body or configuration of the CJEU that
has the power to decide, inter alia, in appeals
- GC = the General Court, i.e., adjudicatory body or configuration of the CJEU that often
decides in direct actions as a court of first instance
- Hence, the previous name of the GC: Court of first instance
- If you lose a case before the GC, possibility of appeal to ECJ (so GC first
instance, and ECJ the court of appeal)
- Shows the hierarchy
- Composition
- Composition (Art. 19(2) TEU):
- Court of Justice:
- Consist of one judge from each MS
- Assisted by Advocates-Generals
, - What is the role of Advocates-Generals?
- They make ‘reasoned submissions’, but do not decide
cases; Art. 252 TFEU
- AGs are impartial, not bound by word of President of
ECJ, but really make up their own minds and suggest to
the ECJ how to decide
- Idea that people often cannot distinguish between AGs
and Court proper → often taken as fact as decision of
court – it is an opinion, indicative of what court might
rule, but we don’t have the judgment yet
- Reasoned = they state reasons why they believe the court
should decide a certain way
- General Court:
- At least one judge per MS (currently 2 per MS)
- In rules of procedure (protocol – primary law) – now clarified
that there are 2 judges per MS
- Also has to do with the workload of the court – confronted with
a lot of cases, so makes sense to have more judges
- Possible: establishment of specialized courts at the CJEU: previously, for instance, Civil
Service Tribunal (whose tasks are nowadays performed by the GC)
- Dealing with cases brought by employees of the Union – subject to their own
labor law – Union used to have this tribunal, but now before the GC
- Selection procedure (Art. 19(2) TEU):
- Judges and Advocates-Generals of the ECJ and judges of the GC shall be chosen
from persons whose independence is beyond doubt and who satisfy conditions
set out in Articles 253 and 254 TFEU
- They shall be appointed by ‘common accord’ of the governments of the Member
States for six years
- Relatively long tenure – to ensure their impartiality/independence → if
they were only in for 2 years, would be easier for national government to
put pressure on them
- Reappointment shall be possible
- Selection and appointment
- What qualities and qualifications must judges possess? (Art. 253 TFEU)
- Independence is beyond doubt
- Hard to analytically define what this implies
- Possess the qualifications required or appointment to the highest judicial offices
in their respective countries or who are jurisconsults of recognized competence
- Jurisconsults = if you are an advocate who has been pleading before the
court for many years, probably considered one
- But still pretty vague
- Selection and appointment procedure:
- Appointed by ‘common accord’ of the governments of the Member States of a
term of six years, after consultation of the panel provided for in Art. 255 TFEU
, - ‘common accord’ = difficult to say what this is – not an EU decision-
making mode, not consensus (like European Council decisions); used in
practice that MS governments sit together, and one proposes a candidate
and the others accept it
- Have never not accepted a candidate – hasn’t become a problem
yet, but could see it happening in the future (e.g. Hungary)
- Art. 255 TFEU:
- Modeled on national committees involved in the appointment of judges
- Assessment of potential candidates for office
- Legal capabilities
- Professional experience
- Ability to perform duties of a judge
- Language skills (alors..)
- Working language of ECJ is French
- Ability to work in an international environment
- Independence, impartiality, probity and integrity beyond doubt
- Dutch government now proposing new candidates, since she is stepping down
- As good as transparency gets
- Dutch government reached out to someone, they refused
- Then came up with a new candidate – has been litigating for the
Commission for years
- If all goes well, all MS will agree by common accord that he becomes
judge
- Problems? → has been aligned with the Commission for years, maybe
could be a problem; Dutch government will probably appoint someone
they think will side with them; problem because they are supposed to be
impartial and independent
- Mandate and jurisdiction
- The CJEU ‘shall ensure that in the interpretation and application of the Treaties the law is
observed.’ (Art. 19(1) TEU)
- Broad mandate, including for instance the establishment of unwritten general
principles of EU law
- Principle of proportionality, fundamental rights safeguards (following
Solange)
- Reference to ‘the law’ seems to be broader than interpretation and application of
‘the Treaties’
- Law is more than the Treaties
- There is more to EU law than the Treaties and legislation and legal acts –
also unwritten rules
- Article 19 (3) TEU specifies that the CJEU shall, in accordance with the
Treaties:
- a) rule on actions brought by a Member State, an institution or a natural
or legal person
- b) give preliminary rulings
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