European Court of Justice
|State level||European Union|
|position||Supreme judicial body (and part of the EU judicial system )|
Kirchberg Plateau ,
Luxembourg , Luxembourg
( President ) Rosario Silva de Lapuerta (Vice President) Maciej Szpunar (First Advocate General) Alfredo Calot Escobar (Chancellor)
The European Court of Justice (ECJ), based in Luxembourg, is the supreme judicial body of the European Union (EU). According to Art. 19 (1) sentence 2 TEU, it ensures “the observance of the law in the interpretation and application of the contracts”. Together with the General Court of the European Union , it forms the judicial system of the European Union, which assumes the role of the judiciary in the political system of the European Union .
The ECJ was founded in 1952 by the Treaty establishing the European Coal and Steel Community (ECSC) and started its work in 1953. Initially, he was only responsible for disputes within the ECSC Treaty. After the establishment of the European Economic Community (EEC) and the European Atomic Energy Community (EAG or EURATOM) by the Treaty of Rome in 1957, the ECJ, as a joint body of the communities, was responsible for all disputes arising from the three treaties. In 1989 the Court of First Instance ( only called the European Court since the Treaty of Lisbon ) was created to discharge the ECJ . Between the beginning of November 2004 and September 1, 2016, the Civil Service Tribunal also existed as a specialized court , which gave the European Court jurisdiction over legal disputes between the European Union (or originally the European Communities) and its civil servants or other servants up to its dissolution took over. Since the Treaty of Lisbon in 2009, the European Union has replaced the European Community; the ECSC Treaty expired in 2002. Since December 1, 2009, the ECJ has been a joint body of the European Union and the European Atomic Energy Community and is responsible for interpreting the law of these two organizations.
Jurisdiction and Procedure
Rules of Procedure
The organization of the Court of Justice, the competences and the judicial procedure are regulated in its own rules of procedure and were published in the Official Journal of the European Union . The Ordinance is divided into:
- Entry regulations
- First title Organization of the Court of Justice
- Title Two General Rules of Procedure
- Third title Templates for a preliminary ruling
- Fourth Title Action
- Title Fifth Appeal against Decisions of the General Court
- Title Six Review of Judgments of the Tribunal
- Seventh title expert opinion
- Eighth title Special types of procedure
- Final provisions
Tasks and responsibilities
The tasks are laid down in EU Treaty , to 281 of the TFEU and the Statute of the Court of Justice of the European Union. In particular, this includes ensuring the uniform interpretation of the law of the European Union and the European Atomic Energy Community . Direct lawsuits are only possible at the ECJ itself in certain cases. Jurisdiction depends on the legal remedy and the respective instance of the court. With a few exceptions, the European Court of Justice is also responsible for actions brought by Member States against the European Commission at third instance.
The ECJ is solely responsible for actions brought by the European Commission (especially infringement proceedings ), other organs of the European Union or the member states that are not directed against the Commission, as well as for decisions in the preliminary ruling procedure.
- Infringement proceedings ( TFEU ): The European Commission can bring an action against a member state - after preliminary proceedings - before the ECJ. The ECJ then examines whether a member state has not fulfilled its obligations arising from the Treaty on the Functioning of the European Union. A complaint is served on the ECJ, some of which is published in the Official Journal of the European Union and served on the defendant. Depending on the case, evidence and an oral hearing are taken. The Advocate General then delivers his opinion. In it he makes a proposal for a ruling, but the ECJ is not bound by it. According to TFEU, one member state can also take action against another before the ECJ (after preliminary proceedings through the involvement of the Commission, (2) to (4) TFEU).
- Preliminary ruling procedure ( TFEU ): The national courts can or must, as far as the last instance ( e.g. Federal Fiscal Court , Federal Court of Justice ) is concerned, submit questions to the ECJ regarding the interpretation of the law of the European Union. You can also have it checked whether a European legislative act is valid. This is particularly intended to ensure the uniform application of European Union law by the national courts, which are responsible for enforcing it. In its hearing, the national court must rely on the interpretation or validity of European Union law (it must be relevant to the decision and the interpretation must not already have been clarified) in order to be able to refer a question. It interrupts its proceedings until the ECJ answers. The question submitted will first be translated into all official languages and published in the Official Journal. This gives the parties involved, all Member States and the institutions of the European Union the opportunity to express their views. Again i follow. d. Usually an oral hearing and an advocate general's opinion before a judgment is reached. The referring court (and other courts in similar cases) are bound by the judgment of the ECJ.
The language of the proceedings can be any official language of the European Union . The choice is made by the party filing the action; in the preliminary ruling procedure, it is the language of the member state of the requesting court; in the case of actions against a member state, its official language (and possibly several) will be the language of the proceedings. This regulation is intended to ensure that every member of the European Union can carry out legal acts in their own language. All procedures documents into the language and the French - - internal working language of the ECJ translated , preliminary ruling and the ECJ rulings, when they are intended for publication, in all official languages. Statements made by the Advocate General, who can speak in his own language, will be translated into the language (s) of the proceedings and into all official languages.
The ECJ and the European Court of Justice have a joint Directorate General for Multilingualism. The translators at the ECJ all have completed legal training and are also referred to as "language lawyers" ( juristes-linguistes or lawyer-linguists ).
Oral proceedings at the ECJ are simultaneously translated by conference interpreters , whereby the parties are advised, if they wish to follow a written text, to forward it to the management in advance by e-mail. In this way, he can be included in the preparatory work by the interpreters. The ECJ maintains an interpreting service with around 70 civil servants and, if necessary, calls in freelance interpreters.
The interpretation of legal norms of the law of the European Union by the ECJ results in some peculiarities compared to the usual legal methods of interpretation that have already arisen during the interpretation of Union law.
The first peculiarity is that the legal sources of the law of the European Union do not have a uniform, binding linguistic version, but are currently binding in 24 different languages, which results from EU Treaty . If the meaning of the different language versions is different, the pure wording therefore reaches its limits, and the additional use of comparative law , systematic or teleological arguments becomes necessary.
Furthermore, problems of interpretation arise from the linguistic inaccuracy of primary law - it is the result of difficult political decision-making processes in which a large number of organs or people are involved. Many standards are limited to general formulations in order to give the institutions of the European Union a margin of maneuver and to enable dynamic interpretation. The terms used in the treaties are also autonomous, i.e. H. with meanings under Union law, to be understood and cannot be taken from the linguistic usage of individual member states. In its search for systematic cohesion, the ECJ often uses what is known as “evaluative comparative law ”, looking for the best solution in the national regulations.
Further particularities can be seen in the interpretation of the contracts according to meaning and purpose. For example, the principle of effectiveness (“ effet utile ”) is a special form of interpretation according to meaning and purpose, namely according to the objectives of the contract. Accordingly, the individual provisions of the contracts should be interpreted in such a way that they are as effective as possible. In particular, the CJEU often uses the appeal to the “effet utile” to extend the norms of primary law, sometimes considerably beyond the wording, and to give the community competences and powers that were not originally intended.
Judgments of the European Court of Justice, insofar as they have been given by way of a preliminary ruling under TFEU (or a previous provision such as EC Treaty ), initially serve to enable the referring national court to rule on the main facts. In principle, the ECJ decision only binds the inquiring court through the interpretation of the law of the European Union, whose judgment in turn theoretically only applies to the decided individual case.
However, the factual effect of a CJEU judgment is much greater, it goes far beyond the individual facts that led to the submission. Since the ECJ interprets the law of the European Union in a binding manner for all member states, the norm of the law of the European Union, as it is to be understood by the interpretation proclaimed in the judgment, applies to all member states and - as a rule - ex tunc , i.e. H. retrospectively. In other words: The Court notes as a provision of the law of the European Union has always been and by all should have been understood.
An unlimited retroactive effect of the judgments is possibly prevented by the national procedural laws, insofar as they regulate that a legally binding administrative act or a legally binding judicial judgment can no longer be changed without a separate provision.
From 1953 to the end of 2016, the ECJ issued judgments or orders in around 20,000 legal cases. Around 700 proceedings are currently pending and concluded each year.
Independent legal system of the European Union
One of the most important decisions of the ECJ is the ruling in the " Van Gend & Loos " case of 1963. In this decision, the ECJ established the doctrine that European Union law is an independent legal order sui generis that is governed by the law of the member states be detached. This meant a departure from the prevailing view that the law of the European Union was ordinary international law. The decision is of great importance and caused a sensation in the professional world, as the ECJ also justified with it that the subjects of European law are not only the member states, but also the individual citizens. They can directly invoke rights that they are entitled to under EU legislation. This anchored the doctrine of direct effect in EU law.
From the doctrine of the independence of European law founded in Van Gend & Loos , the ECJ developed the further doctrine of the primacy of European law over the law of the member states, including its constitutional law, in the decision “ Costa / ENEL ” in 1964 .
In these and subsequent decisions, the ECJ repeatedly emphasized that the member states have voluntarily submitted to a union with an independent legal system. The fact that this is a legal order and not just a political alliance is shown time and again, especially in such decisions by the ECJ.
Free movement of goods
An equally important decision of the ECJ in connection with the free movement of goods between the member states is the Cassis-de-Dijon decision of 1979. In it, the ECJ forbade Germany to impose requirements on a product that it does not have to meet in its country of origin. The decision leads to the principle of "mutual recognition" of national product standards, which are, however, limited by so-called generally applicable minimum standards or protective clauses, for example consumer and environmental protection .
Decision-making authority of the European Court of Justice
The national tax regulations within the European Union are still hardly harmonized , especially in the area of direct taxes (unlike indirect taxes , which have been strongly standardized through the VAT directives). The European Union only has the power to harmonize legal provisions in this area if this is necessary for the functioning of the European internal market ( TFEU ). In addition, unanimity in the Council is required. Therefore, in the area of direct taxes, there has only been harmonization in a few areas, for example within the framework of the Parent-Subsidiary Directive and the Merger Directive .
However, according to the established case law of the European Court of Justice, the member states must observe the restrictions imposed on them by the law of the European Union when exercising their remaining competence. This means that although the design of national tax law is and remains part of the sovereignty of the nation states, the result of the exercise of competencies, i.e. national tax laws, must not violate the law of the European Union, in particular the fundamental freedoms .
Important tax law decisions
- Manninen decision : According to the Manninen decision of the European Court of Justice, the restriction of a corporation tax credit procedure to crediting only domestic corporation tax is contrary to Union law. Foreign corporation tax must also be credited. This ruling (along with the EFTA Court of Justice's Focus Bank ASA ruling ) marks the definitive end of corporate tax credit systems in Europe.
- Lasteyrie du Saillant decision : The taxation in France of hidden reserves when natural persons move abroad (but not when they change their domicile in Germany) was considered to be contrary to Union law (see also exit taxation ). In Germany, where a similar regulation existed, the law was adapted by Foreign Tax Act (AStG).
- Gerritse decision : According to the Gerritse judgment, it is inadmissible for persons with limited tax liability not to deduct their income- related expenses if unlimited taxpayers are allowed to.
- Lankhorst-Hohorst decision : Here, the German rules on shareholder external financing were declared to be contrary to EU law.
- Eurowings decision : Adding half of the leasing fees paid to foreigners to trade tax was found to be contrary to Union law.
- Marks & Spencer decision : A resident parent company may not be prohibited from offsetting profits against the losses of foreign subsidiaries if it can prove to the tax authorities that it is impossible to use these losses in the subsidiary's country of domicile because they are already all there Has exhausted the possibility of taking losses into account (marginal no. 55 et seq.).
- Cadbury-Schweppes decision : An additional taxation of the profits of subsidiaries in low-taxing foreign countries is only permissible to defend against purely artificial arrangements. The resident company must be given the opportunity to present evidence of the actual settlement of the controlled foreign company and its actual economic activity.
Until the Charter of Fundamental Rights of the European Union came into force in 2009, Union law did not contain any written fundamental rights . Accordingly, the ECJ initially rejected a fundamental rights review of measures taken by the then community. In the Stauder v Stadt Ulm judgment, however, he stated that the general principles of the Community legal order contained fundamental rights which he had to ensure that they were observed. This change in case law is explained by jurisprudence primarily with the reaction of national constitutional courts to the lack of protection of fundamental rights by the ECJ. In the so-called “Solange I” decision , the Federal Constitutional Court threatened to review Community law measures against the fundamental rights of the Basic Law as long as there was no adequate catalog of fundamental rights at this level. However, this jeopardized the principle developed by the Court of the primacy of Community law over (any) national law and the uniform application of Community law.
In the following decisions, Internationale Handelsgesellschaft mbH / Import and Storage Agency for Grains and Feed and Nold KG / Commission, the ECJ expanded its basic jurisprudence, using in particular the ECHR and the common constitutional traditions of the member states as sources of legal knowledge of the Community fundamental rights . Over the years he has developed an extensive set of basic jurisprudence. However, this was sometimes criticized as ineffective and dogmatically insufficient.
On the basis of the Charter of Fundamental Rights, numerous decisions in the field of fundamental rights have already been passed since it came into force in 2009. For example, the ECJ declared the data retention directive null and void due to a violation of EU fundamental rights. The proportion of decisions in which the Court of Justice cited the Charter rose from 6.4% in 2010 to 17.7% in 2017. Legal scholarship today largely assesses the dogmatic quality of the examination of fundamental rights as having increased significantly.
Other important decisions of the European Court of Justice
- Francovich decision : In the event of a violation of Union law by a member state, the individual citizen is entitled to compensation if the individual has suffered damage as a result of the state violation.
- 1993: Keck decision (legitimation of the restriction of market freedom)
- IATA and ELFAA : The wording of EC Treaty (cf. TFEU ) thus does not restrict the content of the Mediation Committee's measures to enable an agreement on a joint draft (between the Council and the European Parliament) . (C-344/04)
- Kreil decision : The court ruling of the European Court of Justice of January 22, 2000 opened the Bundeswehr to women in all areas.
- In the 2008 Rüffert ruling on the interpretation of Directive 96/71 / EC on the posting of workers , the ECJ banned the mandatory application of collectively agreed wages above generally binding minimum wages within the framework of state collective bargaining laws .
- In the Luxembourg ruling in 2008, the ECJ Luxembourg banned, among other things, the application of an automatic inflation adjustment clause to the wages of posted workers .
The ECJ itself also names the judgments Kraus and Bosman on freedom of movement, the judgments Kohll and Decker on freedom to provide services and the Defrenne and Johnston judgments on equal treatment.
The main point of criticism of the decision-making practice of the ECJ is in parts of legal and political science that it inadmissibly extends European Union law to national fields of law and thus exceeds its competencies. Among other things, the charge is made that the European Court of Justice judges politically as an “agent of centralization”.
The former Vice President of the Federal Constitutional Court, Ferdinand Kirchhof, accuses the ECJ of making “unilateral decisions without regard to established national legal institutions” and thereby intervening in areas that the member states have deliberately kept free from European rules. The Court of Justice would “disregard subsidiarity, proportionality and the provisions on consideration in the European Treaties”. He therefore proposes for Germany that the approval of the Federal Constitutional Court should be required for the courts to appeal to the ECJ.
In its ruling on the ECB bond purchase program of May 5, 2020, the Federal Constitutional Court itself criticized the ECJ's ruling on this in the preliminary ruling procedure as "absolutely no longer comprehensible" and "objectively arbitrary".
The ECJ consists of one judge per member state. The judges must be independent and have the qualifications required for an activity at the highest court in their country or be of "recognized excellent qualifications". The judges will be by a unanimous decision of the Governments of the Member States after consulting the committee referred TFEU appointed Expert Committee formed a six-year term, which de facto of a unanimous decision Council of the European Union equivalent. Half of the judges are reappointed every three years. A reappointment is possible ( TFEU).
The short term of office and the possibility of re-election (which in fact leads to an extension of the term of office) have been criticized by some. In addition, the judges' independence is sometimes questioned. This assessment is based on the fact that each member state determines the judge it wants to send to the ECJ itself, while in the Federal Republic of Germany the independence of the highest judges is strengthened by the fact that they are elected by the Bundestag and Bundesrat. However, it must be countered that, even if this accusation were true, there should not be any disadvantages in practice. The procedural law of the ECJ prohibits the appointment of a CJEU judge as rapporteur in proceedings in which the member state that sent him is involved as a party. The rapporteur is in charge of the respective procedure and prepares the negotiations and the decision in terms of content. The President of the ECJ monitors compliance with this regulation.
President of the European Court of Justice
The President of the ECJ is elected for a three-year term by the judges voting for one of their number. He can be re-elected without restriction.
The President heads the administration of the ECJ and the other judicial tasks and chairs hearings and deliberations in the chambers. He assigns the cases to the ten chambers for any preparatory tasks and also selects a judge from the chamber to act as rapporteur in the respective proceedings . Furthermore, he sets the dates and the schedule for the sessions of the “Grand Chamber” and the entire court. The President also takes a personal position when it comes to requests for injunctions and the like. Ä. goes.
|Surname||Beginning of the term of office||Term expires||nationality|
|1||Massimo Pilotti (1879–1962)||1952||October 6, 1958||Italy|
|2||André Donner (1918–1992)||October 7, 1958||October 7, 1964||Netherlands|
|3||Charles Léon Hammes (1898-1967)||October 8, 1964||October 9, 1967||Luxembourg|
|4th||Robert Lecourt (1908-2004)||October 10, 1967||October 25, 1976||France|
|5||Hans Kutscher (1911–1993)||October 7, 1976||October 31, 1980||Germany|
|6th||Josse J. Mertens de Wilmars (1912-2002)||October 31, 1980||April 10, 1984||Belgium|
|7th||Alexander Mackenzie Stuart, Baron Mackenzie-Stuart (1924–2000)||April 10, 1984||October 6, 1988||United Kingdom|
|8th||Ole Due (1931-2005)||October 7, 1988||October 6, 1994||Denmark|
|9||Gil Carlos Rodríguez Iglesias (1946-2019)||October 7, 1994||October 6, 2003||Spain|
|10||Vassilios Skouris (* 1948)||October 7, 2003||October 7, 2015||Greece|
|11||Koen Lenaerts (* 1954)||October 8, 2015||officiating||Belgium|
A special feature of the ECJ is the institution of the Advocate General ( TFEU ). It is the task of the Advocates General to submit a proposal for a judgment after the oral hearing ("Opinion"). To this end, they summarize the previous case law of the ECJ in similar cases and use them to justify their ideas regarding the assessment of the present case. The Advocate General is not the representative of either party, but should develop his proposal independently and neutrally. The ECJ is not bound by these suggestions, but in practice it follows the advocate general's suggestions in around three quarters of all cases. Since the decisions of the European Court of Justice are usually extremely brief even in their legal statements, it is often only the considerably more analytical statements in the Opinion that provide information about the considerations on which the ECJ's rulings are based.
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