Constitution of the European Court of Justice
Sits in Luxembourg.
Rules on legal interpretation and application of Community rules.
It is concerned with disputes between Member States over Community
Also rules on disputes between individuals and the Community institutions
on matters relating to the treaties.
Its rulings are binding,
There are fifteen Judges and eight advocates-general appointed for a
The United Kingdom has one judge and one advocate-general
The Court of Justice of the European
The function of the ECJ is stated in
Article 220 Treaty of Rome; the
court must "ensure that in the interpretation and application of the
Treaty the law is observed". Provides the judicial safeguards necessary to
ensure that the law is observed in the interpretation and application of
the Treaties and all of the activities of the Union. The ECJ Interprets
the common regulatory framework and settles disputes on the application of
Community law. It can settle disputes between Member States, between EU
institutions and Member States, between different EU institutions and
between EU institutions and companies or individuals. One of the very
important tasks of the Court is to submit advance notification of
interpretation of Community law which it does pursuant to Article 234. The
court sits in chambers of 3 or 5 judges (7 or more for particularly
important cases). Submissions are made in writing. The court gives a
single judgment (no dissenting judgments as in the ELS).
Membership: 25 Judges (one who is the President) and 8
It may sit as a full Court, in a Grand Chamber (11 Judges) or in chambers
of three or five Judges. It sits in a Grand Chamber when a Member State or
a Community institution that is a party to the proceedings so requests, or
in particularly complex or important cases. The quorum for the full Court
is 15. They are appointed under
Article 222 of the Treaty of Rome
from those who are eligible for appointment to the highest judicial posts
in their own country or who are leading academic lawyers. Each judge is
appointed for a term of six years, and can be re-appointed for the same
The Court is assisted by eight Advocates General who also hold office for
six years. Each case is assigned to an Advocate General whose task under
Article 223 is to research
all the legal points involved and 'to present publicly, with complete
impartiality and independence, reasoned conclusions on cases submitted to
the Court of Justice with a view to assisting the latter in the
performance of its duties’.
These rulings are very important and are usually followed by the full
Preliminary rulings – Art. 234
Action against Member State for failing to fulfil an obligation – Arts.
226 & 227
Action to annul a Regulation, Directive or Decision that is Judicial
Review of Community Acts – Art. 230
Proceedings for failure to act by the institutions, commenced by a state,
another institution or a citizen.
Located: Both courts sit in Luxembourg.
The court’s task is to ensure that the law is applied uniformly in all
Member States and it does this by performing two key functions.
Commission actions against Member States
Is to hear cases to decide whether Member States have failed to fulfil
obligations under the Treaties. These actions are usually initiated by the
European Commission, although they can also be started by another Member
State. For example the UK failed to satisfactorily implement a Regulation
on the fitting of tachographs in commercial vehicles.
Re Tachographs: The Commission v United Kingdom (1979) ECJ
Held: The United Kingdom had to fulfil its obligation under a
Council Regulation on the use of mechanical recording equipment
(tachographs) in road vehicles used for the carriage of goods.
Article 234 of the Treaty of Rome
The second key function is that it hears references from national courts
for preliminary rulings to clarify the scope and meaning of European law.
This function is a very important one since rulings made by the European
Court of Justice are then binding on courts in all Member States. This
ensures that the law is indeed uniform throughout the European Union.
request for a preliminary ruling is made under Article 234 of the Treaty
This says that:
The Court of Justice shall have jurisdiction to give preliminary rulings
(a) the interpretation of treaties;
(b) the validity and interpretation of acts of the institutions of the
(c) the interpretation of the statutes of bodies established by an act of
the Council, where those statutes so provide.
Article 234 of the Treaty of Rome creates discretionary and mandatory
Where such a question is raised before any court or tribunal of a Member
State, that court or tribunal may, if it considers that a decision on the
question is necessary to enable it to give judgment, request the Court of
justice to a ruling thereon. Where any such a question is raised in a case
pending before a court or tribunal of a Member State against whose
decisions there is no judicial remedy under national law, that court or
tribunal shall bring the matter before the Court of Justice.
are referrals which have to be made because there is no further appeal
possible within the Member State’s judicial system, effectively this means
that the House of Lords must refer questions of European law.
The Court of Appeal and below have a choice, they may refer if they wish
or may decide the case without any referral.
Even courts at the bottom of the hierarchy can refer questions of law
under Article 234, if they feel that a preliminary ruling is necessary to
enable a judgment to be given.
Torfaen Borough Council v B & Q
Cwmbran Magistrates’ Court made a reference on whether the restrictions
which then existed on Sunday were in breach of the Treaty of Rome.
Bulmer v Bollinger (1974) CA
Lord Denning laid down the guidelines for discretionary referrals:
Article 234 references should be made only
if a ruling by the European Court is necessary to enable the English
court to give judgment in the case.
“Necessary” means that the ruling would be
conclusive in the case; if other matters remain to be decided then the
ruling would not be considered “necessary”.
There is no need to refer a question which
has already been decided by the European Court of justice in a previous
There is no need to refer a point which is
reasonably clear and free from doubt; this is known as the ‘acte
The court must consider all the circumstances of the case, especially:
The length of time which may elapse before
a ruling is made; the delay may cause injustice in an urgent case, and
it takes about 18 months to get a ruling.
The possible overloading of the European
Court of justice, which in turn will cause more delay.
The difficulty and importance of the case.
The expense which will be involved.
The wishes of the parties; it must be
noted that the situation is different to an appeal in that the parties
cannot make a reference themselves; it is the court which makes the
That the English court retains the
discretion on whether to refer or not.
Since 1974 there have been many referrals, though there have been signs
that English courts are more prepared to hold that the Treaty is clear and
can be applied directly by the English court.
Pickstone v Freemans plc (1988) HL
In Pickstone the House of Lords held that Article 119 EEC Treaty was clear
and could be applied directly regarding equality of treatment of men and
Preliminary rulings made and case is
referred back to originating court
The European Court of Justice makes a preliminary ruling on the point of
law the case then returns to the original court for it to apply the ruling
to the facts in the case.
Court of First Instance
In 1988 a Court of First Instance was created to relieve the European
Court of Justice of some of its heavy workload. There are 25 judges but no
Advocates-general. All cases heard at first instance by the Court of First
Instance may be subject to appeal to the Court of Justice solely on
questions of law.
In view of the increasing number of cases
brought before the Court of First Instance in the last five years, in
order to relieve it of some of the caseload, the Treaty of Nice
provides for the creation of ‘judicial panels’, which are new, specialised
courts to hear and determine specific matters, the decisions of which may
be the subject of an appeal to the Court of First Instance.
Official Journal information
[ Next ]