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The role and composition of the European Court of Justice, including Article 234 references

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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 matters.
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 six-year-term.

The United Kingdom has one judge and one advocate-general

The Court of Justice of the European Communities (ECJ)

Web site

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 Advocates-General.

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 period.


Advocates General

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 court.

Role. Includes:

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.


Key functions

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.


First Function

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.


Second Function

Referrals under Article 234 of the Treaty of Rome 1957

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.

A request for a preliminary ruling is made under Article 234 of the Treaty of Rome.

This says that:

The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of treaties;

(b) the validity and interpretation of acts of the institutions of the Union;

(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 referrals.

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.


Mandatory referral

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.


Discretionary referrals

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 (1990) ECJ

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 case.

  • There is no need to refer a point which is reasonably clear and free from doubt; this is known as the ‘acte clair’ doctrine.

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 reference.

  • 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 women.


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.


Judicial Panels

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

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