The European Union Explained: Institutions, Actors, Global Impact

8. The European Court of Justice

8 The European Court of Justice Organization Although the ECJ is not explicitly mentioned in the Treaty of Rome, it has twentyseven judges, one from each member state, who are appointed by each member state government for a six-year term. The treaty only mentions that judges must act independently and past records show that decisions have been reached without national biases. The judges are assisted by six advocates general who consider cases and give opinions for the Court’s guidance. Judges are free to accept or reject these opinions, but only rarely do they go against them. The positions of judge and advocate general attract the top individuals in their fields, usually from the upper echelon of a national judicial hierarchy or from academia. Despite the recent criticism of the EU and its institutions, being a judge at the ECJ is still regarded as a highly prestigious job. The duty of the Court is to interpret and apply EU law.1 To speed up the process, cases need not be decided in plenary sessions (i.e., with all judges present) but can be decided in chambers, with three or five presiding judges. Full plenary sessions are required when a member state or an EU institution is a party in the case and requests a full hearing. In contrast to the judgments rendered by the U.S. Supreme 9-EUE Ch8 (67-74).indd 67 9/24/08 9:11:03 AM 68 · Institutions Court, only a single verdict is issued, with no dissenting or concurring opinions. As a result, judgments are sometimes awkward and very diplomatically worded to reflect the different views that may arise. Sources of EU Law In reaching a verdict, the ECJ can base its judgment on a number of sources of law that are not necessarily restricted to the EU but apply outside the Union’s confines. The sources of EU law include treaties such as the Single European Act, the Maastricht Treaty, the treaties of Amsterdam and Nice, and the three founding treaties of the European Community; European legislation, which is produced within the triangle of the European Commission (which proposes legislation) and the European Parliament and the Council of Ministers (both of which vote on the Commission ’s proposals); international law; and general principles of law, which are defined somewhat vaguely but typically include the constitutional traditions of member states as well as traditional principles of human rights such as nondiscrimination, proportionality, and legality. How Do Cases Reach the ECJ? Individual citizens cannot bring their cases to the ECJ but must first exhaust their national judicial systems. The Treaty of Rome allows lower national courts to seek authoritative guidance from the ECJ; the highest courts of a member state must seek this guidance. National courts, therefore, do not interpret EC law but ask Luxembourg for guidance on any aspects of Community law raised by domestic issues. Based on the advice given, the national court considers the case and decides whether the national rule is compatible with EC law. The entire process, called the “preliminary reference procedure,” is intended to ensure uniform interpretation and application of Community law in each member state. With the preliminary reference procedure, the Treaty of Rome established a useful tool for the ECJ to strengthen both Community law and the Court’s own role within the political system of the European Community. It also became a way for European citizens to force their national courts to clarify national laws in relation to European laws. In particular, the lower court judges, not the national High Court judges, contact Luxembourg. Some less successful judges conclude that calling for Table 8.1. The European Court of Justice • One judge per member state • Renewable term of six years • Six Advocates General who analyze cases more deeply • Single verdict (no dissenting opinions) 9-EUE Ch8 (67-74).indd 68 9/24/08 9:11:03 AM The European Court of Justice · 69 an opinion from the ECJ is a good way to raise their own profile within their national judicial system. Most judges, in any case, are attracted to the concept of the European Union governed not by economics or politics but by law. Whatever the reasons, over the past five decades, national and European judges have developed a symbiotic relationship, with national judges becoming the upholders of Community law in their own states. Legal actions that are brought by the Commission...