Chapter 4: The ECJ and the General Court
An overview
• The European Court of Justice (ECJ) is the EU’s most senior court
• The EU has one court of first instance, the General Court (previously known as the Court of First
Instance)
• The ECJ still handles most controversial cases, but the General Court’s jurisdiction is growing
• The General Court now hears judicial review and preliminary ruling cases There is an appeal
from the General Court to the ECJ (within 2 months)
The EU has only one lower court, known as the Court of First Instance or, since the Treaty of Lisbon, as
the General Court. Its jurisdiction now includes judicial review and preliminary rulings. As well as actions
for damages against the Union and for failure to act. Some matters are still reserved to the European
Court of Justice, and the cases of most importance are heard there. Because of this, there is an appeal
procedure from decisions of the General Court to the ECJ, within two months of the decision. But this is
often not necessary, and statistics show that the wider use of the General Court has indeed brought
down waiting times in the EU courts despite the burgeoning caseload.
Specialist Courts
• The ECJ and General Court have a growing caseload
• Some types of cases were very common, e.g. cases brought by staff
• Specialist courts were introduced to deal with these common case types, e.g. European Civil
Service Tribunal
Decisions can be appealed to the General Court Cases brought by staff of the European Institutions
constituted a quarter of all the cases the courts were hearing. The Treaty of Nice, introduced a number
of procedural innovations, aimed to reduce the burden of this by introducing specialist courts in these
popular areas, of which the European Civil Service Tribunal, dealing with these staff disputes, was the
first.
Appeal procedure
• Can be specialist court → General Court → ECJ if a relevant specialist court exists
• Otherwise can start in General Court → appeal to ECJ
• Some cases so important they start in ECJ, usually because they deal with particular sensitive
subjects, or because they involve a lot of money or several states
These specialist courts are arguably at a lower level within the structure than either the General Court or
the ECJ – their right of appeal is to the General Court, which can then only be appealed to the ECJ in
exceptional circumstances – but they possess highly skilled judges trained in, and used to, dealing with
only this particular type of case, which often makes them the best venue for a fair decision.
The European Court of Justice
• Includes one judge from each member state Usually top lawyers, judges, academics
• Independence must “be beyond doubt”
• Sit in panels of 3 or 5
• Member state or EU institution can request a Grand Chamber of 13 judges
The European Court of Justice includes one judge from each of the twenty-eight member states. These
are usually top lawyers, judges or academics, and their independence must be ‘beyond doubt’. The
judges usually sit in panels of three or five opinions from judges across the member states, but still a
prime number, which means deadlock is impossible.
A case in the ECJ
• Written documents drawn up & considered
• Brief oral arguments on behalf of both parties
• Presentation of an Advocate General’s opinion, giving a clear statement of the law
• Judges consider the EU treaties, parties’ submissions and AG’s opinion
• ECJ gives a single collegiate judgement
General and specialist courts taking some of the strain, and even with the judges sitting in small groups,
there are still a huge number of cases for only twenty-eight of them to get through. The actual process
by which a case goes through the ECJ accounts for this by taking as much strain off these judges as
possible. The first step in the procedure is for written documents to be drawn up and considered by the
judges. This clarifies the issues in the case and allows the judges to consider it in their own time. This
written stage is followed by brief oral arguments on behalf of both parties. This should allow the judges
to get a fuller picture, to see the key players in the case in person and to clarify any issues on which the
written documents were not helpful, or on which the judges did not find them credible.
The judges are further aided here by the presentation of an Advocate General’s opinion. The ECJ
employs eight advocate generals, who will be senior legal figures, to assist the court in reaching its
decision by presenting a detailed examination of the facts and the law to the court and offering a
reasoned opinion on how the case should be resolved. This can be very helpful because the Advocate
General’s perspective is a little different to the ECJ judges – it can be more focused on the law and
precedent and gives a good understanding of the current position. But neither precedent or the
Advocate General’s opinion is binding on the court, which can consider wider policy issues and the
future development of the law, as well as their own perceptions of the parties involved.
The judges also have more freedom to interpret the EU Treaty, the primary source of EU law, as well as
secondary sources. Their approach to these documents is teleological or purposive, meaning that they
are free to consider the spirit, intention and overall picture presented by the treaty, rather than
following it to the letter in situations which may not have been envisaged when it was drafted.
Having listened to the parties’ written and oral submissions, considered the Advocate General’s opinion,
and undertaken this teleological reasoning exercise, the ECJ is ready to give its judgement. This is always
a single collegiate judgement – there are no dissenting opinions as are common in UK and other national
courts. This is partly because, with one judge coming from each member state, a dissenting opinion
might undermine that judgement in the dissenting judge’s home state. But this rule, along with the
court’s purposive approach, has made for a strong and decisive body of law.
Preliminary Ruling Procedure
• Found in Article 267 TFEU
• National courts submit specific questions on EU law to the ECJ or General Court
• EU court returns a written answer on that question
• Question must be decisive of the case
• National court is bound by EU court’s application of EU law.
The Preliminary Ruling procedure allows national courts to refer a specific question on EU law arising in
one of their own cases to the ECJ or, in some cases, the General Court. The European court will interpret
or rule on the validity of the EU law in question and return a written judgement on it to aid the national
court in judging the case.
Purposes of the Preliminary Ruling Procedure
• Lessens the workload on EU courts –EU law can be made and shaped in cases where national
courts do most of the work
• Uniform implementation of EU law –national courts can easily ask the EU courts to interpret
rather than ‘filling in the blanks’
• National sovereignty –member states’ courts are still making decisions on when to refer and
how to treat the response –and on appeals
The Preliminary Ruling procedure also serves the purpose of lessening the workload on the EU courts,
but its reasoning for existing is twofold – first, to achieve the uniform implementation of EU law across
different justice systems, which is essential for EU policy to work. Second, the procedure respects the
role of national courts in deciding cases. They will understand their national laws and customs, and the
culture within which acts took place.
And it is important for national sovereignty that the final decisions in these cases rest with national
courts. The doctrine of supremacy makes clear that the national court is bound to accept the European
court’s ruling on the point of EU law and, as will be discussed, a preliminary reference can only be
obtained where the answer to this question is decisive of the case. Nonetheless, a lower national court
might ask for a preliminary ruling, and the case could still be appealed to a higher national court – who
might take a different view of the facts which renders the preliminary ruling question irrelevant. Or the
higher court might even resubmit the same question to the European Courts, which it is entitled to do,
and hope for a different answer.
The EU courts consider their own ‘consistent case law’ but do not recognize precedent in the same way
as UK courts, so a resubmitted question is not unlikely to get a different answer. Union courts are best
equipped to decide Union law, but under Article 267, that is all they do.
Types of Preliminary Ruling
• Ruling on the interpretation of EU treaty or another element of EU law –substantive role
applying core values of the EU to novel facts
• Ruling on the validity of any EU legal instrument –procedural role considering whether
Regulations, Directives etc. have been correctly made and applied.
Two kinds of preliminary ruling – one, on the interpretation of the treaty or another element of EU law,
and two, on the validity of any EU legal instrument. This makes its role both a procedural one, checking
that laws have been correctly enacted and implemented, and a substantive one, considering the
provisions of the treaty with the same teleological approach used elsewhere. This teleological approach
is even more important in preliminary ruling cases, when the national court might be left with the job of
applying the EU’s interpretation to a very modern, unusual set of facts before it, with no guidance other
than the written judgement to help them. An out-of-date or strict interpretation would not be much
help at all.
Compulsory Preliminary Rulings
• Applying for a Preliminary Ruling is compulsory where there is no judicial remedy in national law
(i.e. from the highest court)
• States can be liable if cases are not referred
• Exceptions –where the correct application of EU law is obvious (“acte clair”), or where EU courts
have ruled on a very similar situation
This ongoing consideration of EU law by the courts, and the relationship the referral system creates
between them and the national courts, has led to the preliminary ruling procedure being referred to as
the ‘backbone’ of EU law. Whatever changes are made, and arguments are had at a political level, it is
often the preliminary ruling procedure that makes them clear and effective law because of this, states
will often apply for preliminary rulings even when it is not compulsory for them to do so. In some
circumstances, it will be compulsory. This is when there is no judicial remedy under national law against
the decisions of a court.
There are a few exceptions to the compulsory reference rule – if the Court of Justice has already given a
ruling on the question or a very similar one, or if the matter is what is known as an acte clair, a French
term meaning the correct application is so obvious it does not require a ruling. There is also an
exception for cases where the question of EU law is not decisive of the case. In these circumstances, the
national court of final instance does not have to refer the question because the risk of injustice would be
very minimal.
Discretionary Preliminary Rulings
• Preliminary Ruling system is very popular, and courts refer even when they don’t have to
• Refer when it is “necessary and desirable” UK has 2-stage test
• Necessary - ensure the question has not been asked before and answer is not obvious
• Desirable - Is it practical to make a reference (time, expense, effectiveness, importance)
The national courts can also make discretionary applications. The preliminary ruling system has been
very successful, and lower courts will routinely refer cases even when it is not compulsory, to aid in their
own judgement and prevent the cost incurred if the preliminary ruling comes later. The UK courts apply
a two-stage test to deciding whether to apply for a preliminary ruling. First, to decide whether it is
necessary, they will consider the exceptions to the compulsory reference rule listed above – has the
question already been decided, is the answer completely obvious, or would the question not really help
decide the case anyway? If the answer to any of these questions is yes, then even a compulsory
reference would not need to be made, so a discretionary one ought not be. If the preliminary ruling
would be decisive and is not obvious, and if the same question has not been asked before or the
national court wishes to re-ask it, the UK courts consider the discretionary reference necessary, and
move on to consider whether it is desirable. this is a more practical question, taking into account the
length of time the reference would take, the expense to the parties and their wishes, how clearly the
question can be formulated and its difficulty and importance.
Who can apply for Preliminary Rulings?
• Courts, but EU has interpreted this widely Includes some tribunals and regulatory bodies
• Flexible test, considering factors including
• Body established by law
• Permanent
• Independent
• Allows legal representation
• Is there any national appeal from decisions?
The Preliminary Ruling procedure’s influence has been even greater because the ECJ has taken a wide
view of what constitutes a court, including some tribunals and regulatory bodies. It applies a flexible
test, taking account of several factors. These include whether the body is established by law, is
permanent, is independent, allows legal representation, and again, whether it makes final decisions
which cannot be appealed under national law. Importantly, the body does not need to be a public one
to qualify – the seminal case is that of a private Registration Committee for Dutch doctors, which the ECJ
decided was a court or tribunal for the purposes of Article 267 referrals. This encourages the uniform
application of EU law not just in official courtrooms but in any circumstance where that law is crucial to
a decision.
Judicial Review in the EU
• As in national law, allows courts to assess decision makers’ actions 2 grounds:
• “Infringement of an essential procedural requirement”
• “Infringement of the Treaty or of any rule of law relation to its application”
Judicial review is an old concept in English law and has operated in the EU throughout most of its life. It
allows the courts to assess the actions of decision makers to ensure that they are legal, rational and
proportionate, that they comply with basic standards of natural justice, and that they have been taken
in accordance with the prescribed procedures. In a European context, these grounds are called
‘Infringement of an essential procedural requirement’ and ‘Infringement of the Treaty or of any rule of
law relating to its application’, but their substance is the same. Although the scope of judicial review,
and specific instances of its exercise have been much debated, few would doubt its inherent value.
Judicial Review in the Lisbon Treaty
• Lisbon Treaty made substantial alterations to who can bring judicial review
The Lisbon Treaty has renewed the EU’s judicial review provisions by altering the language around which
acts are judicially reviewable, and who can bring judicial review cases relation to these acts. Article 263,
paragraph 4, now reads:
“Any natural or legal person may, under the conditions laid down in the first and second paragraphs,
institute proceedings against an act addressed to that person or which is of direct and individual concern
to them and against a regulatory act which is of direct concern to them and does not entail
implementing measures.”
"An act addressed to that person"
• Person can be an individual or a company
• An act is any legal instrument, including Regulations, Directives and Decisions, but also anything
else which has legal effect
• If act is addressed to a person specifically, they have ‘standing’, and can bring a judicial review
The question of which acts are judicially reviewable is simple because the answer is so broad – all acts
which have legal effects are subject to judicial review. This means not only Regulations, Directives and
Decisions, which we talked about in Chapter 3, but any other act, under any name, which has legal
effect. So, if an act is addressed to a person – and in legal terms, a person can be an individual or a
company – and has legal effects, they can definitely apply for judicial review. Being able to apply for
judicial review is known as having stood, or in Latin, locus standi.
"Regulatory act of direct concern"
• “Regulatory act” is a new term, and its meaning is not yet clear
• “Direct concern” has replaced ‘direct and individual concern’, which meant an applicant had to
be part of a closed class of persons, known at the time of the decision. It is not yet clear if this is still the
case under Lisbon
• The act in question must require no further implementing measures
To an extent, this is also true of ‘direct concern’ because the court might interpret it differently in the
new context of a ‘regulatory act’, and because the accompanying phrase ‘individual concern’ has been
dropped. Before Lisbon, ‘individual concern’ was applied restrictively, with an applicant having to show
that they were a member of a closed class of persons who were known at the date of the decision. This
was heavily criticized as being too restrictive and undermining the protection of EU rights through
judicial review. One of the ECJ’s advocate generals proposed in his opinion on a case that only a
substantial adverse effect on someone’s interests should be required for them to have individual
concern, but this was not widely adopted before Lisbon.
The test for individual concern also precluded judicial review claims based on Regulations, as, unlike
Decisions, these applied to everyone and so were not made in contemplation of any particular group.
However, the court held that some Regulations actually had the effect of being ‘disguised decisions’ and
that, if the Regulation in question seemed to apply only to a closed category of persons, for example one
industry, or if it used very specific language addressing a single group, it was in fact a Decision and
someone within that closed group could make an application for judicial review. Even where the
Regulation is considered to be a true regulation and not a disguised Decision, there is a possibility that
someone might have individual concern if, on the facts, it is extremely obvious that they are so affected
they must have been contemplated when the Regulation was made, although this will be found very
rarely.
Direct concern, the part of the test that has definitely still been kept under the Lisbon provisions, is
more straightforward but has been no less strict. It means that the measure to be judicially reviewed
must require no implementing measures, and therefore no discretion on the part of member states.
Post-Lisbon, Article 263 reiterates this by explicitly stating no implementing measures can be required.
In the past, the Court of Justice took the view that even where the applicant was a member state who
had clearly signaled its own intentions with regard to implementing a measure, the possibility of
discretion being exercised meant it did not have direct concern.
Special Classes of Standing
• If the applicant for judicial review is a member state or EU institution, they are a “privileged
applicant” and will always have standing.
• The European Central Bank, Court of Auditors and Committee of the Regions are “semi-
privileged”, and have standing to protect their own prerogatives
• Special Interest groups do not have standing unless the individuals they represent would have
standing by themselves
The Court has taken a more realistic approach, under which if the position on implementing measures is
clear, an applicant may still have direct concern. Lisbon’s wording on this issue seems stricter.
There are two classes of applicants which have warranted special attention to their standing – one
positive, and one negative. The positive is that, if the applicant is a member state, or the EU Council,
Commission or Parliament, they are considered to be a privileged applicant and will always have
standing. There is also a semi-privileged class, consisting of the European Central Bank, Court of Auditors
and Committee of the Regions, which will always have standing for the purpose of protecting their own
prerogatives. The negative is that, after a line of cases and much academic discussions, special interest
groups have been held not to have standing unless the individuals they represent are directly and
individually concerned. Whilst allowing these groups standing would undermine the standing test
significantly, not allowing it means that where there is a general interest, such as a long-term social or
environmental effect, it can be very difficult to find any one person who can and will bring the judicial
review case.
