Introduction to European Union law
Introduction to European Union law

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Introduction to European Union law

9 Role of the CJEU

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Figure 11 CJEU

The role of the CJEU has been vital in ensuring compliance with the Treaties and EU primary and secondary legislation. EU primary legislation expands upon framework principles in the Treaties. The CJEU has been accused of judicial activism. When studying the CJEU’s judgments, bear these questions in mind:

  • Has the CJEU interpreted EU rights more broadly than those laid down in the Treaties?
  • If so, has the court acted as a quasi-constitutional court, which has invented new rights, or has it just extended existing ones?

First watch this video, which explains the organisation role of the CJEU.

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Transcript: The organisation role of the CJEU

This is how justice is served, EU style.
Well, we're about to watch a judgment being delivered in the European Court of Justice. Now, bearing in mind this is not the European Court of Human Rights that Tory backbenchers hate, this is a completely different organisation, in a completely different city, doing a completely different thing.
This place deals with European Union organisations, countries, and companies who are accused of breaking the EU's rules. So last year, for example, they passed judgment on whether airlines should pay compensation if passengers are delayed, whether people from outside the EU are entitled to housing benefits, but most often they're responding to national courts who've asked for an EU law to be clarified.
This particular case is being heard by a panel of 15 judges. Sometimes there are fewer, depending on how complicated it is. Overall, there is one judge from each member state. They serve terms of six years, and they've all got a legal background. Sitting on the sidelines, a role that British courts don't have but this one does: an advocate general.
…--for a preliminary ruling by the High Court of Justice of England…
There are eight of them, and here's Britain's: Eleanor Sharpston. Her job: to analyse cases and suggest what the court might do.
People reading the judgments of the court find it easier to understand what the court is saying and the reasoning behind the thinking of the court if they have an advocate-general's opinion, which gives more background, sets the scene, explains what the options were that the court had to consider, and then why you might go one way or the other.
Secondly, most supreme courts, when they are dealing with a case, have the benefit of judgments that have been given by the courts below. With this court, many of the cases that come to us are cases that come straight here.
Critics of the justices who've sat here over the years accuse them of expanding the EU by stealth, even though they're not elected. But talk to them, and they say judges at home aren't elected, either. Personally, I'm just amazed how much the building looks like a boutique hotel.
Now this is a big place, doing a big job. There are about 600 new cases lodged here every year. And in the league table of which countries end up here most often, the UK's kind of near the bottom: not as squeaky-clean as, say, Slovenia, but not accused of being naughty as often as France.
And did I mention it's definitely not the European Court of Human Rights?
End transcript: The organisation role of the CJEU
The organisation role of the CJEU
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The CJEU has developed through its Decisions a number of general principles. These are considered as defining features of EU law. Some have now gained a statutory base; for instance, non-discrimination, found in Article 18 TEU, and proportionality and subsidiarity, found in Article 5 TEU, are contained in the Treaties. Other features, which are evidence of the court’s flexibility that allows it to adopt a declaratory common law approach, derive from the principles of law residing in the jurisprudence of member states, such as legal certainty, legitimate expectations and non-retroactivity of laws.

In assuming this mantle, the CJEU sees its role as necessary to cover gaps in the written text. Sometimes it has used general principles to justify extending the ambit of EU law. It did this in Kückdeveci v Swedex GmbH & Co KG (Case C-555/07) [2010] I ECR 00365, in which the court ruled that national courts should disapply national legislation that conflicted with general principles of non-discrimination in employment.

In J Nold Kohlen- und Baustoffgrosshandlung v Commission of the European Communities (4/73) [1975] ECR 985, the CJEU stated that there were two main sources of ‘inspiration’ for fundamental rights: the common constitutional traditions of member states, and international Treaties for protecting human rights in which member states had participated. Since the Treaty of Lisbon, the CFR is now also an important source of rights and has legal effect.

To protect and apply these principles, the CJEU used Articles 263 and 267 TFEU as procedures through which it can examine both the EU institutional acts and interpretation of the Treaties and EU legislation in the national courts of member states to ensure they rule in a way compatible with EU law.

A debate has arisen about the extent to which the court has operated as a constitutional court in its own right and its capacity under Article 19 TEU to interpret the law in a way that furthers integrationists’ goals. Article 19 TEU requires the court to ensure fulfilment of Treaty objectives. Accordingly, it takes a broad interpretation of this provision. Most importantly, the court has sought to guarantee the supremacy of EU law in member states even though there is no written Treaty provision to that effect. Additionally, the emphasis upon integration by the court has been to maximise individual rights through the principles of direct effect, indirect effect, incidental effect and state liability.

The issue of legal base

Section 5 showed that competence arises from the Treaties. These provide the legal foundation or legal base for all EU action. The choice of legal base used is crucial, as it will determine which legislative procedure must be used. In turn, this defines the extent of involvement of each institution and the legality of any Decision made by an EU institution. On occasion, this has proved controversial. In Commission v Council (Titanium Dioxide) (Case C-300/89) [1991] ECR I-2867, the CJEU held that the choice of legal base rests on objective factors that are amenable to judicial review. It used a teleological (purposive) approach. In this case, the court was mindful of the need to guarantee the EU Parliament’s rights under the Treaty to participate in the legislative process. Thus through the rule of law the court enhanced the Parliament’s democratic legitimacy.


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