The Court of Justice of the European Union after the reform established by the Lisbon Treaty
| Author | Dan Vataman |
| Position | Lecturer Ph.D., 'Gheorghe Cristea' University, Bucharest |
| Pages | 1-8 |
1
THE COURT OF JUSTICE OF THE EUROPEAN UNION AFTER THE
REFORM ESTABLISHED BY THE LISBON TREATY
Dan VĂTĂMAN
٭)
Abstract
Taking into account the importance for the Court of Justice in the European
Union's institutional system, especially the fact that by the entry into force of the
Treaty of Lisbon there has been a reform in the functioning of the European
Union as a whole, this study attempts to highlight the changes introduced in the
judicial system of the Union by the Treaty of Lisbon. Thus, by identifying new
issues it aims at shaping a true picture of the activity of the core institutions of the
European Union, whose mission is to ensure „compliance with law in the
interpretation and application” of the Treaties on which the European Union is
based.
Keywords: Court of Justice; European Union law; jurisdiction; judicial
institution; legal acts
1. Preliminary Considerations
Even during the negotiations in the international conference which was tasked
to complete the Paris Treaty establishing the European Coal and Steel Community
(ECSC), representatives of the six founding countries felt the need for a body
vested with the legality of acts of ECSC bodies, ensuring the balance between
them and the Member States, ECSC authorities to ensure non-interference in the
so-called „reserved area of the Member States”. For this reason, by the Institutive
Treaty signed in Paris on 18 April 1951 was created the ECSC Court of Justice.
According to the founding document, the Court must ensure that the law was
complied with in the interpretation and application of the treaty and the
enforcement regulation.
Subsequently, the Treaties of Rome, which established the EEC (European
Economic Community) and the EAEC (European Atomic Energy Community),
foresaw the creation of many a Court of Justice, with the same role in every
community, but in parallel with the signing of two treaties, on 25 March 1957,
was also signed the „Convention on certain institutions common to the European
Communities” which provided that the three European Communities should have
a single Court of Justice which would exercise the powers established by each
treaty, according to the regulations for each of them
1)
.
٭)
Lecturer Ph.D., „Gheorghe Cristea” University, Bucharest, e-mail: danvataman@yahoo.com.
1)
Article 3 of The Convention adopted in parallel with the Treaties of Rome (25 March
1957), stated that the jurisdiction which the Treaty establishing the Europe an Economic
Community and the Tr eaty establishing the European Atomic Energy Community confer upon the
Court of Justice shall be exercised, in accordance with those T reaties, by a single Court of Justice.
2
From the time of its establishment, the mission of the Court of Justice of the
European Union is to ensure „compliance with law in the interpretation and
application” of treaties. In this mission, the Court of Justice of the European
Union controls the legality of acts of European Union institutions, shall ensure
that Member States fulfill their obligations arising from treaties and interprets
European Union law at the request of national courts. The Court of Justice is the
judicial authority of the European Union which in cooperation with the courts in
the Member States ensures uniform application and interpretation of European
Union law. It also settles legal disputes between European Union governments
and European Union institutions. Individuals, companies or organizations can also
bring cases before the Court if they feel their rights have been infringed by a
European Union institution
2)
.
2. The evolution of the Court of Justice of European Union
Along the progress of European integration and subsequent accessions, the
number of shares has increased and it was necessary, first, to relieve the work of
the Court of Justice and, secondly, to establish a second level of jurisdiction.
Modifying the Paris and Rome Treaties, the Single European Act (SEA)
stated that at the request of the Court of Justice and after consulting the
Commission and the European Parliament, the Council may, acting unanimously,
attach to the Court of Justice a court with jurisdiction to hear and determine at
first instance, subject to a right of appeal to the Court of Justice on points of law
only and in accordance with the conditions laid down by the Statute, certain
classes of action or proceeding brought by natural or legal persons
3)
. The General
Court (The Court of First Instance) of the European Communities was created at
the request of the Court of Justice by the Council decision of 24 October 1988.
Court of First Instance thus completed the Community courts, the Court of Justice
of the European Union being, at this time, composed of two independent
jurisdictions: the Court of Justice and the Court of First Instance
4)
.
In the Treaty which set up the European Community were established 25
articles under Part IV of Chapter I (Institutional Provisions) of Title I of Part V of
the Treaty. Some changes and additions have been made by the Treaty of Nice in
December 2000 when it was also adopted an annex to this Protocol, including the
Statute of the European Court of Justice.
Also, Article 4 of The Convention provides that upon taking up its duties, the single Court o f
Justice referred to in Article 3 shall take the place of the Court provided for in Article 32 of the
Treaty establishing the European Coal and Steel Community.
2)
http://curia.europa.eu.
3)
Article 4 of SEA.
4)
Dan Vătăman, Institutional law o f the European Union, Universul Juridic Publishing
House, Bucharest, 2010, p. 122.
3
Meanwhile, due to the increased workload of the Court of First Instance and
in accordance with the Treaty of Nice
5)
, which gives the Court of Justice the
opportunity to request the creation of judicial panels, the project of transferring
the litigation regarding the European civil service to a new specialized jurisdiction
has led to creating a new court. Thus, in accordance with the Treaty of Nice, the
Council, by its decision of 2 November 2004, joined the Court of First Instance
and the Civil Service Tribunal of European Union. The creation of this specialized
court allowed the elimination of the Court of First Instance of disputes between
the Communities and their officials according Article 236 of EC Treaty and
Article 152 of EAEC Treaty, including disputes between all bodies or agencies
and their officials for that jurisdiction was conferred on the Court of Justice
6)
.
The most recent document that has governed the organization and functioning
of the Court of Justice is the Treaty of Lisbon, which has brought some changes to
both the Treaty on European Union (TEU) and the Treaty establishing the
European Community (TEC).
Thus, Article 13 of TEU (consolidated version), established that the name of
this institution to be „the Court of Justice of the European Union” and by the
provisions of Article of 19 TEU previous treaties provisions were completed in
the organization and functioning of the Court of Justice.
3. Reform of the Court of Justice of the European Union made by the
Treaty of Lisbon
3.1. Changes in organization of the Court of Justice of the European Union
Given that with the Lisbon Treaty, the European Union has acquired legal
personality
7)
and was replaced and succeeded the European Community
8)
, having
also a new institutional framework, was needed as a judicial community
institution to change its name. Thus, since the entry into force of the Treaty of
Lisbon, the European Union judicial system as a whole is called the Court of
Justice of the European Union, which is composed of three courts: Court of
Justice, the General Court (created in 1988) and the Civil Service Tribunal
(created in 2004)
9)
. Their primary task is to examine the legality of European
Union measures and ensure the uniform interpretation and application of
European Union law
10)
.
5)
Declaration No 16 relating to Article 225a of the EC Treaty, adopted when the Treaty of
Nice was signed on 26 February 2001- OJ C 80, 10.3.2001, p. 80.
6)
Council Decision of 2 November 2004 establishing the European Union Civil Service Tribunal
(2004/752/EC, Euratom) - Official Journal of the European Union No L 333 of 9.11.2004, p. 7.
7)
Article 47 of TEU
8)
Article 1 of TEU
9)
Article 19 of TEU
10)
Dan Vătăman, Institutional law of the European Union, Universul Juridic Publishing
House, Bucharest, 2010, p. 123.
4
Regarding the creation of specialized courts, the Treaty of Lisbon has
resumed the existing provisions, but provided in the same time certain changes in
procedures for the creation of specialized courts, which will be established under
the ordinary legislative procedure (co-decision) and not unanimously, as before.
The Treaty of Lisbon considers that a request to amend the Statute of the
Court of Justice of the European Union is considered „draft legislative acts”
11)
and
therefore must be subjected to ordinary legislative procedure. Instead, the status of
Judges and the Advocates General and the Court of Justice's language
arrangements shall remain subject to unanimity rule.
Regarding arrangements for appointing members of the Court of Justice of the
European Union the Treaty of Lisbon resumed existing provisions, Judges are
appointed by common accord of the governments of Member States for a term of
six years, but after consultation of a panel responsible for giving an opinion on
prospective candidates' suitability to perform the duties concerned
12)
. This panel
comprise seven persons chosen from among former members of the Court of
Justice and the General Court, members of national supreme courts and lawyers of
recognized competence, one of whom shall be proposed by the European
Parliament. Acting on the initiative of the President of the Court of Justice, the
Council shall adopt a decision establishing the panel’s operating rules and a
decision appointing its members
13)
.
3.2. Changes in the powers of the Court of Justice of the European Union
According to Article 19 (3) TEU (consolidated version following the adoption
of the Lisbon Treaty), the Court of Justice of the European Union shall, in
accordance with the Treaties: rule on actions brought by a Member State, an
institution or a natural or legal person; give preliminary rulings, at the request of
courts or tribunals of the Member States, on the interpretation of Union law or the
validity of acts adopted by the institutions; rule in other cases provided for in the
Treaties.
Therefore, according to the treaties on which the European Union is founded
(TEU and TFEU), the Court of Justice of European Union has acquired prior
jurisdiction in the area of freedom, security and justice. Following the entry into
force of the Treaty of Lisbon was abolished the three-pillar structure of the EU
and were removed Article 35 of TEU
14)
and Article 68 of TEC
15)
, which imposed
restrictions on the jurisdiction of the Court of Justice.
11)
Article 3 of Protocol (No 2) on the application of the principles of subsidiarity and
proportionality annexed to TFEU.
12)
Article 254 of TFEU.
13)
Article 255 of TFEU.
14)
According to former Article 35 of TEU, the Court had no jurisdiction to review the validity
or proportionality of operations carried out by p olice or other law enforcement services in a
5
First, with regard to the former Title VI of TEU (Police and Judicial
Cooperation in Criminal Matters, Articles 29-42) the Court of Justice for a
preliminary ruling is binding and is not subject to a declaration each Member
State, the State recognizes that power and indicates that national courts to which it
can be referred. With the adoption of the Lisbon Treaty, policing and criminal
justice came into common law and, thus, all national courts may apply to the
Court of Justice of the European Union. A number of transitional provisions
stipulate, however, that this full power will not be applicable until five years after
the entry into force of the Treaty of Lisbon
16)
.
Secondly, with regard to the former Title IV of TEC (Visas, asylum,
immigration and other policies related to free movement of persons), now the
Court of Justice of European Union may be informed by all national courts and
jurisdiction to rule on public policy measures in border controls.
Also, since the entry into force of the Lisbon Treaty, the Charter of
Fundamental Rights of European Union has acquired the same legal value as the
Treaties
17)
, the Court of Justice of European Union may rule on the application of
the Charter. However, according to the Protocol no. 30 annexed to the TFEU on
application of the Charter of Fundamental Rights in Poland and the United
Kingdom, the two states have an exemption. Thus, the Charter does not extend the
ability of the Court of Justice of the European Union or of any other instances of
the two Member States to consider the laws, regulations and administrative
provisions, practices or actions are inconsistent with fundamental rights or
principles that it reaffirms. In particular, and for the avoidance of doubt, nothing
in Title IV of the Charter creates for Poland or the United Kingdom rights to be
invoked before a court only in so far as Poland or the United Kingdom has
provided for such rights in their national legislation
18)
.
The Treaty of Lisbon has introduced a number of changes in the procedures
before the Court of Justice of the European Union. Thus, the preliminary
Member State or to decide in the e xercise of responsibilities incumbent upon Member States to
maintain public order defense and homeland security.
15)
According to former Article 68 of TE C, the Court had no jurisdiction to decide what
measures or decisions taken under Article 62 paragraph 1 of Treaty relating to the maintenance of
public order and internal security defense.
16)
According to Article 10 paragraph 1 of Protocol 36 on transitional provisions, as a
transitional measure, the powers of the Court of Justice remain unchanged in respect of acts of
police and judicial cooperation before the entr y into force of the Treaty of Lisbon. According to
paragraph 3, the transitional measure mentioned in paragraph 1 shall cease to have effect five
years after the date of entry into force of the Treaty of Lisbon.
17)
Article 6 of TEU.
18)
Taking into consideration the Declaration no. 53 by the Czech Republic on the Charter of
Fundamental Ri ghts of the European Union (annexed to TFEU), at the meeting of the European
Council (29-30 October 2009), Heads of State or Government of Member States have agreed to
further extend this exemption and the Czech Republic.
6
procedure was extended to acts of bodies, offices or agencies and therefore, the
Court of Justice of European Union has jurisdiction to give preliminary rulings on
the interpretation and validity of them. As a novelty, in the TFEU it was
introduced a provision according to which the Court of Justice shall act as soon as
possible if a preliminary issue is raised in a case pending before any court or
tribunal of a person under a custodial measures
19)
. Thus, there is reference in the
text of the treaty with the urgent preliminary ruling procedure, which entered into
force on 1 March 2008 and applies to the area of freedom, security and justice
20)
.
Also, through reforms made by the Treaty of Lisbon has extended the control
of the Court of Justice to the European Council acts, which at the same time was
recognized as an independent institution of the European Union. According to
Article 269 of TFEU, the Court of Justice shall have jurisdiction to decide on the
legality of an act adopted by the European Council or by the Council pursuant to
Article 7 of the Treaty on European Union (TEU) solely at the request of the
Member State concerned by a determination of the European Council or of the
Council and in respect solely of the procedural stipulations contained in that
Article
21)
.
At the same time, the reform carried out by the Treaty of Lisbon have
improved conditions for admissibility of actions brought by individuals (natural or
legal) against decisions of the institutions, bodies, offices or agencies of European
Union. Thus, any natural or legal person may bring proceedings against a bill if
the person is directly affected and it does not entail implementing measures
22)
.
In its review of the principle of subsidiary, the Court of Justice of European
Union may be referred by a Member State with an action to annul a legislative act
contrary to the principle of subsidiary, the act of a national parliament or of one of
the rooms of such a parliament. The action must be brought in officially by the
19)
Article 267 of TFEU.
20)
This procedure allows the Court of Justice of European Union to resolve within a
considerably reduced the most sensitive questions concerning the area of freedom, security and
justice, such as those which may arise, for e xample, in some cases involving deprivation of liberty,
when the response to question is crucial in assessing the legal situation of persons detained or
deprived of liberty or, in proceedings concerning parental authority or guardianship, if the court
having jurisdiction under Community law depends on the answer to the question – Council
Decision (20 08/79/EC, Euratom) of 20 December 2007 amending the Protocol on the Statute of
the Court of Justice – Official Journal of the European Union L 24/29. 1.2008.
21)
According to Article 7 of TEU, on a reasoned proposal by one third of the Member States,
by the European Parliament or by the European Commission, the Council, acting b y a major ity of
four fifths of its members after obtaining the consent of the European Parliament, may determine
that there is a clear risk of a serious breach by a Member State of the values referred to in Article
2of TEU (respect for human dignity, freedom, de mocracy, equality, the rule of law and respect for
human rights, including the rights of persons belonging to minorities. These values are c ommon to
the Me mber States in a society in which pluralism, non-discrimination, tolerance, justice,
solidarity and equality between women and men prevail).
22)
Article 263 of TFEU.
7
government of a state, but may also simply be „sent” by a government if the true
author of the action is a national parliament or a chamber thereof. Also, the
Committee of Districts may rely on an infringement of those principles, within the
provisions on which consultation is mandatory.
The reform made by the Treaty of Lisbon has accelerated the mechanism of
pecuniary sanctions (lump sum or penalty payment) a decision in the case of non-
infringement
23)
. Thus, the Court of Justice may apply even from the very first
decision of infringement, pecuniary penalties unless the European Commission
shall communicate the national measures transposing a directive
24)
.
4. Conclusions
To achieve an „organized and active” Europe as was mentioned in the
Schumann Declaration, countries have concluded treaties which established the
European Communities and subsequently the European Union, endowed with
institutions able to adopt the law in specific areas. Thus, to ensure compliance,
understanding and applying it uniformly in all Member States is necessary in a
judicial institution. This institution is the Court of Justice of the European Union
which, together with national courts, makes up the judiciary of the European
Union.
Special importance of Court of Justice stems from the activities undertaken by
it in some specific areas. Thus, Court of Justice of the European Union was a
crucial driving force in the direction of super-nationalization, requiring, among
other things, the principle of direct effect – that is, for every European Union
citizen, without the intermediation of the state where he belongs – European
Union law and supremacy of European Union law over the national one.
In addition, Court of Justice of the European Union had a great impact on
policy and materials, requiring for example, through an extraordinary decision,
the principle of mutual recognition of standards in the Member States, which
came to replace the harmonization of norms and standards, a difficult process that
could take too long, laying the foundation for creating the internal market. An
important element in the becoming of the Court of Justice was the fact that it
managed by a very well thought out strategy to attract national courts in Court of
Justice of the European Union case-law.
Moreover, it seems very important that thousands of decisions handed down
by a preliminary Court of Justice in areas such as free movement of goods, free
movement of persons, freedom to provide services, equal treatment and social
rights, fundamental rights and citizenship of the European Union have had
important consequences in the daily lives of European Union citizens.
23)
Article 260 paragraph 2 of TFEU.
24)
Article 260 paragraph 3 of TFEU.
8
In conclusion, we find that, following the reform made by the entry into force
of the Treaty of Lisbon, Court of Justice of the European Union has a power much
greater than the influence of the national Constitutional Court or very influential
(e.g. the U.S. Supreme Court or the German Federal Constitutional Court) and
provided decisive impulses of integration.
Thus, the role played by Court of Justice of the European Union, and legal
system that it created, from the perspective of „super-nationalization” is among
the greatest and most unique features of the European Union, which make it differ
fundamentally from other international organizations.
References
Vătăman, Dan. (2010). European Union Law, Bucharest, Universul Juridic
Publishing House;
Vătăman, Dan. (2011). History of the European Union, Pro Universitaria
Publishing House, Bucharest;
Vătăman, Dan. (2010). Institutional law of the European Union, Universul
Juridic Publishing House, Bucharest;
Vătăman, Dan. (2011). Institutional law of the European Union, 2
nd
edition,
Universul Juridic Publishing House, Bucharest.
Other sources
www.curia.europa.eu – the official site of the Court of Justice of the European
Union;
www.eur-lex.europa.eu – Access to European Union law.
