The Court of Justice of the European Union

• Author: Ioana Nely Militaru
• Profession: PhD is Associate Professor at the Law Department of the Bucharest University of Economic Studies
• Pages: 116-172

Chapter 6. The Court of Justice of the European Union

6.1. Regulation of the institution of the Court of Justice

The Court of Justice of the European Union (CJEU) has as its legal basis

the following provisions:

- art. 19 TUE;

- art. 251-281 TFEU;

- art. 136 TEuratom;

- Protocol no. 3 annexed to the Treaties on the Statute of the Court of

Justice of the European Union.

The Court of Justice created by the Treaty establishing the European Coal

and Steel Community (TECSC) in 1951, was vested with the control of the legal-

ity of the acts issued by the High Authority and the Special Council of Ministers,

which would ensure a balance between them and the Member States and guaran-

tee the mixing of the TECSC authorities in the so-called "field reserved for

states"

1

. A few years later, TEEC and TEuratom, as well as the two protocols that

supplement them, also provide for the creation of a Court of Justice that corre-

sponds to the same requirement as the Court of Justice of the European Commu-

nities (CJEC) established by TECSC.

✓ The Convention on certain institutions common to the European Com-

munities, signed on March 25, 1957, provides that the powers conferred on the

Court of Justice by each of the treaties shall be exercised by a single Court of

Justice.

✓ At the same time as the successive accessions of states to the European

Communities/ European Union, the number of actions before the Court of Justice

increased, which determined the necessity of establishing a second degree of ju-

risdiction through the Single European Act (SEA), which asked the Council to

set up to a court of first instance

2

. The diversification of the community jurisdic-

tion has thus resulted in the redistribution of some competences previously held

by the Court of Justice to the Court of First Instance (CFI), provided that the

supreme control of the Court is protected in the new context of judicial structure.

✓ The establishment of the CFI did not, however, stop the large volume

of cases that the two community jurisdictions face. This reason determined the

authors of the Treaty of Nice to provide in 2001 the possibility of creating judicial

chambers to analyze in the first instance the special disputes (art. 225bis TEC

3

).

In the context of the concern to distribute special cases to the judicial chambers,

1

See B. Ştefănescu., op. cit., p. 34.

2

Council Decision of 24 October 1988.

3

Statement no. 16 regarding art. 225 TEC, adopted at the signing of the Treaty of Nice on 26

February 2001.

Organization and duties of the European Union institutions 117

the transfer of disputes between the Communities and its officials

1

to a new spe-

cialized jurisdiction was registered, which led to the creation of a new court.

✓ Thus, in accordance with the provisions of the Treaty of Nice, the

Council adopted, in 2004, the decision

2

establishing, together with the CFI, taking

the place of the judicial chambers, the Civil Service Tribunal. It thus removed

from the jurisdiction of the Court of First Instance, both the disputes between the

Communities and its officials (according to art. 236 TEC and art. 152 TEuratom)

who returned to the Civil Service Tribunal, as well as the disputes between bodies

or agencies and their officials, for whose resolution the Court of Justice of the EU

is competent

3

.

✓ The Lisbon Treaty regulates the organization, competence and func-

tioning of the Court of Justice of the European Union in art. 19 TEU and art. 251-

281 TFEU. The court in Luxembourg comprises, according to art. 19 par. 1, the

Court of Justice, the General Court (the former CFI) and the specialized courts,

among which we distinguish the Civil Service Tribunal.

✓ The Court of Justice "has the mission to ensure the observance of the

law in the interpretation and application of the treaties" (art. 19 paragraph 1 TEU)

having a prominent role in the system of judicial protection, established by the

TEC/TFEU

4

. Member States shall establish the remedies necessary to ensure ef-

fective judicial protection in the fields governed by Union law [article 19 (1)

TFEU]. The Court of Justice is a completely original jurisdictional court with re-

spect to any other court constituted within any other interstate organization, de-

fining itself concurrently as an interstate international jurisdiction, as a constitu-

tional jurisdiction, as an administrative court, as a supreme court of a federal fed-

eration. states, and as an arbitration court

5

.

6.2. Composition and organization of the Court of Justice

6.2.1. Court of Justice - representative court

The Court of Justice is composed of one judge for each Member State,

therefore 28 judges (article 10, paragraph 2 TEU), and is assisted by 8 Advocates

General. At the request of the Court of Justice, the Council, acting unanimously,

1

Disputes concerning the European civil service.

2

Council Decision 2004/752/EC, Euratom, of 2 November 2004, establishing the Civil Service

Tribunal of the European Union, O.J. L 333/7 of 9 November 2004.

3

Idem.

4

See Ph. Lèger, Commentaire article par article des traités UE et CE, Dalloz, Paris, 2000.

5

See B. Ştefănescu, op. cit., (2003), p. 82; see O.-H. Maican, Court of Justice - part of the commu-

nity legal system, „Revista de Management Comparat Intemaţional” no. Special 2/2010, pp. 993-

1000.

118 Ioana Nely Militaru

may increase the number of Advocates General (article 252 TFEU).

Judges and Advocates General are jointly appointed by the governments

of the Member States (article 253 TFEU). The appointment intervenes every three

years, being partially replaced by a group of 6 or 7 judges

1

, so as not to disrupt

the functioning of the institution.

Prior to the Treaty of Nice, the question arose whether a non-EU national

could be elected judge

2

. In practice, however, an unwritten rule has operated that

the Luxembourg Court always has at least one national from each Member State

3

.

The Treaty of Nice establishes this practice and explicitly provides that each

Member State shall appoint a national of its own as a judge, to enter the compo-

sition of the Court, which requires the conclusion that a non-EU national cannot

be elected judge.

Legally, this mechanism of joint appointment of the members of the

Court prevents us from considering the judges as mere representatives of their

states; they are also obliged to act in complete independence. However, joint des-

ignation is merely an appearance; each judge is, in fact, proposed by his home

state and his choice by each national government is generally not the subject of

any discussion

4

.

✓ Following the example set out for the International Court of Justice

5

-

magistrates must be chosen from persons with high moral qualities, who fulfill

the conditions required in their countries to be appointed to the highest judicial

functions or are highly competent jurists recognized in law internationally

6

- and

the judges and advocates-general of the CJEU are chosen from the personalities

that offer all the guarantees of independence and which meet the conditions re-

quired for the exercise, in their countries, of the highest judicial functions or

which are jurisconsuls whose competences are recognized [art. 253 paragraph (1)

TFEU] or "jurisconsults with notorious powers"

7

may be called upon to operate

in Luxembourg.

In practice, the composition of the Court has been quite diversified. The

1

Under the conditions provided by the Statute of the Court of Justice of the EU.

2

See M.-C. Bergerès, Contentieux communautaire, Presse Universitaires de France, 1989, p. 42.

3

In the beginning, the big states (Germany, Spain, France, Great Britain, Italy), in addition, in the

row, after the list, had an additional member (given the initial number even), so that the Court

always had an odd number of judges. See O. Manolache, op. cit., p. 99.

4

See V. Grementieri, De Statut des ju ges de la Cour de justice des communautés européennes ,

RTDE, 1967, p. 822.

5

See art. 2 of the Statute of the International Court of Justice (I.C.J.).

6

See A. Bolintineanu, A. Năstase, B. Aurescu, Drept internațional contemporan, Ed. All Beck,

Bucharest, 2000, p. 201; R. Miga Beşteliu, Organizații internaționale interguvernamentale, Ed. All

Beck, Bucharest, 2000, p. 196.

7

This situation was highlighted by the French economist Jacques Rueff (the first French judge of

the CJCE). He served in the Court for 10 years; pointed out that "the application of the law cannot

be done without a certain economic intelligence". He was a finance inspector and a famous special-

ist on economic issues. This appointment could be explained by the fact that the first objective of

the treaty was economic integration. See M.-C. Bergères, op. cit. (1989), p. 39.