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4.1.5.  The Court of Justice

    According to the Treaty of Lisbon (emulating the draft Constitutional Treaty), the Court of Justice of the European Union includes the Court of Justice, the General Court and specialised courts. Hence, the term "Court of Justice of the European Union" officially designates the two levels of jurisdiction taken together. The supreme body is called the "Court of Justice" while the former Court of First Instance is renamed "General Court", but their actual composition and tasks are not changed (Article 19 TEU, Article I-29, Constitution). The Court of Justice consists of one judge from each Member State [Rules of procedure of the Court of justice, last amended on 12 August 2016, OJ L 217, 12.08.2016]. The General Court includes at least one judge per Member State, which means that the number of judges of the General Court may be greater than the number of the Member States [Rules of procedure of the General Court, last amended on 12 August 2016, OJ L 217, 12.08.2016]. The Judges and the Advocates-General of the Court of Justice and the Judges of the General Court are chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union. They are appointed by common accord of the governments of the Member States for six years. Retiring Judges and Advocates-General may be reappointed [See the Rules of procedure of the Court of justice].

    The Treaty of Lisbon maintains the existing provisions concerning the appointment of members of the Court by common accord of the Governments of the Member States for six years, but from now on they will be appointed after consultation of a panel responsible for giving an opinion on candidates' suitability to perform the duties of Judge and Advocate General of the Court of Justice and the General Court. This panel will be composed by seven persons chosen from among former members of the two Courts, members of national supreme courts and lawyers of recognised competence, one of whom will be proposed by the European Parliament (Article 255 TFEU).

    By regulation adopted with the ordinary legislative procedure, at the initiative of the Commission or of the Court of Justice, specialised courts may be attached to the General Court to hear and determine at first instance certain classes of action or proceeding brought in specific areas (Article 257 TFEU = Article III-359, Constitution). The members of the specialised courts are chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office. They are appointed by the Council, acting unanimously. Decisions given by specialised courts may be subject to a right of appeal on points of law only or, when provided for in the regulation establishing the specialised court, a right of appeal also on matters of fact, before the General Court. The General Court exercises at first instance jurisdiction in disputes between the Union and its servants [Regulation 2016/1192].

    In a community of states the common rules adopted by the decision-making bodies might be interpreted and applied differently from country to country, if only national courts controlled them. Therefore, the general task assigned to the Court of Justice and to the General Court is to ensure that European law is observed in a uniform manner in the interpretation and application of the Treaty, of the legal acts and of the decisions adopted by the Council and the Parliament or by the Commission (Articles 19 TEU and 251 to 281 TFEU) [see section 3.3]. The judgments of the Court of Justice, many important ones of which are referred to in the footnotes of this book, consolidate the European law to which are subject the governments, the national courts, the parliaments and the citizens of the Member States. Although European law is a statute law passed by legislative bodies, it is often amended by them in accordance with the case law of the Court of Justice. The Court plays therefore an important role in the European integration process by clarifying ambiguous legal provisions, adopted sometimes under the pressure of reaching agreement by law-makers of different cultures concerned about various national interests.

    The Court of Justice of the European Union shall, in accordance with the Treaties: (a) rule on actions brought by a Member State, an institution or a natural or legal person; (b) 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; and (c) rule in other cases provided for in the Treaties (Article 19 TEU). The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties. Any natural or legal person may, under certain conditions, 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 (Article 263 TFEU).

    Being the supreme court of the European Union, the Court of Justice not only gives a coherent and uniform interpretation of European law, but it ensures that all the Member States and their citizens comply with it. Apart from the tendency of governments to interpret European law in the interest of their nations, it is new law and not always well known. The national judges, who are the judges of first instance of the rules and behaviour relative to European law, may turn to the Court of Justice by means of a referral for a preliminary ruling to ask it to adopt a position on the interpretation or evaluation of the validity of the provisions of European acts (Article 267 TFEU). Although they are normally optional, referrals for a preliminary ruling are obligatory where judicial remedy under national law is no longer possible, i.e. when the court, which has to apply the European law, is taking its decisions in the final instance. Through its preliminary rulings, the Court plays the role of a legal council whose opinions are binding on the parties concerned. The referral for a preliminary ruling is appreciated by the national courts and stimulates the cooperation between them and the CJEU.

    Disputes falling within the unlimited jurisdiction of the Court are made up in particular of cases relating to non-compliance or to the interpretation of the Union's rules of competition. Hearing an appeal by undertakings (firms, businesses) penalised by the Commission for infringing competition law, the Court gives a ruling on the merits of the Commission's decision and on the appropriateness of the penalty imposed on the undertaking. The Court also judges disputes which call into question the Union's civil liability as a result of damage caused by one of its institutions or staff in the exercise of their duties.

    In the legal field itself the Court reviews the legality of European acts. Proceedings for annulment may be brought against the decision-making institutions (Council or Council/Parliament and Commission) either by a Member State, or by another institution or even, in certain instances, by an individual (Articles 263 and 264 TFEU) [see judgement C-263/02]. The aim of these proceedings is to annul those acts of the institutions, which are at variance with the provisions of the Treaties or their spirit, which exceed their rights or which do not comply with the procedure laid down. If the action is well founded, the Court declares the act in question to be void. Proceedings for annulment are therefore the means to monitor both the conformity of the acts of the European legislator with the Treaties and the legality of individual Commission decisions and regulations, as well as to resolve interinstitutional disputes affecting the very exercise of the powers devolving upon each of the institutions from the Treaties. The control of the legality of the acts of the institutions likens the Court to a constitutional jurisdiction.

    Proceedings for failure to act, on the other hand, are aimed at securing a ruling where the Council or the Commission has failed to meet its obligation to act, thus infringing the provisions of the Treaties. Such proceedings may also be initiated by a Member State, and possibly by individuals, or another European institution, but they are admissible only if the institution in question has first been called upon to act. Thus, for example, in September 1982 the European Parliament brought an action for failure to act against the Council for failing to establish the framework for the common transport policy [Parliament resolution, see section 20.2.1.]. In November 1993, the Parliament, on the basis of Article 175 of the EEC Treaty (Article 265 TFEU), brought an action against the Commission for failure to present the proposals necessary for the establishment of the free movement of persons within the internal market.

    The Court has also jurisdiction to rule on proceedings brought against Member States, which do not meet the obligations imposed on them by the Treaties or secondary legislation. Proceedings for infringement may be brought by European institutions (in practice, the Commission), a Member State or an individual. Referral to the Court by the Commission is the final stage in an action for infringement, taking place following an unsuccessful formal notice to the Member State from the Commission (Article 258 TFEU) [see section 4.1.2.]. If a State does not comply with an initial judgment, new proceedings may be brought, at the end of which the Court will rule that there has been a violation of the obligations deriving from its initial judgment. Article 260 of the TFEU allows the Commission to bring the case of a Member State, which has failed to comply with a ruling of the Court of Justice, again before the Court. If the Court finds that the Member State has indeed failed to comply with its judgment, it may impose a lump sum of penalty payment [see e.g. Case C-387/97 and Case C-304/02], calculated after a method devised by the Commission [Communication from the Commission], which is responsible for the implementation of Article 260 § 3 of the TFEU [Communication from the Commission]. The Court may also order a Member State to pay both a periodic penalty payment and a lump sum fine for a serious and persistent failure to comply with European law [see Case C-304/02]. The efficiency of European law can nevertheless be guaranteed concurrently by the national courts and through referrals for preliminary rulings if a citizen feels that he or she has been injured by the incriminated act.

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