Professor Lenaerts led his audience through the growth and development of the Court of Justice of the European Union (CJEU), often citing similarities with the development of the Supreme Court in the USA, a theme that he has studied in detail.
He recalled that courts in democratic societies do not have the power of the purse, nor that of the sword. They are, as Alexander Hamilton famously said in the Federalist no 78, the ‘least dangerous branch’. And yet, they are entrusted with the most noble of missions, that of pursuing justice by upholding the rule of law. As guardians of the rule of law, the CJEU and the US Supreme Court guarantee that both public authorities and private citizens respect the “rules of the game”. There are nevertheless significant differences in the way those two courts of last resort work, which Professor Lenaerts highlighted during his presentation.
First established in 1952 the CJEU is based in Luxembourg and has grown as the European Communities, and subsequently the European Union, have grown. The Court of Justice interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions. It can also, in certain circumstances, be used by individuals, companies or organisations to take action against an EU institution, if they feel it has infringed their rights. The CJEU comprises 2 separate courts: the Court of Justice – which deals with requests for preliminary rulings from national courts, certain actions for annulment and appeals – and the General Court, which is, in effect, the administrative court of the EU.
Throughout his presentation, Professor Lenaerts repeatedly emphasised how the acceptance of the primacy of EU-law over national law, and the commitment to the rule of law by all EU Member States, has proved powerful in enabling integration in many areas of activity. Trust is paramount when allowing residents and goods to cross borders freely, essential prerequisites to the many benefits countries in the Union get from membership. That trust exists in large part because of the way in which legal matters have been handled over the 70 years of the Union’s development. He referred to the fact that the Union comprises an area of freedom, security and justice. Mutual confidence is essential as most of the 27 countries in the EU have land borders with each other and operate a shared border-free zone, under the Schengen Agreement, without controls on the international frontiers between them. This is a democratic choice; countries have freely decided to work together. They still have their own legal systems, including laws on criminal matters for example, which are respected by other EU countries. Moreover, the European Arrest Warrant system exists to ensure that criminals cannot escape justice by fleeing across those open borders to another Member State.
The Union, and its Court of Justice, have grown gradually over the years. Professor Lenaerts emphasized the strength of this gradual growth. Initially, the shared Court of Justice was set up to deal with legal matters in the European Coal and Steel Community, starting with six countries that had pooled their sovereignty governing matters in the coal and steel sectors only. Each time a new Treaty is agreed, the Court of Justice and the other EU institutions and bodies take on the role of interpreting and applying its provisions.
The first Treaties were the ECSC (1951) and EEC Treaties (1957) which created Communities underpinned by an economic rationale. Greater integration and later the current Union were created by further treaties; the Single European Act (1986) and the successive modifications in the Maastricht (1992); Amsterdam (1997); Nice (2001) and Lisbon (2007) treaties. These covered territorial expansion and deepening – both substantive and institutional – of European integration, internally and externally.
Throughout the changes bringing about that territorial expansion and substantive deepening, one element has remained consistent: respect for the rule of law. In fact, its ‘integration through the rule of law’ paradigm defines what the European Union stands for, as European integration can only take place when both the EU institutions and the Member States respect ‘the rules of the game’. Similarly to the US Supreme Court, workload and focus of the CJEU have changed over the years. For the first 30 years the cases were mainly economic in nature, although the relevance of the Court of Justice’s many judgments exceeded that sphere in the case law that they created, on fundamental rights for example. The next 40 years saw an increased complexity of cases with a shift away from market issues towards Union citizenship as the fundamental status of nationals of the EU Member States.
Confidence in the system is key.
This is achieved in part by the way judges are appointed to the EU courts, but also to the manner in which they operate. Each country has a judge on the Court of Justice. The General Court has two judges from each country.
Countries nominate members of the Court, but then there is a shared vetting process. We were told that as many as a third of initial nominees are not appointed. This vetting is undertaken by a panel responsible for giving an opinion on prospective candidates’ suitability to perform the duties concerned. This ensures that their independence is beyond doubt and that they are both qualified for appointment and represent the highest levels of judicial expertise. Each judge and advocate general is appointed for a renewable 6-year term.
By contrast, judges are appointed for life to the Supreme Court in the US. They are also political appointments in the control of the President of the day. As a result, there is an expectation of how they will view a case although in practice they do not always conform to such expectations. A good example is the 7:2 verdict in the Obamacare case.
There is also no political involvement in appointing the President of the Court of Justice. The judges of the Court of Justice elect, from amongst themselves, a President and a Vice-President for a renewable term of three years. The President directs the work of the Court and presides at hearings and deliberations of the full Court or the Grand Chamber.
Also essential to building confidence is the way the courts work. National courts apply Union law on a daily basis. Issues of interpretation come to the CJEU. Items are often referred for preliminary consideration and the CJEU will say what the law is, enabling national courts to apply it. At times, the Court will deliberate over many days to reach agreement. This is another difference between CJEU and the Supreme Court. In the US the judges can write a separate opinion. In the EU Court of Justice that cannot happen. The principle of collegiality is paramount. The European Court of Justice therefore presents a single, unified judgment.
Noting this contrast with the USA, Professor Lenaerts explained that minority opinions cannot be given in a CJEU judgment. The judges sitting in a case work together until they reach a common solution. This method of working is based on the French system of collegiate judgments. In addition, the oath of office involves agreeing to be independent, and never to reveal the content of deliberations. These methods of working enhance confidence in the rule of law which is seen to be independent and not subject to political influence.
A third feature in building confidence is the primacy of Union Law over national law. All laws are approved both by the European Parliament, which is similar to the US House of Representatives, and the Council of Ministers, which might be considered similar to the Senate in some respects.
The Court may sit as a full court, in a Grand Chamber of 15 Judges or in Chambers of three or five Judges. It has to sit in a Grand Chamber when a Member State or an institution which is a party to the proceedings so requests and it also does so in particularly complex or important cases. As President of the Court, Professor Lenaerts presides over Grand Chamber cases. Of more than 800 cases a year, he told us that about 80 currently come before the Grand Chamber. 500 to 600 of the total cases are preliminary reference cases, i.e. those where national courts ask the CJEU to interpret EU law or to rule on the validity of an EU act.
Appeals on points of law only may be brought before the Court of Justice against judgments and orders of the General Court, which hears the many direct actions brought for judicial review against EU institutions and bodies. If the appeal is admissible and well founded, the Court of Justice sets aside the judgment of the General Court. Where the state of the proceedings so permits, the Court of Justice may itself decide the case. Otherwise, it refers the case back to the General Court, which is bound by the decision given by the Court of Justice on the appeal.
It is important to understand that not every EU legal matter goes to the EU Court of Justice. The courts of the Member States are the normal courts for applying European law. As would be expected, newer Member States tend to submit more cases for a preliminary ruling as they go through the process of developing a deeper understanding of how Union law affects national law. A national law can never override a Union law. To ensure the effective and uniform application of European Union legislation and to prevent divergent interpretations, the national courts may, and when ruling at last instance must, refer to the Court of Justice and ask it to clarify a point concerning the interpretation of EU law, so that they may ascertain, for example, whether their national legislation complies with that law. A reference for a preliminary ruling may also seek the review of the validity of an act of EU law. The Court of Justice’s reply is not merely an opinion, but takes the form of a judgment or reasoned order. The national court to which it is addressed is, in deciding the dispute before it, bound by the ruling given. The Court’s judgment likewise binds other national courts before which the same problem is raised.
In addition to preliminary ruling cases, four other types of legal action are possible.
The Court of Justice will hear cases for enforcement of the law (infringement proceedings) – this type of case is taken against a national government for failing to comply with EU law. These cases can be brought by the European Commission or by another EU country. If the country is found to be at fault, it must put things right at once, or risk a second case being brought, which may result in a fine.
If an EU act is believed to violate the EU treaties or fundamental rights, the Court can be asked to annul it (actions for annulment). Such cases can be referred to the EU courts by an EU government, the Council of the EU, the European Commission or (in some cases) the European Parliament. Private individuals can also ask the Court to annul an EU act that directly and individually concerns them.
The Parliament, Council and Commission are obliged to take action under certain circumstances. If they don’t, EU governments, other EU institutions or (under certain conditions) individuals or companies can complain to the Court. These are referred to as actions for failure to act.
The last category comprises actions for damages, in effect making EU institutions liable to pay compensation where appropriate. Any person or company who has had their interests harmed as a result of the illegal action or inaction on the part of the European Union can take action against it before the EU courts.
Commenting on UK involvement in the EU, Professor Lenaerts noted that Winston Churchill said on September 9th 1946 in Zurich that a United States of Europe was needed. However, the UK was slow to join, always had “one leg in, one leg out” and has now left the Union. The UK was never part of the Schengen Agreement and had low involvement in other fields of Union action. To read more about this see the book reference below.
Respect for the rule of law within the EU is precisely what has enabled the EU to overcome the challenges brought about by a changing world, whilst remaining faithful to the values of democracy and respect for fundamental rights that Europeans all share and cherish.
Professor Lenaerts argued that if the next generation of Europeans is to explore new horizons for an ever-closer Union where citizens may continue to enjoy a sphere of individual liberty free from public interferences, then integration through the rule of law is the only way forward.
In summary, strong and independent courts are a prerequisite for further European integration, based on the values of democracy and the protection of fundamental rights.
EU Constitutional Law, Koen Lenaerts, Piet Van Nuffel, and Tim Corthaut
Published by Oxford University Press in December 2021.
- provides a complete overview of EU constitutional law and is an excellent starting point for academics and practitioners alike;
- contains a section on judicial protection and a provides a basic framework for those who enforce EU law;
- includes commentary on Brexit and the implications of the UK leaving the EU.