Community Action Programme to combat discrimination 2001

Overview of procedures before the
Court of Justice of the EU
Seminar on General Principles of EU Law
Organised by TAIEX
in cooperation with the Turkish Ministry of Justice
Ankara, Turkey, 04-05 November 2010
Horstpeter Kreppel
Judge at the Civil Service Tribunal of the European Union, Luxembourg
The opinions expressed here are exclusively the personal view of the speaker
Imagine there is European Union law
and nobody is applying it !
We need to have mechanisms to enforce
European Union law
No primacy of European Union law
Overview (I)
The instruments before the European Union
Judiciary are:
• References for a preliminary ruling
(Art. 267 TFEU, ex-Art. 234 EC)
• Infringement proceedings (Art. 258 TFEU, ex- Art. 226
• Direct actions (Art. 263 TFEU, ex-Art. 230 EC)
– By EU-institutions and memberstates
– By individuals and legal persons
– Subsidiarity control (Art. 5 TEU in combination
with 2nd Protokoll)
Overview (II)
• Actions for failure to act (Art. 265 TFEU, ex-Art. 232
• Actions for damages (Arts. 268 and 340 TFEU, exArts. 235 and 288 EC)
• Actions of EU-civil servants (Art. 270 TFEU, ex-Art.
236 EC)
• [Cases before national judiciary – the role of the
national judge as Union judge (Art. 4 TUE, replaces in
substance Art. 10 EC)]
The Structure of the European Union
Court of Justice
1952, then 6, now 27 judges+8 advocate generals,
competent primarily for preliminary rulings and
infringement procedings, direct actions of EUinstitutions and Member states, since 1988 also for
appeals against decision of the General Court
General Court
1988, than 12, now 27 judges, competent primarily for
direct actions by individuals and legal persons, since
2005 also for appeals from the Civil Service Tribunal
Civil Service Tribunal
2005, 7 judges, competent for disputes of civil servants
and other employees of European institutions
Reference for preliminary ruling (I)
Art. 267 TFEU, ex Art. 234 EC:
„The Court of Justice of the European Union shall have
jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the
institutions, bodies, offices or agencies of the Union;
Where such a question is raised before any court or
tribunal of a Member State, that court or tribunal may,
if it considers that a decision on the question is
necessary to enable it to give judgment, request the
Court to give a ruling thereon. ...“
Reference for preliminary ruling (II)
• Prerequisites for a Reference for a preliminary
– Case before a national court
• All types of courts/tribunals
• Not arbitration boards, administrative organs
• No matter on which hiarchical level
– Necessary to solve the case before the national court,
no hypothetical questions
Reference for preliminary ruling (III)
– Form of the preliminary question
• Interpretation of EU-law or
• Review of the validity of an act of EU-law,
• but no competence to annul provisions of EUTreaties
• No competence to declare a national rule invalid
because of
violation of EU-law
Reference for preliminary ruling (IV)
• Obligation for a Reference for preliminary
– If last instance court, that is, if the decision cannot be
– Exception: acte claire doctrine (ECJ:CILFIT 1982)
– Always obligation, if validity of EU-act is at stake
• Facultative possibility
– If not last instance court
– Depends on national procedural law, if order for a
reference is binding or can be appealed
Reference for preliminary ruling (V)
• Written procedure:
– Submission of questions by national court
– Translation in all languages
– Notification by registrar to parties, to all Member
states and the EU-institutions
– Publication in Official Journal
– Written observations of those, who are eligible to
participate, especially for Commission (amicus
curia) within 2 months
Reference for preliminary rulings (VI)
• Oral procedure:
– Rapport prealable and Report for the hearing by
– Oral hearing
– Conclusions of the Advocate General
• Decision
– after deliberation
– by majority of formation
Reference for preliminary rulings (VII)
• Publication
– on internet ( and
– in the European Court Reports, ECR
(in all languages)
• Effects of decision
– Binding on national judge in specific case
– Precedence for all jurisdictions and public
References for preliminary rulings (VIII)
• The most important mechanism for
– Development of EU-law
– Safeguarding the uniformity of EU-law
– Total number of cases of ECJ (1953-2009): 16.221
of which 6.620 preliminary rulings
References for preliminary rulings (IX)
• Problems
– No direct rights of parties, only national judge
– After submission of the reference no further involvement
of the national judge
– Length of procedure
• normal procedure: medium 17 months,
• accelerated and urgent procedure, PPU (Art. 23 a Statut ECJ,
Art. 104 a, 104 b of Rules of Procedure ECJ), medium 2,5 m
– Costs
• Future
– Different proposals, especially revision of CILFIT
Infringement procedure (I)
Art. 258 TFUE, ex-Art. 226 EC:
“If the Commission considers that a Member State has
failed to fulfil an obligation under the Treaties, it shall
deliver a reasoned opinion on the matter after giving
the State concerned the opportunity to submit its
If the State concerned does not comply with the opinion
within the period laid down by the Commission, the
latter may bring the matter before the Court of Justice
of the European Union.“
Infringement procedure (II)
• Member States are held under Art. 4 TEU, exArt. 10 EC to fullfil obligations under this
• Member States includes Legislative, Executive
as well as Judiciary
• Commission‘s role as guardian of the Treaties
• Infringement procedure serves to enforce the
application of EU-law by Member States
• Burden of proof lies on the Commission
Infringement procedure (III)
• Compulsory pre-litigation stage
– Letter of formal notice
– Reasoned Opinion
• Written and oral procedure
• Decision by majority of formation
– Either finds the infringement established
– Or dismisses the application
– ECJ may limit the temporal effects
• Publication
Infringement procedure (IV)
• Effects of decision
– Judgement finding infringement purely
– Member State must proceed immediatly and
comply as soon as possible
– Judgement may constitute the basis for State
(Francovic and Köbler jurisprudence)
Infringement procedure (V)
• Sanctions for failure to comply with
– Commission can start a second infringement
procedure for non-compliance
– ECJ can impose on Member State a lump sum
or penalty payment (Art. 260 para 2 TFEU, exArt. 228 para 2 EC)
Infringement procedure (VI)
• Important instrument
– Total number of cases of ECJ (1952-2009): 16.221
of which 3.421 infringement procedures
– Infringement procedure can be effective
• Limitations
– Only Commission, not individuals
– No obligation, often political decision
– Cumbersome, especially in cases of insufficient
transposition of directives, medium length 17 m
The Role of the national judge as
EU-judge (I)
• Besides the reference for preliminary rulings and
the infringement procedures, decided by the ECJ,
a third mechanism to ensure the application of
EU-law exists, which resides purely on the
national level:
• We will discuss now the role of the national
judges in their function as EU-judges
The Role of the national judge as
EU-judge (II)
• National judge has in general to apply EU-law as
part of the Member State‘s obligation under Art.
4 TEU, ex-Art. 10 EC, where a case falls into the
field of application of EU-law
• However, this obligation depends on the nature
of the EU-law, which has to be applied in the
specific case before the national judge, whether
it is general binding and directly applicable or
Excurs: Hierarchy of EU-norms (I)
Which EU-norms are directly applicable?
• Generally binding and directly applicable:
– General principles
– Treaty norms
– Charter of Fundamental Rights
(now incorperated by Art. 6 TEU)
– Regulations
– Decisions (but only for the addressee of the decision)
• however only under the condition that the EUnorm is clear, precise and unconditional
(direct effect)
Excurs: Hierarchy of EU-norms (II)
• Not binding and therefore not directly
– The aforementioned norms, if they are not clear,
precise and unconditional
– Recommandations
– Soft law
• Special case: Directives
– It depends, can be binding in some cases
The role of the national judge as
EU-judge (III)
• Where the EU-law is directly applicable, what can
the national judge do, if confronted with a national
rule in conflict with this EU-norm?
• Two possibilities:
– Obligation to interpret national law in conformity
with EU-law (consistent/harmonious
– Power to set aside the conflicting national
provision (not in all cases)
Method of interpreting national law in
conformity with European Union law (I)
• The national judge has to interpret a national
legislation, which is conflicting with a directly
applicable EU-provision, in such a way, as to
assure the compliance with the EU-provision
• Fundamental: ECJ:Von Colson (1984)
Method of interpreting national law in
conformity with European Union law (II)
• What methods of national interpretation are there?
Interpretation in terms of the wording
Systematic interpretation
Historic interpretation
Objective-teleological interpretation
In Germany 2 additional methods developed by
Federal Constitutional Court:
• Method of reduction in conformity with the Constitution
• Interpretation in conformity with international law 27
Method of interpreting national law in
conformity with European Union law (III)
• Obligation for the national judge to select among
the methods of interpretation the method which
allows to make the national rule compatible with
the EU-law (ECJ:Pfeiffer 2004), this includes
• Obligation to select the method of interpretation,
“enables … a provision of domestic law … to be
restricted to that end by applying it only in so far
as it is compatible with the rule concerned …“
(Pfeiffer, point 116)
Power to set aside national law which is in
conflict with EU-law (I)
• What can the national judge do, if the national
methodology does not allow to interprete the
national rule in such a way as to make the
national rule in compliance with a directly
applicable EU-norm?
Power to set aside national law which is in
conflict with EU-law (II)
• Fundamental: ECJ Simmenthal (1978):
“A national court which is called upon, …is under a duty to give
full effect to those provisions, if necessary refusing of its own
motion to apply any conflicting provision of national legislation,
…, and it is not necessary for the court to request or await the
prior setting aside of such provisions by legislative or other
constitutional means.“
Similarly: Ratti, Faccini Dori, Arcaro, Kurz, Riksskattevet, Pflücke
• Therefore, possibility of any national judge to set
aside the national law, even if the national judicial
system restricts this right normally to a
constitutional court
Power to set aside national law which is in
conflict with EU-law (III)
• This power to set aside the national rule in cases,
where the national rule is in conflict with a direct
applicable EU-norm is generally accepted in
vertical cases (individual against state).
• In horizontal cases (individual against individual)
this power to set aside the national rule is accepted
only if the national rule contravenes general
principles of EU-law, treaty provisions,
fundamental rights or regulations
ECJ, judgement of 19/01/2010, C-555/07,
Kücükdeveci point 52 (age-discrimination case)
Power to set aside national law which is
in conflict with EU-law (IV)
• Where there is no direct and binding EU norm,
the national judge cannot intervene
• In such cases the only remedy is either
– An Infringement procedure against the
Member state or
– A State liability case for not respecting EU
Conclusion (I)
• The aim of this contribution was to explain the
three most important mechanisms to ensure the
applicability of EU-law:
– The reference for a preliminary ruling
– The infringement procedure
– The harmonius interpretation and the power to
set aside national legislation contrary to EU-law
by the national judge in his function as EU-judge
Conclusion (II)
• Future:
It remains to be seen, how the cooperation
between the ECJ and the national judiciaries will
develop to ensure the uniform application of EUlaw in all Member states
Thank you for your attention

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