EU Judicial System and Legal Remedies

Extract

[...] The EU judicial system European Institutions TITLE IV - THE EU JUDICIAL SYSTEM Chapter 6 - The Organs The national judge is only competent at the national level respect of union law within the state This is why there is the EU judge, an indispensable role > Competent for certain types of appeals that cannot be ensured by the national judge > Main reason for the existence of a judicial body at the EU level: - The will to ensure UNIFORMITY in the application of EU law - Ensure the useful effect > Key mechanism at the heart of this harmony: Preliminary ruling Judicial apparatus of the EU comprising both national judges and the EU judge Section 1 - The Court of Justice > The Community judge is multiple : - Court - Tribunal (There are also other special judges) > The Court was established by the Treaty of Paris (Treaty of Paris in April 1951 during the creation of the ECSC) The principle recognized within the community is that of the unity of jurisdiction It means that the Court of Justice is uniquely competent for everything concerning the European Union (seat in Luxembourg) > The Court of Justice is considered a true institution under the treaties It is the treaties that invest the Court with these missions Like the others, it is mandated The Court embodies the judicial power of the EU > It is a power : - Independent Independence of judges - Autonomous autonomy of the legal order - Supreme It decides in the final instance, cannot be contradicted, its judgments are not susceptible to appeal - Sovereign In fact, the Court is sovereign in the sense that it is the ultimate authority on the interpretation of treaties > Its functions : - The interpretation of European Union law - The application of European Union law The composition > The Court consists of : - 1 judge per member state (27 judges The number will increase with the enlargements These judges are appointed by the member states for a term of 6 years but this mandate is renewable - There is a president among the members It is the judges who designate their president among themselves The president's mandate is 3 years and is renewable - There are 11 advocates general appointed by the member states (it's a turn) advantage given to the 5 most populous member states (they always have an advocate general permanently) Their mission: to present their motivated conclusions in a public and independent manner BUT they do not intervene in all cases, only in certain ones (for example when they raise important or new questions of law) = Role of anticipation II- The organization and functioning of the Court > The Court has its own status It is contained in protocols annexed to the treaties > In this status: - Provisions aimed at lightening the tasks of the Court Since the Treaty of Nice, the Court now sits in chambers > Formations : - There are currently 6 chambers (in restricted composition) consisting of between 3 and 5 judges - There is the formation in Grand Chamber (15 judges) when a member state or an institution party to the proceedings requests it - There is the formation in Plenary Chamber (exceptional) when the Court thinks that the case has an extraordinary importance Principle rulings) Section 2 - The Court > The Court of Justice has been assisted by this body since 1989 > It is a court of first instance (that was its name at first) Renamed by the Treaty of Lisbon to 'The Court' The composition > One finds : - 54 judges 2 judges for each member state that appoints them for a period of 6 years A partial renewal takes place every three years) - 1 president The judges designate among themselves a president for a period of 3 years (No Advocate General) II- The organization and functioning of the tribunal > The tribunal may sit according to the importance of the case : - Grand Chamber - Plenary Session (13 judges) - Formation in camera to 5 judges) - Single Judge > The Court's competences have evolved since the Treaty of Lisbon (Article 263 TFEU: - Control of legality of acts of EU institutions (bodies or institutions of the EU) acts intended to produce legal effects vis-à-vis third parties - Action for lack of competence, failure to observe the form prescribed by law for bringing an action and conduct of procedure, infringement of an EU or international obligation, or any other alleged infringement of a rule of law resulting from the third paragraph of Article 263 TFEU, or any act or omission which may affect the competitive position of an undertaking or interests of an undertaking by which the competitive position of an undertaking is or may be affected by an individual decision, (brought by the Member States or the institutions) - Actions brought by the Court of Auditors by the ECB and by the Committee of the Regions when their prerogatives are concerned - The Tribunal is competent for actions brought by natural or legal persons for acts that directly concern them and do not involve measures of execution individual acts to which they are addressed) - There was a public service tribunal (until 2016) to manage all personnel Competences were assigned to the tribunal Chapter 7 - The legal remedies Section 1 - The control of the respect of the union law by the European institutions > The Court is responsible for controlling all institutions (They are capable of producing decisions) > Their legal acts are subject to a control The annulment appeal > It is provided for in Articles 263 and 264 TFEU The Court controls the legality of the acts of the institutions in relation to the Treaty and any rule of law relating to its application (whether the rule is written or unwritten) It is also referred to as an action for nullity > It is a type of objective appeal of EU acts (abstract control, we are suing the norm) > Conditions of admissibility of the appeal: Conditions relating to the attacked act - The unilateral act or measure must produce legal effects Conditions relating to the applicant's person The applicants are classified into three categories - Privileged applicants: Member States, the Council, the Commission, the Parliament They can always bring a case to the Court - Individual applicants: the Court of Auditors, the Committee of the Regions, the ECJ They are supposed to be able to act to defend their prerogatives (The interest in bringing a case depends on the exercise of their prerogatives) - Ordinary applicants: these are private law persons or individuals who are addressees of the challenged or affected acts (directly concerned) the act must not contain any enforcement measures > Means that may be invoked in support of an action for annulment: - Lack of competence (material, territorial or temporal) - The violation of substantial forms (vice of form) Voting modalities, deadline, question of defective motivation? [...]

[...] The Court tends to compensate in particular in a spirit of protection the applicant who is supposed to be able to rely on the principle of legitimate trust and proportionality + The violation must be sufficiently characterized The institution has clearly and manifestly exceeded its competences This criterion of gravity depends on the number of people affected, for example (suffering a prejudice) The wider the scope, the greater the compensation - The damage must be real (it must not be potential or future) - The CJEU judgment shows the need for a causal link between the damage and the illegal action > As for compensation, the Court established a general principle of liability including all violations of Union law attributable to a member state (they can also be declared responsible for a damage) = it is a matter of two judgments dating back to March 1996 - Brasserie du pêcheur - Factortame The Court of Justice will be able to compensate in case of harm to various physical or legal persons > The Court of Justice also recognizes that an action is open against a state for non-transposition of directives Francovich and Bonifaci judgments > The principles of liability can even apply to the judicial power of a Member State Sometimes the damage is suffered due to the judicial power (exceptional but it can happen) Köbler judgment of 2003 judge in the final instance gave binding force to an unfavorable decision against a private individual) > Deadline for appeal: - It is five years from the date of the damage Section 2 - Control by the Member States of the respect of Union law > Until then, these appeals were mainly directed towards the EU side These two appeals also promote respect The preliminary ruling > The reference article is Article 267 TFEU The preliminary ruling is a crucial and central appeal in the entire implementation framework of EU law > This appeal is one of the main mechanisms by which the national legal orders and the European legal order are coordinated > This implies that a European norm must be invoked before the national judge This norm must be invoked in the context of a dispute And at that moment, the national judge will have to apply it However, before applying it, the national judge may need to receive clarification on the meaning = INTERPRETATION Or the national judge may have a doubt as to the validity of the text = VALIDITY In this case He will pose this question to the Community judge through the preliminary ruling This procedure is very important in the construction of the European judicial power (and therefore very important in its very affirmation) > The judgments rendered represent more than half of the judgments rendered by the Court of Justice > In fact, the Court of Justice of the EU is the only competent one, not the EU court > When the Court is seized, functioning: - The national judge postpones to rule (suspend) - It is only when the Court of Justice has delivered its judgment that the national judge will rule on the case It is not the Court of Justice of the EU that rules directly on the case in question This procedure is conditional on elements of admissibility > The Court will rely on different elements: - It will check that the appeal is real, and that the object of the dispute of the appeal must be linked to European law - The question must be one of interpretation or validity - The answer must be necessary to respond to the dispute > Verification of conditions : - Part of a real judicial system (it must be a real jurisdiction, not an arbitral tribunal) ? [...]

[...] - The means of substance (the violation of treaties or of all rules relating to the application of treaties) - Abuse of power (the act of using power for a purpose other than that corresponding to it) > If the Court finds that the appeal is well-founded it accepts one of the means The Court will declare the act 'NULL AND VOID' (article 264) This annulment is often partial, can also be total The annulment is retroactive and has a general and absolute scope ('ERGÆ OMNES') > The Court may nonetheless decide to limit the facts of nullity (may decide to derogate from the retroactive character of the judgment) Question of legal security and protection of third parties > Obviously, in accordance with Article 266(1) TFEU: the institution, body or agency from which the illegal act emanated is required to take the measures necessary to comply with the judgment of the Court of Justice The appeal period is 2 MONTHS II- The illegality exception > Article 277 TFUE > The illegality exception is a technique allowing to circumvent the problem of annulment appeal After two months, we can no longer do anything in this case = This is a problem > The illegality exception complements the annulment appeal usefully Article 277 provides that a general measure adopted by an institution can be set aside for illegality if this means is raised before the Court of Justice in a dispute The condition is that it does not directly concern this illegality The Court of Justice can therefore decide to set aside the application of this act = Sanction = inapplicability of the act in the present case (relative scope) Act that is not annulled Only rendered inapplicable in the present case between the parties to the proceedings III- The appeal in lack > It is a very interesting appeal that allows for sanctioning institutions Article 265 TFEU > In this case, the legality is at issue but in a different way Legality can be considered as violated not only by a Action as well as inaction by the institutions The recourse to lack of action allows to highlight the inaction, the abstention of the part of the institutions = Whatever the institution concerned > The European recourse allows to sanction the abstention of an institution (legislator or commission) when they have not acted although the treaty forced them to act Objective of the recourse: To have it established that the organ has acted in violation of the treaty > This also works for certain preparatory acts to be adopted, provided for by primary law or derived law > Exception for discretionary powers: No obligation to act > Time limit for appeal in default: 2 months (from the date of the notice to act, sent by the applicant to the organ) Within which it is possible to appeal to the action > The applicants may be : - The Member States - The EU institutions - Certain individuals or entities > People may be targeted : - European Parliament - Council of the Union - European Council - Commission - + Central Bank, and a number of competent bodies to take measures > When the judge pronounces, he delivers a declaratory judgment Is content to note the lack But the judge is not competent to order the adoption of the necessary acts or measures This judgment does not allow for indemnifying injured organs, persons or states (Another appeal must be lodged Action for damages = Limited appeal IV- Appeals for damages/liability > This appeal is found at articles 268 and 340 paragraph 2 TFUE This appeal is open to both individuals (natural persons) and private law legal entities Appeal is also open to member states All applicants have one thing in common: they have suffered a loss due to an error or fault committed by an EU institution or an EU official > Compensation of the loss in accordance with the general principles of Union law > Three conditions for compensation: - There must have been an unlawful action by an EU institution or official Characterized violation of a European norm (and this norm must have recognized rights to the benefit of the applicant) The Court is very attentive to compensation in the field of fundamental rights and freedoms related to the internal market ? [...]