European Court of Justice

The Court of Justice consists of 27 Judges who are assisted by 11 Advocates-General. The Judges and Advocates-General are appointed by common accord of the governments of the member states[7] and hold office for a renewable term of six years. The treaties require that they are chosen from legal experts whose independence is "beyond doubt" and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are of recognised competence.[7] In practice, each member state nominates a judge whose nomination is then ratified by all other member states.[8]

The President of the Court of Justice is elected from and by the judges for a renewable term of three years. The president presides over hearings and deliberations, directing both judicial business and administration (for example, the time table of the Court and Grand Chamber). He also assigns cases to the chambers for examination and appoints judge as rapporteurs called 'Judge-Rapporteur' (reporting judges).[9] The Council may also appoint assistant rapporteurs to assist the President in applications for interim measures and to assist rapporteurs in the performance of their duties.[10]

No.	Image	President	State	Term
1		Massimo Pilotti	Italy	1952–1958
2		Andreas Matthias Donner	Netherlands	1958–1964
3		Charles Léon Hammes	Luxembourg	1964–1967
4		Robert Lecourt	France	1967–1976
5		Hans Kutscher	West Germany	1976–1980
6		Josse Mertens de Wilmars	Belgium	1980–1984
7		John Mackenzie-Stuart	United Kingdom	1984–1988
8		Ole Due	Denmark	1988–1994
9		Gil Carlos Rodríguez Iglesias	Spain	1994–2003
10		Vassilios Skouris	Greece	7 October 2003 – 6 October 2015
11		Koen Lenaerts	Belgium	8 October 2015–incumbent Term expires 6 October 2024[11]
Source: "The Presidents of the Court of Justice". CVCE. Retrieved 19 April 2013.

The post of vice-president was created by amendments to the Statute of the Court of Justice in 2012. The duty of the Vice-President is to assist the President in the performance of his duties and to take the President's place when the latter is prevented from attending or when the office of president is vacant. In 2012, judge Koen Lenaerts of Belgium became the first judge to carry out the duties of the Vice-President of the Court of Justice. Like the President of the Court of Justice, the Vice-President is elected by the members of the Court for a term of three years.[12]

No.	Image	Vice-President	State	Term
1		Koen Lenaerts	Belgium	9 October 2012 – 6 October 2015
2		Antonio Tizzano	Italy	8 October 2015 – 8 October 2018
3		Rosario Silva de Lapuerta	Spain	9 October 2018 – 6 October 2021
4		Lars Bay Larsen	Denmark	6 October 2021 – incumbent Term expires 3 October 2024

The judges are assisted by eleven[13] Advocates General, whose number may be increased by the Council if the Court so requests. The Advocates General are responsible for presenting a legal opinion on the cases assigned to them. They can question the parties involved and then give their opinion on a legal solution to the case before the judges deliberate and deliver their judgment. The intention behind having Advocates General attached is to provide independent and impartial opinions concerning the Court's cases. Unlike the Court's judgments, the written opinions of the Advocates General are the works of a single author and are consequently generally more readable and deal with the legal issues more comprehensively than the Court, which is limited to the particular matters at hand.

The opinions of the Advocates General are advisory and do not bind the Court, but they are nonetheless very influential and are followed in the majority of cases.[14] In a 2016 study, Arrebola and Mauricio measured the influence of the Advocate General on the judgments of the Court, showing that the Court is approximately 67% more likely to deliver a particular outcome if that was the opinion of the Advocate General.[15] As of 2003, Advocates General are only required to give an opinion if the Court considers the case raises a new point of law.[2][16]

According to Article 255 TFEU the judges and advocates-general are appointed by common accord of the governments of the Member States after consultation of a panel responsible for assessing candidates’ suitability.[17]

The Registrar is the Court's chief administrator. They manage departments under the authority of the Court's president.[16] The Court may also appoint one or more Assistant Registrars. They help the Court, the Chambers, the President and the Judges in all their official functions. They are responsible for the Registry as well as for the receipt, transmission and custody of documents and pleadings that have been entered in a register initialled by the President. They are Guardian of the Seals and responsible for the Court's archives and publications.

The Registrar is responsible for the administration of the Court, its financial management and its accounts. The operation of the Court is in the hands of officials and other servants who are responsible to the Registrar under the authority of the President. The Court administers its own infrastructure; this includes the Translation Directorate, which, as of 2012 employed 44.7% of the staff of the institution.[18]

The Court can sit in plenary session, as a Grand Chamber of fifteen judges (including the president and vice-president), or in chambers of three or five judges. Plenary sittings are now very rare, and the court mostly sits in chambers of three or five judges.[19] Each chamber elects its own president who is elected for a term of three years in the case of the five-judge chambers or one year in the case of three-judge chambers.

The Court is required to sit in full court in exceptional cases provided for in the treaties. The court may also decide to sit in full, if the issues raised are considered to be of exceptional importance.[2] Sitting as a Grand Chamber is more common and can happen when a Member State or a Union institution, that is a party to certain proceedings, so requests, or in particularly complex or important cases.

The court acts as a collegial body: decisions are those of the court rather than of individual judges; no minority opinions are given and indeed the existence of a majority decision rather than unanimity is never suggested.[20]

Under Article 258 (ex Article 226) of the Treaty on the Functioning of the European Union, the Court of Justice may determine whether a Member State has fulfilled its obligations under Union law.

That action may be brought by the Commission – as is practically always the case – or by another Member State, although the cases of the latter kind remain extremely rare. Only six interstate cases have been decided by the court: [21]

• France v. United Kingdom (case C-141/78), judgement of 14 October 1979 (ECLI:EU:C:1979:225) on a British unilateral fishery protection measure, infringement because UK had to consult and seek approval of commission
• Belgium v. Spain (case C-388/95), judgement of 16 May 2000 (ECLI:EU:C:2000:244) on a Spanish regulation ordering wine to be bottled in the region of production if it is using the designation of origin, no infringement because it is an authorised and justifiable restriction on the free movement of goods
• Spain v. United Kingdom (case C-145/04), judgement of 12 September 2006 (ECLI:EU:C:2006:543) on Commonwealth voting rights in Gibraltar, no infringement
• Hungary v. Slovakia (case C-364/10), judgement of 16 October 2012 (ECLI:EU:C:2012:630): Slovakia denies entry to Hungarian president, no infringement
• Austria v. Germany (case C-591/17), judgement of 18 June 2019 (ECLI:EU:C:2019:504) on the discriminatory German tax relief on the motor vehicle tax; infringement.
• Slovenia v. Croatia (case C-457/18), judgement of 31 January 2020 (ECLI:EU:C:2020:65) on their border dispute.

The commencement of proceedings before the Court of Justice is preceded by a preliminary procedure conducted by the Commission, which gives the Member State the opportunity to reply to the complaints against it. The court has decided that if the European Commission does not send the formal letter to the violating member state no-one can force them.[22] If that procedure does not result in termination of the failure by the Member State, an action for breach of Union law may be brought before the Court of Justice.

If the Court finds that an obligation has not been fulfilled, the Member State concerned must terminate the breach without delay. If, after new proceedings are initiated by the Commission, the Court of Justice finds that the Member State concerned has not complied with its judgment, it may, upon the request of the Commission, impose on the Member State a fixed or a periodic financial penalty under Article 260 of the TFEU.[23]

By an action for annulment under Article 263 (ex Article 230) of the Treaty on the Functioning of the European Union, the applicant seeks the annulment of a measure (regulation, directive, decision or any measure with legal effects) adopted by an institution, body, office or agency of the EU. The Court of Justice has exclusive jurisdiction over actions brought by a Member State against the European Parliament and/or against the Council (apart from Council measures in respect of State aid, dumping and implementing powers) or brought by one Union institution against another. The General Court has jurisdiction, at first instance, in all other actions of this type and particularly in actions brought by individuals. The Court of Justice has the power to declare measures void under Article 264 (ex Article 231) of the Treaty on the Functioning of the European Union.

Under Article 265 (ex Article 232) of the Treaty on the Functioning of the European Union, the Court of Justice and the General Court may also review the legality of a failure to act on the part of a Union institution, body, office or agency. However, such an action may be brought only after the institution has been called on to act. Where the failure to act is held to be unlawful, it is for the institution concerned to put an end to the failure by appropriate measures.

Under Article 268 of the Treaty on the Functioning of the European Union (and with reference to Article 340), the Court of Justice hears claims for compensation based on non-contractual liability, and rules on the liability of the Union for damage to citizens and to undertakings caused by its institutions or servants in the performance of their duties.

Under Article 256 (ex Article 225) of the Treaty on the Functioning of the European Union, appeals on judgments given by the General Court may be heard by the Court of Justice only if the appeal is on a point of law. 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 may itself decide the case. Otherwise, the Court must refer the case back to the General Court, which is bound by the decision given on appeal. No special procedure applies to allow for an appeal to proceed to the Court of Justice, except for cases which the General Court ruled on appeal against decisions of the independent Boards of Appeal of the EU agencies (as provided by Article 58a of the Statute of the Court).

References for a preliminary ruling are specific to Union law. Whilst the Court of Justice is, by its very nature, the supreme guardian of Union legality, it is not the only judicial body empowered to apply EU law.

That task also falls to national courts, in as much as they retain jurisdiction to review the administrative implementation of Union law, for which the authorities of the Member States are essentially responsible; many provisions of the Treaties and of secondary legislation – regulations, directives and decisions – directly confer individual rights on nationals of Member States, which national courts must uphold.

National courts are thus by their nature the first guarantors of Union law. To ensure the effective and uniform application of Union legislation and to prevent divergent interpretations, national courts may, and sometimes must, turn to the Court of Justice and ask that it clarify a point concerning the interpretation of Union law, in order, for example, to ascertain whether their national legislation complies with that law. Petitions to the Court of Justice for a preliminary ruling are described in Article 267 (ex Article 234) of the Treaty on the Functioning of the European Union.

A reference for a preliminary ruling may also seek review of the legality of an act of Union law. The Court of Justice's reply is not merely an opinion, but takes the form of a judgment or a reasoned order. The national court to which that is addressed is bound by the interpretation given. The Court's judgment also binds other national courts before which a problem of the same nature is raised.

Although such a reference may be made only by a national court, which alone has the power to decide that it is appropriate do so, all the parties involved – that is to say, the Member States, the parties in the proceedings before national courts and, in particular, the Commission – may take part in proceedings before the Court of Justice. In this way, a number of important principles of Union law have been laid down in preliminary rulings, sometimes in answer to questions referred by national courts of first instance.

Rulings end with a dictum which summarises the decision which the Court has made and may direct how costs are to be managed.[24]

In the ECJ's 2009 report it was noted that Belgian, German and Italian judges made the most referrals for an interpretation of EU law to the ECJ. However, the German Constitutional Court has rarely turned to the European Court of Justice, which is why lawyers and law professors warn about a future judicial conflict between the two courts. On 7 February 2014, the German Constitutional Court referred its first case to the ECJ for a ruling on a European Central Bank program.[25] In 2017 the German Constitutional Court referred its second case to the ECJ but contrary to the binding nature of the Court of Justice's preliminary rulings, the German Constitutional Court in 2020 refused to abide by the preliminary ruling.[26] According to the German Constitutional Court, the Court of Justice's answer was unintelligble.[27] In June 2021, the European Commission announced it would start infringement proceedings against Germany for the German Constitutional Court's refusal to abide by the Court of Justice's preliminary ruling.[28]

The constitutional courts of the member-states have in general been reluctant to refer a question to the European Court of Justice.[29]

These are the first references by each constitutional court:

• 1997: Constitutional Court of Belgium: case C-93/97, Fédération Belge des Chambres Syndicales de Médecins ASBL
• 1999: Constitutional Court of Austria: case C-143/99, Adria-Wien Pipeline GmbH
• 2007: Constitutional Court of Lithuania: case C-239/07, Sabatauskas
• 2008: Constitutional Court of Italy: case C-169/08, Presidente del Consiglio dei Ministri v. Regione Sardegna
• 2011: Constitutional Court of Spain: case C-399/11, Melloni
• 2013: Constitutional Council of France: case C-168/13 PPU, Jeremy
• 2014: Constitutional Court of Germany: case C-62/14, Gauweiler
• 2014: Constitutional Court of Slovenia: case C-526/14, Kotnik
• 2015: Constitutional Court of Luxembourg: case C-321/15, ArcelorMittal Rodange et Schifflange SA
• 2015: Constitutional Court of Poland: case C-390/15, Polish Ombudsman
• 2016: Constitutional Court of Romania: case C-673/16, Coman
• 2017: Constitutional Court of Latvia: case C‑120/17, Ministru kabinets
• 2019: Constitutional Court of Slovakia: case C-378/19, Prezident Slovenskej republiky