The Court of Justice of the European Communities [ CJCE ]

The Court of Justice of the European Communities [ CJCE ]

1

PRESENTATION

The Court of Justice of the European Communities [ CJCE ], jurisdictional body of the European Union, which sits in Luxembourg.

2

MISSIONS OF THE CJCE

Under article 164 of the Treaty of Rome, the Court must take care of the respect of the right in interpretation and the application of the treaty. It was thus created to ensure a uniform interpretation of the Community legislation (treated, but also Community rules worked out by the legislative bodies of the European Union) in all the States of the European Community.

The Court is only qualified for the three Communities which are ECSC (European Coal and Steel Community), the EC (European Community become European Union since the ratification of the treaty of Maastricht) and Euratom (or EAEC  —European Community with atomic energy). It is exclusively qualified to know the whole of the recourse formed by the Community Member States and institutions.

3

COMPOSITION AND ORGANIZATION

Since the 1 ^er January 1995, the Court of Justice of the European Communities is made up of fifteen judges and nine prosecuting attorneys, appointed unanimously by a deliberation of the Council of Ministers of the European Union. They are named by mutual agreement for six years by the governments of the Member States, which guarantees the independence of the Community judge: a government cannot designate a member of the Court without the agreement of the other governments. A partial replacement takes place every three years and the outgoing members can be named again.

Under article 167 of the Treaty of Rome, the choice of the judges is operated among "guaranteed personalities offering all of independence and which meet the requirements for the exercise, in their respective countries, of the highest judicial offices, or which are jurisconsults having of the acknowledged competence".

Even if no condition of nationality is formally imposed, in fact, each Member State of the Union a judge has who sits in Luxembourg, the great States having also a permanent prosecuting attorney. The judges meet in conclave to elect in their centre the president of the Court, which is currently Mr. Julio Iglesias.

In their mission, the judges are assisted by chief clerks, are chosen freely by the judges among experienced lawyers, generally broken with the mechanisms of the Community legislation, which can advise them. Each judge can ask to be assisted by three chief clerks.

3. 1

The prosecuting attorney

The Court knows an organic distinction between the judges and the prosecuting attorneys, the ones not being able to exert the functions of the others.

In spite of the denomination which, in France, evokes the representative of the parquet floor before the Court of Appeal, the prosecuting attorney does not have a repressive function. Its role is rather inspired by that of the government commissioner in the French administrative procedure. For this reason, it must present publicly, in any impartiality and all independence, of the conclusions justified on certain businesses submitted to the Court, in order to assist this one in the achievement of its mission.

The prosecuting attorney thus gives at the judges a presentation facts then an analysis in right of the species concerned, before proposing a solution with the litigation. He generally returns his conclusions in his mother tongue. The judges, as for them, are charged to slice the litigation while handing down a judgment.

3. 2

Formations in rooms and plenary formation

In theory, the Court sits at a plenary sitting. Rooms of three or five judges can be created in his centre to judge certain categories of businesses. On the other hand, when the Court is seized by a Member State or an institution of the Community, it must rule in plenary formation.

3. 3

The organization of the services of the Court

Since the establishment of the Tribunal, the services of the Court are in fact of the services common to both jurisdictions. They gather approximately thousand civils servant and servants (among which a hundred chief clerks), directed by the clerk of the Court, under the authority of the president of the Court (which systematically consults the president of the court before making decisions relating to the management of the common services).

Within these services, the direction of the translation is numerically most significant. It includes/understands approximately four hundred jurist-linguists, the French division of translation by gathering with it only two hundred and fifty.

The direction "Library, Research and Documentation" also play a significant role since it is charged to draw up notes of legal research on the various national laws and the Community legislation, and to analyze the decisions of national courts as regards Community legislation.

3. 4

Working language

If all the languages of the Community are official, the use wants that the working language is French. It is the reader of stop which is charged to ensure linguistic and legal coherence projects of stops written by the nonFrench-speaking judges.

4

THE COURT OF FIRST AUTHORITY OF THE EUROPEAN COMMUNITIES (TPICE)

While inserting the article 168-A in EEC Treaty, the European single Act (come into effect the 1 ^er July 1987) allowed the Council the Communities to associate with the Court a jurisdiction charged to know, in first authority, certain categories of recourse formed by the persons or entities. By its decision of October 24, 1988, the Council thus created the Court of first authority of the European Communities, which allowed désencombrer the court of the Court and to improve jurisdictional protection while granting to justiciable Community the effective guarantee to a double degree of jurisdiction.

The Court is qualified to rule on the appeals formed against the decisions of the court. The examination of these appeals by the Court is however limited to the only points of law, following the example Supreme court of appeal, in France.

The judges of the TPICE are appointed according to methods' similar to those which apply during the judge nomination of the Court.The court is composed of fifteen judges.

In theory, the court sits in rooms made up from three to five judges, but it can, in certain cases, to sit in plenary formation. With the difference of the Court, the distinction between judge and prosecuting attorney are functional, and not organics: the members of the court can be called to exert the prosecuting attorney functions at the time of certain businesses, and to rule as a judge in others.

5

THE RECOURSE FORMED BEFORE THE COURT OF JUSTICE

One distinguishes the recourse prejudicial from the recourse direct.

5. 1

The recourse prejudicial: article 177 of the treaty

The Community legislation being directly applicable in the Member States, it rests on each national judge to apply it in the litigations of which he is seized. When a Community standard appears not very precise to him, it asks, by the prejudicial recourse, at the Court to interpret or appreciate the validity of this standard. The Court then hands down a judgment in interpretation or appreciation of validity. The national judge, who has stay of preceedings while waiting for the response of the Court, can either apply the interpretation of the Court to solve the litigation, or to request a new request, if the response of the Court seems to him unsatisfactory. If the Court noted the disability of the rule, that will not prevent another national judge from seizing later on the Court on the question of the validity of the same rule. This system makes it possible to preserve the responsibility for the national judge on the litigations of which it is originally seized.

To these recourse prejudicial are opposed the recourse direct, made up of the proceedings for annulment, the appeal against inaction and the recourse in failure.

5. 2

Proceedings for annulment: article 173 of the treaty

All the decisions or Community acts producing of the effects of right can be the subject of a cancellation if the Court estimates that those are sullied with illegality. The incompetence, the non-compliance with the substantial procedures (if the note were not taken according to forms'  —the absence of motivation for example), the violation of the treaty and the misuse of power are the four means giving place to cancellation. This recourse is opened to the Member States, the Council, at the Commission, like with any individual and morals concerned directly and individually with the act.

5. 3

The appeal against inaction: article 175 of the treaty

The action deprives some has the aim of sanctioning the inaction of the Commission or the Council which would not have made a decision or a note, in violation of the treaties, thus constituting a misuse of power. The Member States or the other institutions can seize the Court to make note this deficiency.

5. 4

The recourse in failure:article 169 of the treaty

The Court is also qualified to note the failure of the States not fulfilling their obligations rising from the treaties. The initiative of this action can emanate either from the European Commission, or of a Member State, or of the Parliament. After having addressed an opinion reasoned at the attacked State, another Member State or the Commission can seize the Court, if its opinion were not followed of effect.

The judgments delivered by the Court of Justice of the European Communities, within the framework of the recourse direct, are equipped with the executory force, which means that the States must implement the decision of court returned by the Court. If the State does not take measurements which are essential, the Court can, since the entry into force of the treaty of Maastricht, to decide pecuniary penalties, in the form of obligation or of infringment, with regard to the recalcitrant State.