The Court of Justice of the European Communities [
CJCE ]
The Court of Justice of the European Communities [
CJCE ], jurisdictional body of the European Union, which sits in Luxembourg.
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.
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COMPOSITION AND ORGANIZATION
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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.
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3. 1
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The prosecuting attorney
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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.
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3. 2
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Formations in rooms and plenary
formation
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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.
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3. 3
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The organization of the services of the
Court
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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.
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.
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THE COURT OF FIRST AUTHORITY OF THE
EUROPEAN COMMUNITIES (TPICE)
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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.
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THE RECOURSE FORMED BEFORE THE COURT OF
JUSTICE
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One distinguishes the recourse prejudicial from the
recourse direct.
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The recourse prejudicial: article 177 of
the treaty
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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.
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Proceedings for annulment: article 173
of the treaty
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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.
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The appeal against inaction: article 175
of the treaty
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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.
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The recourse in failure:article 169 of
the treaty
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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.
