EU Court of Justice Procedure

Direct Actions: Annulment, Failure to Act, and Infringement

The Court of Justice of the European Union (CJEU) exercises jurisdiction over several categories of direct actions, each governed by specific procedural rules under the Treaties and the Court’s Rules of Procedure. Actions for annulment under Article 263 TFEU permit the Court to review the legality of legislative acts, acts of the Council, Commission, and European Central Bank (other than recommendations and opinions), acts of the European Parliament and the European Council intended to produce legal effects, and acts of EU bodies, offices, and agencies. Privileged applicants — Member States, the European Parliament, the Council, and the Commission — may challenge any such act without demonstrating standing. Semi-privileged applicants — the Court of Auditors, the European Central Bank, and the Committee of the Regions — may challenge acts that affect their prerogatives. Non-privileged applicants — natural and legal persons — must satisfy the standing requirements of direct and individual concern under the Plaumann test, or, for regulatory acts, direct concern without implementing measures.

Actions for failure to act under Article 265 TFEU allow the CJEU to review the legality of the failure of EU institutions to act where they are obliged to do so by the Treaties. The action is admissible only where the institution has been called upon to act and has failed to define its position within two months. Proceedings before the Court are subject to a further two-month time limit from the expiry of the response period. The action mirrors the annulment remedy, providing a complementary mechanism for judicial review of institutional omissions.

Infringement proceedings under Articles 258 to 260 TFEU enable the Commission to bring actions against Member States for failure to fulfil Treaty obligations. The procedure comprises a pre-litigation stage, during which the Commission sends a letter of formal notice and, if necessary, a reasoned opinion, and a litigation stage before the CJEU. Member States may also bring infringement actions against other Member States under Article 259 TFEU, though this mechanism is rarely used. Where the CJEU finds an infringement, the Member State must take the necessary measures to comply. Under Article 260(3) TFEU, where the Commission brings an action for failure to notify transposition measures, it may propose financial penalties at the initial judgment stage.

Preliminary Rulings and Urgent Procedure

The preliminary ruling procedure under Article 267 TFEU is the cornerstone of the CJEU’s jurisdiction and the primary mechanism for ensuring the uniform interpretation and application of EU law across Member States. National courts or tribunals of any Member State may, and courts of last instance must, refer questions to the CJEU concerning the interpretation of the Treaties or the validity and interpretation of acts of the EU institutions. The CJEU’s ruling on the referred questions is binding on the national court in the pending proceedings and serves as authoritative guidance for all national courts in subsequent cases.

The urgent preliminary ruling procedure (PPU) was introduced in 2008 to address references concerning the area of freedom, security, and justice, particularly in cases involving detained persons or issues of parental responsibility and child custody. The PPU reduces the average duration of proceedings to approximately two to three months, compared with approximately fifteen to seventeen months under the normal procedure. The referring court must specify the urgency justifying the application of the PPU, and a designated chamber of the Court decides on the application expeditiously. The written phase is limited to the parties to the main proceedings and the EU institutions, and oral submissions are made at a single hearing.

Appeals Before the CJEU

Appeals against decisions of the General Court lie to the CJEU on points of law only. Under Article 256 TFEU and Article 58 of the Statute of the Court of Justice, appeals may be based on grounds of lack of competence of the General Court, a breach of procedure before the General Court that adversely affects the appellant’s interests, or infringement of EU law by the General Court. Findings of fact and the assessment of evidence by the General Court are not subject to appeal, except where the General Court has distorted the clear sense of the evidence.

The appeal procedure is governed by Title V of the CJEU’s Rules of Procedure. Appeals must be brought within two months of notification of the General Court’s decision, and must identify the contested judgment, the grounds of appeal, and the legal arguments in support. The CJEU may dismiss the appeal by reasoned order where it is manifestly inadmissible or manifestly unfounded. Where the appeal is well founded, the CJEU sets aside the General Court’s decision and may either give final judgment itself, if the state of the proceedings so permits, or refer the case back to the General Court for decision.

The Statute and Rules of Procedure

The Statute of the Court of Justice of the European Union, annexed to the Treaties as Protocol No 3, establishes the fundamental institutional framework of the CJEU, including the composition of the Court and the General Court, the qualifications and appointment of judges and Advocates General, the grounds for recusal, and the basic principles governing procedure. Article 19 TEU provides that the CJEU consists of one judge from each Member State and is assisted by Advocates General. The Statute may be amended by the European Parliament and the Council acting in accordance with the ordinary legislative procedure, or at the request of the CJEU following consultation of the Parliament and the Commission.

The Rules of Procedure of the Court of Justice (OJ L 265, 29.9.2012, as amended) provide detailed regulation of the Court’s procedure, including the written and oral phases, the composition of chambers, the treatment of preliminary references, intervention, urgent procedures, and the award of costs. The Rules of Procedure are adopted by the Court with the approval of the Council acting by qualified majority. The Rules are supplemented by Practice Directions that guide parties on the preparation of written submissions and the conduct of hearings.

The Role of Advocates General

Advocates General are members of the CJEU appointed for a renewable six-year term with the task of delivering reasoned opinions on cases before the Court. Under Article 252 TFEU, the Advocate General’s role is to make, acting with complete impartiality and independence, a reasoned submission on cases that, in accordance with the Statute, require the Advocate General’s involvement. The Advocate General’s Opinion is delivered after the oral hearing and before the judges deliberate, providing an independent analysis of the legal issues and a proposed resolution of the case.

While the Advocate General’s Opinion is not binding on the Court, it carries significant authority and is frequently followed in the Court’s judgment. The Court may decide, where it considers that a case raises no new point of law, to proceed without an Advocate General’s Opinion. Notable Advocates General have exercised substantial influence on the development of EU law, including Advocate General Kokott in competition and state aid cases, Advocate General Bot on citizenship and fundamental rights, and Advocate General Geelhoed on internal market and institutional issues.

Conclusion

The procedural architecture of the CJEU reflects the dual function of the Court as both a constitutional court for the EU legal order and a supreme administrative court for disputes involving EU institutions and private parties. The direct actions, preliminary ruling procedure, and appellate jurisdiction together create a comprehensive system for ensuring the legality, uniformity, and effectiveness of EU law. The Rules of Procedure and the Statute provide the detailed procedural framework within which the Court exercises its jurisdiction, while the Advocates General contribute to the quality and consistency of the Court’s jurisprudence through their independent legal analysis.