Court of Justice of the European Union

Establishment and Constitutional Foundations

The Court of Justice of the European Union (CJEU) is the judicial institution of the European Union, headquartered in the Kirchberg district of Luxembourg. It was established in 1952 under the Treaty of Paris establishing the European Coal and Steel Community (ECSC) and has been carried forward through successive treaties: the Treaty of Rome (1957), the Single European Act (1986), the Treaty of Maastricht (1992), the Treaty of Amsterdam (1997), the Treaty of Nice (2001), and the Treaty of Lisbon (2007). The CJEU currently operates under the provisions of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), as amended by Lisbon.

Article 19 TEU provides that the CJEU “shall include the Court of Justice, the General Court, and specialised courts.” It requires the CJEU to “ensure that in the interpretation and application of the Treaties the law is observed.” Since 2016, the only specialized court — the European Civil Service Tribunal — has been dissolved and its jurisdiction transferred to the General Court.

The CJEU has been profoundly influential in shaping the legal order of the European Union. Through its jurisprudence, it established the doctrines of direct effect (Van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62, 1963), supremacy of EU law (Costa v. ENEL, Case 6/64, 1964), state liability for breach of EU law (Francovich v. Italy, Joined Cases C-6/90 and C-9/90, 1991), and the protection of fundamental rights as general principles of EU law (Internationale Handelsgesellschaft, Case 11/70, 1970). These foundational judgments, delivered with the cooperation of national courts through the preliminary reference mechanism, transformed the EU from an international organization into a constitutional legal order.

Composition of the Court of Justice

The Court of Justice (ECJ) consists of one judge per Member State (27 judges since the departure of the United Kingdom in 2020) and 11 Advocates General. The judges and Advocates General are appointed “by common accord of the governments of the Member States” (Article 253 TFEU) for a renewable term of six years. Before appointment, candidates are scrutinized by a panel established under Article 255 TFEU, composed of seven former judges of the CJEU and the General Court and lawyers of recognized competence, which gives an opinion on the candidate’s suitability.

The Statute of the Court of Justice, annexed to the Treaties, and the Rules of Procedure of the Court govern the Court’s operation. A quorum requires that the Court sit with an uneven number of judges — the number of judges who sit in any configuration must be uneven. The Court may sit in chambers of three or five judges, in a Grand Chamber of 15 judges (including the President and Vice-President), or as a Full Court.

The Grand Chamber is convened when a Member State or an EU institution that is a party to the proceedings so requests, or when the case is of exceptional importance. The Full Court hears cases concerning the dismissal of members of the European Commission, the European Ombudsman, or members of the European Court of Auditors, and cases of exceptional gravity.

The President of the Court of Justice is elected by the judges from among their number for a renewable term of three years. The President presides over hearings and deliberations; assigns cases to chambers for preparatory inquiry and judgment; has the casting vote in the event of a tie; and represents the Court in external relations.

Role of Advocates General

The Advocate General is a distinctive institution of the CJEU, without parallel in most national legal systems. Under Article 252 TFEU, it is the Advocate General’s duty, “acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his involvement.” The Advocate General delivers an Opinion — a detailed legal analysis of the case and a proposed solution — before the Court delivers its judgment. The Opinion is not binding on the Court, but it is followed in the majority of cases.

The number of Advocates General was fixed at 11 by the Treaty of Nice. Under the current allocation, five of the larger Member States (France, Germany, Italy, Spain, and Poland) each have a permanent Advocate General, and the remaining six rotate among the other Member States. The Advocate General does not participate in the Court’s deliberations after delivering the Opinion.

Jurisdiction of the Court of Justice

Preliminary References (Article 267 TFEU)

The preliminary reference procedure is the cornerstone of the EU judicial system and the primary mechanism through which the CJEU interacts with national courts. Under Article 267 TFEU, any court or tribunal of a Member State may (and courts of last instance must) refer questions concerning the interpretation of the Treaties or the validity and interpretation of acts of EU institutions to the CJEU for a preliminary ruling. The national court then applies the CJEU’s ruling to the facts of the case before it.

The preliminary reference procedure has been essential to the uniform interpretation of EU law across 27 Member States with different legal traditions and languages. It has produced approximately 40% of the CJEU’s judgments and has been the vehicle for the Court’s most important constitutional rulings. The Court receives approximately 250 references annually, and the average duration of a preliminary ruling procedure is approximately 15 months.

The Foto-Frost doctrine (Case 314/85, 1987) established that national courts cannot declare EU acts invalid — only the CJEU has that power. When a question of validity arises, the national court may refer the question to the CJEU, and if it considers the EU act invalid, it must refer.

Infringement Proceedings (Articles 258–260 TFEU)

The European Commission, as guardian of the Treaties, may bring infringement proceedings against a Member State that has failed to fulfil an obligation under EU law. The Commission first conducts a pre-litigation procedure, sending a letter of formal notice to the Member State and then a reasoned opinion. If the Member State does not comply, the Commission may refer the matter to the CJEU. If the CJEU finds a violation, the Member State “shall be required to take the necessary measures to comply with the judgment of the Court of Justice.”

Article 260 TFEU permits the Commission to request that the CJEU impose a lump sum or penalty payment on a Member State that has failed to comply with a previous judgment. Since the Treaty of Lisbon, the Commission can also request financial penalties in the initial referral for failure to notify transposition measures. The CJEU has imposed penalties on several Member States, including Poland, Hungary, and Italy.

Member States may also bring infringement proceedings against other Member States under Article 259 TFEU, though this is rare. The Commission must be consulted before the action is brought.

Direct Actions

Actions for annulment under Article 263 TFEU allow the CJEU to review the legality of legislative acts, acts of the Council, the Commission, the European Central Bank, the European Parliament, the European Council, and EU agencies. The action may be brought by Member States, EU institutions, and, under more restrictive conditions, by natural and legal persons. The standing requirements for private applicants under Article 263(4) TFEU — requiring that the act be of “direct and individual concern” to the applicant — have been the subject of extensive litigation. In Plaumann v. Commission (Case 25/62, 1963), the Court established the restrictive “Plaumann test,” which has been relaxed only modestly in subsequent cases such as Jégo-Quéré (Case C-263/02, 2004) and Inuit Tapiriit Kanatami (Case C-583/11 P, 2013).

Actions for failure to act under Article 265 TFEU allow Member States, institutions, and private parties to challenge the failure of an EU institution to act where it is under an obligation to do so. Actions for damages under Articles 268 and 340 TFEU allow the CJEU to hear claims for non-contractual liability of the EU.

The General Court

The General Court (formerly the Court of First Instance, renamed by the Treaty of Lisbon) was established in 1988 to relieve the Court of Justice of the growing caseload. It initially had jurisdiction over competition law, staff cases, and direct actions by private parties. Its jurisdiction was progressively expanded by the Treaty of Nice and subsequent reforms.

The General Court consists of at least one judge per Member State — currently 54 judges (two per Member State following the 2015 reform that doubled its size). The judges are appointed by common accord of the Member States for six-year renewable terms, with the same qualification requirements as judges of the Court of Justice. The General Court does not have permanent Advocates General; in practice, one of the judges is designated to perform that function in specific cases.

The General Court has jurisdiction to hear direct actions brought by natural and legal persons against acts of EU institutions, actions by Member States against the Commission, actions relating to EU intellectual property (European Union Trade Marks and Community designs), and appeals against decisions of the European Civil Service Tribunal (until 2016). It also hears appeals from the European Union Intellectual Property Office (EUIPO) and the Community Plant Variety Office. Judgments of the General Court may be appealed to the Court of Justice on points of law only.

The doubling of the General Court’s size, phased in between 2015 and 2019, was controversial. Critics argued that it would reduce the quality of judgments and the prestige of appointment, and that it was driven primarily by political considerations of Member States wanting to ensure their nationals held judicial positions. Proponents argued that the increased caseload — the General Court receives approximately 1,500 new cases annually — necessitated more judges.

Language Regime

The language regime of the CJEU is complex. The working language of the Court is French: internal deliberations, draft judgments, and procedural discussions are conducted in French. The language of a case (the procedural language) is typically the language of the applicant in direct actions or the language of the referring court in preliminary references. All documents in the case are translated into the language of the case. The Court has a large translation service of over 600 lawyer-linguists, and judgments are published in all official EU languages.

Relationship with National Courts: Direct Effect and Supremacy

The relationship between the CJEU and national courts is governed by the doctrines of direct effect and supremacy, both developed by the Court’s jurisprudence rather than expressed in the Treaties. Direct effect, established in Van Gend en Loos (1963), holds that EU law creates rights enforceable by individuals in national courts. Supremacy, established in Costa v. ENEL (1964), holds that EU law takes precedence over conflicting national law, regardless of when the national law was adopted.

The principle of supremacy has been widely accepted by national constitutional courts subject to reservations. The German Federal Constitutional Court in Solange I (1974) and Solange II (1986) held that it would review EU law for compliance with fundamental rights only so long as the EU had not achieved equivalent protection — and since Solange II it has not done so. Similarly, the Italian Constitutional Court in Granital (1984) and the Czech Constitutional Court in European Arrest Warrant (2006) have accepted supremacy subject to fundamental rights and constitutional identity reservations. The Polish Constitutional Tribunal in 2021 and the Hungarian Constitutional Court in 2016 have asserted the primacy of their national constitutions in areas of constitutional identity, creating tensions with the CJEU.

The principle of sincere cooperation under Article 4(3) TEU requires Member States to ensure the effectiveness of EU law (effet utile). The procedures for judicial cooperation between the CJEU and national courts, particularly the preliminary reference mechanism under Article 267 TFEU, embody this principle in the judicial sphere.

The CJEU’s jurisdiction over the EU’s external relations, including its ability to give opinions on the compatibility of proposed international agreements with the Treaties under Article 218(11) TFEU, has been significant in shaping EU external action. Opinion 2/13 (2014), in which the Court found that the draft agreement on EU accession to the European Convention on Human Rights was incompatible with EU law, illustrates the Court’s role in defining the constitutional boundaries of European integration.