EU Courts & Procedure

European and international courts

Article 19 of the Treaty on European Union

Article 257 of the Treaty on the Functioning of the European Union

There are many courts that operate at international level and it is not always easy to distinguish their jurisdiction. The aim of this summary is to present the European courts and to distinguish between those which are part of the European Union (EU) and those which belong to other international organisations.

Courts of the EU

The Court of Justice of the European Union (CJEU) refers to the whole judicial system of the EU. It is composed of 2 courts:

the Court of Justice
the General Court.
Court of Justice

The Court of Justice has jurisdiction in actions brought by EU countries or EU institutions. It may also have jurisdiction of last resort in judgments delivered by the General Court. In this case, it rules on the questions of law only and not on the facts of the case.

General Court

The General Court is attached to the Court of Justice and is designed to reduce that Court’s workload. The General Court has jurisdiction to hear at first instance actions brought by EU countries or individuals in the cases provided for by the treaties.

Specialised courts

Under Article 257 of the Treaty on the Functioning of the European Union, specialised courts can be created by the European Parliament and the Council in accordance with the ordinary legislative procedure. These courts have jurisdiction at first instance in certain categories of action on specific matters. For example, a European Civil Service Tribunal was established in 2005 to deal with disputes involving the EU civil service. The tribunal has been disbanded and, as of 1 September 2016, its work has been transferred to the General Court.

Different types of action

The CJEU is responsible for ensuring compliance with EU law. It has jurisdiction in actions brought by EU countries, EU institutions and EU citizens. There are several types of procedure:

action for annulment;
proceedings for failure to fulfil an obligation;
proceedings for failure to act;
action for damages;
reference for a preliminary ruling.
International courts

There is a wide range of courts and tribunals that hear disputes at international level and have their headquarters on European territory. However, these courts do not come under the auspices of the EU. They are:

the courts of other European organisations, such as
the European Court of Human Rights, an international court set up under the Council of Europe, which currently has 47 Member States; it enforces the European Convention on Human Rights, signed on 4 November 1950 (based in Strasbourg, France) and
the EFTA Court (European Free Trade Association), based in Luxembourg, which enforces the Agreement on the European Economic Area;
the courts created under the auspices of the United Nations, such as:
the International Court of Justice, based in The Hague, the Netherlands
the International Criminal Court, based in The Hague
the International Criminal Tribunal for the former Yugoslavia, also based in The Hague
the International Tribunal for the Law of the Sea, based in Hamburg, Germany;
the independent dispute settlement bodies of the United Nations, such as
the Permanent Court of Arbitration, based in The Hague, which administers arbitration* and conciliation* procedures and committees of inquiry in disputes between its 121 member countries, private parties and intergovernmental organisations on the basis of international arbitration regulations,
the World Trade Organization (WTO) Dispute Settlement Body, based in Geneva, Switzerland, which settles trade disputes between the 163 WTO member countries.

DOCUMENTS

Article 19 of the Treaty on European Union (OJ C 202, 7.6.2016, p. 27)

Article 257 of the Treaty on the Functioning of the European Union (OJ C 202, 7.6.2016, p. 160)

Rules of Procedure of the Court of Justice of the European Union

They lay down the rules that implement and supplement the statute of the Court of Justice detailed in Protocol No 3 annexed to the treaties.
They aim to make the Court’s procedures simpler and clearer for litigants and national courts and tribunals, as well as to better take into account changes in the Court’s caseload.
The Court of Justice is one of 2 courts comprising the Court of Justice of the European Union, the judicial institution of the EU and the European Atomic Energy Community. The second court is the General Court. Their mission is to ensure the law is complied with in the interpretation and implementation of the treaties by monitoring the legality of EU acts.

Organisation of the Court

The Court is organised as follows.

Composition: it comprises 28 judges and 11 advocates general, appointed for 6 years. The tasks of the advocates general are to attend the Court and present legal opinions. The judges elect the President of the Court and the vice-president for a term of 3 years. The president is responsible for representing the Court and managing its work programme and is assisted by the vice-president.

Constitution of chambers and designation of the judge-rapporteurs: the Court sets up chambers of five judges, the president of which is elected for 3 years, and chambers of three judges, the president of which is elected for 1 year. The President of the Court designates a judge-rapporteur to deal with a case, while an advocate general is designated by the first advocate general. If necessary, the Court may appoint assistant rapporteurs.

Role of the Registrar: the Court appoints a registrar for a term of 6 years. The Registrar is responsible for the acceptance, transmission and custody of all documents, and for the records. In addition, the Registrar assists the Members of the Court and is in charge of the Court’s publications. Lastly, the Registrar directs the services of the Court under the authority of the President of the Court.

Working of the Court: cases are assigned to the full Court, the Grand Chamber or to a chamber of 5 or 3 judges. The number of judges dealing with a case depends on its importance and complexity. Most cases are dealt with by 5 judges, and it is very rare for the whole Court to hear the case. Several cases may be heard and determined together by the same formation of the Court. The deliberations of the Court must remain secret.
Languages: a language is assigned for each case. In direct actions, the applicant may choose the language from the 24 official EU languages. In preliminary ruling proceedings, the language of the case is that of the national court or tribunal.

Characteristics of proceedings

In general, proceedings before the Court comprises the following phases.

Written proceedings: this involves an exchange of pleadings between the parties. The pleadings must have clearly defined content. Once the procedure is closed, a preliminary report is presented by the judge-rapporteur to the general meeting of the Court.

Measures of inquiry: the Court may decide to hold measures of inquiry such as the personal appearance of the parties, requests for information and documents, oral testimony, the commissioning of an expert’s report and an inspection of the place or thing in question.
A hearing may take place, if necessary. The hearing is opened and directed by the president. The hearing may take place in private (in camera).

Opinion of the advocate general: in approximately half of all cases the advocate general delivers an opinion. If the case raises no new points of law the Court may decide that an opinion is not necessary.

The final decision: the Court decides by judgment or by order. Only the judgment is delivered in open court. Judgments and orders contain different information, such as a summary of the facts and the grounds for the decision. A copy is then distributed to each of the parties. Judgments and orders are available on the Court’s website.

The rules also contain specific provisions concerning the different procedures before the Court:

preliminary ruling procedure;
direct actions;
appeals against decisions of the General Court;
opinions; and
other particular forms of procedure.
References for a preliminary hearing

National courts may submit a reference for a preliminary hearing before the Court in order to question the interpretation of EU law. As part of a reference for a preliminary hearing, observations may be made by, in particular:

the parties to the main proceedings;
the EU countries;
the European Commission;
the institution which adopted the act, the validity or interpretation of which is in dispute.

Appeals against decisions by the General Court

It is possible to bring an appeal against a decision by the General Court. In this case, an application must be lodged with the Registrar containing, in particular, the supporting pleadings and legal arguments. The application must seek to have the decision set aside, in whole or in part.

DOCUMENTS

Rules of Procedure of the Court of Justice (OJ L 265, 29.9.2012, pp. 1-42)They have applied since 1 November 2012.

Amendment of the Rules of Procedure of the Court of Justice (OJ L 173, 26.6.2013, p. 65)They have applied since 1 July 2015.

Council Regulation (EU) 2016/300 of 29 February 2016 determining the emoluments of EU high-level public office holders (OJ L 58, 4.3.2016, pp. 1-12)

Regulation (EU, Euratom) 2015/2422 of the European Parliament and of the Council of 16 December 2015 amending Protocol No 3 on the Statute of the Court of Justice of the European Union (OJ L 341, 24.12.2015, pp. 14-17)

Rules of procedure of the EU’s General Court

It lays down the rules on the General Court’s internal organisation and how it conducts proceedings brought before it. Among other things, the Court has jurisdiction to rule on:

direct actions brought by individuals and companies against acts of the European Union (EU) institutions which are addressed to them or that affect them directly and individually;
actions brought by EU countries against the European Commission and also against the Council, e.g. on measures taken in the area of state aid;
actions seeking compensation for damage caused by EU institutions or bodies;
disputes between the EU and its civil servants;
actions relating to intellectual property.

Along with the Court of Justice, the General Court is one of the EU’s judicial institutions making up the Court of Justice of the European Union. Their purpose is to ensure a uniform interpretation and application of EU law.

Organisation of the Court Composition

As of 1 September 2016, as part of the reform of the judicial system of the EU introduced by Regulation (EU, Euratom) 2015/2422, the Court has 47 judges. This number will increase to 56 (2 per EU country) in 2019. From among themselves, the judges elect a president and a vice president who serve for 3 years. Judges must exercise their functions impartially and independently. In exceptional cases, a judge can be given the role of Advocate-General*. Judges appoint a Registrar* for a term of 6 years.

Constitution of Chambers

Cases brought before the Court are heard by Chambers sitting with 3 or 5 judges, or, if the case is not complex, a single judge. Judges elect Presidents of Chambers. For each case, one judge is appointed Judge-Rapporteur (who prepares the initial draft of the judgment). The Tribunal may also sit as a Grand Chamber (15 judges), when required due to the legal complexity or importance of the case.

Court deliberations

The Court deliberates in private. Following these discussions, the judges deliver a single judgment.

Language

The applicant may choose any of the EU’s 24 official languages for the case. This language is used in the written and oral arguments made by the parties and in the Court’s communications with the parties.

Rights and obligations of agents, advisers and lawyers

Agents, advisers and lawyers enjoy immunity in respect of words that they speak or write. Papers and documents relating to the proceedings may not searched or seized. To enjoy this immunity:

agents must prove their status by means of an official document issued by the party for whom they act;
lawyers must produce a certificate of their authorisation to practise before a court of an EU country;
advisers must produce an authority to act issued by the party whom they are assisting.
Procedure

The process may include all or some of the steps listed below:

Written phase (exchange of pleadings between the parties)

a written application by a lawyer or agent and sent to the Registry* opens the procedure. The main points of the action are published in a communication, in all official languages, in the Official Journal of the European Union;
the Court’s clerk serves the application on the opposing party who has 2 months to present a defence;
in direct actions, in principle, the applicant may submit a reply within a time limit, to which the defendant may respond with a rejoinder.
There are specific rules for the treatment of confidential information or documents concerning the EU’s security or that of EU countries or the conduct of their international relations.

In addition, any person who can prove a legal interest in the result of any case submitted to the Court, as well as EU countries and EU institutions, may intervene in the proceedings. The person can submit a statement supporting or rejecting the submissions of one of the parties, to which the parties may then respond.

Oral phase

At the request of one of the parties, or of its own initiative, the Court may decide to hold a hearing. During the hearing, the judges may ask questions of the representatives of the parties. The judges then deliberate on the basis of the draft judgment prepared by the Judge-Rapporteur and the judgment is delivered in public.
Legal aid may be granted to cover the costs of assistance and legal representation before the Court.
Expedited (accelerated) procedure

This procedure allows the Court to rule quickly on the substance of a dispute in cases considered to be of particular urgency. The accelerated procedure may be requested by the applicant or by the defendant. It can also be decided by the Court.

Interim measures

A proceeding before the Court does not suspend the contested act. The Court may, however, order a suspension or order other interim measures if certain conditions are met. The order is provisional and does not prejudge the Court’s decision in the main proceedings.
Litigation relating to intellectual property rights

This type of litigation concerns appeals against the European Union Intellectual Property Office (EUIPO) on the application of intellectual property rules.

The regulation lays down procedures regarding the parties to the proceedings, the application and the responses.

Stakeholders other than the applicants may intervene during the procedure and have the same rights as the main parties.

KEY TERMS

Advocate-General: there are no permanent advocates-general at the General Court. However, they may be appointed on an ad hoc basis and are responsible for presenting an impartial and independent opinion in the cases assigned to them.

Registrar: responsible for the acceptance, transmission and custody of all case-related documents (see Registry entry below).

Registry: responsible for maintaining the case-files for pending cases, keeping the register in which all the procedural documents are entered and corresponding with the parties involved in cases.

DOCUMENTS

Rules of procedure of the General Court (OJ L 105, 23.4.2015, pp. 1–66)

Regulation (EU, Euratom) 2016/1192 of the European Parliament and of the Council of 6 July 2016 on the transfer to the General Court of jurisdiction at first instance in disputes between the European Union and its servants (OJ L 200, 26.7.2016, pp. 137–139)

Rules of Procedure of the European Union Civil Service Tribunal

The European Union Civil Service Tribunal rules on disputes between the EU bodies and their staff on matters such as social security (sickness, invalidity, etc.) or working relations (pay, etc.). The Rules of Procedure lay down the organisation of the Tribunal and the conduct of legal proceedings.

Rules of Procedure of the European Union Civil Service Tribunal (Official Journal L 206, 14.7.2014, pp. 1-45).

The EU Civil Service Tribunal’s Rules of Procedure follow the recasting of the Rules of Procedure of the Court of Justice in 2012. They also take into account the need to supplement or clarify certain rules in light of experience gained over time.

Composition

The Tribunal comprises seven judges, appointed by the Council for a renewable 6-year period. The judges elect one of their number as president, whose role is to direct the judicial business and ensure the proper functioning of the Tribunal. The judges are assisted by a registrar.

Formation

The Tribunal can sit in full court, in a chamber of five judges, chambers of three judges or as a single judge. In most cases it sits in chambers of three judges, except when the difficulty of the questions of law raised or the importance of the case or special circumstances so justify. Here, cases may be referred to the full court or to the chamber of five judges.

Where the questions of law or fact raised are not considered to be complex, a chamber of three judges can unanimously decide to refer a case to a single judge.

Procedure

Proceedings brought before the Tribunal have a written part and an oral part.

During the written part, the applicant must initiate proceedings by lodging an application with the registrar of the Tribunal. The application is then served on the opposing party, which has 2 months to submit a defence. The oral part of the procedure allows the judges to question the parties’ representatives.

More detailed rules are contained in two documents: ‘Instructions to the registrar of the EU Civil Service Tribunal’ and ‘Practice directions to parties on judicial proceedings before the EU Civil Service Tribunal’.

Evidence and anonymity

The Tribunal takes into consideration only the evidence which has been made available to the agents or lawyers of the parties and on which they have been given an opportunity to express their views.

Its decisions are published on the Internet. However, the Tribunal may decide to omit the name of the applicant and, if necessary, other information from its publications if there are legitimate reasons for that anonymity.

Amicable settlement of disputes

At any stage of the procedure the Tribunal may encourage and assist the parties to seek an amicable settlement of the dispute.

Costs

Normally, the unsuccessful party bears his/her own costs and is ordered to pay the costs incurred by the other party if they have been applied for in the other party’s pleadings.

To avoid abuse of process, the Tribunal may require an applicant who has already made a number of applications that have been found to be a manifest abuse of process to pay a deposit of up to €8 000 to cover the costs.

Legal aid

Proceedings before the Tribunal are free of charge. However, the costs of lawyers must be paid by the parties. If a party is unable to meet these costs, he/she may apply to receive legal aid. Applications must be accompanied by all the necessary information required to establish that the applicant requires assistance.

Appeals

The judgments and orders of the Civil Service Tribunal may be the subject of an appeal before the General Court.

The new Rules of Procedure apply from 1 October 2014. They replace the rules adopted on 25 July 2007, as last amended on 18 May 2011.

ACTS

Instructions to the registrar of the European Union Civil Service Tribunal (Official Journal L 206, 14.7.2014, pp. 46-51).

Practice directions to parties on judicial proceedings before the European Union Civil Service Tribunal (Official Journal L 206, 14.7.2014, pp. 52-75).