Introduction – A Historical Overview The Function of the European

PART 1

At the outset of this contribution, it is vital to manifest the meaning and performance of the European Court of Justice vis-à-vis the standard European Union institutional set-up. In fact, the prime dyanmic that constitutes the ECJ is that European legislations and obligations must be respected, accountable and implemented regularly in each and every EU member state. Also, the “Court” has the authority to resolve legal questions among the same European Union member states and organisations, as well as between commercial ventures and persons. [1] In its own internal structure the ECJ is made-up of 27 judges, with each judge symbolising an EU member state and its own nationwide judicial organism. Moreover, the European Court of Justice is backed by eight Advocates-General, where they provide open and independent lawful rational opinions so that the ECJ can finalise its verdict upon specific court cases. [2] Mentioning legal cases these are generally examined in front of a chamber of three to five judges, despite that particular cases involve the complete 27-judge Court members through Plenary Sessions. [3] Citing the Court’s judges, a distinct, yet definite verdict is conveyed in a conventional legal case [4] , endorsed by all the ECJ’s 27 judges excluding any internal contrast mainstream judgement, as reflected in a Dissenting Opinion. [5] As indicated, the Court guarantees that European legislation is equally accountable and implemented to all member states of the EU. In effect, this happens with specific legitimate proceedings, including Preliminary Rulings, Measures for failing to execute an obligation, and Procedures of cancellation. The Preliminary Rulings facet includes that collaboration between national judicial structures and the European Court of Justice is a requisite to prevent dissimilarities of understanding in European directives. Uncertainity to interpret an EU decree within a national legal court makes that same nationwide legal structure consult the dilemma to the ECJ, as the European legal system determines an interpretative resolution regarding that particular EU law. Hence, the ECJ sends the conclusion to the national court in order to be applied within an EU member state’s remit. The feature of the Measures for failing to execute an obligation perceives either the European Commission or an EU member state taking action at the Court in order to push any other EU member state to conform with European legislations. Finally, the Procedures of cancellation witnesses either the EU institutions of the Commission, Council, Parliament or any member state calling off a European law, majorly when a European institutional establishment ratifies a directive that contrasts any European Treaty. Only the European Court of Justice can observe that regulation as invalid if it sees that such a debated legislation complicates the procedure of an EU treaty. [6] With a magnitude of lawsuits and a pressing for improved lawful security to the European citizen, comes the necessity for the set-up of another European legal court. Indeed, the year 1989 highlighted the conception of the Court of First Instance. Originally affiliated with the ECJ, the CFI provides verdicts on proceedings by business enterprises and persons and competition law. Nonetheless, the 2000 Nice Treaty reorganised the formation of both the ECJ and the CFI. The Treaty of Nice presented the foundation of distinctive legal boards in specialised lawsuit areas within the ECJ’s limits. Cases revolving on EU Industrial Property Rights saw the new remit area for the function of the ECJ. Alternatively, the Nice Treaty stated that the CFI was seperate from the European Court of Justice, hence implementing its own set of responsibilities. In connection with the CFI, the European Civil Service Tribunal was created to judge cases related to the EU and its civil service. [7] The 2007 Lisbon Treaty highlighted that the sphere of activity of the ECJ also extended its limits to the European Union sectors of Justice and Home Affairs. [8] Concluding about the standard function of the European Courts of Justice, it must be reflected that the ECJ is instrumental in implementing the provisions of European treaties. Likewise, the authoritative remit of the ECJ guarantees a sense of equality amongst European citizens and member states, thus furthers European free trade movement and innovates the process of the European Union through its verdicts. [9]

The History of the European Court of Justice

From the execution and responsibilities related to the above description, it is also important to frame the ECJ in a historical timeline by setting down the European legal institution’s significant evolution throughout the years. As a matter of fact, the year 1951 saw the inception of the European Coal and Steel Community Treaty (ECSC). Endorsed by the Benelux countries (Belgium, Luxembourg and the Netherlands), France, Italy and Germany, the ECSC Treaty conceived the European Court of Justice. [10] It is true that the 1951 Treaty signalled the initial phase towards the European integration process, yet it remarked that the newly-constituted ECJ was a major establishment to give out and support the European Coal and Steel Community. More fundamental is the fact that through this treaty, the ECJ ensures that European Law is adequately observed and enforced by the six member states. [11] The year 1957 underscored further extension in the ECJ’s remit, as it highlighted the two Treaties of Rome. The two treaties emphasised the institutionalisations of both the European Economic Community (EEC) and the European Atomic Energy Community (EURATOM). Yet citing the Court’s remit, the ECJ was to legally sustain the three European institutions (ECSC, EEC, EURATOM), plus that crucially the ECJ became a supranational court with full authority over the range of provisions relating to the 1951 and 1957 European treaties. The Court’s exclusive remit focused upon Community Law matters, and concern to resolve rights and responsibilities. [12] Also, each and every verdict of the European Court of Justice was compulsory upon the prominent European institutional frameworks, member countries and persons. From 1957 the evolution of the ECJ re-emerged in 1986, with that same year highlighting the exceptional increase of EU member states. Nonetheless that period highlighted the amalgamation of the ECSC, EEC and EURATOM into a distinct European Community through the Single European Act (SEA) [13] . Among such clauses, the SEA underlined that the Court for First Instance would be institutionalised with the European Court of Justice. However, the SEA prevented any ECJ sphere of activity in relation to European Foreign Policy. Into the 1990s, the year 1992 witnessed the Maastricht Treaty and the re-branding of the EC as the European Union, with a specific focus towards Europe’s economic progress as the First Pillar. Besides, the new EU body instituted the Common Foreign and Security Policy (CFSP) and the Justice and Home Affairs (JHA) hence constituting the second and third pillars respectively. Nonetheless, the responsibility lens of the ECJ was closely inspected into the First Pillar, hence emphasising the Court’s remit over features including the supremacy of the European institutions through courses of action and new ruling set-ups. On the other hand the second and third pillars were definitely out-of-reach to the European Court of Justice, as these pillars included principles of nation-state control, thus that such rules were best kept between European national governments rather than within the influence of the ECJ. Another downbeat factor to the ECJ in this Treaty is that its active legal goal to further the EU process was seen as interfereing to European member national administrations, as conflicts of interest would emerge with nationwide aspirations. [14] Nevertheless, the year 1997 witnessed the establishment of the Amsterdam Treaty, and with this treaty came new empowering provisions to the ECJ. The latter was mostly pinned down with the Court’s remit in the third pillar, concerning Justice and Home Affairs. As already mentioned in the previous section, the 2001 Nice Treaty also endowed changes to the ECJ, which would ultimately set about a profound judicial alteration in the EU. This consisted that the Court of First Instance (CFI) was no longer united with the European Court of Justice, thus the CFI became an exceptional court in its own privilege [15] . The CFI also incorporated its own ‘judicial panels’, as characterised with the foundation of the Civil Service Tribunal in 2004. Lastly, the Lisbon Treaty of 2007 gathered the ECJ, CFI and its judicial panels under the new legal entity of the Court of Justice of the European Union. [16]

PART 2

Case Studies

Samuel Bezzina

Flaminio Costa v. ENEL

C 6/64

Observation

It is important to reflect that the question of primacy involving the European Community’s Community Law and its member-states’ National Law, was brought forward and argued within the national tribunals of the same EC member countries since the inception of the EC. To the latter, these state tribunals appealed to the European Court of Justice for lawful explanations under the modus operandi of Article 177(Article 234 since Treaty of Amesterdam [17] ) from the Treaty establishing the European Community (i.e. the Treaty of Rome in 1957) [18] . This clause exclaims that the ECJ shall include its authority to provide the legality of Community Law through preliminary rulings regarding the interpretation of the 1957 EC Treaty. [19] The European Court of Justice seized this responsibility with the purpose of launching Community Law superiority for the endurance and continuation of the European Community, hence making it unique vis-à-vis the global judicial structure. The ECJ was willing to advance the rule of the EC legislative ascendancy through Community Law, on top of its member-states’ national laws. [20] This was unquestionably demonstrated in Case 6/64, highlighting Mr. Flaminio Costa vs. ENEL.

Details and Circumstances

Case 6/64 sets off with the nationalisation of the fabrication and allocation of electricity by the Italian state through Law No. 1643 of 6 December 1962. This same legislation led to the establishment of ENEL (Ente Nazionale Energia Elettrica), where the funds of the electricity engagements were relocated to the new public company. [21] On the other side of the coin, Mr. Flaminio Costa was an investor of the private corporation Edison Volta, to which it was taken over by the Italian state as scheduled from 6 December 1962. Consequently, when the capital of numerous private enterprises (embracing also the business where Mr. Costa held his investments), were shifted to the Italian state-nationalised ENEL, Mr. Costa, who also practised his legal profession [22] , objected on his deficit of shares following the nationalisation by declining to pay his electricity invoice. [23] Eventually, he was prosecuted by ENEL in front of the Milan Judge. Throughout the hearing Mr. Costa justified among other factors, that the Italian government nationalisation law 1643/1962 infringed several clauses of the 1957 EC Treaty through this nationalisation, specifically Article 177 which requested an interpretation of the 1957 EC Treaty in milieu of Articles 102, 93, 53 and 37. [24] From these articles, Mr. Costa argued inter alia on the breach to EC Competition law by member-states which were distorting their internal markets. On his part the Milan judge turned this dispute to the ECJ under the provision of the above-mentioned Article 177 of the EC Treaty for legal clarifications of the other cited articles, hence requesting a preliminary ruling. The Italian government reaction was that the latter request for a preliminary ruling was non-allowable, as the Giudice Conciliatore cannot resort to the EC’s Article 177 process. According to the Italian state, determining this kind of legal argument from the national tribunal requires solely the application of Italian national law [25] ,which in this regard reflects the nationalisation law 1643/1962.

The judgement of the European Court of Justice

The European Court of Justice asserted on the decisive relevance that each member state, upon his association with the EC, must limit his sovereignity exceptionally to a point where ratified national laws which conflict Community Law cannot function after that member-state joins the European Community. [26] This is regarded as the rationale for the ECJ to amplify EC legislation, mainly vis-à-vis Case 6/64. This is seen with the Italian state proposing that the Milan Judge’s appeal to the ECJ for Article 177 interpretation of the EC Treaty was definitely prohibited, as a state tribunal cannot make use of Article 177 when it is required to employ national law. Nevertheless, the ECJ indicated that the EC Treaty established its law-based structure which became a central element to the member-states legal orders, plus in which their national courts are obliged to operate, chiefly with the function of the treaty. [27] This decision proves that the value of community law through direct effect [28] would mean nothing if member EC countries independently abolish EC community law outcomes through national laws which succeed European directives. [29] The ECJ expands its ruling declaring that the incorporation of community law in member-states’ national laws, exceptionally the provisions of the EC Treaty, makes member-states ridicolous to prioritise one-sided legal acts over the European Community’s law-based structure that is recognised by them, mainly on reciprocal grounds. [30]

An additional ECJ counteracting judgment vis-à-vis the latter Italian government proposal, was that with the formation of an enduring European Community embracing its institutions and qualities, lawful and international-symbolic competences, and above all genuine supremacy from its member-states’ sovereignity restriction and relocation of their specific areas of influence, this manifested the keeping of member-states’sovereignity to a limitation, hence they launched a legislative organ linking the member-states with their citizens. [31] To this part, the European Court of Justice stated that member-states essentially constrained their sovereignity by re-assigning their specialised spheres of capabilities to the function of the EC institutions. [32]

The ECJ furthered its verdict with the fact that the authoritative clout of the EC’s community law cannot differ among member-states with regards to their successive national laws [33] , especially without endangering the fulfilment of the EC Treaty’s targets defined in Article 5(2), hence materialising the illegal imbalances proposed in Article 7. [34] To this, the ECJ denotes on the signficance suggesting the necessity to advocate the relevance of the EC’s community law equal to all of its member-states [35] . Last, but not least, the European Court of Justice recapitualted all of its analysis in this case by affirming that the EC’s autonomous community law deriving from the 1957 treaty (stressing on its unique spirit), cannot be dominated by national law, unless the community law is poor in nature and the EC’s legal sources are in doubt [36] . In other words, this represents the spirit of power affixed in the EC’s community law.

Concluding Remarks

It must be taken into consideration that the European Court of Justice’s stance to the permanent clout of the EC’s community law remained there ever since Case 6/64 (Costa V ENEL). This led to the European Court of Justice being dynamic in strengthening the community law primacy concerning the EC’s member-states. No matter what is the emerging feedback and the ammount of time that member-states would be acquainted with community law, the EC legislative priority is a must for the European Community’s endurance and survival [37] , thus reflecting today’s European Union.

Ahmed Mamme Saleh

Van Gend & Loos v. Nederlandse Administratie der Belastingen

C 26/62

In 1963 the first ECJ assertion of the direct effect of EU law in landmark judgement of the court in Van Gend & Loos. On the 9thSeptember 1960 Van Gend en Loos imported urea-formaldehyde from West Germany to the Netherlands. Then the company was charged a tariff on import by the Dutch customs authorities. However, the Van Gend en Loos objected, referring for judgment or consideration that the tariff was contrary to EC law that stated under article 12 of the Treaty of Rome (now replaced by Article 30 TFEU) stated;

Member States shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other2

Even so, the company had paid the tariff at first, but then sought to retrieve the money in the national court. The objection of Van Gend & Loos was dismissed by the Inspector of Customs and Excise at Zaandam on the ground of inadmissibility, because it was not directed against the actual application of the tariff but against the rate. Since the firm sought to invoke EC law against the Dutch custom authority, the Dutch Court consulted about the case with ECJ for preliminary ruling on whether the European Community law applied. Despite the opposition by the majority signatories of the treaty, the ECJ ruled that individuals did have the right to invoke EC law because the Community constitutes a new legal order (Hix, 2005, p.121). Of course, the subject consist not only member states but also their citizens. This meant that direct effect applied to primary treaty articles, and subsequent judgements the ECJ expanded the doctrine to all categories of legal acts of the EU.

After a bold challenges by opposing countries against Van Gend en Loos, the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals.

Joseph M. Debono

Amministrazione delle Finanze dello Stato v Simmenthal S.p.A.

C. 106/79

In July 1973, Simmenthal S.p.A, a Monza-registered Italian company, imported a shipment of beef for human consumption from France. Upon doing so, Simmenthal S.p.A was charged – in accordance with Italian health laws adopted in 1934 as well as Italian regulations on veterinary health inspections adopted in 1954 – a fee amounting to 581,480 Italian Liri for the health and veterinary inspections of the imported meat.

Simmenthal S.p.A believed such inspections and their related charges to be in discord with Community regulations on the grounds that they effectively hindered the free movement of goods among Community members. Consequently, Simmenthal S.p.A. brought an action before the Pretore di Susa claiming the reimbursement of the fees it had been charged for the aforementioned inspections. Simmenthal S.p.A “alleged that the fees charged for the medical inspections violated Article 30 EEC in that they constituted ‘measures having equivalent effect’ to quantitative restrictions on imports” (Freestone, 220).

In the course of proceedings for the action brought by Simmenthal S.p.A, the Pretore di Susa thought it necessary to refer the question to the European Court for a preliminary ruling. In December 1976, the Court of Justice issued its judgment in view of the Pretore’s reference. In the operative part of the judgment in question, “the Court of Justice held… that veterinary and public health inspections at the frontier… on the occasion of the importation of animals or meat intended for human consumption constitute measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty” (CVCE). In consideration of this judgment, in January 1977, the Pretore di Susa ordered the ‘Amministrazione delle Finanze dello Stato’ (the Italian Finance Ministry) to reimburse Simmenthal S.p.A. with the full contested amount plus interests.

However, in February 1977 the ‘Amministrazione delle Finanze dello Stato’ appealed the Pretore’s order to refund Simmenthal S.p.A. The Italian authorities asserted that in accordance with national law (Law No 1239/70), “before an Italian court could apply a directly enforceable provision of Community law in order to override a later national statute, there had to be a ruling from the Constitutional Court that the Italian statute was inoperative” (Freestone, 221). In other words, the Italian authorities were requesting that the rights conferred upon individuals through directly applicable Community laws be deferred in view of a national law subsequent to those Community laws. In such a case,

until the Constitutional Court delivers judgment, Community law cannot have full effect and furthermore, since the judgment of the Constitutional Court takes effect ex nunc, it is even impossible to make good retroactively the State’s failure to fulfill its international obligations or to guarantee the absolute protection of the subjective rights of the individual created by Community provisions and governed by them. (CVCE)

In consideration of such arguments, the Pretore di Susa established that the matter in question had to do with the disparity and clash between certain Community rules – namely those of the precedence and direct applicability of Community law – and national laws subsequent to those rules; Law No 1239/70 in this particular case.

At this point, the Pretore di Susa referred to the European Court for the second time. In July 1977, the Pretore di Susa decided to halt proceedings in anticipation of a preliminary ruling from the Court of justice concerning two questions he submitted. The Pretore’s first question was as follows: “does the EEC Treaty confer authority upon national courts to disregard national law which conflicts with directly enforceable community rights, without waiting for those measures to be repealed by the legislature or declared unconstitutional by the relevant constitutional authorities” (Freestone, 221)? The Pretore’s subsequent question was reliant on the European Court’s answer to his previous one. The Pretore’s ensuing question was,

in circumstances where Community law recognizes that the protection of subjective legal rights created as a result of ‘directly applicable’ Community provisions may be suspended until any conflicting national measures are actually repealed by the competent national authorities, is such repeal in all cases to have a wholly retroactive effect so as to avoid any adverse effects on those subjective legal rights? (CVCE)

In November 1977, the Commission of the European Communities, Simmenthal S.p.A, and the Italian Government each submitted their written observations relating to the case. Of particular significance to this paper, Simmenthal S.p.A argued within its written observations that the proposition forwarded by the Italian Constitutional Court – that of awaiting the Constitutional Court’s repeal of a national law prior to applying a conflicting Community rule – would hold severe consequences with regards to the protection of individuals. More specifically, Simmenthal S.p.A contended that such a course of action would defy the vastly revered principles of the precedence of Community regulations, the uniform application of Community regulations and the direct effect of Community regulations. The principle of precedence would be defied in that with such a course of action, Community law would have to succumb to national regulations adopted subsequently; the principle of uniform application would be defied through such proceedings since Community rule would be frozen in one of the member states for some time; and the principle of direct effect would be disregarded through such proceedings in view of the fact that individuals would not be able to gain advantage of the rights bestowed upon them by Community law. In its written observations, the Commission maintains amongst many other observations that a national law which is in discord with Community law cannot be established in opposition to the latter and that such a national rule cannot serve as an obstacle to the application of Community regulations such that it would necessitate its removal by legislative repeal or by a declaration of unconstitutionality by the Constitutional Court. The Commission also maintains that the principle of the precedence of Community regulations implies that in the case of a national law adopted subsequent to established Community regulations, “the declaration of unconstitutionality is to all intents and purposes automatic [and] the very role of the Constitutional Court would thereby be devalued” (CVCE).

The European Court delivered its judgment in March 1978. It ruled that

provisions of the Treaty and directly applicable measures of the Institutions… by their entry into force render automatically inapplicable any conflicting provision of current national law [and] also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions. (CVCE)

Thus, acknowledging to any extent that contradictory national regulations hold any consequences on Community provisions would equal a refutation of the value of Member States’ obligations implicit in the Treaty and would therefore jeopardize the fundamentals of the European Community.

Therefore, the answer to the first question posed by the Pretore di Susa to the European Court was that national courts are duty bound to apply Community provisions completely and to their full effect even if it means that they must refuse to apply any contradictory national laws, regardless of whether such national laws were adopted prior or subsequent to the Community provisions. Furthermore, the rights conferred upon individuals through Community regulations cannot be suspended and hence, the delay of the application of Community provisions in anticipation of a repeal or declaration of unconstitutionality of any conflicting national legislation is unnecessary and inadmissible. The answer to the Pretore’s first question therefore, evidently rendered his second superfluous.

The main implication of this 1978 Judgment of the ECJ is therefore “that directly effective Community law takes immediate precedence over subsequently enacted national law without the necessity for the national courts to await a decision of their own constitutional authorities” (Freestone, 221). In other words, this judgment illustrates that the principle of precedence with regards to Community regulations is relevant, even in relation to a subsequent national regulation.

Mattia V. Felice

R v. Secretary of State for Transport ex parte Factortame Ltd. [1990] ECR I-2433

ECJ Preliminary Ruling C-213/89

The Facts of the Case

The original English case dealt with a challenge towards the legal validity of certain provisions of the Merchant Shipping Act enacted in 1988. The plaintiff company, whose majority shareholders were Spanish, argued that the act was divergent from Community law since it impeded a number of Spanish flagged vessels from fishi