European Court of Justice

The European Court of Justice (ECJ ), officially called the only Court of Justice, based in Luxembourg, the European Union ( EU), the supreme judicial organ. According to Article 19 paragraph 1 sentence 2 TEU he secures " the law is observed in the interpretation and application of the Treaties ". It forms together with the Court of the European Union and the Court of the Civil Service of the European Union, the court system of the European Union, which plays the role of the judiciary in the political system of the European Union.

2.1 Independent legal order of the European Union
2.2 Free movement of goods
2.3 Tax Law 2.3.1 Decision-making authority of the European Court
2.3.2 Important tax-related decisions

3.1 criticism
3.2 President of the European Court

Jurisdiction and procedure

Duties and Responsibilities

The tasks of the European Court of Justice enshrined in Article 19 of the EU Treaty, Articles 251-281 TFEU and the Statute of the Court of Justice of the European Union. This includes in particular to ensure the uniform interpretation of the European Union and the European Atomic Energy Community law. In 1989, the Court of First Instance was to relieve the ECJ ( since the Treaty of Lisbon called only after court ruling ) created. Since 2005 is beyond the Court of the Civil Service as a specialist tribunal which made by the European Court the responsibility for settling disputes between the European Union ( and originally of the European Communities ) and their officials or other servants adopted. The ECJ itself is now responsible as the appellate body for decisions taken by the European Court in direct actions brought by natural and legal persons. The European Court is - with few exceptions - also responsible for claims brought by Member States against the European Commission in the third instance.

Method

In proceedings of the European Commission ( esp. infringement procedures), actions of other institutions of the European Union or the Member States, which are not directed against the Commission, as well as the decisions of a preliminary ruling, the ECJ is solely responsible.

Infringement proceedings ( Article 258 TFEU): The European Commission can a Member State - for a pre-trial - before the ECJ sue. The ECJ then checks whether a Member State has failed to fulfill its obligations arising from the Treaty on the Functioning of the European Union. The ECJ will be sent a statement of claim, partially published in the Official Journal of the European Union and is served on the defendant. Depending on the case there is an evidence and a hearing. Following this, the Advocate General delivers his Opinion. In it he makes a ruling proposal to which the ECJ is not bound. According to Article 259 TFEU ( 2-4 TFEU for a Pre-Trial by enabling the Commission, Article 259, paragraph ) can also proceed by a Member State against another before the ECJ.

Preliminary ruling procedure ( Article 267 TFEU): The national courts can or must, so far as concerns (for example, Federal Fiscal, Federal Court ) to the last instance, be referred to the ECJ questions on the interpretation of European Union law. In addition, they can check if a European legislative act is valid. This is particularly true to ensure the uniform application of European Union law by the national courts, which have to provide for its enforcement. The national court must rely in his trial on the interpretation or validity of European Union law (it must be relevant to the decision and the interpretation must not already cleared ) to submit a question may. It interrupts this process be the response of the ECJ. The question presented is first translated into all official languages and published in the Official Journal. This gives the parties, to all Member States and the institutions of the European Union the opportunity to comment. Again, follow typically a hearing and the Opinion of the Advocate General before coming to a verdict. The national court (and other courts in similar cases ) are bound by the judgment of the ECJ.

A special feature of the ECJ is the institution of the Advocate General (Art. 252 TFEU). The Advocates General have the task to submit a proposal for a judgment after the hearing ( " Opinion "). For this purpose they take particular together the existing case law of the ECJ in similar cases and use this to justify their assumptions concerning the assessment of this case. The Advocate General is not representative of either party, but to develop its proposal independently and neutrally. The ECJ is not bound to these proposals, in practice, it follows, however, in about three-quarters of all cases, the proposals of the Advocate General. Since the decisions of the ECJ itself are kept in the legal arguments usually very short, often only giving considerably more analytical models in the Opinion shed light on the considerations underlying the case law of the ECJ.

Linguistic aspects

Language of the case may be, any official language of the European Union. The choice is the action uplifting party to the preliminary ruling, it is the language of the Member State of the requesting court, in actions brought against a Member State is the official language (or several ) Language. This regulation is to ensure that every member of the European Union in its language can make legal actions. All procedures documents into the language and into French - traditionally the internal working language of the Court, which is, however, increasingly, especially from Eastern European countries criticized - translated preliminary ruling and the judgments, if they are intended for publication by the ECJ in all official languages. Remarks of the Advocate General, which can be expressed in his own language, in the language (s), and translates all official languages.

ECJ and the European Court entertained a common translation service, which forms a separate Directorate ( with 20 language sections and a Department of General Services ). The translators of the ECJ all have a completed legal training and are also called " language lawyers " ( " Lawyer - Linguists " ) referred.

Hearings before the ECJ will be translated simultaneously by conference interpreters. The ECJ has for interpreting services with permanent interpreters and cuts in when added freelance interpreters.

Methods of interpretation

In the interpretation of legal norms of the European Union law by the ECJ causes some special relation to the ordinary judicial interpretation methods that have already been formed in the interpretation of European Union law.

The first peculiarity is that the legal sources of European Union law, have no uniform, mandatory language version, but currently are binding in 24 different languages, which arises from Article 55 of the EU Treaty. In case of different meaning of different language versions of the pure literal interpretation therefore has limitations, and the additional use of comparative law, systematic or teleological arguments is necessary.

Furthermore, problems of interpretation arising from the linguistic inaccuracy of primary law - it is a result of difficult political decision-making processes in which a variety of organs and individuals is involved. So many rules be confined to general formulations to provide the institutions of the European Union a discretion and to allow dynamic interpretation. The terms used in the contracts are autonomous, that is, with Union law meanings to understand, and can not be taken from the language use of individual Member States. The ECJ often served here in the search for systematic unity of the so-called " evaluative comparative law ", where he studied in the national regulations for the best solution.

Other features are evident in the design of contracts for meaning and purpose. So it is at about the effectiveness ( 'effet utile' ) is a special form of interpretation of the meaning and purpose, which is in accordance with the contract objectives. Accordingly, the individual provisions of the contract should be designed to have the maximum effectiveness. In particular, the reference to the " effet utile " of the ECJ often used to expand primary rules sometimes considerably on the text and also to send competences and powers of the Community, which were not originally intended that way.

History

The ECJ was founded in 1952 by the Treaty establishing the European Coal and Steel Community ( ECSC) and began work in 1953 on. He was initially responsible only for disputes within the ECSC Treaty. After establishing the European Economic Community ( EEC) and the European Atomic Energy Community ( EAEC or EURATOM) by the 1957 Treaty of Rome, the ECJ was responsible as a joint institution of the Communities for all disputes arising from the three contracts. The Court of First Instance has been attached to the ECJ in 1989, the Court of the Civil Service of the European Union in 2005. Since the Treaty of Lisbon, the European Union took the place of the European Community. Thus, the Court ruled that a joint institution of the European Union and the European Atomic Energy Community and for the interpretation of the law of these two organizations is responsible since 1 December 2009.

Decisions

Judgments of the ECJ, in so far as it sought a preliminary ruling under Article 267 TFEU (or a predecessor provision, such as Article 234 of the EC Treaty ) are delivered, will be primarily to enable the referring national court, the decision in the main case. In principle, the ECJ's decision is binding on the interpretation of European Union law, only the requesting court whose judgment, in turn, theoretically applies only to the decided case by case.

The de facto effect of a Court judgment, however, is much bigger, it goes far beyond the single issue that has led to the template out. As the ECJ for all Member States binding interprets the law of the European Union [ Note 1 ], the norm of the law of the European Union shall apply, as it is understood by the announced in the interpretation of a judgment, for all Member States and - usually - ex tunc, ie retrospectively. In other words: The Court finds as a provision of European Union law, always and by all would need to be understood.

An unlimited retroactivity of sentences, however, where appropriate, by the national procedural rights, in so far as they govern, that was a final administrative or judicial judgment was strong without separate provision can not be changed.

From 1953 to end of 2005, 13,960 cases were brought before the ECJ; in 6,827 cases, sentences handed down.

Independent legal order of the European Union

One of the most important decisions of the ECJ 's judgment in the matter, " Van Gend & Loos " from 1963. In this decision, the Court established the doctrine that it sui is the European Union law [ Note 2 ] to be an independent legal generis SCHEME WHICH of the laws of the Member States was detached. This was a departure from the hitherto prevailing view that it was the law of the European Union to ordinary international law. The decision is of great importance and made in the art for a stir because the ECJ thus reasoned that subjects of European law not only Member States but also individual citizens are.

From reasoned in Van Gend & Loos doctrine of the autonomy of European law, the ECJ 1964, the other doctrine of the primacy of European law over the law of Member States developed in the decision " Costa / ENEL ".

In these and subsequent rulings, the Court repeatedly emphasized that the Member States have voluntarily submitted to a union with an independent legal system. The fact that this is a legal and not merely a political alliance of convenience, is especially evident in such decisions of the ECJ over again.

Thus, a decision of the Council of Finance Ministers was revised on 13 July 2004 following a complaint by the Commission, which had exposed the deficit proceedings against Germany and France. This decision of the Minister is not compatible with European Union law.

Free movement of goods

An equally important decision of the ECJ in the context of the free movement of goods between Member States is the Cassis de Dijon decision of 1979. Therein forbade the ECJ Germany to provide requirements for a product that does not have to fulfill it in its home country. The decision led to the principle of "mutual recognition " of the nation-state product standards, which are limited by so-called universal minimum standards or safeguards. For example, consumer and environmental protection.

Tax law

Decision-making competence of the European Court

The national tax rules within the European Union, especially in the field of direct taxation hardly harmonized (other indirect taxes that were strongly unified through the VAT Directive). The European Union has in this area, only the power to harmonize legislation if this is necessary with regard to the functioning of the European internal market (Article 113 TFEU). Moreover, a unanimity in the Council is required. Therefore, it has come in the field of direct taxation only in a few areas to harmonization, for example in the context of the parent-subsidiary Directive and the Merger Directive.

According to settled case law of the ECJ, the Member States must, however, the barriers that you imposed the law of the European Union consider when exercising their remaining skills. This means that although the design of national tax law is part of the sovereignty of nation-states, and remains, the result of the exercise of powers, that the national tax laws, not against European Union law, in particular, may not violate the fundamental freedoms.

Important tax-related decisions

Manninen decision: After Manninen decision of the ECJ, the restriction of a corporation tax imputation method to the imputation only domestic corporation is contrary to EU law. Even foreign corporation must be taken into account. This judgment ( together with the judgment Fokus Bank ASA of the EFTA Court ) is the final end for corporation tax systems in Europe.
Lasteyrie du Saillant Decision: The taxation of hidden reserves in France during the change of residence of natural persons abroad ( not against the national change of residence ) was considered to EU law (see also exit taxation ). In Germany, where a similar rule existed, the law by § 6 Foreign Tax Act ( Foreign Tax Act ) has been adjusted.
Gerritse Decision: After Gerritse it is inadmissible that limited tax their advertising costs may not deduct if it unlimited taxpayer may.
Lankhorst - Hohorst decision: Here the German rules on shareholder debt financing were declared contrary to EU law.
Euro Wings Decision: The hälftige attribution of leasing fees paid to foreigners for trade tax was found to be contrary to EU law.
Marks & Spencer decision: One resident parent company should the offsetting of profits with the losses of foreign subsidiaries will not be prohibited if they can prove to the tax authorities that the use of these losses in the country where the subsidiary is impossible, because there they already have all loss account has exhausted possibilities ( para. 55 et seq.)
Cadbury Schweppes decision: An addition to tax on the profits of subsidiaries in low taxed abroad is allowed only to counter purely artificial arrangements. The resident company is to give the opportunity to present evidence of the actual establishment of the controlled foreign company and their actual economic activity.

Other important decisions of the European Court

Francovich decision: the individual citizen is at a breach of European Union law by a Member State a claim for compensation to when to individuals by the state violation has suffered a loss.
1993: Keck decision ( legitimation of restricting the free market )
IATA and ELFAA: For the wording of Article 251 of the Treaty ( Art. 294 TFEU) thus restricts the actions of the Conciliation Committee, which will facilitate agreement on a joint text ( between the Council and the European Parliament ), the content is not a. ( C-344/04 )
Kreil Decision: The judgment of the European Court of January 22, 2000 opened the Bundeswehr women in all areas.

Judge

The Court consists of one judge per Member State. The judges must be independent and have the requisite qualification in their country for a job at supreme court or " recognized competence " of his. Judges are appointed by a unanimous decision of the Governments of the Member States after consultation with the Committee established under Article 255 TFEU for a six-year term, which corresponds to a de facto Council of the European Union unanimous decision. The half of the judges changes every three years. It shall be possible. ( Article 253 TFEU).

Criticism

In a constitutional state, the task of the Supreme Court is also and especially in a constitutional control of the legislature and the government. This requires that the unconstitutional actions of these bodies are also marked accordingly. The ECJ has the kind rarely done (example: due to an action for annulment of the Federal Court and a preliminary ruling from High Court of Justice in connection with an application by a number of tobacco companies ( Imperial Tobacco and Others ), the ECJ held in its judgment of 5 October 2000, Business number C-376/98, Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products void and she raised - as the highest standard, namely the Treaty contradictory - on ).

In addition, the independence of the judiciary is questioned sometimes. This assessment is based on the fact that each member country the judge, it wants to send to the ECJ, self-determined, while in the Federal Republic of Germany the independence of the Supreme Judge is further strengthened, including the fact that they are elected by the Bundestag and the Bundesrat. But against this we note that the fact even if this allegation were true, would not result in any practical disadvantages. The procedural law of the ECJ prohibits namely to appoint an ECJ judge rapporteur in a procedure in which the Member State which has sent him is a party. The rapporteur has in the particular procedure the lead and prepares the negotiations and the decision in terms of content. Information about compliance with this regulation, the President of the ECJ monitored.

The main criticism, however, is that the ECJ is accused in parts of the law that he impermissibly extending the scope of European Union law on national legal fields and thus overstepping his authority. Another point of criticism is some of the short term, called by others the opportunity for re-election ( which in fact leads to an extension of the term ).

Roland Vaubel accuses the European Court of Justice, politically as the "motor of European integration " to judge, to " violations of the law ."

President of the European Court

The President of the Court shall be elected for three years, and indeed by the judges vote for one of their number. It can be fully re-elected.

The President shall direct the management of the ECJ and the other judicial functions and shall preside at hearings and deliberations in the chambers. He divides the cases to the chambers for any preparatory tasks and also elect a judge of the chamber, the rapporteur on the respective procedures. Furthermore, it defines the data and the schedule of meetings of the " Grand Chamber " and the entire court. The President shall also personally position when it comes to requests for restraining orders and the like.

Treaties of the European Union Lawsuit Federal Finance Court of Germany Federal Court of Justice of Germany ex tunc sui generis Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein Dividend imputation Controlled foreign corporation Francovich v Italy Tanja Kreil Italy Hans Kutscher Alexander Mackenzie Stuart, Baron Mackenzie-Stuart Greece Integrated Authority File

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