Saturday 5 January 2008

EU Treaty of Lisbon: Court of Justice

The Court of Justice has existed since the beginning of the European Coal and Steel Community. Article 220 of the Treaty establishing the European Community (TEC) sets out: The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed. – Articles 220 to 245 TEC contain detailed provisions.

The Convention dedicated Article I-28 to the Court of Justice. The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) included an Article I-29 The Court of Justice of the European Union.


Comments by your glossator:

Legal order or wish-list? If government bodies and courts in the Member States were free to apply or disregard European Community acts, the ‘acquis communautaire’ would be just a collection of political declarations. Therefore, it is a logical necessity that Community legislation takes precedence over incompatible national legislation. Only thus can natural persons and firms get the legal protection guaranteed by Community law.

Naturally, primacy concerns only areas where the Community has powers to legislate (e.g. internal market); powers not conferred upon the EC rest with the Member States.

The Constitutional Treaty would have admitted this frankly. Article I-6 Union law said:

“The Constitution and law adopted by the institutions of the Union in exercising competences conferred upon it shall have primacy over the law of the Member States.”

It can therefore be seen as a test of the maturity of public opinion and government in some Member States that the intergovernmental conference (IGC 2007) struck the provision on primacy from the Lisbon Treaty.

Instead, the IGC 2007 tucked away this corner stone of the EU edifice in a Declaration (number 17) concerning primacy, supplemented by an Opinion of the Council Legal Service:

“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by said case law.

The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):

Opinion of the Council Legal Service of 22 June 2007

It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.


(1) It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”


Should a citizen of the European Union thank the voters in France and the Netherlands who, in effect, landed us with the contortionist act called the Reform Treaty?


The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9f TEU on the Court of Justice of the European Union.

Article 9f

1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

2. The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.

The General Court shall include at least one judge per Member State.

The judges and the Advocates-General of the Court of Justice and the judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 223 and 224 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring judges and Advocates-General may be reappointed.

3. The Court of Justice of the European Union shall, in accordance with the Treaties:

(a) rule on actions brought by a Member State, an institution or a natural or legal person;

(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;

(c) rule in other cases provided for in the Treaties.


Ralf Grahn

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