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( 155 .)


The Court of First Instance (CFI), created in 1989, includes at least one
judge per Member State and consists at present of twenty-seven judges who
are appointed by agreement of the governments of the Member States for
renewable terms of six years. The judges are chosen ˜from persons whose inde-
pendence is beyond doubt and who possess the ability required for appoint-
ment to high judicial o¬ce™ (Art 224 EC). Cases are normally heard in
296 British Government and the Constitution

Chambers of three or ¬ve judges. The jurisdiction of the Court of First
Instance includes sta¬ disputes and cases brought by individuals or companies
(eg claims against the Community for damages and actions for annulment
under Article 230 EC). The Treaty of Nice extended its jurisdiction, for
example, to include references for preliminary rulings (see below) in certain
speci¬c areas. There is, in general, a right of appeal against judgments of the
Court of First Instance to the Court of Justice on points of law. A judgment or
ruling of the Court of Justice is not subject to appeal. Its decisions on the inter-
pretation of the Treaty cannot be reversed by legislation but only by the more
di¬cult process of amendment of the Treaty, although the Court may itself
depart from its previous decisions.
˜The Court of Justice™, says Article 220 EC, ˜shall ensure that in the interpre-
tation and application of this Treaty the law is observed™. (The like obligation is
placed upon the Court of First Instance.) Other Articles of the Treaty provide
in detail for the Court™s manifold jurisdiction, of which the following are the
main categories:
1. Judicial review: the Court™s jurisdiction, in proceedings brought by
a Community institution, a Member State or, more rarely, a private party, to
determine the legality of an act (Art 230 EC), or failure to act (Art 232 EC), of
a Community institution.
2. Infringement proceedings: the Court™s jurisdiction in proceedings brought
against a Member State by the Commission (Art 226 EC “ see above) or, more
rarely, another Member State (Art 227 EC) for a breach of Community obliga-
tions. Since Maastricht the Court has been empowered to impose a ¬nancial
penalty on a Member State that fails to comply with its judgment (Art 228 EC).
3. Preliminary rulings: the Court™s jurisdiction to rule on questions of
Community law arising in national courts and tribunals (Art 234 EC).
Proceedings in the ¬rst two jurisdictional categories are brought and
concluded in the European Court of Justice itself, but preliminary rulings arise
from a reference to the Court of Justice made in the course of proceedings in
a national court. Infringement proceedings were considered in relation to the
powers of the Commission (see above), and we need not say more about them
here. A word more on judicial review cases and on preliminary references is,
however, necessary.
The most important provision of the Treaty in relation to judicial review is
Article 230 EC. This provides as follows:

The Court of Justice shall review the legality of acts adopted jointly by the European
Parliament and the Council, of acts of the Council, of the Commission and of the ECB [the
European Central Bank], other than recommendations and opinions, and of acts of
the European Parliament intended to produce legal effects vis-à-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the
European Parliament, the Council or the Commission on grounds of lack of competence,
297 The European dimensions

infringement of an essential procedural requirement, infringement of this Treaty or of any
rule of law relating to its application, or misuse of powers.
The Court of Justice shall have jurisdiction under the same conditions in actions brought
by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives.
Any natural or legal person may, under the same conditions, institute proceedings against
a decision addressed to that person or against a decision which, although in the form of a
regulation or a decision addressed to another person, is of direct and individual concern to
the former.
The proceedings provided for in this article shall be instituted within two months of
the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof,
of the day on which it came to the knowledge of the latter, as the case may be.

It will be seen that actions for judicial review may be brought by a Member State
or by one of the European Union™s institutions. Actions may be brought by
private parties only if they have ˜direct and individual concern™ in the matter. The
Court of Justice has interpreted this condition very narrowly, meaning that it is
extremely di¬cult for private parties to access the Court under Article 230 EC.
Indeed, they will generally be able to do so only where they can distinguish them-
selves, not only actually but potentially, from all other persons (see Case 25/62
Plaumann v Commission [1963] ECR 95 and Case C-50/00 P UPA v Council
[2002] ECR I-6677). Four grounds of review are set out in Article 230: lack of
competence, breach of an essential procedural requirement, infringement of the
Treaty or of any rule of law relating to its application, and misuse of powers. The
third of these has been interpreted broadly by the Court to include a number of
(essentially judge-made) ˜general principles of EU law™, the most important of
which are proportionality, legal certainty, non-discrimination and respect for
fundamental rights. All of these have, in e¬ect, become grounds of review in EU
law (see eg, Case C-331/88 R v Minister of Agriculture, Fisheries and Food, ex p
Fedesa [1990] ECR I-4023). (See further Chalmers et al (2006), ch 10).
The preliminary reference procedure is commonly seen to be the most impor-
tant of the Court™s various jurisdictions. This is for two main reasons: ¬rst,
because of the large volume of case law generated through this procedure (from
2000“04, for example, the Court delivered more than 1,200 judgments on the
basis of Article 234 EC). Secondly, the preliminary reference procedure has pro-
duced most of the seminal, or leading, cases in EC law. The key constitutional
principles of supremacy, direct e¬ect and state liability, for example, which we
shall consider later in this chapter, were each developed by the Court in cases that
arose from preliminary references. The terms of Article 234 EC are as follows:

The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of this Treaty;
(b) the validity and interpretation of acts of the institutions of the Community and of the
ECB [European Central Bank];
298 British Government and the Constitution

(c) the interpretation of the statutes of bodies established by an act of the Council, where
those statutes so provide.

Where such a question is raised before any court or tribunal of a Member State, that court
or tribunal may, if it considers that a decision on the question is necessary to enable it to
give judgment, request the Court of Justice to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member
State against whose decisions there is no judicial remedy under national law, that court or
tribunal shall bring the matter before the Court of Justice.

Article 234 emphasises and is designed to preserve the uniformity of
Community law as an independent legal order with the same force and meaning
throughout the European Union. Without the discipline of this provision,
national courts might develop Community law in divergent ways and the result
would be a fragmented system which failed to sustain the common objectives
of the Union.
A reference under Article 234 can be made only by the national court or
tribunal itself: the Article does not provide an avenue of recourse to the Court
of Justice for the parties to litigation. What is referred to the Court is not the case
as a whole but a speci¬c question of Community law that is relevant to
the determination of the case. When the Court of Justice has given its ruling on
the question the proceedings continue in the national court, which is bound to
adopt the ruling of the Court of Justice but retains its independence of decision
on all other aspects of the case. In practice, however, the ruling on the applic-
able Community law will often determine the result of the case. The Court of
Justice has no authority to rule on questions of national law.
A national court is always entitled to refer to the Court of Justice a question
of Community law that it considers relevant to the case before it, but a court
from which there is no appeal is bound to refer such a question. A ¬nal court of
appeal like the House of Lords is therefore obliged by Article 234 to refer to the
Court of Justice, and the better view is that any other court or tribunal is also
bound to refer if there can be no appeal from its decision in the particular case.
A court of ¬nal appeal is bound to refer, however, only if it considers that a deci-
sion on the question is necessary to enable it to give judgment. Moreover, no
reference need be made if the question has already been resolved by the Court
of Justice, or if the national court is convinced that the Community law on the
question is clear beyond reasonable doubt (this is known as the doctrine of
acte clair: see Case 283/81 CILFIT v Ministry of Health [1982] ECR 3415).
The doctrine has to be applied with caution, however, for it depends upon a
degree of clarity in the relevant legal provisions which is not often present. In
R v Henn [1978] 1 WLR 1031 (CA), [1981] AC 850 (ECJ and HL), while the
Court of Appeal had no doubt at all about the right solution to a question of
Community law that arose before it, the House of Lords, having given leave to
appeal, decided that there was su¬cient doubt to require a reference to be made
299 The European dimensions

to the Court of Justice. The judgment of that court showed that the Court of
Appeal had indeed misconstrued the relevant provision of the EC Treaty. (See
further Arnull (1989) 52 MLR 622 and (1990) 15 EL Rev 375, and Lord Diplock
in Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771“2. Note also the
di¬erences of opinion between the Law Lords in R v Secretary of State for Health,
ex p Imperial Tobacco Ltd [2001] 1 WLR 127 as to whether a question arising in
that case was acte clair.)
A court which is not sitting as a ¬nal court of appeal has a discretion whether
or not to refer a relevant question of Community law for decision by the
European Court. In regard to the exercise of this discretion an English judge,
Bingham J, said in Customs and Excise Comrs v ApS Samex [1983] 1 All ER 1042,

Sitting as a judge in a national court, asked to decide questions of Community law, I am very
conscious of the advantages enjoyed by the Court of Justice. It has a panoramic view of the
Community and its institutions, a detailed knowledge of the treaties and of much subordi-
nate legislation made under them, and an intimate familiarity with the functioning of the
Community market which no national judge denied the collective experience of the Court of
Justice could hope to achieve. Where questions of administrative intention and practice arise
the Court of Justice can receive submissions from the Community institutions, as also where
relations between the Community and non-member states are in issue. Where the interests
of member states are affected they can intervene to make their views known. . . .Where
comparison falls to be made between Community texts in different languages, all texts being
equally authentic, the multinational Court of Justice is equipped to carry out the task in a
way which no national judge, whatever his linguistic skills, could rival. The interpretation of
Community instruments involves very often not the process familiar to common lawyers of
laboriously extracting the meaning from words used but the more creative process of sup-
plying flesh to a spare and loosely constructed skeleton. The choice between alternative sub-
missions may turn not on purely legal considerations, but on a broader view of what the
orderly development of the Community requires. These are matters which the Court of Justice
is very much better placed to assess and determine than a national court.

In Bulmer v Bollinger [1974] Ch 401 Lord Denning gave more speci¬c guide-
lines for the exercise of the discretion to refer, the tenor of which gave encour-
agement to the English courts to reach their own conclusions on points of
Community law. Lord Denning™s guidelines were given a rather di¬erent
emphasis by Sir Thomas Bingham MR in R v International Stock Exchange Ltd,
ex p Else (1982) Ltd [1993] QB 534, 545:

I understand the correct approach in principle of a national court (other than a final court of
appeal) to be quite clear: if the facts have been found and the Community law issue is crit-
ical to the court™s final decision, the appropriate course is ordinarily to refer the issue to the
Court of Justice unless the national court can with complete confidence resolve the issue
300 British Government and the Constitution

itself. In considering whether it can with complete confidence resolve the issue itself the
national court must be fully mindful of the differences between national and Community
legislation, of the pitfalls which face a national court venturing into what may be an unfa-
miliar field, of the need for uniform interpretation throughout the Community and of the
great advantages enjoyed by the Court of Justice in construing Community instruments. If the
national court has any real doubt, it should ordinarily refer.

(See further Walsh (1993) 56 MLR 881 and Chequepoint SARL v McClelland
[1997] QB 51, 60.)
The Court of Justice is an innovative court which has developed principles of
Community law in a bold and far-reaching manner. Many of the constitution-
ally most important “ and most sensitive “ doctrines of EU law originate not
from the Treaties but from the case law of the Court. This is true, for example,
of the doctrines of supremacy, direct and indirect e¬ect and state liability, to be
considered in the next section. The Court™s activism has not always found
favour in the Member States “ and not only in the United Kingdom “ and it has
been criticised for exceeding its proper bounds. As Sionaidh Douglas-Scott
reports (Constitutional Law of the European Union (2002), p 199):

It is not always the case that international courts arouse strong feelings, but this has been
so with the European Court in Luxembourg. On the one hand, a former French Prime Minister,
Michel Debr©, said in 1979, ˜J™accuse la Cour de Justice de m©galomanie maladive™. A more
measured, but equally vehement, account was given by Margaret Thatcher, in the parlia-
mentary debates on the Maastricht Treaty when she reported that ˜some things at the Court
are very much to our distaste™. Attacks on it have also been made by the German press and
it has been accused of ˜revolting judicial behaviour™ by the Danish academic, Hjalte

(For consideration of the arguments, see Hartley (1996) 112 LQR 95; Lord
Howe (1996) 21 EL Rev 187; and Tridimas (1996) 21 EL Rev 199.)
(The literature on the Court of Justice is enormous. For further analysis and
argument see eg, R Dehousse, The European Court of Justice (1998); A Arnull,
The European Union and its Court of Justice (2nd edn 2006); A Slaughter, A Stone
Sweet and J Weiler (eds), The European Courts and National Courts: Doctrine
and Jurisprudence (1998); K Alter, Establishing the Supremacy of European Law:
the Making of an International Rule of Law in Europe (2001).)

The Court of Auditors
The Court of Auditors was established in 1975 and was given increased powers
and the status of an institution of the Community at Maastricht. It has the task
of examining and reporting on all revenue and expenditure accounts of the
Community and determining whether the ¬nancial management of the funds
has been sound. The members of the Court of Auditors are to act with complete
301 The European dimensions

independence in the general interest of the Community (Arts 247“8 EC). The
Court draws up an annual report which is sent to the other institutions of the
Community and is published. Audit is an important component of account-
ability in the European Union, in which the Court of Auditors has a signi¬cant
role to play (for a critical appraisal, see C Harlow, Accountability in the European
Union (2002), ch 5).

The Economic and Social Committee
The Economic and Social Committee is an advisory body established by the EC
Treaty to assist the Commission and the Council. It consists of representatives,
appointed by the Council in accordance with proposals submitted by the
Member States, of ˜the various economic and social components of organized
civil society™; its members are chosen as representing producers, workers and
a variety of other interest groups including the professions, farmers, dealers
and consumers. The Council and the Commission are obliged by a number of
Treaty provisions to consult the Committee on proposed action and in practice
do so in many other cases. The Committee may also give opinions on its own
initiative. Views as to the success and importance of the Committee are mixed.

The Committee of the Regions
This advisory body consists of representatives of regional and local bodies who
are either elected or are politically accountable to an elected assembly, and are
appointed by the Council on the basis of proposals from the Member States.
The Committee must be consulted by the Council or by the Commission when
the Treaty so provides or otherwise when they consider it appropriate to do so,


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( 155 .)