European Court Justice For Individuals

Introduction

The European Court of Justice (ECJ) is a part of the court system of the European Union (EU), which is the Court of Justice of the European Union (CJEU). The ECJ or the Court of Justice, the General Court, and the Civil Service Tribunal are all the parts of the court system of the CJEU. The Treaty on the Functioning of European Union (TFEU) provides the power of judicial review to the ECJ under Article 263 and this is one of the most of the important functions of the ECJ.

Limited Appeal to Court of Justice

Originally, individuals did not have access to the ECJ if there was violation of EU law that impacted the rights of the individuals. However, over a period of time, ECJ developed jurisprudence for allowing individuals to access the court. Specifically, the ECJ developed the principles related to direct and indirect effect of the EU law, as well as, rules related to state liability. These doctrines allow the ECJ to hear actions by individuals against the Member States for breach of EU law. However, it is fair to say that individuals have limited access to the ECJ. This section of the essay will discuss the factors that make access to the ECJ difficult for individuals and limits the approach to the ECJ.

Individuals who believe that their rights under the EU laws have been adversely impacted by the failure of their governments to implement the EU law or respect an obligation imposed by the EU, can seek remedies from the ECJ. EU treaties and directives confer certain obligations on the State Members, as well as local and regional authorities. For the purpose of enforcing these obligations, EU legislation is to be implemented in national laws and enforced by the states. At times, states may fail to implement the EU laws and directives, or they may implement these laws and directives but may fail to enforce them properly. Such failure to implement or enforce directives can lead to implications for individuals and their rights which were protected by the EU law and are considered to be breach of law by the State Members. Despite the serious nature of the consequences of breach of EU law and directives for State Members, individuals may be restricted in accessing the ECJ or approaching the ECJ with a complaint.

Although restricted, the growing volume of jurisprudence on the individual access to ECJ for the enforcement of EU law shows how it would be wrong to disregard ECJ jurisdiction for enforcing individual rights as negligible. There are a number of cases in which individuals have successfully accessed the ECJ for the purpose of enforcing their rights in EU law and directives against the state. For instance, in Van Duyn v Home Office, a case concerning the free movement of workers in the EC, the ECJ allowed the individual access to the court for hearing a case against the UK relating to the latter’s removal due to practice of scientology religion. Although, such role of the ECJ was not always envisaged and has been critiqued for giving effect to a doctrine that forces the national authorities to give effect to EU directives at the behest of the individual, there is little doubt that the ECJ has successfully developed jurisprudence that allows more access to individuals for seeking remedies before it. Thus, individuals can enforce directive rights through the ECJ if the state fails to implement these. The ECJ has enforced several directives that are not adopted by the state, for instance, in one case, the court held that Article 49 of the TFEU was directly effective, even in absence of adoption of directives.

An important case in this respect is that of Defrenne v Sabena, in which the ECJ held that direct effect could be vertical direct effect or horizontal direct effect, based on the party against whom the right was enforced. In the case of vertical effect, this refers to such EU measures which confer rights on individuals against the State and by extension, confer obligation on the state to comply with EU law. The implication of this is that individuals who are citizens of the state may rely on the EU law in actions against the state before the ECJ. In case of horizontal direct effect, EU measures confer rights and obligations on individuals against other persons or companies. In such a situation, individual can rely upon these rights to make an action against the person or company.

Therefore, as seen from the brief discussion above, the ECJ has the jurisdiction to hear and decide cases on alleged breaches of the EU law, failure to implement EU law or incorrect implementation of the EU law. Even with regard to the EU institutions and their alleged breach of EU law, the Treaty of Lisbon 2009, has introduced changes that make it easier for individuals to access ECJ against decisions of the EU Institutions or agencies. The ECJ has also acquired jurisdiction to give preliminary rulings in areas of immigration, asylum and crime. The ECJ also has jurisdiction to deal with complaints concerning the Charter of Fundamental Rights of the European Union.

Although it may seem that individuals have acquired access to the ECJ through the development of direct effect doctrine as well as through the implementation of the Treaty of Lisbon, it may be noted that such access is not unrestricted because there are certain requirements or standards that need to be satisfied before individuals gain access to the ECJ, which make it difficult to access the court in every case.

Among other things, one of the criterion of the individual action to be heard by the ECJ with reference to the Member States is that there should be a sufficiently serious breach of EU law by the Member State. The standard of sufficiently serious breach of EU law was laid down in the case Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities, wherein the ECJ held that in order to access the court in an action against the state, the individual will have to prove that the right was provided under a superior rule of law and that there was a ‘flagrant’ breach of the law. In Dillenkoffer and others v. Federal Republic of Germany, the ECJ inferred that the Schöppenstedt test required a sufficiently serious breach so as to be a flagrant breach of law. Thus, Member States can be held liable for breach of EU law if the breach is sufficiently serious. Sufficiently serious breach of EU law carries with it a connotation of fault, which is the standard of liability of the state. It may be noted here that for individuals to approach or access the ECJ, they have to prove sufficiently serious breach on the part of the state or its authorities, else their access to ECJ will not be successful. For this, the individual has to show that there is a manifest and grave breach of a clear and precise rule.

For the purpose of enforcing the liability of the state in such contexts, even national courts and judicial authorities are within the scope of purview of the ECJ; therefore, individuals can approach the ECJ in appeal against the actions of the national courts and judicial authorities. This is an important aspect of the ECJ’s jurisdiction in cases against national authorities, which allow access to the individuals. However, it may be noted that where states have a margin of appreciation to implement EU law as per the national conditions, then individuals may have an even more difficult task in accessing the court. Therefore, despite the development of jurisprudence that helps the individuals access ECJ to enforce the EU law, there is significant restriction in individuals accessing the court.

Even in cases that involve a breach of fundamental rights of individuals, the individuals have to show that there is a sufficiently serious breach of EU law in order to access the ECJ. This makes it difficult for individuals to access the court. ECJ case law indicates that there is no clarity on what makes ECJ accessible to individuals even in cases of possible breach of fundamental rights. For instance, in Jean-François Giordano v European Commission, which involved fundamental rights of the individuals concerned the ECJ allowed the principle pf proportionality to be applied to hold that there was no sufficiently serious breach of EU law because the response was in compliance with the principle of proportionality. Scholars have criticised cases such as the one mentioned above because there is a lack clarity on what is sufficiently serious breach.

Three main functions of the ECJ are related to judicial review, interpretation of treaties, and actions for annulment. The ECJ also considers preliminary references from national courts on issues of law under the EU law, matters brought by the European Commission against a State’s failure to fulfil an EU obligation, and complaints about acts of the EU institutions. Actions for annulment are sought by the applicants that are seeking annulment of EU regulation, EU directive or decision by an EU institution, which violates EU treaty law. The ECJ can declare a measure to be void if a violation of the EU law is established. With respect to regulations, in order for individuals to be able to challenge a regulation, they must be able to show “by reason of certain attributes, which are particular to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually.” Therefore, there has to be a direct effect or concern is where there is a direct causal link between the EU measure and the effect of that measure on the legal position of the individual applying for its annulment. Interpretation of EU treaties is also an important function of the ECJ under Article 267 of the TFEU, which states that the ECJ may be asked to give a ruling on a question about “the interpretation of the Treaties” or “the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union” by national courts or tribunals. It may be noted at the outset that individuals and private parties do not have a direct remedy in the ECJ. There are still limited courses of action open to an individual, which may lead to actions in the ECJ.

“The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.”

Individuals do have access to the ECJ for judicial review because they can bring actions in the ECJ for judicial review of the acts of EU institutions. Natural persons are treated as non-privileged applicants under the TFEU, Article 263(4). This does not mean that natural persons cannot approach the ECJ, but it means that in order to approach the ECJ, natural persons will have to clear some legal hurdles. Therefore, one of the important functions of judicial review, which is protection of individuals, is not satisfactorily performed in the ECJ because the ECJ limits the rights of the individuals by prescribing restrictions on access to individuals. One of the limitations is prescribed in Article 263 in the form of direct or individual concern which is not easy to determine in favour of individuals. This leads to a restrictive approach, such as seen in Union de Pequenos Agricultores v Council, wherein the ECJ recognised that locus standi tests developed by it for individual applicants were rigid, but also explained that a more liberal approach would be contrary to the legislative intent of the EU.

The power of judicial review is an important function of the ECJ because it creates a system of checks and balances system within the EU, and for that reason, Article 263 of the TFEU is noted as a “safeguard against abuses of authority by Union institutions.” As the principal court of the EU, ECJ plays an important role in its function of judicial review, as other than ECJ no other court has this power. As mentioned earlier, natural and legal persons can also bring in claims to the ECJ regarding actions of the European Parliament, Council or Commission if these have acted illegally or incompetently, under Article 265 of the TFEU. However, an Article 265 action may be brought only after the Institution has been called upon to act under the Treaties. Thus, Article 265 also allows judicial review by the ECJ and acts as a complement to Article 263.

The function of judicial review is important also for the purpose of ensuring rule of law in the EU. Judicial review is considered to be an essential part of rule of law. In context of individual rights, judicial review is important because it keeps a check on unauthorised exercise of powers that can impact rights of individuals. Thus, Article 47 of the EU Charter of Fundamental Rights provides that judicial review is an essential element of the rule of law. This is observed in Inuit Tapiriit Kanatami and Others v Parliament and Council, as follows:

“the European Union is a union based on the rule of law in which the acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, the general principles of law and fundamental rights.”

Conclusion

It is no longer appropriate to say that the ECJ is not an appeal court and that individuals have very limited access to the ECJ. The individual plays an important role in two out of the three main functions of the ECJ, these being, judicial review, and annulment of EU institutions actions. Interpretation of treaties do not see any role of the individual because this is brought to the ECJ by the national courts and tribunals that are seeking clarification on interpretation of some EU law. That said, although the access for individuals has been increased through the development of direct effect doctrines and Treaty of Lisbon implementation, this access is limited for individuals and there are more rigid requirements for individuals to prove access to the ECJ. Therefore, there is some truth in the statement that access for individuals is limited, however, the growing jurisprudence would signify that the limitations on individual access has decreased over time.

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List of Cases

Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities [1971] ECR 975.
Bergaderm v Commission [2000] ECR I-5291.
Brasserie du Pêcheur, Secretary of State for Transport, ex parte Factortame Ltd and Others (1996) ECR I-1029.
Chevalley v Commission Case 15/70 (1970).
Defrenne v Sabena (1976) Case 43/75.
Dillenkoffer and others v. Federal Republic of Germany [1996] ECR I-4845.
EP v Commission, C 445/93, Order of 1 July 1996.
Gerhard Köbler v Republik Österreich 2003] ECR I-10239. International Fruit Company NV and Others v. Produktschap voor Groenten en Fruit [1972] ECR 1219. Inuit Tapiriit Kanatami and Others v Parliament and Council Case C-583/11 P. Jean-François Giordano v European Commission (2014) ECLI:EU:C:2014:2282. Jean Reyners v Belgium [1974] ECR 631.
Plaumann & Co. v Commission, Case 25/62, 1963 E.C.R. 95 Pubblico Ministero v Ratti (1979) Case 148/78. Van Duyn v Home Office (1974) C-41/74. Union de Pequenos Agricultores v Council [2002] ECR 1 6677.

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