How the European Court of Justice Invents Law?

A central to the broader process of European integration has been the growth of European law. The European Court of Justice sees the clearest manifestation of the transfer of sovereignty from nation-states to supranational institutions in the accretion of power. The ECJ is seen as a strategic actor, who is master of its own destiny or servant of national governments, what leads to one common assumption that its sensitive to the preferences of EU member governments. [1]

The Court of Justice of the EU comprises 3 courts: the Court of Justice, the General Court and the Civil Service Tribunal, the task of which is to review the legality of acts of institutions and to ensure the interpretation and application of EU law. This institution is composed of 28 judges and 8 advocates general, who are appointed for a 6 years term. A General Court mainly deals with cases relating to competition law and private individuals or companies, while the Civil Service Tribunal rules on disputes between the EU and its stuff. [2]

slide_3In its turn, the Court has clearly defined jurisdiction, proceedings and actions. As the Court of Justice closely cooperates with all national courts of the Member States, they must sometimes refer to the Court of Justice to clarify the interpretation of EU law, in order to be sure that their national legislation complies with the law.[3] Mostly the Court gives an opinion in the form of a judgment or order, so thus through references for preliminary rulings any citizen of EU or national court can seek clarification of rules, which affect him.

There are also various types of actions, such as actions for failure to fulfill obligations, actions for annulment, actions for failure to act. Actions for failure to fulfill obligations enable the Court of Justice to check and determine if a member state fulfills tis obligations under EU law. [4]But if the country is found guilty, then the Court may impose financial penalty.

An action for annulment states that any EU country, the Council, the Commission or Parliament that believes that any of EU laws is illegal, may ask the Court to annul it. [5] This action also refers to individuals, citizens of EU. And an actions for failure to act means that if Parliament, the Council and the Commission fails to make decision, then member countries or institutions have a possibility to complaint. [6]

Another important thing to mention about is the Court of Justice procedure, which always consists of written stage and oral stage, which is public. Here we need to draw a distinction between references for preliminary rulings and direct actions. In case of preliminary rulings, the national court to the Court of Justice submits the questions and when the request has been translated into all languages of the EU, the Registry notifies the parties and Member states, so they have two month to submit any written observations to the Court of Justice.[7]

In direct actions, all actions are brought to Registry, which publishes applicant’s claims and arguments in the Official Journal of the European Union. [8] At the same time, the application should be defensed in a lodge within one month. The next step in procedure is to state, within three weeks, why parties wish an oral argument to be held.

There also exist special forms of procedure. In simplified procedure, if a question for a preliminary ruling is the same to a question that has already been requested to rule by the Court, then after gearing the Advocate General, the Court may refer to the previous judgment. [9] The expedited procedure enables the Court to give its rulings quickly and even more quickly with sensitive issues relating to the area of freedom, security and justice.


I would like to mention also about the sources of EC law that have been divided into the categories of primary law, secondary law and case law. The case law as a source of EU law stresses the authority of ECJ decisions and authority of EC law in general. [10] Mentioning case law as a tool of the Court of Justice, through it, the Court has identified an obligation on administrations and national courts to apply EU law within their sphere of competence, also to protect the rights of citizens and to disapply any conflicting national provision. [11] As the Court also works in conjunction with the national courts, the court must give its interpretation of a rule of EU law. Thus as case law develops, it illustrates how the Court’s contribution creates a legal environment for citizens by protecting their rights.


Starting with Van Gend & Loos transport company case in 1963, the Court in its case-law, introduced the principle of the direct effect of Community law in member states, which means that EU citizens rely on rules of EU law before their national courts. [12] Another case was in 1964, the Costa judgment which established the primacy of Community law over domestic.

The whole concept of this case was that as national Italian court had asked the Court of Justice if the Italian law on nationalization of production and distribution of electrical energy was compatible with rules in the EEC treaty, thus the Court introduced the doctrine of the primacy of Community law which is to be applied to all the member states. [13]

In 1991, the Court developed another fundamental concept, in a case of Andrea Francovich and Others v. Italian Republich, the result of which was called the Frencovich principle of state liability. In this case in the field of employment rights, workers brought a claim before their national courts for compensation for the damage they suffered due to failure of Member states to secure their protection. [14]

Thus the Court opened up the possibility of an action for damages against the State itself. So the ECJ stipulates that national procedures should determine how state liability is enforced and the procedure for claiming damages from the state before national court must comply with two principles: equivalence and effectiveness. [15] As long as these two principles are respected, the member states can prescribe their own procedures for claims.

Of course, without the ECJ there would be no way of enforcing the obligations of the European Treaties and in the areas of its jurisdiction all EU citizens have equal rights and such benefits as the free movement of goods. But exists several imperfections such us supremacy of EU law over national law and the ECJ as imposer of European standards simply challenges a nation’s traditional legal practices.

For all its drawbacks, the EU legal order makes an invaluable contribution towards solving the political, economic and social problems of the member states, thus in my opinion creation of one legal order on the EU scale may prevent the Union from the collapse of the legal order as a whole. In this case, I think, the uniform and priority application of Union law in all member states can only be guaranteed by the two cornerstones: the direct applicability of Union law and the primacy of Union law over national law.




[1]The European Court of Justice, National Governments and Legal Integration in the EU. Geoffrey Garrett, R. Daniel Kelemen and Heiner Schulz. International Organisation 52,1, Winter 1998, page 150

[2] Court of Justice of the EU. How the EU works.

[3] The Court of Justice. Composition, jurisdiction and procedures. December 2010.ed.

[4] ibid

[5] Court of Justice of the EU. How the EU works.

[6] ibid

[7] The Court of Justice. CVRIA presentation.

[8] Ibid

[9] The Court of Justice. Composition, jurisdiction and procedures. December 2010.ed.

[10] The Principle of legal Certainty in EC law. J. Raition. Springer Science& Business Media,2003. ISSN 1572-4395. Page 88

[11]The Court of Justice. CVRIA presentation.

[12] The Principle of legal Certainty in EC law. J. Raition. Springer Science& Business Media,2003. ISSN 1572-4395. Page 106

[13] The Court of Justice. CVRIA presentation.

[14] Francovich principle. Eurofound.

[15] Ibid


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