Report from the European Court of Justice: the Third Pillar

The European Court of Justice (ECJ) was set up in 1951 and has its seat in Luxembourg. It is the highest court of the European Union and is actually composed of 27 judges, one from each of the Member States of the Union, as well as eight Advocates General who assist the judges by delivering a non-binding opinion in each case. The Court’s role is to ensure that in the interpretation and application of the Treaties of the European Union is correct. The competence of the Court is an attributed one and its jurisdiction is thus expressly outlined in the Treaties, which the Court has, however, interpreted generously.

In procedural terms, its jurisdiction essentially extends to issues relating to the validity of EU law as well as to issues of breach by the Member States of their EU law obligations and compensation for the damage caused as a result of such a breach. A breach of European Community law by a Member State can be raised by an EU institution or a Member State through the enforcement procedure (Articles 226 of the Treaty on the European Union) or by a national court through a preliminary reference (Article 234 of the TEU). The latter has proved to be the main road through which the ECJ has ensured the development of Community law and the enforcement of its provisions. Likewise it is mainly by way of a preliminary reference that individuals can indirectly have their case assessed by the European Court in the light of EU law. Pursuant to this procedure, national courts can or shall ask the ECJ where they have doubts about the interpretation or validity of a given EU provision, which can have a bearing on how a case is decided. In the few instances where individuals can directly raise issues of EU law before the European Court such claims are now assessed by the Court of First Instance which was set up in 1988 to relieve some of the burden put on the ECJ by an ever increasing case-load. Rulings from the Court of First Instance can be appealed before the ECJ, but on points of law only.

In substantial terms, the Court has dealt with a variety of issues ranging from constitutional and administrative ones concerning the division of competence between the EU and the Member States and the extent of the EU institutions’ competence, to the interpretation of various EC provisions such as those relating to the internal market, social policy and EU citizenship as well as EU provisions like those pertaining to police and judicial cooperation in criminal matters.

The present report concerns the latter provisions and briefly surveys the Court’s jurisdiction in this area as well as the legal effect of such provisions on individuals.

The Maastricht Treaty of 1992 created the European Union which designated a new structure consisting of three pillars: the first being the initial European Economic Community which was then relabelled the European Communities (EC) and added two pillars, one in the field of foreign policy and security and one in police and judicial cooperation in criminal matters. The first pillar is supranantional whereby EC acts can have direct effect and enjoy supremacy over national laws; whereas, the subsequent two EU pillars are based on intergovernmental cooperation between the Member States.

As a general rule acts adopted by the EU institutions pursuant to the two EU pillars do not have direct effect in the sense that individuals can not rely on them in court and the ECJ’s jurisdiction is rather limited. The treaties have established a system of legal remedies in which, by virtue of the EU Treaty, the jurisdiction of the Court is less extensive under the two EU pillars than it is under the first pillar, the EC Treaty. The third pillar (as well as the second) is characterised by inter-governmental cooperation between the Member States and therefore acts adopted by the Council pursuant to these provisions do not have direct effect. Like directives under the first pillar, these acts need to be implemented in national law before they can produce any legal effect for individuals. Yet, in its landmark ruling in Pupino (case C-105/03 of 2005) the Court ruled that while framework decisions adopted by the Council under the third pillar do not have direct effect in the sense that individuals can not directly rely on them, the Member States are nevertheless subject to the principle of loyal cooperation. This principle, which is found in Article 10 of the EC Treaty (the first pillar), requires in particular that Member States take all appropriate measures to ensure fulfilment of their obligations under European Union law. The Court ruled in Pupino that such principle is also binding in the area of police and judicial cooperation in criminal matters. The Court concluded that the principle of consistent interpretation is binding in relation to framework decisions and therefore when applying national law, the national court must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues. Thus, framework decisions do have legal effect in the national legal systems. This might also turn out to be true in respect of other types of acts adopted under the two EU pillars. However, the Court also found, as in the case of directives under the first pillar, that the principle of consistent interpretation can not serve as the basis for an interpretation of national law contra legem.

In the last six months, the Court has ruled on other issues pertaining to the third pillar, specifically on the Court’s competence in respect of other acts, such as common positions for which the EU Treaty excludes its jurisdiction. In cases C- 354/04P and C-355/04P, two Basque orgnizations lodged an action before the Court of First Instance asking for compensation for the damage suffered as a result of the inclusion of their organizations in the “terrorist list” annexed to the Council’s common position. The Court of First Instance refused to examine their claim for damages on the ground that the Treaties do not grant any jurisdiction to the European Courts in respect of such claims under the third pillar.

On appeal, the ECJ confirmed the court’s position. The appellants also invoked the observance of fundamental rights, in particular, the right to effective judicial protection under Article 6(2) EU arguing that they have no means of challenging the organizations’ inclusion in the list annexed to a common position and that the order under appeal prejudices their right to effective judicial protection. On this issue, the ECJ found that since the Union is founded on the principle of the rule of law and it respects fundamental rights as general principles of Community law, the appellants could not be deprived of any legal remedies. It followed that the institutions are subject to review of the conformity of their acts with the treaties and the general principles of law, just like the Member States when they implement the law of the Union. This is so even though the EU Treaty does not enable the Court to give preliminary rulings in respect of common positions. Therefore the Treaty provisions had to be interpreted broadly as allowing the ECJ to issue preliminary rulings as to the interpretation and validity of any EU act which is intended to have legal effects in relation to third parties. Where a national court has serious doubts whether any given EU act is really intended to produce legal effects in relation to third parties, it can ask the Court to give a preliminary ruling. It would then fall to the Court to find, where appropriate, whether the given act is intended to produce legal effects in relation to third parties, to accord it its true classification and to give a preliminary ruling as to its interpretation and validity.

The two recent rulings confirm that the ECJ does not stop at the letter of the treaties, but intends to ensure an effective protection of fundamental rights. Whether it would invalidate such common position in the future on grounds of incompetence or whether it will grant it some legal effect and ensure that it does not infringe fundamental rights is a question which is still awaiting an answer. To be continued…

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