What types of proceedings are there in the European Court of Justice?

The Court of Justice hears several different types of case depending on the issue to which a dispute relates.

An action for failure to fulfil obligations is an action which is brought against a Member State with the claim that the country is not fulfilling its obligations under EU law. An action for failure to fulfil obligations may be initiated by another Member State (which, however, is very rare in practice) or by the Commission which, as the guardian of the Treaties, also has the task of monitoring the fulfilment by Member States of their obligations under EU law.

The Commission and the Member States must, however, follow a specific procedure so that before things get as far as actual legal proceedings in the Court of Justice, a dispute may be settled by the country deciding to comply with the Commission’s opinion, for example, by amending the legislation or practice which, in the Commission’s opinion, is contrary to EU law.

The process which may eventually lead to an action against an EU country for failure to fulfil obligations begins with the Commission presenting its views to the country in a letter of formal notice. In the letter of formal notice the Commission sets out its assessment of why the country is not fulfilling its obligations under EU law. The country is thus informed of the Commission’s views and is given the opportunity to respond to the assessment.

Often an action can end at this point, because the country falls in line with the Commission’s position without further ado. It may also simply be the case that the country has failed to comply with the implementation deadline for directives (see question 63). The Commission automatically sends letters of formal notice to countries which fail to comply with implementation deadlines or which fail to notify the Commission in time. Such cases often go no further if the failure to implement is due not to ‘bad faith’ but to delays for which there is a sound explanation and which the country intends to rectify.

If it is a more complicated situation in which a country and the Commission genuinely disagree about something, the Commission may decide to issue a reasoned opinion after the deadline for the country’s response has expired.

In the reasoned opinion the Commission once again sets out its assessment of the case in the light of the country’s response to the letter of formal notice. The Commission concludes the reasoned opinion by stating whether it is still of the opinion that the country is in breach of the Treaty.

The reasoned opinion does not as such have legal effect for an EU country, but it is still important in the further progress of an action because any application the Commission subsequently files against the country will be based on the content of the reasoned opinion.

If the Commission is of the opinion that the country is still in breach of the Treaty, the country is given a deadline to rectify the situation and, if it does not meet this deadline, the Commission may initiate proceedings in the Court of Justice.

If the country decides to comply with the Commission’s instructions within the deadline given in the reasoned opinion, the Commission cannot initiate proceedings. However, the Commission can initiate proceedings against the country if it does not comply with the Commission’s wishes before the deadline has past.

On the other hand, the Commission is not under an obligation to bring proceedings against countries which do not comply with deadlines in reasoned opinions, and there is no time limit on when the Commission must institute proceedings if it chooses to do so. If, during the course of the legal proceedings, a country decides to amend its legislation, the Commission may also choose to discontinue the action.

If the Court of Justice finds that there is a breach of the Treaty, the Member State concerned must immediately comply with the Court’s judgment and take the necessary measures to ensure that the country fully complies with its obligations. If that does not happen, and if, after the country has given its opinion on the case, the Commission again brings the case before the Court of Justice, the Court can order the Member State to pay a fixed or periodic penalty for failure to comply with the judgment.

In an action for annulment the Court of Justice examines the legality of an EU measure. If it finds that a measure is unlawful it is declared void. The Member States, the Council, the Commission and the European Parliament can bring actions for the annulment of general EU rules. This happened, for example, in the case of the Tobacco Advertising Directive of 1998. The Directive was annulled by the European Court of Justice because it had been adopted on the basis of the wrong Treaty provision. In addition, individuals or undertakings can bring actions for the annulment of a measure if the measure concerns them directly and individually.

Another type of decision is a preliminary ruling where the function of the Court of Justice is to answer questions from the national courts on the interpretation of EU law.

In cases which concern EU law, national courts can submit to the Court of Justice a reference for a preliminary ruling if there is doubt about the interpretation or validity of EU law.

If there is no right of appeal against the national court’s decision, the national court is under an obligation to submit references to the European Court of Justice for a preliminary ruling if there is doubt about the interpretation of EU law. The Court of Justice will then clarify the content of the rules submitted. The national court to which the reply is addressed shall apply the Court of Justice’s interpretation of the provisions without altering or distorting this interpretation. In addition, the judgment can provide guidance to other courts which deal with similar problems.

An action for failure to act examines the legality of the fact that either the Council, the European Parliament or the Commission has failed to act in a given situation. Actions for failure to act may only be brought after an institution has been called on to act. If an institution has not adopted a position two months after the request, the complaint may be brought before the Court of Justice within a time limit of a further two months. If the Court of Justice finds that the failure to act was unlawful, the institutions are under an obligation to comply with the judgment.

In applications for compensation the Court of Justice examines whether the EU should pay compensation for damage caused by the EU institutions or EU employees. However, this only applies on the basis of non-contractual liability.

In addition, the Court of Justice is also to a certain extent the court of appeal for judgments issued by the Court of First Instance.