EU – Baltic States, Legislation

International Internet Magazine. Baltic States news & analytics Friday, 14.12.2018, 00:50

The Union’s Supreme Court: Protecting European citizens’ rights

By Eugene Eteris, LLD, prof., BC Scandinavian Office, 12.08.2008.Print version
Quite often media and politicians in the Union’s member states feel negative and rise anger about the Court of Justice’s decisions. It often happens when such decisions touch upon internal and external policies of the states concerned. But how justified and fair the critics are? And who represent the three Baltic States in the EU court system?

The Court of Justice is as old as the European integration itself, i.e. it was born out of the first attempts in April 1951 when the first “Community” was created. The general task of the Court of Justice of the European Communities (CoJ) is to ensure that the law is observed in a uniform manner in the interpretation and application of the Treaties’ provisions, as well as the legal acts and decisions of the EU institutions. The member states agreed upon this CoJ’s roles fixed in articles 220-245 when they signed the binding Treaty. In an integrated common market of 27 states the Community law has to be applied uniformly.


Unique CoJ’s role

The Court of Justice.

Quite often “uncomfortable” CoJ decisions make politicians furious and they go as far as claiming these decisions undemocratic, in order to neglect them. Main reason for that unjustified opinion stems from the fact that CoJ is created after legal principles that are different from the national legal traditions. The latter are such, for example, that the highest courts (often called constitutional) created in the member states are often able “to correct” politicians and legislative process.

 

This is not the case with the European court, as the CoJ judgments reflect the vitality of Community law; they reinforce the “strength of law” and promote the emergence of a genuine European law being of a supreme effect to the member states, EU institutions, national courts and individuals.  

 

In this regard the CoJ does not, actually, create the legal norms; it “interprets” the existing law as actually applied in a particular cases. Therefore the backlog of CoJ decisions is often called “case-laws”; they are based on a sort of precedent.

 

The CoJ role and influence, in comparison to the member states’ highest courts, differs in the sense that the latter can play an active role in nation’s political life. In contrast to that, the CoJ is built on a different premise, i.e. “continental law model” where the invaluable/genuine rights have superior effect over the decisions which the national parliaments could occasionally accept by the majority of their members. 


Nordic effect

There is, in fact, a certain difference in this regard (concerning democracy’s point of view) between the Nordic countries and the rest of the European continent. Thus, in the Nordic States the historic evolution has led to the creation of a court system which is extremely “loyal” both to the government and legislature. Supreme Court judges do not see as their primary obligation to protect “inherent” human rights (or minority part of the population, in that sense) against “inconvenient” laws. Here the constitutionality of the new law is challenged.

 

Therefore, it never happens that Supreme courts in these states challenge parliaments’ decisions. It was only once in a modern Danish history that the national supreme court adjourned a Danish law; it happened in 1999 when the Parliament adopted a controversial law on “Tvind case”, the company’s international activity.

 

The situation is rather different in other EU states where constitutional/supreme courts have acquired a constant competence of reviewing the bills under discussion. This practice’s origin can be traced back to after-war German legal history when the practice of taking into law the will of parliamentary majority (as it happened in Nazi Germany under Hitler) was abolished and terminated.

 

Then some other countries followed suit in 1970s, e.g. Spain, Portugal and Greece after years of dictatorship. The example followed by Eastern European states after collapse of the Soviet type socialist system.


Strong CoJ as a good alternative

The modern legal practice in the member states is such that individual freedoms and rights are declared in the basic laws and then the country’s constitutional court is provided with a competence to watch the governmental institutions and politicians violating these freedoms within the framework of their policies. Something of that kind is “constructed” in the EU system with the creation of the Court of Justice. Therefore when the CoJ takes a decision on a certain case it is not supposed to be seen as a threat or possible violation of the member states’ sovereignty or democracy, in general.

 

Some critics argue that CoJ’s judges do not have “peoples’ mandate”, i.e. they are not elected by a popular vote. Which is true, the judges of the highest European court are distinguished lawyers appointed to CoJ by the member states’ governments. And in their capacity as the EU lawyers they “observe the interpretation and application” of the laws that the Union’s politicians could not formulate in a precise way (otherwise the court’s involvement would not be necessary). Therefore most active CoJ is in the human rights defense, the sphere with very vague legal formulations.


Court’s functions

In fact, the court does not work on its own initiative. Being a supreme court of the Communities (there are still two Communities in the EU, i.e. Economic Community and Euratom; the new Lisbon reform treaty intends to change the CoJ’s title) the CoJ provides both a uniform interpretation of the Union’s law and ensures that the law is implemented by all the member states. The national judges, if in doubt, can turn to CoJ for a preliminary ruling, i.e. authoritative interpretation of the EU provisions.

 

In the legal field the court can initiate three types of proceedings in order to review the legality of Community acts. Thus, proceedings for annulment may be brought against the EU decision-making institutions by the member states or by another EU institution.

 

Proceedings for failure to act can be initiated when the member states or EU institutions (e.g. the Council or the Commission) fail to meet obligations to act. For example, in September 1982 the European Parliament brought in CoJ an action for failure to act against the Council for failing to establish the framework for the Community’s common transport policy.  

 

Then there is a proceeding for infringement, which may be brought by the Commission or the member states when the latter do not meet the obligations imposed on them by the Treaties. Referral to the court by the Commission is the final stage in action for infringement, taking place following an unsuccessful notice to the member state from the Commission (art. 228). 


The EU Courts’ system

The Union’s system of the courts is composed of three courts:

 

- The Court of Justice-CoJ (Vassilios Skouris, Greece, CoJ’s President since 7 October 2003);

- The Court of First Instance-CoFI (Marc Jaeger, Luxembourg, CoFI’s President since 17 September 2007; previous president, Bo Vesterdorf served two terms – from 1998 to 2007);

- Civil Service Tribunal-CST (Poul J. Mahoney, the UK, CST’s President since 6 October 2005). 

 

The CoJ consists of 8 chambers; each chamber consists of 5-7 judges including the chamber’s president. 

 

CoJ’s position in the EU power structure is becoming ever more powerful and important as the Union’s law is more actively turning towards economic integration, basic free movements, cooperation in foreign and legal affairs and towards increasing competition regulations. Most certainly, not all the member states would like the CoJ’s decisions, but that does not make the court a less powerful instrument in the integration process. All the efforts to change its role would lead to the revision of the treaty provisions. The almost ten years’ of ratification problems concerning the Lisbon reform treaty can show that it is not an easy assignment.


The Baltic States’ judges in the Court of Justice and the Court of First Instance

In the Court of Justice (Vassilios Skouris, Greece, CoJ’s President since 7 October 2003) the Baltic States are represented by the following judges:

 

- Egils Levits, Latvia; member of first and fifth chambers.

- Pranas Kuris, Lithuania; member of second and sixth chambers.

- Uno Lohmus, Estonia; member of third and seventh chambers.   

 

In the Court of First Instance (Marc Jaeger, Luxembourg, CoFI’s President since 17 September 2007; previous president, Bo Vesterdorf served two terms – from 1998 to 2007) the Baltic States are represented by the following judges:

 

- Vilenas Vadapalas, Lithuania;

- Kullive Jurimae, Estonia;

- Ingrida Labucka, Latvia. 

 

The CoFI sits in chambers of five to three judges; in some cases, as a single judge. Most of the cases (about 80%) are heard be a chamber of 3 judges.

 

It may also sit as a grand chamber (13 judges) or as a full court when the legal complexity or importance of the case justifies it.






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