Appointment and Dis-Appointment at the CJEU: Part I – The FV/Simpson Litigation

This first part of a two-part article examines the rulings of the General Court and the Court of Justice concerning the irregular appointment in 2016 of a judge to the Union’s Civil Service Tribunal (now abolished). The CJEU was acting more or less in tandem with the European Court of Human Rights in the case of Ástráðsson v. Iceland; between them, these courts have confirmed for their respective legal orders that the right to a fair trial before a “tribunal established by law” includes a requirement that the judge(s) be appointed in accordance with the predetermined procedure. This requirement is not, however, absolute, but seeks ultimately to safeguard the independence and impartiality of the judiciary; it must therefore be balanced with other fundamental values, such as legal certainty and the irremovability of judges. The Simpson ruling may also have a certain resonance at the national level, as well as showcasing the CJEU’s remarkable “review” procedure, now in abeyance.

An Interim Post-Mortem

The EU treaties allow the Union legislature to establish specialised courts within the institution of the Court of Justice. This possibility was inserted by the Treaty of Nice, and by 2005, the Union’s first and only specialised court to date was established—the Civil Service Tribunal (‘CST’). The judicial architecture of the Union has undergone transformative changes in recent years, and as part of the reforms, the CST was abolished in 2016, marking an abrupt end to the Union’s brief use of specialised courts. This article offers an interim post-mortem of specialised courts, examining the Union’s experimentalism with a three-tier judicial institution by focusing on two unique features. Firstly, the role of judges at specialised courts; and secondly, the review procedure that may be undertaken by the Court of Justice. The article contemplates the future of specialised courts, drawing some constitutional lessons that can be learnt from this brief experiment.

Die dienstrechtliche Fürsorgepflicht in der Rechtsprechung des Gerichts für den öffentlichen Dienst der Europäischen Union

This work offers a profound insight into the development and background of today’s EU civil service law. It analyses the recent judgements of the EU courts concerning the duty of care as a part of the reciprocal duties of both employer and employee, and forms groups of application. This analysis is based on the review of the complete jurisprudence of the Civil Service Tribunal (CST), and on its interpretation, aiming at a consistent understanding of the duty of care. This work offers the practitioner of law all necessary information on content and rank of the duty of care in relation to the other rules and principles of law. The author, on the basis of studies and professional experience in Munich, Strasbourg, Paris and Brussels, has been working and publishing in the field of civil service law, European law and EU civil service law for more than 20 years, and has published a series of reviews on the complete jurisprudence of the CST.

13. The Court of Justice of the European Union

This chapter examines the Court of Justice of the European Union (CJEU), which consists of three courts: the Court of Justice (or ‘the Court’), the General Court, and the Civil Service Tribunal. It focuses on issues of structure and procedure, the extent of the Courts’ jurisdiction, and their role in the promotion of European integration. The chapter also discusses the criticism directed at the CJEU for the way it exercises its judicial powers, which allegedly involve political considerations normally unacceptable for a judicial body. Lastly, the chapter looks at role of the Courts in the current challenging environment facing the EU as a result inter alia of Brexit, the refugee crisis, the rise of populism, and the continuing impact of the economic crisis.

Introductory Note

The year 2016 was characterized by three elements: the incorporation of the Civil Service Tribunal within the General Court and transfer of jurisdiction; the implementation of the reform of the European Court of Justice (ECJ) through an increase in the number of judges at the General Court; a rise in judicial decisions of the ECJ concerning intellectual property rights and freedoms. Also, 2016 was the year in which the ECJ and the General Court dealt with cases concerning restrictive measures relating to Afghanistan, Belarus, Côte d’Ivoire, Egypt, Iran, Libya, Russia, Syria, Tunisia, Ukraine and Zimbabwe. Emblematic of this jurisprudential trend are the judgments on the cases of Yanukovych and Others, where the General Court upheld the freezing of funds of several Ukrainians.

The Creation of the Court of First Instance and of the Appeal

Chapter 1 describes the ECJ’s situation in the 1980s and the negotiations which led to the creation of the Court of First Instance and the transfer of certain areas of jurisdiction from the Court of Justice to that court. Those changes in the EU Court structure created the need for an additional legal remedy: the ‘appeal’. The appeals system was then adjusted to accommodate later developments, such as the creation of the Civil Service Tribunal and the recast of the Rules of Procedure of the Court of Justice. Nowadays, it is the reform of the General Court which has the greatest impact on appeals before the Court of Justice.

The Court

The UPC, universally referred to as ‘the Court’ throughout the text of the Agreement pursuant to Art 2(a) UPCA, is to be regarded legally as a legal entity sui generis (Art 4(1) UPCA) and structurally as a uniform entity. The Court entity as a whole comprises both the judiciary structures, which are the Court of First Instance and the Court of Appeal, and the non-judiciary structures, which are the Registry with sub-registries set up at all divisions of the Court (Art 10(1) and (2) UPCA). The Court’s structure visibly follows that of the CJEU which, according to Art 19 TFEU, comprises as a unitary court the European Court of Justice, the General Court, and the Civil Service Tribunal, thus establishing a complete system of courts.

10. Judicial protection before the Court of Justice of the European Union

This chapter provides an overview of the various procedural avenues to the Court of Justice of the European Union. It uses as a template the division between two main sets of proceedings: direct actions and preliminary references. Direct actions are brought directly either before the Court of Justice, the General Court, or the Civil Service Tribunal; these are dealt with in their entirety by these courts. By contrast, preliminary references begin before a national court. When this court encounters a question on the interpretation or the validity of EU law, it may (or sometimes must) make a preliminary reference on this particular point to the Court of Justice.

12. The Court of Justice of the European Union

This chapter focuses on the Court of Justice of the European Union (CJEU), the judicial arm of the European Union. The CJEU consists of three courts: the Court of Justice, the European General Court, and the Civil Service Tribunal. Its mission is to ensure that ‘in the interpretation and application’ of the treaties of the Union ‘the law is observed’. The chapter first traces the history of the CJEU before discussing issues of structure and procedure, the extent of the Courts' jurisdiction, and their role in the promotion of European integration. It then considers the criticism directed at the CJEU for the way it exercises its judicial powers, and more specifically the reaction of member states to its ‘judicial activism’. It concludes with an assessment of the main challenges facing the EU courts.