Jurisdiction of the Court of Justice of the European Union

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Rinku Das (Hazra)
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Jurisdiction of the Court of Justice of the European Union

Under Lisbon Treaty (1 December 2009)

Areas

The three-pillar structure introduced by the Treaty of Maastricht has disappeared. Consequently, the jurisdiction of the Court of Justice of the European Union extends to the law of the European Union4 , unless the Treaties provide otherwise (Article 19 TEU).

Article 19 TEU

Areas in which the Court has jurisdiction:

The area of freedom, security and justice

On the one hand, the Treaty of Lisbon repealed former Article 35 EU concerning police and judicial cooperation in criminal matters (formerly Title VI of the EU Treaty); therefore the jurisdiction of the Court of Justice to give preliminary rulings has become binding and is no longer subject to a declaration by which each Member State recognises the jurisdiction of the Court of Justice and specifies the national courts that may request a preliminary ruling. Since that article has been repealed, those restrictions have disappeared and the Court of Justice has acquired full jurisdiction in that area. However, transitional provisions (Protocol No 36, Article 10)5 provide that such jurisdiction will not apply fully until five years after the entry into force of the Treaty.

Protocol No 36, Article 10

On the other hand, the Treaty of Lisbon repealed former Article 68 EC which appeared under Title IV of the EC Treaty on visas, asylum, immigration and other policies related to free movement of persons, an area which had been transferred to the Community pillar by the Treaty of Amsterdam. The Treaty of Lisbon completes that development by providing for those areas to be fully integrated under Title V of the TFEU, bringing together policies on border checks, asylum and immigration, judicial cooperation in civil matters, cooperation in criminal matters and police cooperation.

Thus, the Treaty of Lisbon removes those restrictions on the jurisdiction of the Court of Justice to give preliminary rulings in that, previously, only national courts or tribunals ruling at last instance could bring matters before the Court and the Court could not rule on measures taken on grounds of public policy in connection with border controls. Accordingly, the Court of Justice acquired general jurisdiction from the date of entry into force of the Treaty of Lisbon7 . It should be noted, however, that the Court still has no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security (Article 276 TFEU).

Article 276 TFEU

The Charter of Fundamental Rights

The Charter8 , which has legally binding force (Declaration No 1), has the same legal value as the Treaties (Article 6(1) TEU) and is therefore within the general jurisdiction of the Court of Justice.

Declaration No 1
Article 6 TEU

However, for the United Kingdom and Poland it follows from Protocol No 30, annexed to the TFEU, that the Charter of Fundamental Rights of the European Union does not extend the ability of the Court of Justice or of any court or tribunal of those two Member States to find that laws, regulations or administrative provisions, practices or action are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

In addition, the Conclusions of the European Council of 29 and 30 October 20099 state that the Heads of State or Government have agreed to extend that Protocol to the Czech Republic in the future.

Protocol No 30

The European Convention for the Protection of Human Rights and Fundamental Freedoms

Similarly, Article 6(2) TEU provides that the Union is to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Protocol No 8 states that the accession agreement is to specify, in particular, the specific arrangements for the Union’s possible participation in the control bodies of the Convention and the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate. This accession does not affect the competences of the Union or the powers of its institutions.

Article 6 TEU
Protocol No 8