Frequently Asked Questions | International Court of Justice
The International Court of Justice has no jurisdiction to try individuals as well as from the European Court of Human Rights (in Strasbourg. Yet, the relation between the ECJ and the ECtHR has a glorious past, and can continue to have a bright future. While the dust kicked up by. ECJ; ECtHR; EU Charter of Fundamental Rights; ECHR accession; Bosphorus In recent years, the legal relationship between different international courts.
Yet unlike in the United States, there are no federal courts per se. If a person believes a government entity or a private individual has breached his or her EU legal rights, s he cannot complain direct to the European Courts in Luxembourg unless the wrongdoer is an EU institution.
Instead a plaintiff must go through a national court which is relied upon to apply EU law faithfully, if necessary to the exclusion of its domestic legal order. Both these mechanisms are imperfect. The former is voluntary in practice if not in theory, in that the national court may choose not to refer even if it is supposed to do so. Nevertheless in principle national courts in the European Union are obliged to apply EU law and have the ECJ to guide them if they wish, or the Commission to threaten them if they do not.
The ECJ issues rulings on the interpretation of EU law using these mechanisms, in an ever more expansive case law. A new threat has recently emerged to the consistent application of EU law, namely interpretation of EU law by the ever growing range of international tribunals that sit outside the domestic legal order of any particular state.
International courts may be called upon to interpret or decide upon the applicability of EU law even though those tribunals are formally outside the EU institutional system. This article explores these concerns.
At first glance, that decision is hard to understand; but it highlights a paradox in the notion of supremacy of EU law that remains unresolved. Many extant international tribunals share the same flaw as the proposed European and Community Patent Court: While each country has its own domestic patent authority responsible for issuing patents, an inventor can also apply to the European Patent Organization EPO for a patent.
Nevertheless the ordinary rule in patent law is that, even once granted, the validity of a patent can subsequently be challenged in legal proceedings to enforce it.
Because a European patent is considered to be a collection of 38 national patents, enforcement proceedings must take place separately in the national court of the jurisdiction in which infringement is alleged, and the same issues of patent validity can be relitigated in each jurisdiction.
This is inefficient, and a major drawback for those holding European patents who may wish to limit themselves to a single subsequent legal challenge to the validity of their patents once granted. Sincediscussions have been underway to create a patent that is valid across all European jurisdictions and is not susceptible to repeat challenges in different national courts.
In the European Commission presented a proposal to create a European Patent Court, 12 which would adjudicate on claims of infringement and validity of European patents. As part of this proposal, the EU would accede to the European Patent Convention in its own capacity, and an EU regulation would create common rules on the operation of patents across the EU.
It would consist of a first instance court and a court of appeal, and would have exclusive jurisdiction over disputes relating to patents granted by the EPO. It would be the first European federal court in which EU law granting individuals rights and imposing liabilities is enforced not in national courts but before a specially created international judicial authority.
The proposal represents a milestone on the way towards the judicial federalization of Europe. Nevertheless the European Court of Justice has declared the proposed new Court, which would represent a remarkable extension of European judicial authority, unlawful. The draft agreement provides for a preliminary ruling mechanism which reserves, within the scope of that agreement, the power to refer questions for a preliminary ruling to the PC while removing that power from national courts.
- Relationship between the European Court of Justice and European Court of Human Rights
- The European Court of Justice and the European Court of Human Rights
Thus it is illegitimate to remove from national courts their jurisdiction to resolve disputes involving EU law, even if the tribunal to which jurisdiction is removed can itself refer cases to the ECJ much as can national courts.
National courts are entrusted with the interpretation and application of EU law, and they are not entitled to delegate that function to an international tribunal. This is an international Court established by treaty between the three Benelux nations as a final court of appeal from domestic courts. One could view hybrid courts as a transitional phase towards EU membership, whereby candidates for accession or those with close relations with the EU can participate in the EU legal system and share common judicial institutions in areas in which they have undertaken to be bound by EU law.
Frequently Asked Questions
To foreclose such a possibility as a matter of principle might seem short-sighted. Perhaps the locus of the concern is that a hybrid court will inevitably involve judges hailing from outside the EU applying EU law to Member States inside the EU.
Moreover it is doubtful whether the ECJ would ever want to admit this as the source of its objection to hybrid courts. Add to this obligations to follow ECJ case law and the right and even obligation of the international court to refer questions of law to the ECJ under procedures equivalent to Articleand one may wonder whether homogeneity concerns are overstated. If the twin system of national courts and the ECJ is really an exclusive framework for deciding disputes relating to EU law, then how can it be that private arbitration tribunals are permitted to resolve disputes which impinge upon EU law?
It is now well established that EU law is arbitrable, and indeed arbitration tribunals in the EU are obliged to observe EU law. This may particularly be so where the tribunal has not ignored EU law in its entirety, and instead has just applied it in a way with which the ECJ might respectfully differ.
Moreover arbitral tribunals called upon to decide points of EU law may not even have their seats in the jurisdiction of an EU Member State, despite the locus of the dispute being in the EU; worse, some or all of the arbitrators may not be citizens of EU Member States.
Nor may they be qualified in the domestic law they are charged with applying or, by extension, the EU law which forms part of that domestic law. Two parties, both based in the EU, may choose to resolve an English dispute under English law with arbitration in Geneva and a Swiss arbitrator.
Arbitral tribunals are entirely removed from the homogeneous system of EU law that the ECJ is apparently concerned to preserve.How the Court protects citizens' rights – Bringing a case to the ECJ
It might be replied that arbitration operates by consent; the parties to the dispute have agreed to remove their dispute from the EU legal system and thus there is no problem. But if states may not by their own agreement disrupt the homogeneity of EU law, then it is unclear why individual litigants may agree to do the same thing.
European Court of Justice | Difference between ECJ and ECtHR
What if a state is a party to an arbitration agreement under a state contract? If there is a danger of degeneracy in the ECPC deciding points of EU law, then that danger is multiplied by several factors in having a network of private tribunals all over the world doing the same thing.
But it is far worse than either of those tribunals, because its expansive membership means that it is unlikely that a panel of three arbitrators sitting in ICSID will generally include a majority of individuals from EU Member States.
Under the terms of a network of bilateral investment treaties and also the multilateral Energy Charter Treaty ECT30 to which all EU Member States are parties, ICSID is granted jurisdiction to hear complaints by investors against states of breaches of international investment law. This tribunal is in effect a department within the International Labour Organization, itself an international institution devoted to the promotion of employment law. The tribunal serves as a forum to resolve disputes between employees of international organizations and those institutions themselves; international organizations can subscribe to its jurisdiction, and pay a substantial fee per case filed against them.
The European Patent Organization EPO is an international organization that has accepted the jurisdiction of the Tribunal over claims by its employees. Presumably the purpose of the homogeneity requirement is precisely to prevent questionable evasions of EU law by hybrid courts such as the ILO Administrative Tribunal. The Court can declare that EU law is null and void. Individuals can also make such requests to the Court of Justice if their personal rights are directly affected by the EU law complained of.
Actions by individuals, companies, Members States and European institutions against European institutions for failing to act in accordance with EU law. Preliminary rulings are most relevant to my work. Any national court of an EU Member State can, at any stage in the proceedings, make a referral for a preliminary ruling to the ECJ as long as the referral concerns a point of EU law and its interpretation.
The request for a preliminary ruling must be precise, and often is only one or two questions. The ECJ will only answer the questions put. It does not have the jurisdiction to comment on any other ancillary matter. The reference also demonstrates how precise questions put the CJEU are. This reference requested an urgent ruling for fear of the serious emotional toll on the minor children, whose interests Mr Justice Mostyn considered were being harmed by the dispute between their parents.
However, the President of the Court of Justice on 13 January decided that the legal uncertainty affecting these children was not capable of constituting an exceptional circumstance that would justify the application of an expedited procedure.