Adjudicating Europe

AdjudicatingEurope is glad to announce its annual ranking of ECJ judgments and Opinions.

We intend, every January, to announce what we consider to be the ECJ’s leading ten judgements and five Opinions. However, as this blog has started in September, we will exceptionally do our 2008 ranking at this time.

We have chosen ten judgments and five Opinions not on the basis of our personal like or dislike, but on the grounds of their importance and impact on the development of EU Law. Their relevance will sometimes be for the best, and sometimes for the worse. And even while we admit that many cases have been left aside (Promusicae, Lélos, Coleman, Mayr, Grünkin, etc…), we consider that these are the ten judgments that will play the most significat role in the future:

2008’s 10 judgments

Cartesio (C-210/06)
The Court’s Doctor Jekyll and Mr. Hyde judgment of the year: on the one hand, a conservative decision on company cross-border transfer of seat; on the other, a revolutionary stance on ECJ authority vis-à-vis national courts, albeit in an obscure and (probably) voluntarily complex fashion. In essence, lower instance courts are invited to ignore appeals quashing a decision of the former raising a preliminary reference. A result not easy to accommodate with Rheimülhen II, but still revolutionary after all.

Kadi (C-415/05 P)
Fundamental rights, UN Security Council resolutions, autonomy of EU Law, inter-pillar action and, in the background, the “war on terror”. It is maybe not a case for history books, but definitely the Court’s most powerful contribution in many years for shaping the way in which EU Law reacts and inter-reacts with other legal orders, such as public international law. Essential reading, despite its unmanageable size and labyrinth-esque reasoning.

Maruko (C-267/06)
The case that was NOT about gay marriage but many thought it was. In a reference from the German Supreme Court, the ECJ gave a masterful class in judicial diplomacy, pretending to appear as the decision-maker whilst leaving all responsibility on the issue to the national court. However, Maruko still proves that EU Law can be an effective tool in shaking national consciences, even if they have little to do with the substance of the case.

Kempter (C-2/06)
Traditionally, the ECJ’s wildest case-law would have a follow-up in the shape of a chill-out phase, calming the waters and introducing exceptions and restrictions in order to keep everyone happy. But definitely not in its case-law on res judicata of national authorities. After an ambiguous start in Kühne & Heitz and an apparently equally decaffeinated follow-up in i-21, all hell broke loose with Lucchini in 2007. The year 2008 witnessed its own Lucchini in the Kempter case, where the ECJ stated that EC Law does not require a claimant before a national court to have relied on EC provisions in the legal action under domestic law which he brought against the administrative decision. Also, the unambiguous reference to what national law states concerning res judicata vis-à-vis administrative decisions, is now a negative mandate under the proviso that “Member States nevertheless remain free to set reasonable time-limits for seeking remedies”. An important change of tone, and the recent Olimpiclub is good proof of it.

Förster (C-158/07)
A scary step backwards in the Court’s citizenship case-law, but with a light in the end of the tunnel. In Förster, the ECJ recognized that Directive 2004/38 (the new residence Directive) can manage to override previous citizenship case-law, even when it concerns Treaty interpretation. Leaving Bidar in bad shape (some believe it was overruled), the ECJ considered that a five year restriction on foreign student aid was a proportionate measure, after saying that a student who had worked actively was not a worker, and therefore had no protection under article 39 TEC. The judgment in Vatsouras, delivered shortly after Förster, hopefully heads in another way.

Metock (C-127/08)
“Overrule” always seems to be the hardest word. But not in Metock. Shortly after Akrich, the ECJ reviewed its own Grand Chamber case-law on residence requirements of third country nationals. Four months before its dubious twist in Förster, the ECJ was very brave to say this: “It is true that the Court held in [...] Akrich that, in order to benefit from the rights provided for in Article 10 of Regulation No 1612/68, the national of a non-member country who is the spouse of a Union citizen must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated. However, that conclusion must be reconsidered. The benefit of such rights cannot depend on the prior lawful residence of such a spouse in another Member State”. Bravo!

Fiamm (C-120/06 P)
The legal effects of WTO provisions have always been tricky business for the Court. In Fiamm, the Court struggled with reports of WTO Dispute Settlement Bodies and, by essentially building upon its Van Parys case-law, it took a similar approach. However, the pearl in Fiamm lies in its decision on damages, setting aside the Court of First Instance’s judgment for having stated that EC liability can be claimed even from legal action. According to the ECJ, Fiamm did not involve damages, but fundamental rights. And the result came to be the very same. Good proof that legal reasoning, indeed, still matters (or at least for the CFI).

Rinau (C-195/08 PPU)
The first decision delivered under the new urgent preliminary reference procedure rules. In a breathtaking period of three months, the ECJ proved that it can reply in haste and still be in control of its docket and of its case-law. President Skouris’ new procedure proved to be a success. But not many will agree.

Michaniki (C-213/07)
A follow-up to Kreil and the German constitutional prohibition for women to use firearms in the army. Somewhat strangely, the follow-up took place in the always exciting and sexy area of public procurement. The importance of Michaniki lies in the firmness of the ECJ to order a national court to set aside national constitutional provisions when they come into conflict with EU Law. Strangely, and in the same terms as in Kreil, no mention was made to this delicate aspect of the case. A court does not only need authority, it is expected to act as if it has it.
Michaniki is good proof of it.

Heemskerk (C-455/06)
Remedies, remedies, remedies… If Kempter was the ECJ’s 2008 wild card in this domain, Heemskerk offers a good dose of realism. Ex officio application of EC Law has always been a difficult issue for the Court, and Heemskerk proves that it is willing to give way. As of 2008, it is now clear that EC law does not require national courts to apply, of their own motion, a provision of Community law where such application would lead them to deny the principle, enshrined in the relevant national law, of the prohibition of reformatio in pejus. Very well indeed, but still shocking to hear after the ECJ’s willingness to move forward in the remedies branch with Kempter. Heemskerk, however, will have contributed to put some rest in a traditionally contested point of the ECJ’s case-law.

2008’s 5 Opinions

Kadi (see above)

Elegant, provocative, risky at points and, above all, substantially correct. Kadi will probably be the Opinion for which Miguel Maduro will be quoted for many, many years, and quite rightly so. Despite his surprising twist with regard to his academic writings, Maduro put pluralism aside and became a hard-core “autonomist” of EU Law. Not many will agree with him on that, but hardly anyone can deny Kadi’s thoughtful and breathtaking approach to what was a bloody hard case to solve.

Cartesio (see above)
Miguel Maduro’s Opinion was probably what helped the Court reach its revolutionary decision in Cartesio. Other AGs might not have gone as far as Maduro, but he did it in a way that made heterodoxy look like a very orthodox stance. After reading the Opinion in Cartesio, the judgment looks like a very modest and commonsensical text indeed. And that is exactly what good Advocate Generals are there for.

Bartsch (C-427/06)
After Mázak’s Opinion in Palacios de la Villa, Sharpston delivered what is, up to date, the finest contribution to the debate on principles, Directives and the early-retirement age mess the ECJ ignited after Mangold. An essential tool to understand the Mangold saga, a very reasonable solution, and, at times, legal literature at its very best. A genuine pearl.

Arcelor (C-127/07)
The finest interpretation of article 6 TEU and the Treaties’ stance on fundamental rights to date. Maduro’s paragraphs 15 to 17 in Arcelor are an extraordinary reflection on what article 6 stands for and its limits. Also, he was very wise to develop these points in terms of judicial cooperation and diplomacy, considering the importance of what the French Conseil d’Etat did in this case after many years of dubious relations with the ECJ and EC Law.

Heinrich (C-345/06)
It’s difficult to say that the Law is not the Law, and that rules that we all have suffered did not really exist, and they were there but they were not. It’s difficult, but Sharpston made it look plain obvious. The ECJ took it the other way, but the Heinrich Opinion will probably stand the test of time in much better shape than its mediocre decisional counterpart.