Adjudicating Europe

The ECJ has issued today its first review judgment in case M/EMEA, pursuant to former article 225 TEC (now 256.2 TFEU), against a decision of the CFI that ruled on an appeal against an Order of the EU Civil Service Tribunal.

It is an important judgment for several reasons.

First, it is the first time the ECJ decides to undergo the review of a CFI judgment after the proposal of the First Advocate General. All we know is that the First AG proposed the review, but no information has been given on the reasons why the AG decided so. In fact, this is quite an odd competence that the Nice Treaty, and now Lisbon, has put in the hands of the First AG, and it would be useful to know how he or she is putting it into action.

Second, the ECJ has decided not only to review, but to do so positively. That is, once the Court decides that the CFI judgment will be revised, the case must be solved and therefore it must be decided if the judgment at hand endangers the unity and consistency of EU Law. However, the Court might decide that the judgment does NOT endanger the said unity and consistency, although it must previously rule on the need to review the judgment or not. The first time that the Court has decided to review it has eventually ruled that there is a risk to the unity and consistency of EU Law. But that does not necessarily mean that the Court’s decision will always be in the positive.

Third, the ECJ has given very useful guidance on what is a judgment that affects the “unity and consistency of EU Law”. This is important for several reasons, but particularly because these are the same criteria that will be used for the review of preliminary references solved by the CFI, if it is ever to assume jurisdiction over preliminary references. The ECJ has relied on the fact that the rules breached are “constitutional” provisions (Treaty, Statute…) of application in other domains of EU Law. Also, it has taken into consideration the fact that it’s the first time that the CFI decides on the scrutinized point of Law, creating thus a precedent that has a difficult fit in the ECJ’s case law. Therefore, it appears that constitutional pedigree and precedent have become important elements in determining what’s “unity” and “consistency” in the Court’s case law.

Fourth, the reasons why the ECJ has reviewed and quashed the CFI’s judgment are purely procedural. They have nothing to do with Union civil service law. Does this mean that only general issues going beyond the domain of civil servants are to be reviewed by the ECJ in article 225 TEC (now 256.2 TFEU) cases?

The next review judgment might help in answering these questions.

For the time being, enjoy reading M/EMEA.

- The Editors.