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The European Courts: Elected or Unelected?

March 9, 2016

High on the list of complaints levied against the EU is the claim that UK sovereignty has been handed over to an unelected court in Europe that inflicts its decisions upon us. Is this correct?

Let’s take a look at the structure of the European court system. To begin with, it is not one court but several. There are two main entities: The European Court of Human Rights which is in Strasbourg in France and The Court of Justice of the European Union which is in Luxembourg. The latter consists of three separate courts: the Court of Justice, the General Court and the Civil Service Tribunal.

To expand, let’s start with Luxembourg and the Court of Justice of the European Union (CJEU) (French: Cour de justice de l'Union européenne). This is the institution of the European Union (EU) that encompasses the whole judiciary. So that’s the court at the top of the tree.

The CJEU is the chief judicial authority of the European Union and oversees the uniform application and interpretation of European Union law, in cooperation with the national judiciary of the member states (i.e. all the countries that belong to the EU). The CJEU also resolves legal disputes between national governments and EU institutions. It can also take action against EU institutions on behalf of individuals, companies or organisations whose rights have been infringed.

The CJEU consists of two major courts and one specialised court, each of which has a different function:

  1. The Court of Justice, informally known as European Court of Justice (ECJ) hears applications from national courts for preliminary rulings, annulment and appeals.
  2. The General Court hears applications for annulment from individuals, companies and, less commonly, national governments (focusing on competition lawState aid, trade, agriculture and trade marks).
  3. The Civil Service Tribunal, a specialised court which hears disputes between the EU and its staff.

The European Court of Justice (ECJ), officially just the Court of Justice (French: Cour de Justice), is the highest court in the European Union in matters of European Union law. As a part of the Court of Justice of the European Union it is tasked with interpreting EU law and ensuring its equal application across all EU member states.

The ECJ is the highest court of the European Union in matters of Union law, but not national law. It is not possible to appeal the decisions of national courts to the ECJ, but rather national courts refer questions of EU law to the ECJ. However, it is ultimately for the national court to apply the resulting interpretation to the facts of any given case. Various treaties give the ECJ the power for consistent application of EU law across the EU as a whole. This court also acts as arbiter between the EU's institutions and can annul an institution's legal rights if that institution acts outside its powers.

So, who sits in the ECJ, where do they come from and how do they get there?

The Court of Justice consists of 28 Judges who are assisted by eleven Advocates-General. The Judges and Advocates-General are appointed by common accord of the governments of the member states of the EU. Each one holds office for a renewable term of six years. The treaties require that they are chosen from legal experts whose independence is "beyond doubt" and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are of recognised competence. Each member state nominates a judge whose nomination is then ratified by all the other member states.

The President of the Court of Justice is elected from and by the judges for a renewable term of three years.

The judges are assisted by eleven Advocates General who are responsible for presenting a legal opinion on the cases assigned to them. They can question the parties involved and then give their opinion on a legal solution to the case before the judges deliberate and deliver their judgment. The intention behind having Advocates General attached is to provide independent and impartial opinions concerning the Court's cases. Unlike the Court's judgments, the written opinions of the Advocates General are the works of a single author and are consequently generally more readable and deal with the legal issues more comprehensively than the Court,

Six of the eleven Advocates General are nominated as of right by the six largest member states of the European Union: Germany, France, the United Kingdom, Italy, Spain and Poland. The other three positions rotate in alphabetical order between the 23 smaller Member States.

So, the judges are drawn equally from the member states of the EU, and the Advocates General are drawn from nine, one of which is always the UK. Thus the UK has a greater representation in the ECJ than the majority of member states. Furthermore, it is the member state that choses its members of the ECJ.

For more information on the ECJ see: https://en.wikipedia.org/wiki/European_Court_of_Justice

The other major court in the CJEU is the General Court (European Union).  If you were to take a legal case to the EU, this is the Court that would hear your case.

The General Court (previously known as the "Court of First Instance") is composed of 28 judges, one from each Member State, plus a registrar. The Judges are appointed for a renewable term of six years by common accord of the governments of the Member States.

So the UK supplies a judge to the General Court and is represented equally with each and every member state of the EU.

For more information on the General Court see: https://en.wikipedia.org/wiki/General_Court_(European_Union)

Completely separate from the above courts, and not a part of the EU, is the European Court of Human Rights (ECtHR; FrenchCour européenne des droits de l’homme). This is a supranational or international court established by the European Convention on Human Rights.

It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols. An application can be lodged by an individual, a group of individuals or one or more of the other contracting states, and, besides judgments, the Court can also issue advisory opinions. The Convention was adopted within the context of the Council of Europe, and all of its 47 member states (which include Turkey, Russia and Ukraine) are contracting parties to the Convention.  

So, who sits in the European Court of Human Rights, where do they come from and how do they get there?

All of the judges are elected for a non-renewable nine-year term. The number of full-time judges sitting in the Court is equal to that of the contracting states to the European Convention on Human Rights. So there are 47 judges.

Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from the three candidates nominated by each contracting state. Judges are elected whenever a sitting judge's term has expired or when a new state accedes to the Covenant. The retiring age of judges is 70, but they may continue to serve as judges until a new judge is elected or until the cases in which they sit have come to an end. The judges perform their duties in an individual capacity and are prohibited from having any institutional or other type of ties with the contracting state on behalf of whom they were elected. To ensure the independence of the Court judges are not allowed to participate in activity that may compromise the Court's independence.

The UK therefore has a judge in the European Court of Human Rights, and that judge is one chosen by the UK.

However – and this is a very important consideration - the EU referendum only applies to the EU and NOT to the Council of Europe. We are only voting to stay in or leave the EU. That means that we will still be bound by the decisions of the European Court of Human Rights whatever the outcome of the EU referendum.

To conclude, I would argue that the European courts, whilst not being directly elected by the general population, could not be accurately described as either unelected or unrepresentative. As these courts can overrule the decisions of the UK national courts, we have given a share in our sovereignty to them. Whether this is a good or a bad thing is a matter of opinion.

My thanks to Wikipedia which was the primary source for this article. 

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