Following the sending of the Article 50 revocation case from the Court of Session in Scotland to the Court of Justice of the EU (CJEU or ECJ) in Luxembourg, there seems to be some confusion over what the Court is and does. So a reminder of the law on this would be worthwhile. /1
First, the 'law' here means the Treaties (Treaty on European Union (TEU) and Treaty on the Functioning on the EU (TFEU)). These are the highest source of EU law and the signatories are the Member States. So, if something is in the Treaties, the MS must want it there. /2
The Court is an institution of the EU (Article 13 TEU) and, like other institutions (Commission, Parliament, Council) must act within its powers. Its main role is to "ensure that in the interpretation and application of the Treaties the law is observed." (Article 19(1) TEU). /3
One judge comes from each MS (=28). BUT they are appointed by common accord of the 28 governments and only from people "whose independence is beyond doubt" (Article 19(2)). They do not therefore represent their own member state or its government. /4
They are appointed for 6 years, so there is a fairly regular renewal of the judges. Not unusual. To become a judge, you have to "possess the qualifications required for appointment to the highest judicial offices", in other words, to be able to sit in a Supreme Court. /5
Unlike the UK, some MS have judges in the highest courts who have not been career judges but drawn instead from (e.g.) academia. But their qualifications and expertise must be beyond reproach. So seeing the CJEU and its judges through British eyes is problematic. /6
The Court is not a Supreme Court for Europe. It only deals with questions of EU law. This includes when the law is unclear. National courts (such as the Court of Session) may refer a question of EU law to the CJEU who then send it back. /7
This ensures that EU law is not interpreted in 28+ different ways. The national court will then 'decide' the case, which might only partly involve EU law. /8
Does the Court automatically "take the side" of the EU in any dispute? Not an easy question. For a start, the Court is independent but is an institution of the EU as created by the Treaties (which, again, were written by and ratified by the Member States). /9
The Court is obliged to uphold the Treaty and its values. And the purpose of the Treaty is to integrate. But this does not mean that the Court will always choose the same path, far from it. /10
In the earlier days, the Court ensured the effectiveness of EU law, eg clarifying that in case of a conflict between EU law and national law, EU law prevails (Costa v ENEL 1964). If the Member States did not want this, then they could clarify the Treaty. They haven't. /11
Many of the fundamental decisions of the Court took place before the UK joined. So no excuse for not knowing. There is little doubt that the Court has interpreted the Treaties in way which has helped integrate Europe, as per the purpose of the law. /12
For example the Court ensured that rules in Member States which prevent cross-border trade are contrary to EU law and that products for sale legally must be recognised by other Member States ("Cassis de Dijon"). This has been key in combatting protectionism. /13
This does not mean that the Court pushes a 'European agenda' (whatever that might be) or that it is subservient to the other institutions. Its decisions are reasoned, public and open to criticism (and legal scholars spend whole conferences and write books doing just that). /14
But to claim, as I have seen this morning on twitter from commentators who should know better, that the Court is made of civil servants who simply and uncritically follow the will of the institutions is factually wrong and a wilful misinterpretation of what the Court does. /END
