Welcome to SCOTUSblog’s recurring series in which we interview experts on different supreme courts around the world and how they compare to our own. Today’s column focuses on the highest court of the European Union: The European Court of Justice. To help me understand what, exactly, this body does, I corresponded with Professor Gráinne de Búrca.
Professor Gráinne de Búrca is the Florence Ellinwood Allen Professor of Law at NYU School of Law (currently on leave), and a professor of constitutional law at the European University Institute in Florence, Italy.
First of all, when was the European Court of Justice established?
The European Court of Justice was initially created by the treaty establishing the European Coal and Steel Community in 1952.
What is the relationship between the ECJ and the European General Court?
The General Court was created as a lower, first-instance court in 1988, to ease the growing caseload of the European Court of Justice. The two courts together comprise the Court of Justice of the European Union. The General Court hears mostly direct actions, including many brought by corporations and individuals, and these can then be appealed on points of law to the Court of Justice.
What is the relationship between the ECJ and the courts of member nations?
National courts of the EU member states can (and, in some circumstances, must) make “preliminary references” to the ECJ on questions of EU law that arise in cases before them. The preliminary reference pauses the case before [a country’s] national court, which resumes later after the ECJ has provided a ruling on the question referred. The national court, in principle, should then apply the ruling of the ECJ to the case.
The division of labor between national courts and the ECJ is that the national court rules on questions of fact and on matters of national law (and, if it decides not to make a preliminary reference, on questions of EU law too); whereas the ECJ is empowered only to rule on matters of EU law. There is a lively scholarly debate over whether the relationship between national courts and the ECJ is hierarchical or not. And while many if not most national courts have tended to comply with the rulings of the ECJ, there have been some prominent cases involving national supreme or constitutional courts in various member states which have challenged specific decisions of the ECJ.
What kinds of cases does the ECJ hear? In other words, does the ECJ deal with cases brought by member states of the EU? Cases brought against member states? Other cases entirely?
The ECJ has a range of different kinds of jurisdiction, including cases brought by member states (e.g., challenging EU law), cases brought against member states (e.g., by the European Commission, or by another member state, to enforce EU law), cases brought by EU institutions (such as the European Commission or the European Parliament), preliminary references from national courts on questions of EU law , advisory opinions, and appeals from the General Court. The preliminary references (which often concern litigation between individuals or private parties before national courts) have given rise to a rich and important source of ECJ case law, often dealing with some of the most important constitutional questions of EU law, including primacy, fundamental rights, and “federal questions” concerning the division of competences between the EU and the member states.
The range of subjects on which the ECJ hears cases is very wide. While economic law is still a dominant focus of much of its case law, the ECJ hears disputes on many other kinds of legal issues, such as environmental law, anti-discrimination law, data privacy, and aspects of criminal procedure.
Does the ECJ have original jurisdiction or does it exist solely as an appellate court?
The ECJ has original jurisdiction, for example in cases brought by or against EU member states including infringement proceedings, or in cases brought by EU institutions.
How many judges are on the ECJ?
There are 27 judges on the ECJ, one selected by each member state. There are also 11 advocates general – these are official members of the court with the same status but a different, advisory role.
How are judges selected?
Article 19 of the Treaty on European Union says that there shall be “one judge from each Member State” on the ECJ. Judges are nominated for a renewable six-year term by their member state, in accordance with that state’s own internal procedures for selection. They are scrutinized by a specialized EU advisory judicial committee, and if they pass this screening, they are appointed by “common accord” of the governments of all member states acting together.
Are cases decided by a simple majority?
Cases are decided by a single collegiate judgment of the ECJ, although the number of judges deciding in any case will depend on the size of the chamber. The Grand Chamber comprises 15 judges, but the ECJ more often sits in chambers of three and five. It rarely sits as a full court of 27, reserving this for cases of exceptional importance.
There are no dissents and no concurrences. There have been regular calls for the court to change its practice in this regard and to permit dissents and concurrences, but the court has decided to retain the practice of the single collegiate judgment.
The deliberations of the court are also secret, which means that the way the court reaches its decisions is not made public. However, it is widely assumed that the members of the court vote during the deliberations.
How is the opinion writer assigned?
The president of the ECJ selects and assigns the “judge rapporteur” for each case.
This was touched upon earlier, but how exactly does the ECJ make sure that its opinions are followed by the lower courts in the member states?
The ECJ does not have any formal power or mechanism to ensure that its rulings are followed by member state courts. The main ways in which the ECJ attempts to ensure that national courts follow its decisions are by giving “helpful” rulings which are clear and responsive to the questions that have been referred to it; by emphasizing in its rulings and in extra-judicial speeches by ECJ judges that national courts are also EU courts and that they form an important part of the EU judicial system; and through informal networking. For example, the president of the ECJ makes regular visits to the member states and meets with national judges, and national judges are regularly invited to visit the ECJ and to attend conferences and workshops there.
What were some major issues recently decided by the ECJ?
The ECJ in an infringement procedure brought by the European Commission (the “LGBTI+ case”) recently ruled that Hungary had violated the values on which the EU is founded, by adopting laws which (amongst other things) prohibited access by persons under 18 to material which depicts homosexuality.
In Hamoudi and WS, the ECJ clarified the evidentiary rules and joint liability basis on which the EU’s border agency, Frontex, could be held liable for participating in so-called pushbacks of asylum-seekers.
In Russmedia, the ECJ expanded the liability of digital intermediaries for data privacy violations by ruling that online platforms could not rely on "safe harbor" provisions to avoid liability for content posted by users.
What have been some particularly controversial issues decided by the ECJ historically?
Some of the ECJ’s rulings which declared the actions of labor organizations – including the right to strike and the right to take collective action – to be in violation of EU internal market rules, were very divisive and controversial. In particular, the ECJ’s judgments in Laval and Viking [which dealt with such issues] are sometimes cited as being amongst the reasons for the rejection in France of the proposed EU Constitutional Treaty in 2005 .
More recently, ECJ decisions upholding the right of employers to ban the wearing of the Islamic headscarf in the workplace, have been widely criticized as discriminatory and contrary to religious freedom. Another recent ruling which has generated controversy has been Commission v Malta in 2025, in which the ECJ decided that EU law imposes certain constraints on the conditions under which member states can exercise their sovereign power to grant nationality.
The United States Supreme Court is often seen as partisan. Does the ECJ have a partisan reputation?
The ECJ does not have a reputation as a partisan court, insofar as its decisions have not been seen as being aligned with any particular political parties or stances. However, the ECJ has long been criticized for being “pro-integration” in its rulings, in the sense of supporting expansive interpretations of EU powers, or being deferential to the EU institutions when they are challenged; and more generally for enforcing and promoting the neoliberal, market-integrating dimensions of European integration.
What aspect of this court do you see as superior to that of the Supreme Court of the United States? What aspect of the Supreme Court of the United States do you see as superior to that of the ECJ?
Recent experience has shown how easy it is for courts to be politically captured, and the United States is a very prominent example. However, I would say that the ECJ is a much more difficult court to capture, for a range of reasons, and it has so far managed to retain a reasonable degree of independence.
The constraints of the collegiate judgment, on the other hand, make ECJ rulings considerably more bureaucratic and “bloodless” in style and more truncated in reasoning, by comparison with the lively and discursive style of U.S. Supreme Court judgments. But perhaps there is something to be said for each of these approaches, and the ECJ may have good reasons, for now, to continue with the more constrained, collegiate style.
