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Master Thesis

“Court of European Union as an actor of implementation of EU legal policy (cases of migration and labor policy)”

Student:

Anastasia Lukyanova

Moscow 2016

Table of contents

Introduction

1. Development of the Court of Justice of the European Union in the institutional system of the European Union through time: its functions and level of actorness

1.1 The history of the Court of Justice of the European Union since its origin

1.2 The Court of Justice in the institutional system of EU in the twenty-first century: judicial architecture after the Lisbon Treaty

2. Arena of decision-making processes within EU: internal and external levels of interaction between ECJ and other actors

2.1 The rules of the game in the internal level of interaction: special roles of General Advocates and Judges-Rapporteurs

2.2 The external arena: coalitions, forces, interests in the framework of the preliminary rulings procedure of decision-making

3. Law and Policy. The Political power of the European Court of Justice

3.1 The actions of the Court of Justice in the migration policy field

3.2 Case-law practices of the Court of Justice in the social sphere: influence and contributions

Introduction

The following research, from the one side, is a continuation of studies of the previous years and from another side, a new research with a different view on the problem. My previous research was dedicated to the analyze of EU integration policy in the sphere of human rights, political uncertainty as a consequence of the polycentricism of the system of international courts (on the examples of cases of European Court of Human Rights and European Court of Justice in the sphere of Human rights). While I was doing this research I have become interested in one of the research objects more than in others: European Court of Justice, it's role in the institutional structure of EU, EU new legal order due to some reasons.

EU presents itself as a strong unified community with a direct influence of EU law on the national orders of all Member States of Community. In order to support its status theorists and scientists of EU has created a conception of `new legal order', distinct from international public law, able to confer enforceable rights on individuals. In this period of time European Union was “searching for authority at the beginning of its constitutionalisation efforts” (Itzcovich, 2012). From its side ECJ played a precise and important role in the EU as participated actively in managing the European integration process. The main role of ECJ was in transforming the Treaty of Rome into a European Union `constitution'. Nowadays, after strengthening the positions of EU and its legal order as well, the EU has an autonomous judicial system, with the help of which EU law is being implemented into the legal systems of 27 members of EU. For many years, European Court of Justice (independent judicial body of the European Union) has been proclaiming the autonomy and sovereignty of the European “new” legal order for strengthening the cooperation between the Members of EU, for unifying the European Law and the European Union itself as a community.

However there are a lot of critics of its decision-making practices as it is characterized by an undesirable blurring of lines and obfuscation of issues no matter what the form of the judgment, the rule of law requires that the rule laid down should be clear. Judges of the Court of Justice regarded the Court as an authoritative judicial body with a competence to influence the decisions of national courts. Still there is a lot on which ECJ has to work in order to spread its exclusive supranational jurisdiction granted by the founding Treaties. It is under doubts that ECJ has an absolute capacity for controlling subordinated to him national judicial systems, implementing EU political decisions in the legal sphere. European Court of Justice is a player of the European policy field whose status is inherently ambiguous and controversial.

The academic debate on ECJ topic exists from the period of the European Community foundation in 1951. European Court of Justice in parallel with Commission and European Parliament has attracted a wider attention of the scientists. However, the Court was always of interest to lawyers; moreover from the period of 60-70th years there was a boom in the legal literature concerning the questions of ECJ jurisprudence, implications of creation a new European Legal Order. At the same time, research legal investigations on the question of ECJ can be characterized by the uncritical acceptance of the Court's performance and actions. What is more, ECJ is analyzed through the prism of legal aspect by most of the researchers. The main complication is that law often treated as a separate field distinct from the economic, social or political spheres. That is why, we are going to explore ECJ from the point of political dimension through the process of its judicial politicization bridging a gap between lawyers' and political scientists' standard perceptions of the Court. Our research is interdisciplinary, on the boundary between policy and law. As a useful aid we are going to base on the research works of Karen Alter, Renaud Dehousse, Damian Chalmers, Bruno de Witte, Crainne de Burca and Paul Creig, Anan Dashwood, Robert Schutze, Lucia Serena Rossi, Giorgio Monti, Alan Rosas, Joseph Weiler and others. Summarizing, literature on the topic of ECJ is diverse, controversial in some points and its nature is clearly legal. Only few authors analyze ECJ, its status, working procedures, and case law through the prism of public policy.

In this research, we are going to develop the following concepts: constitutionalisation, integration, actorness, policy cycle, judicial activism, judicial rationality, separation of powers, legal order and others.

The formulation of the research problem is the following: effectiveness and consistence of ECJ participation in the formulation of EU legal policy and its implementation. The academic aspect of the problem: unclear status of ECJ (in most of the cases, it is examined from the juridical point of view, not political), level of its actorness, mechanism of ECJ (and its decisions) integration in the system of European values and European Institutional system (the aspect of relationship between ECJ and national courts), role of the Court of Justice in the processes of Constitutionalisation and Integration of European Community. The applied problem: legal interpretation and argumentation of European Law by ECJ in its decisions, preliminary rulings and other forms of judicial acts forms a new understanding of law that can mould the tradition of EU law; thus, the element of conflict in the context of adjudication (legal interpretation) that law carries is definitely visible. The ECJ touches and changes the meaning of law and there is no guarantee that new meaning is correlated with original acts of EU political bodies that ECJ implements. Using authority and power ECJ creates new law by interpretation of factual situation and applicable legal norms. What is more, despite the principle of supremacy of EU law third part of the relationship in formulating legal policy in European region - national courts and national political bodies participate in a power struggle as they apply EU legislation in national context. All players engaged in the game of legal policy and law procedures propose differing interpretations of the legal norms, traditions, institutions, depends on their own will, goal, principles, interests, values in the framework of a particular legal community. This situation strikes a balance in human rights defense sphere in the European region. Declared research problem corresponds with criteria of novelty, theoretical meaning, practical influence, and urgency.

In order to explore research problem we state the following research questions:

- how and by whom the European policy is defined,

- what is the status of ECJ, is it an actor or an agent of EU; the level of actorness of ECJ,

- what is the role of ECJ in relation to the European policy (its functions in the institutional system of EU),

- how is the process of interaction between national Courts and ECJ going on (tendencies of supranationalism and intergovernmentalism),

The goal of this research is to check how the European Court of Justice participates in the policy field of the European Union (which role fulfills). The law spheres are not chosen by chance - migration and labor spheres are in the agenda of lots of researches because of its urgency, specificity and necessity to be resolved.

The goal tasks are:

- to find out how the process of legal policy formation in European Region occurs,

- to reveal the scheme and ways of interaction between EU legislative and governmental bodies, ECJ, and national courts, to prove that it is overcomplicated and not well-ordered,

- to prove that the Court plays a significant role in the EU policy making,

- to define which role the ECJ plays in the policy-making process (agenda -setting, policy formulation, policy adoption, policy implementation),

- to estimate the two-sided effect of policy interaction procedures between ECJ and EU.

Referencing to the mentioned tasks, the formulation of the working hypothesis is the following:

- the Court as an agent of EU and Member States fulfills the policy tasks and decisions of the ruling bodies,

- the Court as an agent of EU and Member States fulfills the policy tasks and decisions of the ruling bodies and influences their formulation,

- by the case-law practices and precedents the Court formulates the policy independently.

Talking about the strategy of research we use case study research design - an in-depth study of a particular research problem, it gives tools to study and facilitates exploration of the controversial phenomenon within its context. The choice of research design is dictated by its usage when not much is known about an issue.

Concerning the methods of data collection, we use the analysis of secondary data, content analysis. One of the main data sources is an official site of ECJ, which is well-organized with information available in 22 languages containing InfoCuria - Case-law of the Court of Justice (http://curia.europa.eu/). As for the analysis of documents, there will be multiple data sources and different kinds of texts: opinions, views, judicial cases, official leaflets of the ECJ, analytical reports, treaties and agreements; studies, dissertations, monographs, political and law articles, reference books, educational literature (papers by Bruno de Witte, Giorgio Monti, Damian Chalmers, Lawrence Baum, Grannie de Burca, Renaud Dehousse, Richard Posner and others).

Concerning the question of methodology the most suitable approaches are the historical institutionalism (history of the ECJ establishment and development), neo-institutionalism (analysis of different rationalities of multiple actors who participate in the process), actors-centered approach (judge as an independent actor and a part of the institution). The scheme of using methods in research will be the following: case study, policy analysis (analysis of decisions of EU governmental bodies), text analysis (analysis of juridical decisions of ECJ, argumentation of judges, references to law norms), comparison (comparison of two-level system: national and level of EU), description analysis (description of the current political situation in labor and migration sphere on European Space), deduction and induction, system method (analysis of ECJ system as a unified system).

This research work will consist of an introduction, main body - 4 chapters, conclusion, and bibliography.

In the introduction, we will present the basic points of the work in short, literature, the actuality of the topic. In the first chapter we speak about the historical development of the Court from 1951 till nowadays, regard the provisions of the founding treaties, explore the functions of the ECJ, its role in the integration and constitutionalisation processes. The second chapter is devoted to the internal and external levels of decision-making processes within the Court, the processes of interaction between interlocutors and stakeholders. In the third chapter the case-law of the ECJ in migration and social (labor) spheres will be in the center of analysis. The forth chapter will give theoretical grounds for the actorness of the Court. In the conclusion, we will present the answer on the research question formulated above and some remarks concerning the function of the institutional system of the EU and role of the ECJ in it.

As for the expected results, we suggest that the ECJ has become an atypical element of the European institutional system as the Lisbon Treaty influenced the whole structure of European governance and strengthen the rule of law. Because of the changes, ECJ got a right to review legislative acts of the Council, of the Commission, of the European Central Bank, of the Parliament, of bodies, offices, agencies of the Union in the sphere of Freedom, Security and Justice. That means that the level of influence of ECJ has widened. Now the Court is not just a structure to hear the disputes and resolve the conflicts on the base of rules and impersonality, it is a real political power with facilities to define the development direction of the European law.

1. Development of the Court of Justice of the European Union in the institutional system of the European Union through time: its functions and level of actorness

The idea of the united Europe has found its embodiment in the construction of the European Union. For some reasons (including the shock from the Second World War) the creation of this powerful organization was an answer to the challenges the European society has run into against the background of the financial crisis and beliefs in the European integration focusing initially on the economic sectors and development of the single market (Gourevitch, 1986). However, nowadays the European Union is an all-purpose political body with a direct impact on policy domains. At the same time, there is no agreement between politicians, economists and scholars what is the European Union in its core essence. In the years of its growth and development several theories were made public. Due to one of them, the European Union is an independent governance center with a right to generate its own understanding of law, values, culture and identity (Chalmers, Davies, Monti, 2014). In another opinion, EU is a model of political community, which was established as an alternative to the concept of “one nation-one state” (Beck & Grande, 2006). At the opposite side there are representatives and supporters of the theory defining EU as a destructor of local self-government and networks (Holmes, 1996). As well, there are multiple debates about the European national identity, the place of Europeans in the world and their self-identification. All in all, in accordance with the modern research views on conceptualizing the idea of EU we can mark out the following notions. On the one side, observing the European Union from internal and external sides typical characteristics of the statehood (territory, sovereignty, form of governance, legislation) can be revealed. By adding the element of intergovernmental cooperation between units of EU we present the first concept of the European Union as a supranational structure with Members States agreed on cooperation for certain purposes and possibilities of benefits. Taking into consideration the power balance between the national states, it seems the most adoptable way of labeling the European Union as a con-federation, a union of states where the authority is divided between supranational decision-making institutions with simultaneous preservation of their dependence on the member states power. As an alternative version of explanation of the EU functioning the multi-level governance approach can be mentioned. In accordance with it, the EU is a polity where power is divided between different levels of government on practically equal base as in this case supranational institutions are created to support the nations states but not to be under their direct control as it can be in the first model described above (Bвrgгoanu& Negrea-Busuioc, 2014). Nevertheless recent events revealed that the European Union is not a stable political entity. The financial crisis of 2008 has shown that the serious mistakes were made at the step of the foundation of the institutional system, the main element that combines all the theories together and is evaluated as one of the most remarkable features of the new political actor.

The Lisbon Treaty that came into forth in 2009 has become a symbol of new constitutional change in the European Union throughout the six decades after the establishment of the Community. The central issue of this long-lasted process of re-building (2002-2009) was the institutional reform touched the positions of the leading EU institutions, especially the European Parliament and the European Court of Justice as a supreme judicial authority. The role of the last in the European integration process was the most meaningful. The Court of Justice became the main figure in the process of constitutionalisation by creating a primary `court-made constitutional law' through the interpretation of written norms on the basis of political priorities (Witte, 2012). The place occupied in the European institutional system by the Court does not have an analog in the international or national judicial systems. European Court of Justice is a player of the European policy field whose status is inherently ambiguous and controversial.

1.1 The history of the Court of Justice of the European Union since its origin

The history of the Court of Justice of the European Union is the story of the stage-by-stage transformation of the `court' into the `Court' with the capital letter `C', a unique European institution that has existed for more than 60 years and has obtained the status of independent meaningful actor with political, social, legal weight and influence growing exponentially. However, it is not only a history of the one institution's development in isolation. The history of the Court of Justice has a direct link with the history of the European Union development, its dynamic nature, aims, policies, institutional structure and membership that are in a unceasing process of change and improvement till nowadays. As a matter of fact, the European Court of Justice has been compared to the great amount of supreme courts of national and federal level by different researches in various periods of time. Among them are the International Court of Justice in the Hague, European Court of Human Rights, courts within the international organizations like the Court of WTO and courts of criminal specialization, courts of human rights and ad hoc courts; summarizing some of these courts can be divided into groups according to the types of the model construction that lies in their base. Most of them have remarkable features of being independent and influential with important legal doctrines formulated by their direct participation. But comparisons can reveal as some authors mention that European Court of Justice is an exception due to its institutional design and the connection with a strong European tradition mentioned above; the ECJ is a powerful court that has attracted the attention of lawyers from all over the word (Alter, 2009). In order not to speak without proof, the European Court of Justice with its competence in the European region, establishment of the new European legal order and constitutionalisation process is often described as a legal revolution - on his credit the groundbreaking cases that turned over the traditional concept of the court and the way the EU follows (Rosas, Levits & Bot, 2013). In addition, some authors prefer to describe the place occupied by the Court with more colorful metaphors; thus, David Easton compares the European Union with a `black box' in which the European Court of Justice is more than any other institution the last of the matryoshkas (as cited in Vauchez & Witte, 2013).

Coming back to the original point, history of the European Court of Justice development from 1950s up to the modern times allows to observe the role of this institution in the transformation of the European legal system and the European Union as a whole. There are a lot of criteria on the base of which the structure of the Court's history development can be build. We decided to choose the following. One of them is the analysis of the founding Treaties of the EU and the institutional changes accompanying them concerned the position of the Court and its structure. Another one is the case-law practices of the ECJ with an accent on the certain judgments that supposed to be `salient' or controversial, a necessary characteristic of the highest jurisdiction Courts as the opposite will be a sign of stagnation and problems with the locus standi rules (Witte, 2013).

To begin with, the 60 years is not a great age for any executive, legislative or judicial structure but it has to be enough to work out the position within its field and get an ability to modify it in compliance with the vectors of change in the policy or whatever. The first Court of Justice or exactly speaking the Court of the European Coal and Steel Community (the original name) was born after the Second World War in the transition time period along with the Nuremberg Court and another `European' Court - European Court of Human Rights. The idea in which the Court's building was an incorporated add-in element was quite ambitious - to create a unified European space of politics, law, justice, peace where all the questions should be solved by the collective bodies, common institutions, negotiation procedures in an atmosphere of collaboration, agreement and trust. In one form or another the idea of the `one' Europe and specific institutional system was integrated into the European Union enlargement through the whole way of its existence. To be mentioned, nowadays the center idea of the political entity is changed and represents the European citizenship and human rights defense on the equal base. What is the underlying nature and mission of the Court per se? If we look on the functions laid in the Court's foundation from the very beginning the European Court of Justice can be named as a supranational (not as a national, or pure constitutional court, or definitely not as an international court) as its task was to act on the European level with a parallel establishment of new legal principles of the EU and creation of the special legal order. However, it was impossible to avoid the difficulties accompanied this process. The European Treaties formulated the legal framework for the ECJ existence and functioning but the institutional framework for the Member States was very weak and seemed to be an illusion as idea of `Europe' with 6 participating states (including BENELUX) seemed premature as well as the status of the European Court of Justice. However, the geographical enlargement of the Union helped the Court to become a `true' European judicial authority, “a supreme federal European Court” (as Jean Monnet, the father of the EU, mentioned in his speech, 1952), with a wider jurisdiction developed through time (Vauchez & Witte, 2013).

A step-by-step investigation into the early history of the Court we should start with the Treaty of Paris and The Treaty of Rome, the first founding treaties of the European Community. To specify the analysis, the treaties revised on the Intergovernmental conferences have touched a lot of aspects of economical and political integration of the Union. We will pay the attention only to the treaties, which contain the points concerning the state of the European Court of Justice and elements associated with this institution.

The Treaty of Paris was signed in 1951 by 6 states: the Netherlands, Belgium, Luxembourg, Italy, France, Germany thereby established the European Coal and Steel Community which set up a single market in coal and steel. The representatives of the High Authority (the supervisor body of the new market) received the power to determine the price of the products and the production conditions (Spierenburg & Poidevin, 1994). Some times earlier in a memorandum of the institutional changes (developed by the representative of France Jean Monnet) there was a proposal to establish on the permanent base the court of justice in order to balance the power of the High Authority as an executive body (Wilson, 2008). Germany, the Netherlands, Belgium, and Luxemburg supported the document in a full volume. The European Court of Justice became a legal guarantor against arbitrary decisions of the High Authority, a counterbalance in the origin institutional system. The remarkable features of the Court distinguished it from the other courts were the obligation of Member States to participate in judiciary proceedings, the possibility of the citizens' access to the Court only through a reference to the national court, the special powers of the supranational institutions (including Commission) towards states (Alter, 2009). The model of the Court was borrowed from the French Conseil d'Йtat (institutional model of the French Court) that in most of the details predetermined how the Court would be alike. Thus, today the French language despite the proclaimed equality of the languages could be named as the leading language as in the case of any divergence of interpretation, the French text of the judicial judgment should prevail. In addition, the Institution of the Advocate General also was borrowed from the French legal system due to the patronage of Maurice Lagrange, the founding father of the ECSC and the institution Advocate-General (Borrows, 2007). The debate question was about the publication of the dissenting opinions of the judges but unlike the European Court of Human Rights with argumentation of the judges' independence it was decided to keep such opinions secret but to reveal the opinions of the Advocate General in parallel. The selection procedure of the Advocate General was unclear; in order to reach the parity the Governments of the States created the rule that has been transformed into an unwritten fundamental tradition through years - the owners of the `Advocate General' status are usually appointed by the `bigger' members of the EU. The composition of the first Court was formed in 1952 and included one judge and Advocate General for France and Germany, one judge for Luxembourg, Belgium, and Italy and two judges for the Netherlands. By the way, such a division was not accidental, in the very beginning the selection procedure involved the high degree of political influence, there was no a chance to talk about the clear principles of independence and impartiality but about the principle of national distribution with a steep bank to the most powerful states. In addition, the Treaty of Paris did not contain the precise characteristics, which had to be met by the judges. The article 32 only intimated that judges had to be chosen “from among persons of recognized independence and competence” (Art. 32, Treaty of Paris, 1951). It is no surprise then that the legal filed of the European Union was impacted by the multiple social, economic and political factors including the family ties and social capital (Cohen, 2013). In comparison, since creation of the European Court of Human Rights the corpus of the judges has comprehended the lawyers from institutes and colleges of higher education with a specialization in the international law. However, the Treaty of Rome has changed the provision in the Article 167 and indicated that the judges as well as Advocates General should be “from among persons of indisputable independence who fulfill the conditions required for the holding of the highest judicial office in their respective countries or who are jurists of recognized competence”. The external factors (i.e. the Korean War in 1950) and internal factors (i.e. necessity to regulate the common market and to take the decisions on the questions of social, financial, budgetary policy) obliged the States to sign the Treaty of Rome in 1957 between Germany, Italy, France, Luxembourg, the Netherlands and Belgium establishing thereby the European Economic Community (EEC) and the European Atomic Energy Community (EUROATOM). The progress of this treaty was in establishment of four well-known European freedoms - free movement of goods, workers, capital and services and four central institutions: the Commission, the Assembly (future European Parliament), the Council and the European Court of Justice. In accordance with the Convention on Certain Institutions Common to the European Communities the European Court of Justice became the single Court for the three Communities together with the Assembly (Chalmers, Davies & Monti, 2014). The other two institutions were merged only in 1965 that testified the extreme importance of the Court's role, which functions were to monitor the national law of Member States on compliance with the established European order and to solve on the questions of the European law directed to it in the references from the national courts (The Merger Treaty, 1965). The Court of Justice preserved the status of an arbiter between Community institutions and developed it with “the most important” (Rosas, Levits & Bot, 2013) tool provided by the article 177 of the EEC Treaty (1957) - preliminary reference procedure, which allowed the Court “to make a preliminary decision on the validity and interpretation of acts of the institutions of the Community”. We point out that the jurisdiction of the Court concerned all the Community institutions not only the High Authority and the Council as it was in the article 41 in the Treaty of Paris. The influence of the Court was growing. However, the Treaty of Rome did not bring the radical changes in the internal structure of the ECJ besides mentioned above.

Without doubts, the European Court of Justice can pretend to be recognized as the most innovative enforcement actor in the ESCS that existed at that time due to its constitutional role in building the European Court. Many scholars made the process of European constitutionalisation the core item of their research works and investigations. However, some authors See: Dashwood, A., & Johnston, A. C. (2001). The future of the judicial system of the European Union. Oxford: Hart. justly note the difficulty in providing the precise definition for the `constitutional' role of the Court, which is hidden in the nature of the European Union development. The area of questions the Court deals with could not be recognized as the typical object of the functioning constitutional court. The phenomenon of the constitutionalisation is a continuous variable that was in the center of agenda in most of the Intergovernmental conferences. This process is permanent; it exists in the present time but we suppose it is opportunely to speak about it in this part of the research after the presentation of the original idea of the Court formed in the Treaties of Rome and Paris. There is a dispute about the frameworks of the process as well: whether we should claim that the constitutionalisation process began only in the 2000 with a designed draft of the Constitutional Treaty or not. In this period the Treaty of Nice was massively criticized by the Governments, as an alternative to the Treaty the German Foreign Minister offered to set a final point in the debates by the European Constitution, the solution of democracy, human rights and competences problems, with the main axis of the relationships between the Federation and the nation-state (Fischer, “From Confederacy to Federation”, 2000). His idea of the European federation was supported by the meaningful political figures: Jacques Chirac, the French President, Tony Blair, the British Prime-Minister, Paavo Lipponen, the Finnish Prime-Minister, and was realized in the project after 6 months of work. The draft of the Treaty established the legal personality of the Union with laws, anthem and other symbols of national constitutional states (Treaty establishing a Constitution for Europe, 2004). However, there was an unalterable condition: the Constitution could come into forth only after the ratification of all Member States. Fifteen Member States have already ratified the Treaty when France and the Netherlands rejected to accept the document in their referenda. The reasons were in disagreement on the following points: uselessness and danger of that too formal document for the Community; problems on the stage of the Constitution design (operation of Convention); content of the Treaty (i.e. federalization) (Craig & Burca, 2011). The other two marks on the timeline of the constitutionalisation process are the 1980s - the transformation period of the Treaty of Rome on its way to the Single European Act, and the beginning of the 1960s - the period of the Court's establishment, definition of its status and the enforcement decisions on the internal level with the simultaneous development of the major European legal principles - the direct effect and the supremacy of the European law that were proclaimed in the case-law practices of the Court of Justice. The Constitutionalisation process is a complex one with external (interest groups, national jurisdictions) and internal (nature of the treaties) factors of influence that should be defined primarily to the time frameworks. The European Court of Justice is one of the actors in this process, which cannot be regarded as a mechanical one; constitutionalisation is in fact a product of collective action aimed on constructing the constitutional character of treaties, regulations, directives and European law generally. As a judicial body, the Court received the opportunity to play the main part in a growing constitutionalism on the territory of the integrative and unified European region (Douglas-Scott, 2006). The constituionalisation of the founding treaties has lead to the mutation of the Community international regime into a quasi-polity with federal and supranational features undermining the intergovernmental beginning (Sweet, 2004).

The Single European Act revised the Treaties of Rome and aimed to continue the European integration processes was signed in 1986. According to the experts, the SEA brought the modest achievements being a victory for minimalism (Bermann, 1989). However some facts speak about the opposite. The SEA has changed the political and economic face of the European Union by two major reforms: creation of the internal market and a new cooperation procedure that transformed the legislative process by increasing the power of the European Parliament. The Parliament received a full-fledged seat of the European decision-making player with an authority to make an accession veto and veto on the conclusion of some kinds of agreements. The institutional changes by the SEA also touched the judicial system. The Treaty established the base for the operation of the Court of First Instance, an assistant for the ECJ, where all the cases could be transferred (except the preliminary references). In 2009 the CFI has been renamed into the General Court. The judicial architecture was rebuild by the SEA meaningfully. The Treaty of Maastricht on European Union, a new step in the process of European integration, has made a meaningful shift in the political space of the European region by creating per se a new political system - the European Union. The most striking change was contained in an introduction of the single supranational framework - a third-pillar structure consisted of the European Communities, common foreign and security policy and police and judicial cooperation in criminal matters. Decision-making processes in the Community Pillar (the EC, EUROATOM, ESCS) were dominated by the Commission and the European Court of Justice (Craig & Burca, 2011). Among the substantive changes we can name the institutional change evoked by the establishment of the Court of Auditors as the 5th central institution in parallel with the ECJ, the Council, the Commission, the Parliament; the development of the subsidiarity principle, the building of the new concept `European citizenship', the improvement of the decision-making process by the embedding the ordinary legislative procedure. Without doubts, the Maastricht Treaty has become a key point on the road to the `one Europe' construction. Concerning the Treaty of Amsterdam (1992) it has two principle moments: creation of the common area `freedom, security and justice' with respect for fundamental rights and strengthening of the Parliament's role by establishment of the Co-decision procedure with the Council. As to the Treaty of Nice (2001), about which we spoke above, it revised the judicial system of the EU in the aspect of the tasks' distribution between the ECJ and CFI (increasing of the CFI jurisdiction) and kept the principle that the two Courts should comprise at least one judge per Member State. The Lisbon Treaty is the latest link in the story of the construction of the new political body - the European Union. The document entered into force in 2009 and brought several significant changes, which we are going to discuss in the following subchapter dedicated to the modern institutional system of the EU and ECJ as a part of it.

For now, we move to the observation of the case-law practices of the ECJ with an accent on the fundamental judgments, which made ECJ what it is today. As President of the Court referred in 2002 by summarizing the overall results of the Court's activity during 50 years: “...by its (the Court) judgments the community judiciary has over the years brought to light the fundamental principles which…has defined the characteristic features of the community legal order” (as cited in Rosas, Levits & Bot, 2013, p. 23).

From the early 1960s the Court participated in the building of the four pillars of the European special legal order (Dehousse, 1998): the doctrine of the direct effect of the EU law on the legal orders of the Member States which allowed citizens to enjoy the defense of the higher level in the national courts (Case 26/62 Van Gend&Loos vs. Netherlands); the primacy of the EU law over the national law (Case 6/64 Costa vs. Enel), the delimitation of Community competences (dispute between the Commission and the Council in the Case 22-70 on the Road Transport agenda, the role of the European Parliament in the Isoglucose case 138/79), the liability of the Member States to individuals for the damage they caused through the abuse of the law (Joint cases C-6/90 and C-9/90) and the development of the human rights protection sphere and concept of `fundamental rights' (Case 11/70 Internationale Handelsgesellschaft).

The case Van Gend and Loos (1963) is considered to be the first important decision of the Court of Justice, which is recognized today as a canon of the European law, a classical decision, and a famous trial, “The Foundation of a Community of Law” (Mayer, 2010, p.16). A lot of research works are devoted to the study of this case though it was resolved more than 50 years ago See: Halberstam D (2010) Constutionalism and Pluralism in Marbury and Van Gend. In M. Maduro, L. Azolaп (Ed.), The Past and Future of EU law. The Classics of EU Law revisited on the 50th Anniversary of the Rome Treaty. Oxford: Hart Publishing; Weiler, J. H. (2014). Van Gend en Loos: The individual as subject and object and the dilemma of European legitimacy. International Journal of Constitutional Law, 12(1), 94-103; Benvenisti, E., & Downs, G. W. (2014). The Premises, Assumptions, and Implications of Van Gend en Loos: Viewed from the Perspectives of Democracy and Legitimacy of International Institutions. European Journal of International Law, 25(1), 85-102; Spiermann, O. (1999). The other side of the story: An unpopular essay on the making of the European Community legal order. European Journal of International Law, 10(4), 763-789; Rasmussen, M. (2014). Revolutionizing European law: A history of the Van Gend en Loos judgment. International Journal of Constitutional Law, 12(1), 136-163. . In this case on the base of the article 12 of the EEC Treaty the Court defined that the European law norms have a direct effect within national legal orders. This principle was not fixed neither in the Treaty nor in the other documents, so the Court using its own understanding of the norms within the legal tradition by that decision have started to create the system of the general European principles. Van Gend and Loos marked the win of the supranational vision on the European integration (Chalmers, Davies & Monti, 2014). At first, the Court's decision stated: “the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields” (Case Van Gend&Loos, 1963). At second, the Court showed that the Community law was “a new legal order, distinct from international public law, able to confer enforceable rights on individuals”, that the European Union was established for peoples of Europe as well (Van Gend&Loos, 1963). Thus, the Court has become the key to success in the constitutionalisation period. The case Costa v. ENEL (1964) is another landmark decision that confirm the originality of the European legal System: “by contrast with ordinary international treaties, the EEC Treaty has created its own legal system, which became an integral part of the legal systems of the Member States and which their courts are bound to apply…creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity, capacity of representation on the international plane” (Case Costa v. ENEL, 1964). Due to the experts' evaluation (Rasmussen, 2010), this case is a finish line in the European law revolution allowing the ECJ to realize its role in the institutional system of the European Union and its main function based on the direct connection with integration processes and construction of the EU law. The third fundamental case is Internationale Handelsgesellschaft (1970). By that case the Court has implemented the principle of respect for fundamental rights in the system of growing European principles. The real meaning of the decision can be estimated only today when the human rights protection is on the high level; that time the human rights have not be taken for granted. During the period of 1970-1980 years, the Court added some new principles to the special EU legal order: principle of free movement of goods (case Cassis de Dijon, 1979), supremacy of the Community law for the national courts (case Simmenthal, 1978), principle of equal treatment (case Defrenne, 1976), etc. From the 1990s the direction of the case-law development changed, citizen of the EU and the concept of the European citizenship have begun to dominate the legal field. The common market and the economic policy ceased to be the center of the European policy; the focus has shifted to the defense of human rights and fundamental freedoms. In 1991 the case Francovich opened the new era in the case-law practices of the European Court of Justice. In the framework of this fundamental case the Court developed the concept - the liability of the Member States for “loss and damage caused to individuals by breaches of Community law for which the State can be held responsible” (Case Francovich, Bonifaci v Italian Republic, 1991). The important changes have touched the diversity of areas covered by the Court. In the annual reports of the last decade there are cases on the following topics: human rights, access to justice, 4 free movement principles, competition, taxes, discrimination, asylum, social policy and others Annual Reports of the Court of Justice. Retrieved . The European Court of Justice is a challenging historical object, which way from the Court of the ESCS to the Court of the EU witnesses of its supranational nature, specific functions and a wide specter of authority. Now it is time to estimate what image the Court can introduce today.

1.2 The Court of Justice in the institutional system of EU in the twenty-first century: judicial architecture after the Lisbon Treaty

The main driving force of changes in the European Union since its creation is the procedure of treaties' revisions made by conclusion of an amending one to the founding. However, in 2005 there was an attempt to end up with this juridical tradition by establishing a Constitution for Europe, which should be a symbol of the united Union. Somehow, the constitutional project was not successful and got a negative reaction in the referendums of France and the Netherlands. The tension of the situation and so much efforts spend on this document have left no choice for the European Council that put an object to consider a detailed reform changes to the Constitutional Treaty which would allow the revised document to be concluded. The two years of the working process had resulted in the Reform Treaty (the Lisbon Treaty) when the Council resumed that “the time has come to resolve the issue and for the Union to move on…the opportunity for wide public debate helped prepare the ground for a solution” (Presidency Conclusions of the Brussels European Council, 2007). The Member States presented the Lisbon Treaty as just an amendment of the previous treaties. The governments agreed to show that the new Treaty was something particularly different from the Constitution presented some years before in order to avoid the national referendums but receive the national ratification from another side (Witte, 2012). The status quo between national and supranational interests was not ruined; the demonstration of the difference between the Lisbon Treaty and Constitution was extremely intentional (Cremona, 2012). The terminology of the document was very careful and precise. The term `Constitution' and its derivatives were excluded from the text; the word `law' was abandoned (return to Regulations and Directives), there was no flag, anthem or other symbols of the federation in the new version of the Reform Treaty. As a remark, the strategy was well thought-out and even in the Ireland where the referendum was unavoidable the creators of the Treaty reached a success by special legal instruments and hiring the nature of the Treaty as it was. In practice, it was obvious that the Constitutional Treaty served as a sculpture matrix for the birth of the Lisbon Treaty where all the innovative reform decisions and mechanisms were incorporated. Yet, the revision process has covered the long period from 2002 and 2009 and seemed to be the most serious reform in its core nature, not just a cosmetic exercise as it was proclaimed to the public (Cremona, 2012).

The Lisbon Treaty was formally signed on the 13 of December 2007 and divided into the two parts of equal value: amended TEU (Treaty on European Union) and the TFEU (Treaty on the Functioning of the European Union), which previously was the EC Treaty. In addition to the Treaties, there were more than 30 attached Protocols, the Charter of Fundamental Rights and the Treaty establishing the European Atomic Energy Community. The TEU and TFEU were practically similar with limited quantity of specific features and provisions. The status of EAEC was under question due to the fact that all the treaties' provisions were similar, its structure and main bodies were installed in the European institutional system and the membership in the EAEC was possible only if you are a member o the EU (Cremona, 2012). However, the Lisbon Treaty proclaimed the single legal personality of the European Union - the word `Community' should be replaced by the `Union' and further could not be mentioned. The reformation was directed into three main areas: competences, identity formation and institutional structure. The area of the Union competences was extended; the Lisbon Treaty added the fields of energy, intellectual property, sport, civil protection and others. The most evident change was the disappearance of the third-pillar structure that was replaced by the single framework - one legal person, which combined all the three pillars within one (Wouters, Sterkx & Corthaut, 2011). However, the third issue -Common Foreign and Security Policy (CFSP) remained the third pillar distinct from the unifying process. The article 48 TEU introduced the new ad hoc body of the European Union, the Convention, and the new procedure of the treaty revisions with the usage of the Convention method. The composition of the Convention includes the “representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament, of the Commission”, the main (and the single) role of this body is to adopt recommendations for the IGC (Treaty of Lisbon, 2007). The diversity of the involved representatives adds the democracy element in the revision procedure and from another side defines the high legitimacy of this body, which cannot not be ignored by the European Council due to its content (Witte, 2012). The Convention method (at least in part) can be regarded as an alternative to the national referendum as it includes the representatives of the national parliaments. The article 6 of the Lisbon Treaty prescribed to the EU Charter of Fundamental Rights and Freedoms the new status of a `Bill of Rights' and guaranteed the same legal value as the Treaties. The Charter was adopted in 2000 by the presidents of the main political institutions in the EU and therefore in the light of public international law it could not be recognized as an international treaty (Witte, 2012). However, due to the proclamation in the Lisbon Treaty, as a part of the primary legislation the Charter received the `direct effect' characteristic and became legally binding on the EU institutions. The introduction of the Charter has raised some questions, including the proportion of the correlation between two documents - European Convention of Human Rights and Charter of Fundamental Human Rights. It is a well-known fact that the Charter contains both rights existing in the Convention and rights, which are not guaranteed by the latter. That phenomenon can lead to the possible cases of overlapping which have to be resolved on the base of the juridical priority On the question of the relationship between ECHR and the Charter see Ciuca, A. (2011). On the Charter of Fundamental Rights of the European Union and the EU accession to the European Convention on Human Rights. EASTERN JOURNAL OF EUROPEAN STUDIES, 2(1); Douglas-Scott, S. A. (2006). A tale of two courts: Luxembourg, Strasbourg and the growing European human rights acquis. Common Market Law Review. 43. 629-665.. The second part of the Article 6 of the Lisbon Treaty states that the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Protocol 8 relating to the Article 6(2) of the Lisbon Treaty contains all the details for the EU accession to the ECHR. Among the requirements is the preservation of all the specific characteristics of the EU. The rules of the amendment procedures also underwent some changes. The mainstream procedure has become the ordinary revision procedure with possibilities to use the Convention method (Article 48 TEU). The alternatives of this procedure are two version of the simplified procedure, which can be applied to a wide range of cases. Nevertheless, the overall institutional reform was in the core of the Lisbon Treaty. The central reforms were dedicated to the main political institutions of the EU. Briefly speaking, the Commission and the Parliament were changed in their size; the position of the European Council was formalized as the body received the role of the agenda-setter (Chalmers, Davies & Monti, 2014). The Treaty introduced two new political figures on the European field with an authority to speak on behalf of the EU. The first was the President of the European Council, the second one - the High Representative for Foreign Affairs and Security Policy with a role of the European Commissioner for external relations (Wouters, Sterkx & Corthaut, 2011). The High Representative is assisted by the European External Action Service (EEAS) which main task is to participate in the EU delegations in the third countries and at international organizations (Article 27 TEU). The Lisbon reformations granted to the European citizens (not less than 1 million) the right to make an initiative petition to the Commission on the questions where European legal acts should be adopted for the Treaty purposes (Article 15 TEU). The Lisbon Treaty influenced the whole structure of European governance but the judicial reforms were the most significant in the history of the ECJ. Slogan for the judiciary changes observed in the Treaty is strengthening the rule of law. The system of the Court's jurisdiction was extended to the area of freedom, security and justice. Due to this extension, the national courts got a possibility to make a request for preliminary ruling on the questions of judicial and policy cooperation, policies on border checks, asylum and immigration (Title IV TFEU). Because of the changes, ECJ got a right to review legislative acts not only of the Council, of the Commission, of the European Central Bank, of the Parliament, but also of the European Council, of bodies, offices, agencies of the Union intended to produce legal effects vis-а-vis third parties (Article 263 TFEU). The Court received the single notion `The Court of Justice of the European Union' which included the Court of Justice (the original one), the General Court (ex CFI) and the Civil Service Tribunal (the specialized kind of court). In this research paper the term `Court of Justice' is used in its narrow sense. The access rules were improved (Article 263 TFEU): the Parliament, the Council, the Commission, and Member States have become the privileged applicants without the need to prove the prerogative of their interest in the case (Jacobs, 2012). Nevertheless, the Court of Justice is still limited in its jurisdiction on the cases from the CFSP area (Craig & Burca, 2011). The article 275 of TFEU provided with only two exception examples concerning the competences of the European Union and protection of human rights in the process of CFSP implementation. The quality of the appointment procedure was improved by establishing the panel to evaluate the candidates for the Court of Justice and the General Court. This body consists of 7 persons: one of them is proposed by the Parliament, others are former members of the ECJ and the General Court, representatives of the national supreme courts and lawyers of recognized competence (Article 255 TFEU). The task of the panel is to generate the opinion about each candidate checking their compliance to the post of the judge or Advocate General. The Lisbon Treaty in various aspects reshaped the judicial structure.