The Concept of an ‘Appeal’

The appeal is a form of action by which a party claims that the Court of Justice should set aside a decision of the General Court for infringement of a rule of law. It must be directed against a decision of the GCEU. In the context of the ECJ and its case-law, it is difficult to identify what constitutes a ‘decision’ of the General Court. The object of the appeal must be the setting aside of that decision and not a re-assessment of the substantive issue, a decision on a new claim or an amendment of the grounds of the decision. The appellant must submit a criticism of the decision under appeal. Accordingly, a new plea relating to the substance of the dispute is inadmissible, unless it concerns a matter of public policy. The Court of Justice does not review assessments of fact made by the General Court.

Decisions Open to Appeal

This chapter describes the decisions of the General Court (GCEU) that are open to appeal before the Court of Justice (ECJ) and the different types of appeal that can be identified. Besides the ordinary appeal, it is possible to bring an appeal against decisions refusing leave to intervene or interlocutory decisions (suspension of application or of enforcement, interim measures). The cross-appeal is a judicial creation. Appeals relating solely to the costs of the procedure are inadmissible.

Grounds of Appeal

This chapter examines the possible grounds of appeal before the Court of Justice (ECJ). It distinguishes four categories of grounds, relating respectively to: (i) the competence of the court sitting at first instance and whether that court respected the scope of its jurisdiction; (ii) the conduct of the procedure at first instance, in relation to matters such as respect for the rules governing the organisation and functioning of the General Court (GCEU), the use of measures of inquiry, and protection of the rights of the defence; (iii) the way in which the General Court handled the case and wrote its judgment, particularly in the light of the duty to state reasons and the obligation to respond to the heads of claim and pleas of the parties; and (iv) the decision on the substantive issues.

Review Confined to Points of Law

The key characteristic specific to appeals before the Court of Justice (ECJ) is that review is confined to points of law. The Court has no jurisdiction to review the findings of fact or the assessment of the facts. This chapter describes how such a rule was adopted and how it is applied. Since its earliest days as an appellate court, the Court has reviewed the legal characterisation of facts and checked for distortion. It also reviews certain rules relating to evidence, the reasons stated for decisions and the grounds of judgments under appeal. Additionally, this chapter analyses the Court’s review in relation to fines in competition cases, to national law and to contracts. The conclusion reached is that the review confined to points of law limits the jurisdiction of the Court but that it can still review important parts of the General Court’s decision.

The Procedure before the Court of Justice

This chapter describes the procedure before the Court of Justice in appeals, i.e. the written part (appeal application, time-limits, representation, forms of order sought, response, reply, rejoinder, cross-appeal, interventions); the oral part (hearing, Opinion of the Advocate General); the deliberation and the judgment, the disposal of the case by reasoned order; legal aid, costs and other provisions relating to the procedure. The chapter also explains the handling of the case by the departments of the Court. The last section of the chapter deals with the workload of the ECJ and the discussions about introducing a filtering system for appeals, such as a ‘leave to appeal’ mechanism.

Contesting the Admissibility of the Action at First Instance

This chapter describes how the Court of Justice (ECJ) has dealt with appeals in which the appellants contested the admissibility of the action at first instance. The difficulty was that the appellants did not always have a legal interest in bringing proceedings. The summary of the case-law differentiates between particular situations: where the General Court had rejected the preliminary plea of inadmissibility, where it had joined that plea to the substance and where the inadmissibility had not been challenged before the General Court. A number of rules specific to that question were added in the 2012 recast of the Rules of Procedure.

Consequences of a Finding that the Plea/Appeal is Well Founded

The fact that a plea is well founded does not mean that the appeal is well founded. The ECJ may reject the plea as an ineffective plea or proceed with a substitution of grounds. If an appeal is well founded, the Court may give final judgment itself, where ‘the state of the proceedings so permits’, or refer the case back to the General Court. It is quite difficult to determine the scope and implications of the quashing of a judgment. The General Court is bound by the decision of the Court of Justice on points of law. However, parts of the first judgment of the General Court may remain valid and wield the authority of res judicata.

The Effects of Appeals

The general rule is that an appeal before the Court of Justice (ECJ) does not have suspensory effect. There is only one exception, in the case of regulations. This chapter describes the options open to the parties to try to mitigate the effects of the length of the appeal procedure. They may apply for interim measures, request an expedited procedure or request priority treatment.

The Creation of the Court of First Instance and of the Appeal

Chapter 1 describes the ECJ’s situation in the 1980s and the negotiations which led to the creation of the Court of First Instance and the transfer of certain areas of jurisdiction from the Court of Justice to that court. Those changes in the EU Court structure created the need for an additional legal remedy: the ‘appeal’. The appeals system was then adjusted to accommodate later developments, such as the creation of the Civil Service Tribunal and the recast of the Rules of Procedure of the Court of Justice. Nowadays, it is the reform of the General Court which has the greatest impact on appeals before the Court of Justice.

The Parties to Appeal Proceedings

This chapter analyses the position of those participating in appeal proceedings before the Court of Justice (ECJ). It describes the parties entitled to bring an ordinary appeal, or an appeal against a refusal of leave to intervene or against an interlocutory decision. The possibility, for interveners at first instance, to bring an appeal is limited, because they must show that the decision of the General Court (GCEU) directly affects them. An exception to the general rules is allowed in the case of Member States and Union institutions, which, except in staff cases, may bring an appeal even if they were not parties to the proceedings at first instance. The chapter also describes the position of ‘other parties to the relevant case’ and of those who wish to intervene for the first time when the case is at the appeal stage.