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British pub owner Karen Murphy wanted to keep her soccer-crazy customers happy — but she also wanted to cut down on expenses. So with a major soccer championship coming, she opted to bypass Sky Television, the big European media company that had an exclusive contract with the British soccer organization to broadcast its games in the U.K., and use a cheaper Greek satellite broadcaster to show the game.
The soccer organization filed and won a copyright infringement case against her, claiming exclusive rights to the game. But Murphy won on appeal to the European Union Court of Justice, which said the soccer authority's exclusive deal was “contrary to EU law.”
The Court of Justice and two lower EU courts — the General Court and the EU Civil Service Tribunal — form an increasingly potent legal force in European affairs. They hear hundreds of cases annually involving EU citizens, corporations and national courts seeking guidance on EU issues. Among the General Court's cases this year is a request from Microsoft Corp. for a reduction in an 899 million euro ($1.3 billion) fine imposed by the court in a 2008 antitrust case.
The Court of Justice, based in Luxembourg, is the highest in the European Union on issues covered by EU law, outranking national supreme courts. EU court decisions are binding on all 27 member countries.
In March, Spanish courts asked the Court of Justice to clarify an important addition to an EU online privacy-protection law. Called “the right to be forgotten,” the new rule enlarges people's right to request the removal of personal data from Google and other search engines. Though the inquiry came from Madrid, the EU court's reply will be applicable throughout the European Union.
“If today there exists something called [European] law, with its own particular features, characteristics, and issues, all this is due to the [European] Court's work,” wrote Oreste Pollicino, a lecturer in public law at Bocconi University in Milan.
And as far back as 1993, an American law professor and an Oxford University scholar called the European Court of Justice “an unsung hero” of European unification. Anne-Marie Burley, a University of Chicago law professor, and Walter Mattli, a professor of political economy at Oxford, wrote that “thirteen judges quietly working in Luxembourg, managed to transform the Treaty of Rome … into a constitution. They thereby laid the legal foundation for an integrated European economy and polity.”
But critics say the courts wield too much power over the courts of individual nations. Dutch law professor Henri de Waele of Radboud University in Nijmegen said a “visible attempt at more balanced interpretation [of European law] could do wonders.” Sir Patrick Neill, a leading British jurist, once famously called the Court of Justice “uncontrollable, skewed, and dangerous.”
In 2011 the Court of Justice completed 638 cases — a 10 percent increase over the previous year — and the General Court around twice that number.
Most corporate cases are on a smaller scale than the Microsoft antitrust action but can still have broad impact. In a famous 1979 ruling involving Crème de cassis (the French cordial), for example, the Court of Justice said a product approved for sale in one European country must be accepted by others. The so-called Cassis de Dijon case established the principle of Europewide product standards and was a cornerstone of the European single market.
Each EU member country appoints a judge to each of the three courts, but the full bench at plenary sessions consists of only 13 judges. Eight advocates-general deliver legal opinions on the cases, but the judges don't necessarily accept their interpretation.
Unlike in the U.S. Supreme Court, judges serve not for life but for six-year terms, and dissenting opinions are not made public. Yet, in the impact of its rulings, the European Court of Justice bears a strong similarity to its American counterpart.
Much of the court's work involves action against member states for failing to comply with regulations or treaty obligations. The European Commission (the EU's executive branch in Brussels) announced Feb. 28 that it was suing the French government in the Court of Justice for allegedly failing to prevent pollution of drinking water by agricultural chemicals in rural areas of France.
The EU court's broad portfolio has given it a key role in the recent European social compact signed in March by 25 EU members and intended to bring national budgets under control. The compact mandates a maximum debt of less than 3 percent of the gross domestic product, and the court is charged with imposing fines of 0.1 percent of GDP on countries that fail to comply.
In the past few years the court has emerged from the shadows. “The (court's) accomplishments have long been the province only of lawyers,” wrote Burley and Mattli more than a decade ago. No longer.
— Roland Flamini
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