I have noticed that there are many lawyers and clients who are unclear as to the difference between the functions of the European Court of Justice ‘ECJ’ and the European Court of Human Rights ‘ECtHR.’
So, I write to set the record straight – to explain each court, and most importantly who can apply to them.
The European Court of Justice
The European Court of Justice the ECJ officially called the ‘Court of Justice of European Union’ is the court of the European Union, and is in Luxembourg. Within it are three different courts: the Court of Justice, the General Court and the Civil Service Tribunal.
Its role is to consider the actions of institutions within the EU and its judgments serve to clarify European law to ensure that it is applied in the same way in all EU Member States.
The European Court of Justice has one Judge representing each EU member state. Our UK Judge is Christopher Vajda who was appointed in 2012. Each Judge is appointed for a term of 6 years.
Private individuals, companies and organisations can bring a case before the court concerning an alleged breach of their rights by an EU institution or an EU Member State, as can Member States or the European Commission. The types of application each of these categories can make are:
Individuals, companies and organisations
- Actions by individuals, companies or organisations against EU decisions or actions by EU institutions.
Member States’ courts
- Requests from Member States’ courts for “preliminary rulings” asking for an interpretation on a particular point of EU law. The interpretation given by the court binds the court of the Member State which requested the ruling, and all other Member States’ courts. Requests can only be made by EU Member States’ courts, and not individuals.
- Actions by the European Commission where it believes a Member State’s government is failing to fulfil its obligations under EU law. The Court will consider the allegation and give judgment. If a Member State is found to be breaching its EU obligations, the court will order the State to rectify its actions and may issue a fine.
- Requests to annul EU law found to violate human rights or EU treaties. The Court can declare that EU law is null and void. Such requests can be made by any EU Member state, the European Commission and the EU Council. Individuals can also make such requests to the Court of Justice if their personal rights are directly affected by the EU law complained of.
- Actions by individuals, companies, Members States and European institutions against European institutions for failing to act in accordance with EU law.
Preliminary rulings are most relevant to my work. Any national court of an EU Member State can, at any stage in the proceedings, make a referral for a preliminary ruling to the ECJ as long as the referral concerns a point of EU law and its interpretation.
The request for a preliminary ruling must be precise, and often is only one or two questions. The ECJ will only answer the questions put. It does not have the jurisdiction to comment on any other ancillary matter.
A UK request for a preliminary ruling that interests me is one made in November 2014 by the most prominent High Court family Judge in England, Mr Justice Mostyn in the case of S v S  EWHC 3613 (Fam).
The reference can be found on the Europa website http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2015.026.01.0010.02.ENG entitled ‘Reference for a preliminary ruling from the High Court of Justice, Family Division (England and Wales) (United Kingdom) made on 4 November 2014 A v B (Case C-489/14)’
As this reference demonstrates, it is open to a court of a Member State to make an urgent request for a ruling from the ECJ pursuant to Article 105(1) of the Rules of Procedure of the Court of Justice. The reference also demonstrates how precise questions put the CJEU are.
This reference requested an urgent ruling for fear of the serious emotional toll on the minor children, whose interests Mr Justice Mostyn considered were being harmed by the dispute between their parents.
However, the President of the Court of Justice on 13 January 2015 decided that the legal uncertainty affecting these children was not capable of constituting an exceptional circumstance that would justify the application of an expedited procedure. See:
This request concerns an issue that is a common question for international family lawyers. The question was whether simply issuing divorce proceedings in a Member State without taking substantive steps to pursue the proceedings is sufficient to seise that jurisdiction to the exclusion of other Member States’ courts, pursuant to Articles 19(1) and (3) of Council Regulation No.2201/2003 (“Brussels II revised”). Mr Justice Mostyn’s concern was that such an action is a blocking device and an abuse of process.
Other than the refusal by the European Court of Justice to apply an expedited procedure for dealing with the request, no other information is available of the Official Journal of the European Union as to when this particular request will be dealt with substantively.
The European Court of Human Rights
The ECtHR only has jurisdiction over Member States that are signatories to the European Convention on Human Rights
– and the Convention created the court. It is based in Strasbourg.
This is a link to the Convention:
This is a link to the signatory Member States:
The court deals with complaints from Member States and individuals asserting that another signatory state has breached its Convention obligations. Only a direct victim of a violation of a Convention obligation can apply to the ECtHR.
The ECtHR is made up of one judge from each state that is party to the Convention. However, each judge does not represent their state and instead acts in an independent and impartial capacity.
Legal aid may be granted by the court if the court considers it necessary.
For the complaint to be capable of being dealt with by the ECtHR the application must:
- be made on the ECtHR’s formal application form;
- be against a Member State that was a signatory to the Convention at the time of the alleged violation of the Convention obligations;
- be brought by a direct victim of an alleged violation of the Convention obligation(s); and
- contain evidence that a violation has occurred.
And, the Applicant must have exhausted all domestic remedies and the Application must be made to the ECrtHR within 6 months of the final decision by the highest court in the State complained of.
It can take a year for the court to examine an Application made for the first time. When the ECtHR (eventually) examines the merits of the case, it can consider oral and written evidence in a public hearing. The ECtHR can also accept written comments from third parties to the dispute.
Judgments are given by a majority vote and are binding on the State concerned. The court has the power to order that the breaching state pays compensation but does not have power to overrule national decisions or national laws.
The most relevant Convention rights to family law are:
Article 6 – Right to a fair trial
- In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Article 8 – Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It can be seen from the above that, although both of these courts can make decisions with far-reaching consequences for citizens of a number of countries including our own, the functions of each of these courts are quite different.
If you have any questions or queries are a result of this blog regarding the ECJ or ECtHR, please contact me: firstname.lastname@example.org
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