EU briefing | Reframing the European court's jurisdiction

The ECJ usually shows considerable patience with references made by national courts: even if the answer is obvious, or the question misses the point, the Court generally tries to provide a helpful answer. Within broad limits, it can rephrase questions, or draw attention to provisions that the national court might have missed. But from time to time the ECJ reaches the outer edges of what seems possible; its patience, considerable as it is, wears thin. Two recent cases exemplify this.

In case C-466/11 Currà (12 July 2012) the Third Chamber found itself embroiled in a controversial saga. In 2003, the Italian courts decided that they had jurisdiction to award compensation, to be paid by Germany, to victims of Nazi atrocities during World War II, on the theory that the crimes committed were so serious that Germany was not entitled to jurisdictional immunity. This conclusion was highly controversial from an international perspective, and in 2010 the Italian government passed a law to suspend the damages claims against Germany, pending a decision of the International Court of Justice in a case brought by Germany against Italy. (In February 2012, the ICJ held that Italy had breached international law by permitting such claims, and required it to take steps to prevent them.)

The argument in Currà was that this legislative suspension of Italian law infringed EU law. The reference went further, since the Italian court apparently also thought it right to ask whether German law, in allegedly refusing to provide adequate compensation, infringed EU law; it also sought to raise the whole question of German state immunity, and whether it is consistent with EU law. In each case, the EU law principles relied on were general principles or provisions of the Charter of Fundamental Rights.

Dangerous invitation

This presented a dangerous invitation for the ECJ to rule on a complex and controversial dispute. The ECJ simply declined to become involved at all. It could see nothing to connect the situation at issue in the underlying proceedings with European law. The case did not concern the exercise of powers by the EU, or any activity falling within the scope of the Treaties. The main underlying events predated the conclusion of the original European treaties. 'Since the situation in the main proceedings does not come within the scope of European Law and the court does not have jurisdiction, the provisions of the Charter cannot, in themselves, form the basis for any new power.' The reference was accordingly rejected as inadmissible.

Case C-16/12 Hitel (6 July 2012) was a similar, albeit less striking case. The dispute concerned a Hungarian law which apparently affected the rights of mortgagees of certain land. The mortgagees brought proceedings, and the Hungarian court referred various questions about the compatibility of the Hungarian law in question - notably with the Charter - though also with the principles governing free movement of capital.

Again the ECJ refused to answer the questions, because it could see no connection with EU law, dismissing a putative connection with the free movement of capital as 'hypothetical'. It followed, the ECJ ruled, that it manifestly lacked jurisdiction to rule on the questions raised.

In substantive terms the conclusions in both cases seem clearly correct: no EU law rights were engaged in either case. But one may still question whether it is right to regard this as a matter of jurisdiction. Whether the ECJ has jurisdiction ought to depend on the question asked, not on the answer to the question. In both cases, the questions identified specific provisions of EU law. They sought an interpretation of those provisions. Giving such interpretations is squarely within the jurisdiction of the ECJ. That the answer in each case probably was that, correctly interpreted, no arguable case for violation of any provision of EU law, or engagement of any provision of the Charter, had been shown does not mean that the ECJ was being asked to do something that it is not entitled to do.

Frivolous cases

The real problem with the cases was that they were, in substance, frivolous, not that they asked the ECJ to do something that it is not within its powers.

Properly understood, then, the jurisdiction of the ECJ ought to depend simply on whether the questions referred raise, on their face, a question of the interpretation of EU law. If they do, the ECJ has jurisdiction to answer them. No good will come of muddling that question with the analytically different question of what the answer is, even in cases where the answer is obviously that correctly interpreted EU law confers no relevant rights. Jurisdiction cannot be made to depend on the answer to the questions.

One can, of course, sympathise with the ECJ's impatience in these cases. Both were extreme examples of litigants 'pushing the envelope', and trying to put EU law to questionable use. It is regrettable that the national courts concerned did not prevent this. But as questions they were, on their face, admissible, and it would have been better to have answered them -- however briskly and decisively -- on their merits. The answer in each case would have been that the measures in question were manifestly compatible with the provisions of EU law the national courts had identified, properly interpreted.

The notion, implicit in the judgments, that the ECJ would not have had jurisdiction to give that answer is strange and, it is suggested, wrong.