How to read CJEU judgments: deciphering the Kirchberg oracle

 

 

Jasper Krommendijk* & Frederik Zuiderveen Borgesius**

*Public law institute for State and Law (SteR), Radboud University, The Netherlands

** iHub and Institute for Computing and Information Sciences, Radboud University, The Netherlands

jasper.krommendijk[at]ru.nl & frederikzb[at]cs.ru.nl

Photo credit: MartinD, on Wikimedia Commons

 

How to read judgments of the Court of Justice of the European Union (CJEU)? We often get that question from our students, especially those without a legal background. In this blog post, we give some tips to read and interpret such judgments. The blog post is mainly aimed at students who encounter CJEU judgments for the first time. But perhaps the blogs post could also be useful for other readers, such as lawyers from outside the EU, and non-lawyers.

The CJEU

The CJEU is one of the institutions of the European Union (see Article 19 TEU). It is based in Luxembourg. Sometimes it is called by its old name, the European Court of Justice (ECJ). The CJEU consists of two courts: the General Court (formerly the Court of First Instance) and the Court of Justice. We use the abbreviation 'CJEU' even though this abbreviation refers to the institution including the General Court (references for a preliminary ruling are, however, only handled by the CJ (Court of Justice)).The Court of Justice is composed of 27 judges: one judge of each EU Member state, and of 11 Advocates General. An Advocate General is, in short, an official advisor to the court.

Preliminary ruling procedure

We focus on judgments in which the CJEU answers preliminary questions by national judges. The great majority of judgments are rendered in the context of this preliminary ruling procedure (Article 267 TFEU), although the CJEU gives different types of judgments in different procedures, including infringement procedures (Article 258 TFEU) and actions for annulment (Article 263 TFEU). National judges in the EU can, and sometimes must, ask the Court of Justice of the European Union for a preliminary judgment concerning the interpretation of EU law (Article 267(2) and (3) TFEU). A judge from the highest national court is obliged to ask the CJEU for a preliminary ruling, if the judge is unsure about how to interpret a rule in EU law. Hence, a procedure before the CJEU starts with a question from a national judge, a ‘preliminary question’ (or a 'reference for a preliminary ruling').

This procedure exists because the EU wants to ensure that EU laws are not interpreted (and applied) differently across EU Member States. In this context we teach our students about the magical U-word: uniformity. It would hamper the uniformity (and hence effectiveness) of EU law if national judges interpreted EU law differently. 

How to find CJEU judgments?

CJEU judgments can be found through the Curia website, in particular through the search form. Each case at the CJEU has its own case number. Case numbers look like this: C‑673/17. You can also enter the name of one of the parties in the search from, for instance ‘Planet49’. If a judgment is published, it also has an ECLI number, such as this one: ‘ECLI:EU:C:2019:801’. You can also search for a judgment by its ECLI number. If you want to know when a judgment (or AG Opinion or hearing) is forthcoming, you can consult the judicial calendar

What language to read?

After finding a case on the Curia site, you can choose which language version to read on a page like this. Many judgments are available in all 24 official languages. You can read the judgment in the language that suits you best. Formally, only one language version is authentic: the language in which the case was dealt with (see article 41 of the Rules of Procedure of the Court of Justice of the European Union). Usually the case is dealt with in the language of the Member State from which the reference originates. But the translations are usually precise, so generally speaking, you can read the judgment in any language. 

Advocate General’s opinion

Often, one of the Advocates General (AG) writes an ‘Opinion’. This opinion is, roughly speaking an official advice to the CJEU. The CJEU often – but not always – decides in the same way as the Advocate General suggested. However, the CJEU can also decide differently. The opinion by the Advocate General can be long and detailed. Sometimes, the CJEU decides on a case without asking an opinion by an Advocate General, especially when the case does not entail new or difficult legal questions.

NB: if you want to read a CJEU judgment, be careful that you do not read the ‘Opinion’ by the Advocate General instead. Sometimes, people confuse those two documents.

Where to start reading? Some cheats

Before you start reading a judgment, you could consider a cheat. For some – at least the most important – judgments, the CJEU publishes a press release. Unfortunately, it is difficult to perform a structured search of previous press releases so using a general search engine (www.startpage.com, www.google.com, etc.) is the best approach.

For many judgments, the CJEU also publishes an abstract. You can find such an abstract by clicking on ‘List of documents’ after finding a case on the Curia site. The press release or the abstract can give you a concise introduction to the judgment.

It can also be helpful to read the introductory paragraphs of the Opinion of the Advocate General. This Opinion usually gives a succinct summary of the gist and relevance of the case. What also helps is searching for blogs discussing CJEU judgments: they usually provide easy to read summaries and commentaries and then will pinpoint crucial paragraphs. Examples include: EU Law Analysis, EU Law Live and Verfassungsblog.

NB 1: Never refer to the press release and the abstract in legal writing. Unlike the judgment, those documents do not have formal legal power. Moreover, they typically miss the nuance and the precision of the actual judgment.

NB 2: Law firms, journalists, or bloggers sometimes publish summaries of judgments too. Generally speaking, we recommend not relying on such sources for summaries of judgments, unless you know that the author is a specialist on the topic.

Where to start reading in the actual judgment?

Judgments by the CJEU look different from judgments by many other courts. The CJEU answers a preliminary question by a national judge, the CJEU does not directly decide in a case between two parties. The CJEU leaves it to the national court to decide the case, on the basis of the (abstract) interpretation of EU law.

You can, of course, start reading at the top of the judgment, and read it all the way to the end. That approach would not be wrong. But we think a different approach is quicker and leads to better understanding.

We suggest the following steps for reading the judgment. We use the judgment in the Planet 49 judgment from 2019 as an example.

Read the first paragraphs of the judgment

Start with reading the first paragraphs of the judgment, just under the heading ‘Judgment’. To illustrate, in the Planet 49 judgment, read paragraph 1 and 2. The CJEU explains (i) which legal acts the judgment concerns, and (ii) who the parties in the procedure are.

Read the answer to the preliminary questions

Next, read the CJEU’s answer to the answer to the preliminary questions. At the end of the judgment, the CJEU answers the question of the national judge ('dictum'). Those answers are often written in bold. The questions by national judges may be quite legal-technical, so the answers may be too. Therefore, the answers can be difficult to read. One way of making the answers easier to read, is by rephrasing the sentence in such a way that you shorten the names of EU legal acts.

For instance, in the Planet 49 judgment, the CJEU gives three answers. The first answer is long, and can look overwhelming:

‘On those grounds, the Court (Grand Chamber) hereby rules:

1.      Article 2(f) and of Article 5(3) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in conjunction with Article 2(h) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Article 4(11) and Article 6(1)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46 (General Data Protection Regulation), must be interpreted as meaning that the consent referred to in those provisions is not validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent.’

You could rephrase the answer by shortening the names of the legal acts:

Article 2(f) and of Article 5(3) of [the ePrivacy Directive] read in conjunction with Article 2(h) of [the Data Protection Directive] and Article 4(11) and Article 6(1)(a) of [the GDPR], must be interpreted as meaning that the consent referred to in those provisions is not validly constituted if, in the form of cookies, the storage of information or access to information already stored in a website user’s terminal equipment is permitted by way of a pre-checked checkbox which the user must deselect to refuse his or her consent.

If you have taken a look at the answers by the CJEU and you don’t understand what the CJEU is saying or why that is relevant: don’t worry. That happens to us too. In such situations, the next step often helps.

Read the section ‘The dispute in the main proceedings and the questions referred for a preliminary ruling’

Preliminary rulings have a section called ‘The dispute in the main proceedings and the questions referred for a preliminary ruling’. In the Planet 49 judgment, this section starts at paragraph 25.

This part of the judgment summarizes the national court case that has led to the preliminary question. By reading this part of the judgment, you learn about the facts of the case. Those facts help to understand the more legal-technical parts of the judgment. The section ends with the preliminary questions that the national judge asks to the CJEU. In the Planet 49 judgment, the questions are in paragraph 37.

Read the section ‘Consideration of the questions referred’

Next, read the whole section ‘Consideration of the questions referred’. This section contains the court’s reasoning. We apply the same strategy for the individual questions as for the judgment, starting with the introduction (the rephrasing of the question) and conclusion (answer to the question), before reading the entire section.

The CJEU often rephrases the question by the national judge. See for instance par. 44 of the Planet 49 judgment: ‘By Question 1(a) and (c), the referring court asks, in essence, whether (…)’. The rephrased questions are often reader-friendlier than the original questions that sometimes include references to national laws.

At the end of this section, you can find the CJEU’s answers to the preliminary question(s) (par. 65). After reading all this, hopefully, you understand the judgment.

If a sentence in the CJEU judgment refers to a provision of a legal act, you can often learn the basics of that provision from the sentence itself. See for instance paragraph 46 of the Planet 49 judgment, in which the court summarizes article 5(3) of the ePrivacy Directive. If you want to read the provision itself, you can typically find the provision at the start of the judgment, under the header ‘Legal context’. See for instance paragraph 3 and further of the Planet 49 judgment.

Sometimes, like in this judgment, the CJEU makes some preliminary observations (paragraph 38-43). Read those too. These observations usually explain why the CJEU takes a particular route that can differ from the approach of the national court. 

If you are only interested in one of the preliminary questions, you can read only the relevant part of the section ‘Consideration of the questions referred’.

Extra: opinion by the Advocate General

If you want to understand the judgment and the case better, a good approach is to read the opinion by the Advocate General, if there is one. These opinions are often reader-friendlier than the judgments. You can see whether there is such an opinion at a page like this.

Keep in mind though that the opinion is advice to the CJEU. The CJEU can decide differently than the Advocate General, or the CJEU can use different reasoning than the opinion. Only the CJEU judgment is binding law!

Extra: legal commentary

Sometimes, legal scholars or specialized lawyers write comments on cases, in blog posts or in so-called ‘case notes’ or ‘annotations’ Such comments can be helpful to understand more of a case. See for instance this blog post about the Planet 49 case.

However, there are a few caveats. First, you should keep in mind that the comments provide the author’s opinion, which is not necessarily the same as the CJEU’s. Second, you should be mindful that the author could be biased, perhaps because he or she has been involved as a lawyer in a similar case, or even the case before the CJEU. Third, you should never refer in legal writing to such a case note to show what a judgment says. You can, however, refer to such a case comment to show what that particular author thinks about a judgment.

Conclusion

We realize that CJEU judgments are not the most reader-friendly texts. Even EU law practitioners, experts and judges frequently struggle to decipher what Luxembourg has ruled. We hope that our blog post helps to make sense of them. Lastly: if you have questions or tips, we would love to hear them. Thank you!