Again, and again we read or hear: “The ECJ has decided” or “[…] the ECJ has today in its decision strengthened the rights of consumers in the EU” or something similar.

The questions that come to mind are in such a case:

  • What legal effect does the decision have for me as a citizen of the FRG or any other member state?
  • Must all courts in the Eu-states now base their decisions on this verdict?
  • What function and legal effects do ECJ rulings actually have?

For this purpose, let us first consider the original competences of the ECJ?

  1. The ECJ is responsible within the EU for all findings of EU treaty violations by Member States.
    This means that the ECJ makes legally binding decisions on whether a state has violated EU treaties. For instance, in the case of the ancillary copyright law for press publishers introduced by the Federal Republic of Germany into its Copyright Act legislation.
    For example: In this case, the FRG violated EU treaty law with the consequence that these rules of the German Copyright Act legislation are invalid! (If a matter is to be regulated by an EU directive – as here – then a member state cannot simply make its own national regulation!)

  2. The ECJ is also responsible for the questions whether a state has violated the human rights of an EU citizen as laid down in the EU Human Rights Convention by its actions. Here, too, a judgment of the ECJ immediately leads to the ineffectiveness of the member state’s actions or its applied regulations!
    For example: The FRG had to change its custody regulations after the father of an illegitimate child, who paid alimony and insisted on his right of contact filed his case at the ECJ. According to the legal situation at that time, the mother could prohibit him the right of contact in principle. The father had lost before all German courts, including the German Constitutional Court. Or the case of the law student from Vienna named Schremp , who saw his EU human rights affected by the practice at the time – based on the Safe Harbor Agreement – of exchanging personal data between the EU and the USA. In this case, the decision of the ECJ led to the immediate invalidity of the Safe Harbor Agreement and therefore to the immediate illegality of the entire exchange of data between the USA and Europe.

But what happens now in cases where national supreme courts, such as the Federal Supreme Courts, appeal to the ECJ?

This only happens in cases where the decision of the national court has to be based on the interpretation of a standard which has originated in an EU directive. Here there is a declared political will to ensure uniform legal practice in Europe in the interpretation of EU directives. How does this happen now? Well, if the ECJ has to decide a case involving a corresponding standard, it makes a so-called referral order to the ECJ with questions on the interpretation of the standard.

This court examines the questions presented in the light of expert opinions and answers them in the form of a decision.

This is now the decision of the ECJ, of which we read in the media!

This decision goes back to the national court, which now has two options:

  • It agrees with the opinion of the ECJ and decides its case on the basis of this interpretation.


  • It does not agree with the interpretation and decides otherwise.

The result is that the ECJ is not legally binding in relation to the national courts, as the highest instance at the EU level.

The autonomy of the national courts is not affected, so that this also applies here: Only in the constellations mentioned in 1. and 2. does the ECJ have binding effects and powers in relation to the Member States and their citizens. In all other legal matters, the national autonomy and independence of the courts remains.