No CrossRef data available.
Article contents
Modernising the Community Courts
Published online by Cambridge University Press: 27 October 2017
Extract
A purist might say that the judicial architecture of what is now the European Union was first altered by the 1957 Convention on Certain Institutions Common to the European Communities. That Convention set up a single Court of Justice with jurisdiction under the three Community Treaties which had by then been signed. However, the 1957 Convention should probably be regarded as the last brick in the original edifice, which was to remain unchanged for nearly 30 years. Although the Court started to express concern about its capacity to cope with its workload in the 1970s, the Member States did not respond until 1986, when provision for a court of first instance was made in the Single European Act. That reform marked the beginning of a period of rapid change in the judicial architecture of the Union.
- Type
- Research Article
- Information
- Copyright
- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2000
References
1 The 1957 Convention was repealed by Art. 9 of the Treaty of Amsterdam but its essential elements were preserved.
2 See Decision 88/591 establishing a Court of First Instance of the European Communities, OJ 1989 C 215/1 (corrected version). That decision will for the most part be repealed by Art. 10 of the Treaty of Nice.
3 See Decision 1999/291, OJ 1999 L 114/52. The first case to be decided by a single Judge was Case T-180/98 Cotrim v. CEDEFOP, judgment of 28 October 1999. The ruling was given about six months earlier than might otherwise have been expected.
4 See generally Lenaerts, K. “Le Tribunal de première instance des Communautés européennes: regard sur une décennie d’activités et sur l’apport du double degré d’instance au droit communautaire” 36 (2000) CDE 323.Google Scholar
5 The last year for which figures were available at the time of writing.
6 Case C-185/95 P [1998] ECR 1-8417.
7 The force of the Court’s criticism was somewhat blunted by the facts that the Advocate General’s Opinion was not given until over two and a half years after the appeal was brought and there was then a further delay of over 10 months before the Court gave judgment, a total of more than 42 months. It is possible, however, that the judgment was directed more at the Council and the Member States than the CFI.
8 See its proposal for a Council regulation implementing Arts. 81 and 82 EC, COM(2000) 582 final.
9 Regulation 40/94, OJ 1994 L 11/1.
10 See e.g. the Commission’s additional contribution to the 2000 intergovernmental con ference (IGC) entitled “Reform of the Community Courts”, 6, n 12. That figure was based on an estimate by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), which administers the trade mark regulation, before it took up its activities of the number of applications for registration it would receive in a year. In fact it received con siderably more applications for registration than expected. The volume of applications put pressure on its own procedures and delayed the arrival in Luxembourg of the first challenges to decisions of the OHIM Boards of Appeal. The first such action to be decided was Case T-163/98 Proctor & Gamble v. OHIM [1999] 2 CMLR 1442, judgment of 8 July 1999. Even if there are only around 150 such challenges a year once OHIM has reached cruising speed, that would represent a substantial increase in the total number oreases brought before the CFI in 1999 (384).
11 Habermas, J. Between Facts and Norms (Cambridge, Polity, 1996), 198 Google Scholar.
12 See Art. 6(1) TEU.
13 See <http://europa.eu.int/cj/en/pres/aveng.pdf>; Arnull, A. “Judicial architecture or judicial folly? The challenge facing the European Union” 24 (1999) ELRev 516.Google Scholar
14 See House of Lords Select Committee on the European Communities, “The Court of First Instance: single Judge” (Session 1997-98, 25th Report, HL Paper 114).
15 Annotated texts of the relevant provisions are contained in Dashwood, A. and Johnston, A. (eds.) The Future of the Judicial System of the European Union (Hart Publishing, 2001 Google Scholar). No attempt is made in this article to analyse all the provisions agreed at Nice affecting the Community Courts. The following provisions in particular are not discussed: the new Art. 46(e) TEU, which gives the Court jurisdiction over “the purely procedural stipulations” of Art. 7 TEU; the new second para of Art. 230 EC, which at last elevates the European Parliament to the status of a privileged applicant in annulment proceedings; and the new Art. 300(6) EC, which entitles the European Parliament to ask the Court for its opinion on the compatibility with the Treaty of proposed international agreements. Amendments to the EAEC Treaty are not considered.
16 Strictly speaking it is only references made under the Community Treaties which are reserved by the Treaties to the Court of Justice, not references made under other instruments such as the Protocols on the interpretation of the 1968 Brussels Convention and the 1980 Rome Convention (see OJ 1998 C 27/28 and 47 respectively). For all practical purposes, however, the Council can be regarded as prevented by the Treaties in their present form from giving the CFI a preliminary rulings jurisdiction.
17 See <http://www.europa.eu.int/en/comm/sj/homesjen.htm>. Cf.Edward, D. “Reform of Article 234 procedure: the limits of the possible” in O’Keeffe, D. and Bavasso, A. (eds.) Judicial Review in European Union Law (Deventer, Kluwer, 2000), 119 Google Scholar.
18 See Art. 68 EC.
19 Above n 17 at 13.
20 A different suggestion was made by the Commission, above n 10 at 3, which proposed that national courts should be required to specify why the question of Community law which had been referred raised difficulties. That suggestion is reminiscent of the ruling in Case C-465/93 Atlanta Fruchthandelsgesellschaft v. Federal Republic of Germany [1995] ECR I–3761, although it would extend to questions of interpretation as well as validity.
21 CONFER/VAR 3966/00, 18 May 2000.
22 Conseil des Barreaux de l’Union Européenne or Council of the Bars and Law Societies of the European Union, a body representing practising lawyers throughout the Union.
23 Above n 21 at para. 12.
24 Above n 21 at para. 20.
25 Above n 10 at 4.
26 Ibid.
27 For a different view, see e.g. Rasmussen, H. “Remedying the crumbling EC judicial system” 37 (2000) CMLRev 1071, 1107-1110Google Scholar; Vaughan, D. and Randolph, F. “The interface between Community law and national law: the United Kingdom experience” in Curtin, D. and O’Keeffe, D. (eds.), Constitutional Adjudication in European Community and National Law (Butterworth, Ireland, 1992), ch 20, 228 Google Scholar; The Role and Future of the European Court of Justice (London, British Institute of International and Comparative Law, 1996), 75–77 Google ScholarPubMed. For a short general discussion, see Anderson, D. References to the European Court (Sweet & Maxwell, 1995), 170–171 Google Scholar.
28 See Anderson, above n 27 at 167-170.
29 See Advocate General Tesauro in Case C-83/91 Meilicke v. ADV/ORGA [1992] ECR 1-4871, 4917; Arnull, A. “The use and abuse of Article 177 EEC” 52 (1989) MLR 622 CrossRefGoogle Scholar.
30 See Case 283/81 CILFIT v. Ministry of Health [1982] ECR 3415.
31 See R v. Stock Exchange, ex parte Else (1982) Ltd [1993] 2 WLR 70 at 76, per Sir Thomas Bingham MR.
32 See OJ 2000 L 122/43.
33 See Art. 104a.
34 Art. 104(5).
35 See e.g. Case C-387/93 Banchero [1995] ECR 1-4663.
36 Art. 104(3).
37 See CONFER 4720/00, 6 March 2000, 14.
38 It has been observed that what is needed is “a little political confidence in the ability of magistrates to organise their own work”: Meij, A.W.H. “Guest editorial: architects or judges? Some comments in relation to the current debate” 37 (2000) CMLKev 1039, 1042 Google Scholar.
39 On the status of the existing Statutes, see Arts. 7-9 of the Treaty of Nice. The new Statute will be laid down in a Protocol annexed to the TEU, the EC Treaty and the EAEC Treaty. An annotated text may be found in Dash wood and Johnston (eds.), above n 15. The introduction of a single statute was suggested relatively early in the discussions by several national delegations within the framework of the Friends of the Presidency Group set up to prepare the texts necessary to reform the judicial system: see CONFER 4729/00, 31 March 2000, 3.
40 See the new Art. 290 EC and Art. 64 of the Nice Statute, a transitional provision.
41 See e.g. Regulation 44/2001 on jurisdiction and the recognition and enforcement of judg ments in civil and commercial matters, OJ 2001 L 12/1, which will largely supersede the Brussels Convention with effect from 1 March 2002.
42 See Art. 68(3) EC, which will apply to Regulation 44/2001, above n 41, when it super sedes the Brussels Convention.
43 See the French Government’s contribution to the IGC on the Community Courts, CONFER 4726/00, 27 March 2000, 12.
44 Above n 43 at 11.
45 See e.g. the draft amendment to Art. 225 EC tabled by the Portuguese Presidency at the Feira European Council in June 2000 (CONFER 4750/00, 14 June 2000, 104).
46 See House of Lords Select Committee on the European Communities, “Enlarging the jurisdiction of the Court of First Instance” (Session 1998–99, 13th Report, HL Paper 82).
47 Above n 43 at 7.
48 See CONFER 4730/00, 12 April 2000, 4.
49 Above n 43 at 14.
50 The Commission envisaged that a similar category of direct actions should remain the exclusive preserve of the Court of Justice: see above n 10 at 4.
51 See OJ 2000 L 322/4.
52 See Art. 76a. Similar amendments were made to the Court’s Rules of Procedure: see OJ 2000 L 322/1, Art. 62a.
53 A similar view was expressed by the CCBE: see above n 21 at 8-9. See also Lenaerts, above n 4 at 409.
54 New Art. 220, second para.
55 See the pre-Nice version of Art. 225(1) EC.
56 It has been argued that the name “Court of First Instance” is in any event a misnomer because the CFI’s decisions on questions of fact are final and it hears appeals against the deci sions of quasi-judicial bodies: see the Contribution of the CFI for the purposes of the 1996 IGC, May 1995, Section IV. Strictly speaking, however, those “appeals” are currently regarded as a form of action for annulment.
57 Above n 17 at 31.
58 Boards of Appeal consist of three members, at least two of which must be legally quali fied. All members are required to be independent. See Arts. 130 and 131 of the Community trade mark regulation above n 9.
59 “Adapting the institutions to make a success of enlargement”, COM(2000) 34, 15 (emphasis added). The terms “intellectual property” and “industrial property” appear to be synonymous in this context. Cf. Art. 30 EC, which speaks of “industrial and commercial property”.
60 COM(2000) 412 final. The Commission’s proposal is not the first attempt to create a Community patent. For discussion of the background, see House of Lords Select Committee on the European Communities, “The Community patent and the patent system in Europe” (Session 1997-98, 26th Report, HL Paper 115).
61 See Art. 224, sixth para.
62 See Art. 225a, sixth para.
63 The House of Lords Select Committee on the European Communities has suggested that additional Judges in the CFI “should have expertise in the field of intellectual property”: see above n 14 para. 98.
64 See House of Lords Select Committee on the European Communities, “A European court of first instance” (Session 1987-88, 5th Report, HL Paper 20, paras. 59 and 89).
65 And subsequently by the French Government: above n 43 at 15.
66 A related idea, that the Court should be permitted to choose which questions referred to it by national courts needed to be answered (see the Courts’ discussion paper above n 13 at 23-25), was rejected by the Due Committee on the basis that it would upset the spirit of co operation and dialogue on which the preliminary rulings procedure depends: see above n 17 at 21. It was not pursued by either the Community Courts or the Member States.
67 Art. 225(3) is quoted in full in Part H.C above.
68 It is submitted that the word “right” in the English text of the Treaty has no particular significance, the French text simply providing that decisions of the CFI “peuvent faire l’objet d’un pourvoi”.
69 Where an appeal is successful but the state of the proceedings does not permit the Court to give final judgment, it may refer the case back to the CFI. In that event, the CFI is bound by the decision of the Court on points of law. See Art. 61 of the Nice Statute, reproducing Art. 54 of the EC Statute.
70 Cf. Art. 225a, which expressly permits the Council to provide for an appeal to the CFI from the decisions of judicial panels on questions of both law and fact.
71 See Arnull, A. “The Community judicature and the 1996 IGC” 20 (1995) ELRev 599.Google Scholar
72 See the pre-Nice version of Art. 225(2) EC.
73 Above n 43 at 18.
74 That is because decisions of the Court are valid only when an uneven number of Judges takes part in the deliberations. See Nice Statute, Art. 17, first para, preserving the present rule: cf. Art. 15, EC Statute.
75 See the new Arts. 223, first para. (Court) and 224, second para (CFI). The suggestion that the appointment of members of the Community Courts should be entrusted to a judicial appointments commission in order to distance the procedure from the domestic political process was not taken up by the Member States.
76 See the new Art. 214(2).
77 The person it intends to appoint as President is to be nominated by the Council in the composition of Heads of Sate or Government.
78 The Parliament has argued that its assent should be required to nominations to the Court of Justice, but that view has been opposed by the Court itself and by the House of Lords Select Committee on the European Communities. See Arnull, A. Dashwood, A. Ross, M. and Wyatt, D. Wyatt & Dashwood’s European Union Law 4th edn. (London, Sweet & Maxwell, 2000), 194 Google Scholar.
79 For the corresponding provisions on the CFI, see Art. 50 of the Nice Statute.
80 Cf. Art. 27 of the European Convention on Human Rights.
81 Nice Statute, Art. 16, second para.
82 Ibid, Art. 17, third para.
83 See Art. 15 of the EC Statute.
84 A formation comprising all the Judges is known as the grand plenum. See further Brown, L. N. and Kennedy, T. Brown & Jacobs’ The Court of Justice of the European Communities 5th edn. (London, Sweet & Maxwell, 2000), 54 and 277Google Scholar.
85 Ibid, Art. 16, second para.
86 Ibid, Art. 16, third para.
87 See the pre-Nice version of Art. 221 EC, third para.
88 Nice Statute, Art. 16, fifth para.
89 Above n 43 at 20.
90 See Arts. 11 and 9(4); Lasok, K.P.E. The European Court of justice: Practice and Procedure 2nd edn. (London, Butterworths, 1994), 20–21 Google Scholar. Cf. Nice Statute, Art. 17, fifth para.
91 See Wyatt & Dashwood, above n 78 at 195-196.
92 Above n 43 at 18.
93 Above n 17 at 48.
94 See Tridimas, T. “The role of the Advocate General in the development of Community law: some reflections” 34 (1997) CMLKev 1349, 1384-1385.Google Scholar
95 Above n 17 at 50.
96 Above n 43 at 19.
97 See Jacqué, J.-P. and Weiler, J. “On the road to European union—a new judicial archi tecture: an agenda for the intergovernmental conference” 27 (1990) CMLRev 185, 192-195Google Scholar; Rasmussen, above n 27 at 1110-1111.
98 Above n 13 at 26. See also CFI, “Reflections on the future development of the Community judicial system” 16 (1991) ELRev 175, 177Google Scholar.
99 See above n 43 at 22.
100 The idea was rejected by the Reflection Group: see above n 17 at 20-21.
101 See Art. 225(2) EC.
102 Art. 245 EC.
103 Art, 245 EC. Where the request comes from the Commission, it will not take the form of a proposal, so Art. 250 EC will not apply.
104 Art. 225a EC. Where the suggestion comes from the Commission, it will take the form of a proposal, which means that Art. 250 EC will be applicable.
- 1
- Cited by