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The Community Courts Post-Nice: A European Certiorari Revisited

Published online by Cambridge University Press:  17 January 2008

Liz Heffernan
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Abstract

In December 2000 the European heads of government, gathered at Nice, took several important steps in the constitutional development of the European Union. Chief among them are the various provisions in the Treaty of Nice1 disposing of the so-called ‘Amsterdam leftovers’, ie, those issues of institutional reform left unresolved by the Treaty of Amsterdam. The central focus of IGC 2000, and of the publicity surrounding its negotiations, was reform of the political institutions, notably the Commission and the Council, in preparation for enlargement. Reform of the Community courts was a less conspicuous but, ultimately, no less important item on the agenda. In the case of the judicial branch, the new provisions are inspired in large part by the well-publicised need to remedy overburdened dockets and the attendant inefficiencies in the administration of justice in Luxembourg.2

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 52 , Issue 4 , October 2003 , pp. 907 - 933
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

1 Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, [2001] OJ C80/1.Google Scholar

2 For recent statistics in relation to judicial activity at the Community courts, See <http://www.curia.eu.int/en/pei/rapan.htm>>Google Scholarand Turner, C and Munoz, R, ‘Revisiting the Judicial Architecture of the European Union’ (1999–2000) 19 YEL 1. See generally Dashwood, A and Johnson, A (eds), The Future of the Judicial System of the European Union (Oxford: Hart Publishing, 2001);Google ScholarBurca, G de and Weiler, JHH (eds), The European Court of Justice (Oxford: Oxford University Press, 2001);Google ScholarJohnson, A, ‘Judicial Reform and the Treaty of Nice’ (2001) 38 CMLRev 499;Google ScholarRasmussen, H, ‘Remedying the Crumbling Judicial System’ (2000) 37 CMLRev 1071.Google Scholar

3 See generally Costello, C, ‘Preliminary Reference Procedure and the 2000 Intergovernmental Conference’ (1999) 21 DULJ 40;Google ScholarArnull, A, ‘Judicial Architecture or Judicial Folly? The Challenge Facing the European Union’ (1999) 24 EL Rev 516;Google ScholarGerven, W van, ‘The Role and Future Structure of the European Judiciary Now and in the Future’ (1996) 21 EL Rev 211.Google Scholar

4 The Friends of the Presidency Group was intimately involved in all stages of IGC 2000. See, eg, IGC 2000: Interim Report on Amendments to be Made to the Treaties With Regard to the Court of Justice and the Court of First Instance, CONFER 4747/00 (Mar 2000). The European Bar was represented in the guise of a report by the Council of the Bars and Law Societies of the European Union (CCBE) that shed some welcome light on the perspective of litigant and practitioner. See Contribution from the CCBE to the Intergovernmental Conference, CONFER/VAR 3966 (18 May 2000).Google Scholar

5 Court of Justice and Court of First Instance, The Future of the Judicial System of the European Union (Proposals and Reflections) (1999).Google Scholar

6 Commission, Report by the Working Party on the Future of the European Communities’ Court System (2000).Google Scholar

7 See, eg, Cooke, J, ‘European Judicial Architecture: Back to the Drawing Board’ (1999) 5 Bar Rev 14.Google Scholar

8 Statement of the President of the Court of Justice, The EC Court of Justice and Institutional Reform of the European Union (April 2000).Google Scholar

9 This section is an abbreviated version of discussions that appear in ‘The Treaty of Nice: Arming the Courts to Defend a European Bill of Rights?’ (2002) 65 Law and Contemp Probs 189;CrossRefGoogle Scholarand ‘Judicial Reform Under the Treaty of Nice’, in Lucey, MC and Keville, C (eds), Irish Perspectives on EC Law (Dublin: Round Hall Ltd), 51.Google Scholar

10 The Statute is contained in a protocol attached to the Treaty.Google Scholar

11 Some delegations were in favour of the change (or, at least, did not come out against it). See, eg, Contribution from the Dutch Government—An Agenda for Internal Reforms in the European Union, CONFER 4720/00 (6 Mar 2000);Google ScholarInformation Note from the Italian Delegation, 2000 IGC: Italy's Position, CONFER 4717/00 (3 Mar 2000).Google Scholar

12 Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union (May 1995), at 16.Google Scholar

13 All but a couple of the delegations were unwilling to relinquish the nationality requirement. See Friends of the Presidency, Interim Report, at 10.Google Scholar

14 Advocates general are generally regarded as ‘members’ of the Court, even though they lack ultimate decision-making authority. See Jacobs, FG, ‘Advocates General and Judges in the European Court of Justice: Some Personal Reflections’, in O'Keefe, D and Bavasso, D (eds), Judicial Review in European Union Law: Liber Americorum in Honour of Lord Slynn ofHadley (vol I) (The Hague: Kluwer Law International, 2000), 17, at 18.Google Scholar

15 New version of the Statute, Art 16.Google Scholar

16 The Conference sensed as much and whereas the petit plenum is currently constituted on an informal, ad hoc basis, the membership of the grand chamber will be imprinted in the Statute.Google Scholar

17 New version of the Statute, Art 16.Google Scholar

18 The composition of the CFI is far less controversial. Increasing its ranks is a less risky proposition, not least because any threat to the consistency of Community law can be tackled on appeal by the Court of Justice. Thus, the new version of Art 225 provides that the CFI will comprise ‘at least one judge per member state’. Apparently, the Council has given the nod to an increase of six judges at the CFI, although a system for rotating the additional appointments has yet to be settled. See Commission, Memorandum to the Members of the Commission: Summary of the Treaty of Nice (Brussels, 18 01 2001), SEC (2001), 99, at 5.Google Scholar

19 The Court of Justice has made an initial proposal on the issue in its Working Document relating to the re-allocation of jurisdiction between the Court of Justice and the Court of First Instance in respect of direct actions, posted on the Court's website.Google Scholar

20 See Council Regulation 40/94 on the Community Trademark [1994] OJ LI 1/1.Google Scholar

21 See, eg, Due Report, at 29–35 (canvassing the possibility of specialised regimes in fields such as private international law, judicial cooperation, and competition).Google Scholar

22 See new version of the Statute, Art 62.Google Scholar

23 See statistics on judicial activity at the Court of Justice for 2000, <http://www.curia.eu.int/en/pei/rapan.htm>..>Google Scholar

24 See Courts' Discussion Paper, at 25–6 (noting its previous objections but suggesting that the idea should not be dismissed out of hand).Google Scholar

25 See Cooke at 18.Google Scholar

26 See Costello, at 53 (defending ad hoc allocation against the objection that it offends the principle of judge legal or gesetzlicher richter whereby the judge in a particular case must be preordained in advance by law).Google Scholar

27 This provision was influenced, in particular, by a proposal from the Dutch Government. See Contribution from the Dutch Government, at 15.Google Scholar

28 See new version of the Statute, Art 62.Google Scholar

29 A change recommended by the CCBE. See Contribution from the CCBE, at 9.Google Scholar

30 See Declaration on Article 225 [2001] OJ C80/79.Google Scholar

31 The First Advocate General, at least, will have the benefit of the CFI's decision on which to base her assessment of a serious risk to the unity or consistency of Community law.Google Scholar

32 Indeed, there is an inherent contradiction between the Conference's willingness to attribute this authority to the First Advocate General and its refusal to count advocates general in the judicial tally for the composition of the Court.Google Scholar

33 See Meij, AWH, ‘Guest Editorial: Architects or Judges? Some Comments in Relation to the Current Debate’ (2000) 37 CML Rev 1039, at 1043 (noting that the national courts were not associated with the reform negotiations in any way).Google Scholar

34 In the words of the current version of EC Treaty, Art 220 (ex Art 164).Google Scholar

35 For example, of the 503 cases filed at the Court in 2000, 197 were direct actions as opposed to 224 preliminary references. See statistics on judicial activity at the Court of Justice for 2000 <http://www.curia.eu.int/en/pei/rapan.htm>..>Google Scholar

36 Ibid. Appeals accounted for 79 of the 503 cases filed at the Court in 2000.

37 [2000] OJ C364/1. The status of the Charter is tabled for discussion at IGC 2004. See Declaration on the Future of the Union [2001] OJ C80/85. A further potential source of work for the Community courts is the suggested liberalisation of the rules on standing for private applicants in judicial review proceedings embodied in the recent Opinion of Advocate General Jacobs in Case C-500 P, Unión de Pequeños Agricultores v Council [2002] ECR I-6677 and the decision of the Court of First Instance in Case T-177/01, Jégo-Quéré v Commission [2002] ECR II-2365. However, in its subsequent decision in Unión de Pequeños Agricultores, the Court of Justice reaffirmed the strictures of the Plaumann test of individual and direct concern [2002] ECR I-6677. Given the opposition of the Council and the Commission, an amendment to the EC Treaty (which is, in the Court's view, a prerequisite to reform), seems a remote possibility.Google ScholarSee Editorial, ‘1952–2002: plus ca change...’ (2002) 27 Eur L Rev 509.Google Scholar

38 See Declaration on Article 225 of the Treaty Establishing the European Community [2001] OJ C80/79.Google Scholar

39 For an earlier view, including a discussion of the propriety of comparing the EC and US systems, See Heffernan, L, ‘A Discretionary Jurisdiction for the Court of Justice?’ (1999) 34 Irish Jurist (NS) 148.Google Scholar

40 Congress has also established a number of specialised courts and tribunals pursuant to its Art I powers.Google Scholar

41 There are approximately 100 district courts of general jurisdiction in the territories comprising the United States and Puerto Rico. District judges are assisted by magistrate and bankruptcy judges.Google Scholar

42 42 There are eleven courts of appeals for numbered, geographically defined circuits and one court of appeals for the District of Columbia. In addition, a court of appeals for the federal circuit exercises appellate jurisdiction over customs and patent cases and claims against the US government.Google Scholar

43 28 USC s 1291.Google Scholar

44 The Supremacy Clause, Art VI(2) of the US Constitution, provides an indirect basis for appellate jurisdiction.Google Scholar

45 The other procedural routes are: original jurisdiction, appeal, certification and extraordinary writ. See 28 US ss 1251, 1254, 1651, and 2241.Google Scholar

46 Judiciary Act of 13 Feb 1925, ch 229, 43 Stat 936. See Dick v New York Life Ins Co, 359 US 437, 48–63 (Justice Frankfurter dissenting).Google Scholar

47 See generally, Stern, RL et al. , Supreme Court Practice, 7th edn (Washington, DC: The Bureau of National Affairs, Inc, 1993);Google ScholarPerry, HW, Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, Mass: Harvard University Press, 1991);Google ScholarShapiro, Stephen M, ‘Certiorari Practice: The Supreme Court's Shrinking Docket’ (1998) 24 Litigation 25;Google ScholarWillard, RK, ‘Strategies for Case Preparation and Argument Before the Supreme Court’ (1992) 5 USF Mar LJ 91;Google ScholarBaker, SA, ‘A Practical Guide to Certiorari’ (1984) 33 Cath UL Rev 611.Google Scholar

48 See Posner, R,, The Federal Courts: Challenge and Reform (Cambridge, Mass: Harvard University Press, 1996), at 82 (arguing that nine justices is the maximum viable number if the Court is to sit as a single panel).Google Scholar

49 At the same time, the importance of prompt consideration is reflected in the Court's practice of disposing of the vast majority of cases within each annual term (which officially begins on the first Monday in Oct and closes at the end of June) rather than carrying them over to the next term.Google Scholar

50 See 28 USC ss 1254(1) and 1257 and Supreme Court Rules, 10–14.Google Scholar

51 This is a derogation from the Court's general practice of operating by majority rule.Google Scholar

52 See, eg, Voinovich v Women's Medical Professional Corp, 118 S Ct 1347 (1998) (Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, dissenting from the denial of cert, in a challenge to the constitutionality of an Ohio abortion statute).Google Scholar

53 See, eg, Brown v Allen, 344 US 443, 542–3 (1953).Google Scholar

54 Perry, at 34 and 221.Google Scholar

55 Rehnquist, WH, The Supreme Court, How it Was, How it is (New York: Alfred A Knopf, 1987), at 165.Google Scholar

56 See Braxton v United States, 500 US 342, 247–8 (1991), Stern et al, at 167–84.Google Scholar

57 Baker, at 617.Google Scholar

58 A noticeable omission from Rule 10's lists of grounds for review is the correction of lower court error. The function of supervising the lower courts in their application of federal law is primarily a matter for the federal courts of appeals and state supreme courts. Since the Community judicial system lacks comparable institutional safeguards, the task of overseeing national court interpretation of Community law falls squarely on the shoulders of the Court of Justice.Google Scholar

59 Rehnquist, at 264–6 arguing that a significant number of petitions, perhaps as many as half, are patently without merit and do not even reach the stage of being discussed at a conference of the justices).Google Scholar

60 A further criticism, levelled at the current Court from time to time, and the converse of the complaint in Luxembourg, is that the current Court is not deciding enough cases or, specifically, enough important cases. If the Court of Justice has t oo little flexibility, the Supreme Court is said to have too much.Google Scholar

61 Jacqué, JP and Weiler, JHH, ‘On the Road to European Union—A New Judicial Architecture: An Agenda for the Intergovernmental Conference’ (1990) 27 CML Rev 185, at 192–5.Google Scholar

62 Ibid, at 193.

63 The Role and Future of the European Court of Justice (London: British Institute of International and Comparative Law, 1996) (hereinafter Slynn Report).Google ScholarPubMed

64 A power of selection is broader than the concept of a filter. A supreme court or a lower court may exercise selective mechanisms and the criteria of selection may be very wide. Filters are one form of case selection and tend to be applied by a supreme court on the basis of clearly defined criteria. See also Turner and Munoz, at 89–90.Google Scholar

65 Slynn Report, at 117.Google Scholar

66 Ibid.

67 Ibid, at 117–18.

68 Ibid, at 118–19.

69 Courts' Discussion Paper, above n 6, at 23.Google Scholar

70 Ibid, at 25.

71 Ibid.

72 Contribution by the Court of Justice and the Court of First Instance to the Intergovernmental Conference (Apr 2000), at 3.Google Scholar

73 Due Report, at 28–9.Google Scholar

74 Ibid, at 21.

75 The essential purpose of the Working Party's proposed reforms was that ‘the national courts themselves should be better placed to give informed decisions on a growing number of questions of Community law which they meet in the exercise of their national jurisdiction’, ibid, at 18. The proposals included: limiting references from courts of last resort to questions which are ‘sufficiently important’ for EC law; weeding out ‘irrelevant, premature or poorly prepared references’; and increasing recourse to preliminary ruling by reasoned order. Ibid, at 15–18.

76 The Commission's Working Party highlighted that the failure rate of the approximately 30 per cent of appeals that are brought against the decisions of the CFI runs as high as 75 per cent to 93 per cent. Due Report, at 28.Google Scholar

77 Ibid, at 29.

78 The en bane procedure in the US courts of appeals might serve as an alternative model. See Fed R App Proc, 35.Google Scholar

79 A definition suggested by the Due Report, at 29Google Scholar

80 Jacqué and Weiler, at 193. Presumably, this criterion would be limited to errors of law, given that the Court's appellate jurisdiction does not extend to points of fact.Google Scholar

81 In the case of preliminary rulings, at least, the Treaty of Nice prescribes an additional safeguard, namely, the possibility that the CFI will decline jurisdiction in favour of the Court.Google Scholar

82 Koopmans, T, ‘The Future of the Court of Justice of the European Communities‘ (1991) 11 Ybk Eur L 15, at 29.Google Scholar

83 The present discussion refers to the original version of the preliminary reference contained in Art 234 of the EC Treaty, although in principle any solution could potentially embrace the variants contained in Art 68 of the EC Treaty and Art 35 of the EU TreatyGoogle Scholar

84 Costello, at 58.Google Scholar

85 See Advocate General Jacobs's opinion in Case C-338/95, Wiener v Hauptzollamt Emmerich [1997] ECR I-6495.Google Scholar

86 Case 314/85, Foto-Frost [1987] ECR 4199. But see the recent Opinion of Advocate General Jacobs in Case C-500 P, Unión de Pequeños Agricultores v Council [2002] ECR I-6677.Google Scholar

87 The Court has declined to respond to requests for preliminary rulings for a number of reasons. See, eg, Case 104/79, Foglia [1980] ECR 745 (the main action does not involve a genuine dispute); Case C-342/90, Dias [1991] ECR I-4673 (the questions are not unconnected to the main action); Case C-83/91, Meilicke [1992] ECR I-4673 (the questions posed are purely hypothetical); Case C-167/94, Grau Gromis [1995] ECR I-1023 (requests for interpretation of provisions of the TEU over which the Court has no jurisdiction); Case C-307/95, Max Mara [1995] ECR I-5083 (questions are unrelated to the interpretation of Community law). See also, the opinion of Advocate General Jacobs in Case C-338/95, Wiener v Hamptzollamt Emmerich [1997] ECR I-6495 at 6502 (foreshadowing the current admissibility test). See generally, T Kennedy, ‘First Steps Towards a European Certiorari?’ (1993) 18 EL Rev 121; C Barnard and E Sharpston, ‘The Changing Face of Article 177 References’ (1997) 34 CML Rev 1113.Google Scholar

88 See some Member State submissions to IGC 2000, eg, above n 11.Google Scholar

89 See, eg, Contribution from the CCBE to the Intergovernmental Conference, CONFER/VAR 3966 (18 May 2000).Google Scholar

90 The Court's explanation of the threat is cast in vague and less than compelling terms. See also Arnull, at 519 (arguing that a filtering system is ‘unattractive’ because it could damage the spirit of cooperation on which Art 234 rests).Google Scholar

91 Koopmans at 30.Google Scholar

92 This enhanced role for the national courts was the imperative behind the proposals of the Commission's Working Party. See Due Report, at 18.Google Scholar

93 Jacqué and Weiler' s filter proposal did not suffer from this deficiency; in their alternative judicial system, the European High Court of Justice would exercise discretionary jurisdiction over appeals from decisions and preliminary rulings of intermediate Community Regional CourtsGoogle Scholar

94 Due Report, at 18. In addition, the Courts' Discussion Paper, at 24 cited a green light system as a beneficial means of mitigating the drawbacks of a filtering system.Google Scholar

95 An objection noted by the Slynn Report, at 82. The Report also predicted that this approach would add to the burden of translation.Google Scholar

96 See, eg, Case 19/81, Burton v British Railways Board [1982] ECR 555; Joined Cases C-171 and 172/94, Mercks and Neuhuys v Ford Motors [1996] ECR I-1253. See generally, Court of Justice, Note for Guidance on References by National Courts for Preliminary Rulings (1997).Google Scholar

97 See, eg, Courts' Discussion Paper at 24; Slynn Report, at 118Google Scholar

98 See, eg, Turner and Munoz, at 66 speculating that national courts may choose not to refer through fear of their reference being rejected.Google Scholar

99 A suggestion offered by Koopmans, at 29–30.Google Scholar

100 One proposal that made little headway at IGC 2000 was to limit, or remove altogether, the right of lower national courts to refer.Google Scholar

101 Koopmans, at 30 (citations omitted).Google Scholar

102 Ibid, at 31: ‘[I]t may be necessary to have a second look at the problem after some time, in particular when delays for getting an answer to questions for preliminary rulings will again begin to increase. The moment may come that the disadvantages inherent in certiorari systems are less important than those resulting from the existing situation.’

103 A reduced preliminary reference caseload for the Court of Justice would in itself remove the need for a filter. Depending on the nature of preliminary references over which the CFI exercises jurisdiction, it might be incongruous to provide the national courts with automatic access to the CFI but limited access to the Court of Justice. Nevertheless, a discretionary jurisdiction for the CFI would be a non-starter for several reasons, not least because certiorari is feted as a boon to the Court of Justice's uniquely constitutional mandate.Google Scholar