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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

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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

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

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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

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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

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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

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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

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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