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II. European Court of Justice and Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters

Published online by Cambridge University Press:  17 January 2008

Karl Newman  and
Paul Beaumont
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Extract

The last time this column appeared1 there was considerable discussion about the proposals being considered at the then ongoing intergovernmental conference (IGC). Not surprisingly the proposals of the UK government in its Memorandum on the Court of Justice were not adopted in the Treaty of Amsterdam. No institutional changes have been made in relation to the Court of Justice and the Court of First Instance. So the approval of their Rules of Procedure is still subject to the approval of the Council and their terms of office are still six years but can be renewed.

Type
Current Developments: European Community Law
Information
International & Comparative Law Quarterly , Volume 48 , Issue 1 , January 1999 , pp. 223 - 229
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. (1997) 46 I.C.L.Q. 205–212.Google Scholar

2. Case C-321/95P Greenpeace and Others v. Commission, judgment of 2 Apr. 1998.Google Scholar

3. Idem, paras.28–29.

4. For the position of the Court before and in the light of the nine-judge decision in Case C-309/89 Codorniu v. Council [1994] E.C.R. 1–1853Google Scholar see Weatherill, and Beaumont, , EC Law (2nd edn, 1995), pp.227–246.Google Scholar

5. See Proceedings of the Court of Justice and Court of First Instance of the EC No 36/97.

6. One partial solution to the problem of the CFI's backlog of cases has been proposed by the ECJ and the CFI to the Council to permit the CFI to allow single judges to hear certain cases. Single judges would not be able to hear cases involving competition, State aid, antidumping and cases on the validity of Community legislation of general application. It would allow single judges to deal, inter alia, with actions by non-privileged applicants challenging the validity of Community decisions. This is a worthwhile proposal which has gained the support of the House of Lords Select Committee on the European Communities. The Court of First Instances: Single Judge (Session 1997–98, 25th Report). However, it has proved controversial and can come to pass only if it obtains the unanimous approval of the Council.

7. H. Rasmussen suggests docket control for the ECJ by giving it the power to vet appeals from the CFI by a system of leave to appeal and by giving the CFI jurisdiction over preliminary rulings; see European Court of Justice (1998), pp.166–168.Google Scholar He also suggests liberalising locus standi for private applicants (see chap.6) but has little or nothing to say about how the CFI is supposed to cope with its burgeoning case load.

8. (1997) O.J. C340/203.Google Scholar This is part of the new Title IV of the EC Treaty inserte at Amsterdam on Visas, Asylum, Immigration and other policies related to Free Movement of Persons, but for the purpose of this note the focus is on the private international law competence only.

9. Art.251 can be combined with unanimity in the Council, e.g. Art 18(2) (ex Art.8a(2)) EC.

10. See Art.68(1) (ex Art.73p) EC.

11. See Art.68(3) EC.

12. See the need to “contextualise” questions discussed in Weatherill and Beaumont, op. cit. supra n.4, at pp.289–290Google Scholar and the Court's Guidance on References by National Courts for Preliminary Rulings [1997] 1 C.M.L.R. 78, 80.Google Scholar

13. Art.67(2) EC.

14. Art.69 (ex Art.78q) EC.

15. See (1997) O.J. C340/99.Google Scholar

16. If qualified majority voting is used, some time after the five-year transitional period, it is sufficient to get the same proportion of weighted votes as are required under Art.205(2) (ex Art.148(2)) EC with the UK and/or Ireland votes removed.

17. See Art.4 of the Protocol. The provisions as to how the UK or Ireland then become bound by that measure are very vague because the procedures established for opting in to an area of closer co-operation under Art.11(3) (ex Art.5a ) EC are to apply mutatis mutandis but those procedures are not a model of clarity.

18. See (1997) O.J. C340/101.Google Scholar Denmark can choose under Art.5 of the Protocol, within six months of the Council deciding on a proposal or initiative building on the Schengen acquis, to implement that measure into Danish law. However, the Schengen acquis does not relate to private international law issues.

19. The author has personal experience of this in the ad hoc Council Working Party on the Revision of the Brussels and Lugano Conventions which began in Jan. 1998.

20. See Art. 7 of the Protocol. This may present serious political problems in Denmark because some of the issues in Title IV are politically sensitive and were implicated in the Edinburgh European Council Decision of December 1992 which turned around the referendum decision in Denmark on the Treaty on European Union; see Weatherill, and Beaumont, , EC Law (1st edn, 1993), pp.773–779, esp. p.777.Google Scholar

21. See Title VI of the TEU, Arts.29–45 (ex Art.K). Discussed by Walker (1998) 47 I.C.L.Q. 231.Google Scholar

22. See Art.K.1 of the TEU.

23. Of course the Brussels II Convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters was adopted under Art.K of the TEU on 28 May 1998 (1998) O.J. C221.Google Scholar It will come into force when ratified by all 15 current member States, however all the provisions of the Convention, apart from the jurisdiction of the Court of Justice, can be applied between member States who make a declaration allowing for this pending the entry into force of the Convention (Art.47) France and Germany have made a political commitment to give bilateral effect to the Brussels II Convention as soon as possible. The ECJ will have jurisdiction to give rulings on the Convention when it comes into force (Art.45) but only in relation to those States which ratify the Protocol on the interpretation of the Convention by the ECJ: (1998) O.J. C221/20.Google Scholar The Protocol will enter into force once the Convention has entered into force and the Protocol has been ratified by three States. States ratifying the Protocol have the option to allow only the highest courts in the country to refer cases to the ECJ (such a reference being mandatory) or to follow the 1971 Protocol to Brussels I and also allow courts sitting in an appellate capacity to refer (such a reference being discretionally even if permitted). Art.6 of the Protocol also contains a provision just like Art.4 of the 1971 Protocol to the Brussels Convention discussed above. One of the main concerns about this Protocol is the delay in getting a preliminary ruling from the ECJ (at the end of 1997 the average length of time was 21.4 months). Such a delay can be conclusive of the outcome of a custody dispute, which falls within the scope of the Convention, because a court will, in all but the most extreme cases, no longer be in a position to upset the interim custody arrangements at the end of litigation which has gone to the highest court in the member State and then waited 21 months to be decided in the ECJ because it will not be in the best interests of the child to disrupt the arrangements which have been in place for such a long period of time. The drafters of the Convention were aware of the problem and a declaration was annexed to the minutes of the Council meeting on 28 and 29 May 1998 which commits the Council, together with the ECJ, to examine possible ways of reducing the length of such delays (see (1998) O.J. C221/18).Google Scholar One must be sceptical about the likelihood of an appropriate fast-track system being discovered; see the House of Lords Select Committee on the European Communities, Brussels II: The Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters (Session 1997–98, 5th Report), esp. at pp.19–20 and 24.Google Scholar

24. A partial answer to the question was given by Beaumont, , “A United Kingdom Perspective on the Proposed Hague Judgments Convention” (1998) XXIV Brooklyn J.Int.L. 75–109 at n.13, for the purpose of the Hague Judgments Convention negotiations which are due to conclude in 2000. Whatever the legal analysis it seems that it would be politically inept for the Commission at the last stages of the negotiations to try to assert a new Community competence to negotiate at The Hague on behalf of the 12.Google Scholar

25. See Beaumont, idem, n.23. It is recognised that an external Community competence can be implied from the express provisions of the EC Treaty. In particular, “whenever Community law has created for the institutions of the Community powers within its internal system for the purpose of attaining a specific objective, the Community is empowered to enter into the international commitments necessary for attainment of that objective even in the absence of an express provision to that effect”. Opinion 2/94 [1996] E.C.R. 1–1759, 1787.Google Scholar However, the objective of Art.65 EC is to take measures in the field of judicial co-operation in civil matters which are “necessary for the proper functioning of the internal market”. The phrase “internal market” points towards internal measures as the logical route to achieve this objective. External treaties on private international law, particularly at the Hague Conference on Private International Law, are likely to regulate things which go well beyond the proper functioning of the community's internal market.

26. See Council Resolution of 18 Dec. 1997 on the justice and home affairs priorities up to the entry into force of the Treaty of Amsterdam (1998) O.J. C11/1, 2. See also JUSTCIV 59, Council of the European Union, 9755/98.Google Scholar

27. Lamentably these protocols are still not in force.