The rule of law and the coherence of the judicial system of the European Union

Common Market Law Review

Volumn 44, Issue 6, 2007, Pages 1625-1659

  Lenaerts, Koen ^a,b  

^a Court of Justice of the European Communities ^*

^b UNIVERSITY OF LEUVEN   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 49249096186     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (232)

1. Although this text deals with the judicial system of the EU, thereby extending to the non-Community pillars of the Union, the traditional expressions, "Community courts" and "Community judicature", will still be used.
2. Art. 6(1) TEU provides: "The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States."
3. Case 294/83, Parti écologiste 'Les Verts' v. European Parliament, [1986] ECR 1339.
4. Ibid., para 23.
5. See e.g. "Editorial comments: The rule of law as the backbone of the EU", 44 CML Rev. (2007), 875-881;
6. Bertea, "Looking for coherence within the European Community", 11 ELJ (2005), 154, 160-161.
7. 'Les Verts', supra note 3, para 23.
8. Ibid.
9. Case C-50/00 P, Unión de Pequeños Agricultores (UPA) v. Council, [2002] ECR I-6677,
10. affirming Case T-173/98, Unión de Pequeños Agricultores v. Council, [1999] ECR II-3357.
11. Case C-263/02 P, Commission v. Jégo-Quéré & Cie SA, [2004] ECR I-3425,
12. setting aside Case T-177/01, Jégo-Quéré & Cie SA v. Commission, [2002] ECR II-2365.
13. Cf. e.g. Case C-491/01, British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd ("BAT"), [2002] ECR I-11453. This case is further discussed infra at note 19 and accompanying text.
14. Moreover, it would be difficult to argue that there are no gaps in the system if the sole form of legal remedy for challenging the compatibility of a Community act with superior Community law was for a party to be subject to administrative or criminal proceedings and to any penalties that may result from having infringed the Community act whose legality is being contested. Such legal remedy would undoubtedly not be sufficient to secure effective judicial protection for the natural or legal person concerned. Cf. Case C-432/05, Unibet (London) Ltd and Unibet (International) Ltd ("Unibet"), judgment of 13 March 2007, nyr, para 64. This case is further discussed infra in section 4.1.
15. See Opinion of A.G. Jacobs in the UPA appeal, cited supra note 8, paras. 59-60, 103.
16. See Case T-177/01, Jégo-Quéré v. Commission, paras. 50-51.
17. UPA appeal, cited supra note 8, paras. 46-47.
18. Jégo-Quéré appeal, cited supra note 9, paras. 39, 50.
19. UPA appeal, cited supra note 8, paras. 43-45.
20. UPA appeal, cited supra note 8, para 41;
21. Jégo-Quéré appeal, cited supra note 9, para 31.
22. UPA appeal, cited supra note 8, para 42;
23. Jégo-Quéré appeal, cited supra note 9, para 32.
24. BAT, supra note 10, paras. 39-41.
25. Joined Cases C-27/00 & C-122/00, Omega Air Ltd and Others, [2002] ECR I-2569. Here, the Court did not even consider the issue of admissibility of the reference for a preliminary ruling, which was triggered by way of a request for declaratory relief in the English and Irish courts: see ibid., para 39.
26. See UPA appeal, cited supra note 8, para 45.
27. Draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community, CIG 1/07, dated 23 July 2007 (hereinafter Draft Reform Treaty), available at the website of the Council of the European Union, (1 Oct. 2007).
28. nd ed. (Sweet & Maxwell, 2006) paras. 7-186 to 7-188, at 327-328.
29. Draft Reform Treaty Art. 9(f)(1), second para, point 20, at 16. This provision is identical to Art. I-29(1), second para of the Constitutional Treaty.
30. The first para of Art. 47 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 Dec. 2000, O.J. 2000, C 364/1, provides: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article." Under the Draft Reform Treaty, the text of the Charter is not included in the Treaties, but can presently be found in Draft Declaration (No. 11) on the proclamation of the Charter of Fundamental Rights by the European Parliament, the Council and the Commission: see Draft Declarations, CIG 3/07, 23 July 2007, at 8, also available at the website of the Council, as cited supra note 22. As stated therein, the Charter will be re-enacted by the three Institutions on the day that the Draft Reform Treaty is signed and will be published in the Official Journal.
31. See Draft Reform Treaty Art. 6(1), point 8, at 6;
32. Draft Declaration (No. 31) concerning the Charter of Fundamental Rights, at 55.
33. In its judgment of 24 Sept. 2002 in Case 27824/95, Posti and Rahko v. Finland, [2002] ECHR 634, the ECtHR ruled that the ECHR had been violated on account of the fact that no remedy was available against a Finnish decree which curtailed the applicants' rights. The idea that one could obtain judicial review by first breaching the contested act was rejected by the ECtHR in the following terms: "no one can be required to breach the law so as to be able to have a 'civil right' determined in accordance with Article 6 § 1." Ibid., para 64.
34. See Case C-432/05, Unibet, supra note 11, discussed infra in section 4.1.
35. th Anniversary of the Rome Treaty (Hart Publishing, forthcoming 2007).
36. Case C-354/04 P, Gestoras Pro Amnistía and Others v. Council, judgment of 27 Feb. 2007, nyr;
37. Case C-355/04 P, Segi and Others v. Council, judgment of 27 Feb. 2007, nyr.
38. Since the relevant part of the Court's findings in the two cases is practically identical, reference will be made only to the former judgment. For recent discussion of the cases and their implications, see Peers, "Salvation outside the Church: Judicial protection in the Third Pillar after the Pupino and Segi judgments", 44 CML Rev. (2007), 883;
39. Garbagnati Ketvel, "Almost but not quite: The Court of Justice and Judicial Protection of Individuals in the Third Pillar", (2007) European Law Reporter, 223;
40. Nettesheim, "U.N. sanctions against individuals - A challenge to the architecture of European Union governance", 44 CML Rev. (2007), 567.
41. Gestoras Pro Amnistía, supra note 30, paras. 46-48.
42. See ibid., para 1.
43. Ibid., para 51.
44. Ibid., paras. 52-53.
45. Ibid., para 53. The Court also pointed out that it had jurisdiction to review the lawfulness of such acts under circumstances where either a Member State or the Commission brought an action pursuant to Art. 35(6) TEU, and it stressed the national court's role in interpreting and applying national procedural rules so as to enable natural and legal persons to challenge before such court the lawfulness of national measures relating to Union acts and to seek damages where appropriate. Ibid., paras. 55-56.
46. In view of the proposed amendments of Art. 230 EC by the Draft Reform Treaty, the Court would be given jurisdiction to "review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties." See Draft Reform Treaty, point 218(a), at 116. The Draft Reform Treaty would also provide for specific arrangements to be made in this regard: see ibid., point 218(d), at 116. The Constitutional Treaty contained virtually identical provisions: see Art. III-361(1) and Art. III-365(5), respectively.
47. In this regard, the amendments brought by the Draft Reform Treaty would not substantively change the present Art. 235 EC and Art. 288, second para EC: see Draft Reform Treaty, point 286, at 141. This had also been the case for the Constitutional Treaty: see Art. III-370 and Art. III-431, second para.
48. See Draft Reform Treaty Art. 66, point 61, at 58 and Art. 240b, point 226, at 118, which are virtually the same as Constitutional Treaty Art. III-262 and Art. III-377, respectively.
49. Case 314/85, Foto-Frost, [1987] ECR 4199.
50. Ibid., para 17.
51. Case C-344/04, International Air Transport Association and European Low Fares Airline Association ("IATA"), [2006] ECR I-403. Certainly, this was not the only issue raised in the case: see St Clair Bradley, case note, 43 CML Rev. (2006), 1101.
52. Ibid., para 28.
53. Ibid., para 29.
54. Ibid., paras. 30, 32.
55. See also, with particular emphasis on the obligations of the highest national courts under Art. 234(3) in this regard, Case C-461/03, Gaston Schul Douane-expediteur BV, [2005] ECR I-10513, paras. 17-25.
56. See Art. 68(1) EC.
57. See Art. 67(2), second indent EC.
58. See Commission Communication, "Adaptation of the provisions of Title IV of the Treaty establishing the European Community relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection", COM(2006)346 final, 28 June 2006. For further discussion, see "Editorial comment, Preliminary rulings and the area of freedom, security and justice", 44 CML Rev. (2007), 1, 2-5.
59. See Draft Reform Treaty, points 60-63, at 56-63 and point 65, at 68-69.
60. According to the 2005 Notice issued by the Council (O.J. 2005, L 327/19; O.J. 2005, C 318/1), only 14 Member States have made declarations accepting the Court's preliminary ruling jurisdiction. Spain and Hungary submitted declarations allowing only the highest courts to make references, whereas the remaining 12 Member States (Austria, Belgium, the Czech Republic, Finland, France, Germany, Greece, Italy, Luxembourg, the Netherlands, Portugal and Sweden) submitted declarations allowing both the lower and the highest courts to make such references. Since then, Slovenia has decided to make a declaration opting for the latter, more extensive category. To date, the remaining 12 Member States have not submitted any declaration.
61. See Draft Reform Treaty, point 50, at 33;
62. points 60-61, at 56-59;
63. and points 64-65, at 63-69.
64. Case C-188/92, TWD Textilwerke Deggendorf GmbH, [1997] ECR I-833.
65. Ibid., paras. 17, 24.
66. Ibid., para 18.
67. Case C-441/05, Roquette Frères, judgment of 8 March 2007, nyr.
68. Ibid., paras. 1, 26-33.
69. Ibid., paras. 42-44.
70. Ibid., para 45. As the Court found the requirement of "direct concern" lacking in relation to the applicant, this could explain why it did not proceed further as regards the assessment of the requirement of "individual concern" for the purposes of Art. 230(4) EC. But see Opinion of A.G. Kokott in Case C-441/05, Roquette Frères, supra note 54, paras. 44-53 (concluding that Roquette Frères was not individually concerned by the contested provisions of the Community regulations).
71. Ibid., paras. 47-48 of the judgment. The fact that the applicant was the only isoglucose producer in France and had been assigned the entire basic production quantity allocated under the relevant Community measures did "nothing to change that finding": ibid., para 46.
72. Case C-68/95, T. Port GmbH & Co KG, [1996] ECR I-6065.
73. Ibid., para 53.
74. Ibid., paras. 58-61.
75. Ibid., para 58.
76. Case C-511/03, Ten Kate Holding Musselkanaal BV and Others, [2005] ECR I-8979.
77. Ibid., paras. 17, 20. Moreover, an action for damages against the Community would not have been of use to the applicants in this case: see ibid., para 17.
78. Ibid., para 32.
79. Ibid., para 29.
80. 'Les Verts', supra note 3, para 23. For the complete passage, see text supra at note 4.
81. See e.g. Case C-129/00, Commission v. Italy, [2003] ECR I-14637 (concerning the practices of the national courts and administrative authorities). For further discussion of this case and its relationship with Kühne & Heitz and Köbler (the latter is mentioned infra at notes 92 and 146), see Di Federico and Rossi, case note, 42 CML Rev. (2005), 829;
82. Komárek, "Federal elements in the Community judicial system: Building coherence in the Community legal order", 42 CML Rev. (2005), 9.
83. See Art. 211, first indent EC.
84. In fact, by virtue of the recent judgment, Case C-494/01, Commission v. Ireland ("Irish waste case"), [2005] ECR I-3331, the Commission can bring an action not only in relation to individual incidents of infringements, but also as regards a Member State's "general and persistent" breach of Community law, which has been considered to greatly augment the Commission's enforcement powers in this regard. For further discussion, see Wennerås, "A new dawn for Commission enforcement under Articles 226 and 228 EC: General and persistent (gap) infringements, lump sums and penalty payments", 43 CML Rev. (2006), 31;
85. Schrauwen, "Fishery, waste management and persistent and general failure to fulfil control obligations: The role of lump sums and penalty payments in enforcement actions under Community law", 18 Journal of Environmental Law (2006), 289.
86. See e.g. recently, Case C-145/04, Spain v. United Kingdom, [2006] ECR I-7917 (concerning European elections in Gibraltar).
87. Art. 228(1) EC.
88. Art. 228(2), third para EC.
89. Case C-304/02, Commission v. France, [2005] ECR I-6263.
90. See Art. 228(2), second and third paras. EC (emphasis added).
91. Case C-304/02, Commission v. France, supra note 74, paras. 82-83.
92. The Court also affirmed that it could impose a sanction different from that proposed by the Commission, thereby departing from its request: see ibid., paras. 89-97.
93. For detailed analysis of the case and its implications, see Wennerås, op. cit. supra note 70, at 50-61;
94. Clément-Wilz, "Une nouvelle interprétation de l'article 228-2 CE favorisée par le dialogue entre la Cour et son Avocat général", 41 CDE (2005), 725;
95. Kilbey, "Financial penalties under Article 228(2) EC: Excessive complexity?", 44 CML Rev. (2007), 743;
96. Schrauwen, op. cit. supra note 70.
97. See Art. 228(2), first and second paras. EC.
98. Draft Reform Treaty, point 216(a), at 115. This amendment appeared in almost identical terms in Constitutional Treaty Art. III-362(2), first para.
99. In light of the proposed changes to Art. 249 EC by the Draft Reform Treaty, this is essentially meant to denote directives that are legislative, as opposed to non-legislative, acts. See Draft Reform Treaty Art. 249a, point 239, at 121.
100. Draft Reform Treaty, point 216(b), at 115. Moreover, this provision specifies that where the Court finds that there is an infringement, "it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission." Ibid. (emphasis added). Both of these proposed changes had already been taken up in Art. III-362(3) of the Constitutional Treaty, as highlighted by A.G. Geelhoed's (second) Opinion in Case C-304/02, Commission v. France, supra note 74, para 27.
101. Yet, for all other types of infringements, such as a Member State's incorrect implementation of directives (as opposed to the failure to take any implementing measures), the normal procedure would still stand, whereby the imposition of a pecuniary sanction would be conditional upon a first judgment of the Court finding against the Member State and non-compliance with the judgment by the Member State concerned.
102. See Arts 60 and 72, Vienna Convention on the Law of Treaties, signed 23 May 1969, 1155 U.N.T.S 331.
103. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, O.J. 2002, L 190/1.
104. Judgment of the Bundesverfassungsgericht of 18 July 2005, 2 BvR 2236/04, (2005) Dvbl, at 1119-1128,
105. which is reprinted in (2006) 1 C.M.L.R. 16. In the relevant part, the German Constitutional Court underscored the differences between the Community pillar and the Third Pillar.
106. See further Aust, "German Constitutional Law Cases 2004-2006", 13 EPL (2007), 219-221;
107. Hinarejos Parga, case note, 43 CML Rev. (2006), 583;
108. Mölders, case note, 7 German Law Journal (2005), 45;
109. Tomuschat, "Inconsistencies: The German Federal Constitutional Court on the European Arrest Warrant", 2 European Constitutional Law Review (EuConst) (2006), 209.
110. For general discussion of the problems encountered by certain constitutional courts of the Member States in relation to the transposition of the Framework Decision on the European arrest warrant and the broader implications, see Komárek, "European constitutionalism and the European arrest warrant: In search of the limits of 'contrapunctual principles'", 44 CML Rev. (2007), 9.
111. See Commission Report on the implementation since 2005 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, COM(2007)407 final, 11 July 2007, point 2.1.2, at 5;
112. see also Böhm, "Das neue Europäische Haftbefehlsgesetz", (2006) NJW, 2592.
113. nd ed. (Sweet & Maxwell, 2005) para 6-014, at p. 336;
114. Lenaerts and Van Nuffel, "La Constitution pour l'Europe et l'Union comme entité politique et ordre juridique", 41 CDE (2005) paras. 38-39, at 51-53.
115. Art. 42 TEU provides for a right of initiative of either the Commission or a Member State to propose that action in areas referred to in Art. 29 TEU concerning police and judicial cooperation in criminal matters should fall within Title IV of the EC Treaty. However, this provision further states that the decision on the use of Art. 42 TEU is subject to unanimity in the Council, after consultation with the European Parliament, and it must be adopted in accordance with the Member States' constitutional requirements.
116. See Commission Communication, "Implementing The Hague Programme: the way forward", COM(2006)331 final, 28 June 2006, para 3.2.
117. See infra notes 110-114 and accompanying text.
118. See Lenaerts and Van Nuffel, "Constitutional Law ⋯" op. cit supra note 87, paras. 17-012 to 17-014, at 674-678.
119. Case C-224/01, Köbler v. Austria, [2003] ECR I-10239.
120. Case C-173/03, Traghetti del Mediterraneo SpA in Liquidation v. Italy, [2006] ECR I-5177.
121. See further Ruffert, case note, 44 CML Rev. (2007), 479;
122. D'Sa, "Limits on suing an EU Member State for non-contractual damages for judicial errors made by a national court of last instance", (2006) European Current Law, xi;
123. Remy-Corlay, case note, (2006) Revue trimestrielle de droit civil, 728.
124. Traghetti, supra note 93, paras. 24, 32-41.
125. Ibid., paras. 42-46.
126. Joined Cases C-46 & 48/93, Brasserie du Pêcheur SA v. Germany and The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and Others ("Brasserie du Pêcheur and Factortame IV"), [1996] ECR I-1029.
127. See ibid., para 57, in which the Court held: "On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted an infringement."
128. Case C-130/93, Lamaire NV, [1994] ECR I-3215, para 10.
129. To this effect see already Trabucchi, "L'effet 'erga omnes' des décisions préjudicielles rendues par la Cour de justice des Communautés européennes", (1974) RTDE 56, 76;
130. Jeantet, "Originalité de la procédure d'interprétation du traité de Rome", (1966) J.C.P. Doctrine No. 1987.
131. Opinion of A.G. Warner in Case 112/76, Manzoni, [1977] ECR 1647, at 1662.
132. See Joined Cases 76, 86-89 & 149/87, Seguela and Others, [1988] ECR 2397, paras. 11-14. This is underscored by Art. 104(3) of the Rules of Procedure of the Court of Justice allowing the Court to dispose of a preliminary ruling by "reasoned order" (mentioned further infra at note 159), which combines with longstanding practice of the ECJ by which it informs the national court through a letter from the Registrar that an earlier judgment has answered its question and asks whether it still wishes to maintain its request, thereby often resulting in the withdrawal of such request. See Arnull, "Owning up to fallibility: Precedent and the Court of Justice", 30 CML Rev. (1993), 247, 252.
133. Importantly, the Court's recent judgment in Meilicke concerning the "ex tunc" effects of preliminary rulings lends further credence to their "erga omnes" effects. There, the Court stressed that "there must necessarily be a single occasion when a decision is made on the temporal effects of the requested interpretation", such that "the principle that a restriction may be allowed only in the actual judgment ruling upon that interpretation guarantees the equal treatment of the Member States and of other persons subject to Community law, under that law, fulfilling, at the same time, the requirements arising from the principle of legal certainty." Case C-292/04, Meilicke and Others, judgment of 6 March 2007, nyr, para 37. Implicit in the Court's reasoning is the fact that its ruling must be viewed as applying to all those within its purview, including the Member States and private parties. As a result, in view of prior judgments that had clarified the Community law provisions concerned for which no temporal exceptions had been granted, the Court rejected Germany's request to limit the temporal effects of the present judgment. See ibid., paras. 38-41. While A.G. Stix-Hackl likewise concluded that the temporal effects of the Court's judgment should not be limited in the instant case, her reasoning significantly diverged from that of the Court because she accepted the premise that a temporal limitation could be obtained in a later judgment, i.e., one coming after the actual judgment ruling upon the interpretation of the particular provision of Community law sought: cf. Opinion of A.G. Stix-Hackl in Meilicke, paras. 18-28.
134. See, e.g., Case C-129/96, Inter-Environnement Wallonie ASBL, [1997] ECR I-7411, para 45;
135. Case C-14/02, ATRAL SA, [2003] ECR I-4431, para 58;
136. Case C-144/04, Mangold, [2005] ECR I-9981, para 67;
137. Case C-212/04, Adeneler and Others, [2006] ECR I-6057, para 121.
138. See, e.g., Adeneler, supra note 103, paras. 122-123.
139. Joined Cases C-397-403/01, Pfeiffer and Others, [2004] ECR I-8835;
140. case note by Prechal, in 42 CML Rev. (2005), 1445.
141. While the literature involving this case is quite voluminous, for a recent selection (with further citations therein), see Dougan, "When worlds collide! Competing visions of the relationship between direct effect and supremacy", 44 CML Rev. (2007), 931;
142. Lenaerts and Corthaut, "Towards an internally consistent doctrine on invoking norms of EU law", in Prechal et al. (Ed.), The Coherence of EU Law (OUP, forthcoming 2007).
143. Council Directive 93/104/EC of 23 Nov. 1993 concerning certain aspects of the organization of working time, O.J. 1993, L 307/18.
144. Pfeiffer, supra note 105, paras. 107-109.
145. Ibid., para 113.
146. Ibid., paras. 115-116.
147. Case C-105/03, Pupino, [2005] ECR I-5285.
148. For recent discussion of this case and its implications, see Peers, op. cit. supra note 30, at 909-924;
149. Fletcher, "Extending 'indirect effect' to the Third Pillar: The significance of Pupino", 30 EL Rev. (2005), 862;
150. Lebeck, "Sliding towards supranationalism? The Constitutional Status of EU Framework Decisions after Pupino", 8 German Law Journal (2007), 501;
151. Magno, "The Pupino case: Background in Italian Law and consequences for the national judge", 8 ERA Forum (2007), 215;
152. Spaventa, "Opening Pandora's Box: Some Reflections on the Constitutional Effects of the Decision in Pupino", 3 EuConst (2007), 5;
153. Weyembergh, De Hert and Paepe, "L'effectivité du troisième pilier de l'Union européenne et l'exigence de l'interprétation conforme: la Cour de justice pose ses jalons", (2006) Revue trimestrielle des droits de l'homme, 269.
154. Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, O.J. 2001, L 82/1.
155. See Pupino, supra note 110, paras. 12-18.
156. Ibid., paras. 43-47.
157. Ibid., paras. 53-56, 61. At the same time, however, the Court ruled that the special arrangements at issue must be applied so as to ensure protection of Ms Pupino's fundamental rights, particularly the right to a fair trial under Art. 6 of the ECHR as interpreted by the ECtHR: see ibid., paras. 57-60.
158. See supra note 49.
159. For discussion of the Court's jurisprudence concerning other types of national procedural rules in this context, such as those regarding limitation periods and evidence, see generally Lenaerts, Arts and Maselis, op. cit. supra note 23, paras. 3-015 to 3-031, at 94-102;
160. th ed. (OUP, 2007) pp. 305-328.
161. Unibet, supra note 11.
162. See ibid., para 4.
163. Ibid., paras. 40-41.
164. Ibid., paras. 46-47, 55-65.
165. Ibid., para 64 (emphasis added). For the broader significance of this paragraph, also in the context of the ongoing debate relating to access to court with a view to obtaining judicial review of acts of the institutions, see supra notes 11 and 21-28 and accompanying text.
166. Joined Cases C-87-89/90, Verholen and Others, [2002] ECR I-5553, para 67.
167. The mandatory (or public policy) nature of a provision of Community law is not dependent on criteria stemming from national law, but is determined on the basis of Community law. See Case C-126/97, Eco Swiss China Time Ltd, [1999] ECR I-3055, paras. 34-39,
168. case note by Komninos, 37 CML Rev. (2000), 459;
169. see also Prechal and Shelkoplyas, "National procedures, public policy and EC law. From Van Schijndel to Eco Swiss and Beyond", 12 European Review of Private Law (2004), 589.
170. There have been recent developments in this regard in relation to the field of consumer protection: see Case C-168/05, Mostaza Claro, [2006] ECR I-10421, paras. 34-39;
171. see further Mourre, case note, (2007) Journal du droit international, 581;
172. Reich, "More clarity after 'Claro'?", 3 European Review of Contract Law (2007), 41.
173. Joined Cases C-430 & 431/93, Van Schijndel and van Veen, [1995] ECR I-4705, para 15.
174. Joined Cases C-222-225/05, Van der Weerd and Others, judgment of 7 June 2007, nyr.
175. Council Directive 85/511/EEC of 18 Nov. 1985 introducing Community measures for the control of foot-and-mouth disease, O.J. 1985, L 315/11;
176. corr. O.J. 1986, L 14/19.
177. Van der Weerd, supra note 125, para 42.
178. Under Dutch law, these rules pertained to issues concerning the powers of administrative bodies and those of the court itself, as well as provisions as to admissibility: see ibid., para 29.
179. Ibid., para 30. Compare, in another procedural context, the application of the principle of equivalence in Joined Cases C-392/04 & C-422/04, i-21 Germany GmbH and Arcor AG & Co. KG, [2006] ECR I-8559, paras. 65-72.
180. Van der Weerd, supra note 125, para 31.
181. Van Schijndel and van Veen, supra note 124.
182. Van der Weerd, supra note 125, paras. 34-38.
183. The Court picked out several notable judgments - Case C-312/93, Peterbroeck, [1995] ECR I-4599;
184. Case C-126/97, Eco Swiss China Time Ltd, [1999] ECR I-3055;
185. Joined Cases C-240-244/98, Océano Grupo Editorial and Salvat Editores, [2000] ECR I-4941;
186. Case C-473/00, Cofidis, [2002] ECR I-10875;
187. and Case C-168/05, Mostaza Claro, [2006] ECR I-10421 (two of which were mentioned supra in note 123) - and explicitly stated that they were "not relevant" to the instant case: Van der Weerd, supra note 125, paras. 39-40.
188. Van der Weerd, supra note 125, para 41.
189. See also i-21 and Arcor, supra note 129, paras. 58-64.
190. Case C-213/89, The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and Others ("Factortame I"), [1989] ECR I-2433, para 21. For general discussion of the provision of interim relief in the national courts in this regard, see Lenaerts, Arts and Maselis, op. cit. supra note 23, paras. 3-051 to 3-055, at 116-121.
191. See supra section 4.1.
192. Unibet, supra note 11, para 73.
193. Ibid., paras. 74-77.
194. Case C-119/05 Lucchini SpA, judgment of 18 July 2007, nyr.
195. Commission Decision 90/55/ECSC of 20 June 1990 concerning aid which the Italian authorities plan to grant to the Tirreno and Siderpotenza steelworks (No 195/88-No 200/88), O.J. 1990, L 314/17.
196. Indeed, A.G. Geelhoed dedicated a substantial portion of his Opinion to the obligations of the national court in this context: see Lucchini, supra note 139, paras. 49-86 of the Opinion.
197. Ibid., para 59 of the judgment.
198. Ibid., para 60.
199. Ibid., para 61.
200. Ibid., para 62.
201. Ibid., para 63. This should not be taken to mean that the ECJ does not pay heed to the role played by the principle of res judicata in the legal systems of the Member States: see Case C-224/01, Köbler v. Austria, [2003] ECR I-10239, paras. 37-40. But as demonstrated by Köbler, that principle should not stand in the way of establishing the principle of State liability for infringements of Community law by national courts adjudicating at last instance. Likewise, in Lucchini, that principle should not stand in the way of recognizing the full effect of the principle of the primacy of Community law in a context where the national courts do not have jurisdiction to decide the core issue of Community law at hand, i.e. the compatibility of a State aid project with the common market which lies within the exclusive competence of the Commission.
202. This corresponds to the Court's proclamation in Les Verts that the Community has a "basic constitutional charter, the Treaty": 'Les Verts', supra note 3, para 23. It also bears mentioning that this would continue to be the case in light of the Draft Reform Treaty.
203. See further Lenaerts, "La constitutionnalisation de l'ordre juridique de l'Union européenne", in Mélanges en l'honneur de Francis Delpérée. Itinéraires d'un constitutionnaliste (Bruylant, forthcoming 2007).
204. See Skouris, "The Position of the European Court of Justice in the EU Legal Order and its Relationship with National Constitutional Courts", 60 Zeitschrift für öffentliches Recht (2005), 323, 327 (noting that "the most accurate characterisation of the ECJ is that of a very specific court performing both the functions of a supreme and a constitutional court.").
205. See Court of Justice, Statistics of Judicial Activity in 2006, at 25, available at the website of the Court of Justice, .
206. Ibid., at 25-26.
207. For additional reflection on the ECJ's workload in relation to preliminary rulings, see Lenaerts, "The Unity of European Law and the Overload of the ECJ - The System of Preliminary Rulings Revisited", in Pernice, Kokott and Saunders (Eds.), The Future of the European Judicial System in a Comparative Perspective, 6 European Constitutional Law Network Series 211 (Nomos, 2006) (also published in 1 The Global Community. Yearbook of International Law and Jurisprudence 2005 173 (Oceana Publications, 2006)).
208. See Presidency Conclusions of the Brussels European Council of 4-5 Nov. 2004, point 3.1.
209. Constitutional Treaty Art. III-369, fourth para.
210. See Draft Reform Treaty, point 222, at 117.
211. In fact, in a recent publication, the need for the urgent preliminary ruling procedure was prefaced by reference to the Pupino case (discussed supra at notes 110-114 and accompanying text) in view of the fact that 4 years had elapsed before the testimony of the children concerned was taken: see Fichera and Janssens, "Mutual recognition of judicial decisions in criminal matters and the role of the national judge", 8 ERA Forum (2007), 177, 196-197. For further discussion of the urgent preliminary ruling procedure, see Editorial, op. cit. supra note 47, at 5-7.
212. Council Regulation (EC) No 2201/2003 of 27 Nov. 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, O.J. 2003, L 338/1.
213. Council Regulation (EC) No 2201/2003, Art. 11(3), second para; see also Arts. 11(6), 15(5) and 31(1). For further examples of Community and national rules in this regard, see Court of Justice Discussion Paper dated 25 Sept. 2006, at 2-3, available at the website of the Court of Justice, .
214. See Art. 104a of the Rules of Procedure of the Court of Justice. This should be distinguished from the expedited procedure in connection with direct actions of particular urgency before the Court of Justice and the CFI: see Art. 62a of the Rules of Procedure of the Court of Justice; Art. 76a of the Rules of Procedure of the Court of First Instance. For detailed analysis, see Barbier de la Serre, "Accelerated and expedited procedures before the EC courts: A review of the practice", 43 CML Rev. (2006), 783. This should also be seen apart from other procedural mechanisms available to the ECJ in the context of preliminary rulings, i.e. the disposal of a reference for a preliminary ruling by "reasoned order" under certain circumstances pursuant to Art. 104(3) of the Rules of Procedure of the Court of Justice.
215. See Discussion Paper cited supra note 158, at 4; Court of Justice Discussion Paper dated 21 Dec. 2006, at 2, available at the website of the Court of Justice, .
216. See Draft Amendments to the Statute of the Court of Justice and Draft Amendments to the Rules of Procedure of the Court of Justice, available at , both dated 21 June 2007 and transmitted to the Council on 5 July 2007.
217. The Draft Reform Treaty would in any case do away with the present limits on the ECJ's preliminary ruling jurisdiction under Art. 68 EC and Art. 35 TEU: see supra notes 48 and 50 and accompanying text, respectively.
218. See Art. 20, fifth para of the Statute of the Court of Justice.
219. For further discussion of these procedural reforms, see Lenaerts, op. cit. supra note 152, at 236-238.
220. Art. 225(3), first para EC (emphasis added). At the outset, it should be noted that aside from certain proposed changes in relation to renaming the judicial panels "specialized courts" and prescribing their establishment by way of the co-decision procedure involving the Council and the European Parliament, the Draft Reform Treaty would essentially leave untouched the relevant provisions of Arts. 225 and 225a EC as discussed herein. See Draft Reform Treaty, point 20, at 16 and points 214-215, at 114-115.
221. Case C-338/95, Wiener S.I. GmbH, [1997] ECR I-6495.
222. Such a court would at present essentially deal with the rising number of trademark cases pending in the CFI. Moreover, the European Commission has already submitted a Proposal for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance, COM(2003)828 final, 23 Dec. 2003;
223. see also its Proposal for a Council Decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent, COM(2003)827 final, 23 Dec. 2003. This is so even though the instrument providing for the Community patent has not yet been adopted.
224. However, there have been recent developments in this regard: see Commission Communication, "Enhancing the patent system in Europe", COM(2007)165 final, 3 April 2007,
225. with comments by the Editorial, "Patent failure?", 32 EL Rev. (2007), 293.
226. See also Art. 225a, third para EC.
227. Art. 225(2), second para EC provides for the Court of Justice's exceptional review of the CFI's judgments concerning appeals from the judicial panels, whereas Art. 225(3), third para EC concerns the Court of Justice's exceptional review of the CFI's preliminary rulings. In both cases, under Art. 62 of the Statute of the Court of Justice, the First A.G. may propose that the Court of Justice review the CFI's decision where he "considers that there is a serious risk of the unity or consistency of Community law being affected".
228. See Art. 225(1), first para EC.
229. See Council Decision 2004/407/EC, Euratom of 26 April 2004 amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice, O.J. 2004, L 132/5;
230. corr. O.J. 2004, L 194/3.
231. Art. 225(1), first para EC.
232. This is somewhat analogous to Art. 225(3), second para EC, which would allow the CFI to refer a preliminary ruling to the Court of Justice where the case requires "a decision of principle likely to affect the unity or consistency of Community law."