Present and future European judicial problems after enlargement and the post-2005 ideological revolt

Common Market Law Review

Volumn 44, Issue 6, 2007, Pages 1661-1687

  Rasmussen, Hjalte ^a  

^a UNIVERSITY OF COPENHAGEN   (Denmark)

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EID: 57249087637     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (51)

1. The paper represents a continuation and updating of my article entitled: Remedying the Crumbling EC Judicial System, 37 CML Rev. (2000), 1071-1112. I would like to thank Prof. Jacqueline Dutheil de la Rochère for her clear and convincing observations at the inception of this paper. Needless to say, the usual disclaimer applies.
2. The term "groundbreaking" is borrowed from a speech by the President of the Court of Justice, Vassilios Skouris, entitled "Self-Conception, Challenges and Perspectives of the EU Courts", published in The Future of the European Judicial System in a Comparative Perspective, 6 European Constitutional Law Network Series, pp. 19-31, at 24-25 (Nomos, 2006; papers from a conference held in September 2005).
3. Weiler, "The Essential (and Would-Be Essential) Jurisprudence of the European Court of Justice: Lights and Shadows too", in source cited in preceding footnote, pp. 117-127, at 119.
4. Ibid., at page 122.
5. A note on terminology: the texts below refer throughout to the European Court of Justice as "the Court" - in singular. When the focus encompasses the Court of First Instance (CFI) the essay refers to "The Courts", in the plural.
6. The formula is borrowed from Timmermans, "The European Union's Judicial System", 41 CML Rev. (2004), 393-405, at 405. The culture aspect is discussed in some detail below.
7. See in general "Editorial comment: What now?", 42 CML Rev., 905-911.
8. See "Editorial comments: From the Constitution to a new round of treaty amendments: Step-by-step", 44 CML Rev., 1229-1236.
9. The Economist, 24 May 2007.
10. When this paper was drafted, the European Council had not yet met to discuss and possibly adopt the so-called Reform Treaty.
11. More about this, infra section 4, in fine.
12. The Court's Discussion paper of September 2007 on certain problems for preliminary rulings in the area of freedom security and justice is an exception, but concerns a very specific issue. The paper is available on the Court's website.
13. Amongst the multiple official and semi-official reports and valuable work done by think-tanks, the following two drew most interest: Court of Justice and Court of First Instance, The Future of the Judicial System of the European Union (Proposals and Reflections) (Luxembourg, 1999);
14. and the European Commission's so-called Due Report: Report by the Working Party of the Future of the European Communities' Court System (the latter is of 2000).
15. It should be added, also, that the President of the Court communicated directly with the outside world via the press - to get the judicial reform issue off the ground: The EC Court of Justice and Institutional Reform of the European Union (2000; also published in Le Monde of 28 April, 2000).
16. We refer here of course to discussion of the Court's policies and functioning in general, not to comments on individual pending or resolved cases.
17. See for example the Court's judgment in cases such as Case C-353/99, P Council v. Hautala, [2001] ECR I-9565, in which the governments of Denmark, Finland, Sweden, UK and France argued in support of Hautala; or Case T-105/95, World Wide Fund for Nature v. Commission, [1997] E.C.R. II-313 where the Fund's arguments were supported by the Swedish Government.
18. Everling, Die Mitgliedstaaten der EG vor ihrem Gerichtshof, 8 EL Rev. (1983), 102-127.
19. See Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union, of May 1995, at p. 16.
20. Timmermans, op. cit. supra note 6, at 405.
21. Art. 213 EC; Art. I-26(6), Constitutional Treaty.
22. The Court's Statute provides after Nice that the Court will sit in chambers of three and five judges, in a new 11-judge (grand) chamber and in plenary session, cf. Art. 16. Quorum of the Grand Chamber is 9 judges participating. The Court sitting in plenary sessions became the exception after Nice.
23. Skouris, op. cit. supra note 2, at p. 22.
24. Ibid.
25. Lenaerts (et al.), Procedural Law of the European Union, 2nd ed., Thomson Sweet & Maxwell, London 2006, at p. 7
26. Ibid.
27. Skouris, op. cit. supra note 2, at p. 23. What this more precisely means or how it functions is not clear to this author. It seems also that the list alternates the most senior and most junior members of the Court. Cf. Rules of Procedure, Art, 11b(2).
28. Ibid.
29. Skouris, ibid. The Rules of Procedure requires that this list of judges is published in the Official Journal of the European Union, cf. Art. 11b.
30. Lenaerts, "The Rule of Law and the Coherence of the Judicial System of the European Union", in this Review.
31. Lenaerts, "The Unity of European Law and the Overload of the ECJ - the System of Preliminary Rulings Reconsidered", in The Future of the European Judicial System in a Comparative Perspective, 6 European Constitutional Law Network Series, p. 211-239 (Nomos, 2006; papers from a conference held in September 2005), at p. 237.
32. Information has not been available to me indicating that the non-permanent members would be authorized to be present at the meeting while the group deliberates cases not assigned to them.
33. Weiler and Jacqué likewise invite not to forget that "nevertheless, the judges are human". In "On the Road to European Union - A New Judicial Architecture: An agenda for the intergovernmental conference", 27 CML Rev. (1990), 185-207.
34. Skouris, op. cit. supra note 2, at p. 24 et seq.
35. This notwithstanding the possibility, mentioned in the previous section, that a smaller number of judges could result in more efficient or effective decision-making.
36. Arnull, A Constitutional Court for Europe? (2004) YEL, 1.
37. Cf. Alter, "Who are the 'Masters of the Treaty'?: European governments and the European Court of Justice", 52 International Organization (1998), 121-147, esp at footnote 62.
38. See Art. 224a Draft reform Treaty, text of 5 Oct. 2007, CIG 1/1/07 Rev 1.
39. See e.g. Rasmussen, European Court of Justice (Thomson, Copenhagen, 1998), notably at p. 65.
40. The quote is from Vesterdorf, "The Community Court System Ten Years From Now and Beyond: Challenges and Possibilites", (2003) EL Rev., 203. In their 1999 Proposals and Reflections, the two Courts did not on the face of things reject preliminary competence-sharing. However, reading between the lines, the non-paper laid the proposal to rest.
41. The figure is Vesterdorf's, see article quoted in the preceding footnote.
42. See "Editorial comments, Preliminary rulings and the area of freedom, security and justice", 44 CML Rev., 1-7, also on the proposals for an emergency procedure in some specific categories of preliminary rulings.
43. The (then) President of the CFI, Bo Vesterdorf, in 2003 commented favourably on the idea of introducing a filter-mechanism in a not too far future, see op. cit. supra note 38.
44. Heffernan discusses this issue in some detail in "The Community Courts: A European Certiorari Revisited", 52 ICLQ (2003), at 914 et seq. The possibility of a two-tier preliminary jurisdiction is also discussed in the article by my hand cited supra note 1 (see section 7 of that article).
45. In source cited supra note 31.
46. See on this Edward, "Guest Editorial: Will there be honey still for the tea?" 43 CML Rev. (2006), 623-627.
47. The Court has an impressive services jurisprudence. See Vassilis and Do, "The case law of the ECJ concerning the free provision of services: 2000-2005", 43 CML Rev. (2006), 923-991.
48. The draft Reform Treaty of 5 Oct. 2007, cited supra note 36, proposes a new Art. 6 TEU "1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000 ⋯ which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties ⋯"
49. Weiler, op. cit. supra note 3, at p. 127.
50. The Court's citizens' rights jurisprudence is long and impressive. Here, it will suffice to quote one of the more activist of the cases, for example, Case C-413/99, Baumgast, [2002] ECR I-7091.
51. See already supra note 46.