Recent and potential future developments in judicial protection in the European Area of Freedom, Security and Justice

ERA Forum

Volumn 9, Issue 4, 2009, Pages 487-494

  Engström, Johanna ^a  

^a Academy of European Law   (Germany)

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EID: 65649098662     PISSN: 16123093     EISSN: 18639038     Source Type: Journal    
DOI: 10.1007/s12027-009-0110-y     Document Type: Review

References (24)

1. To this extent, see also the Court's ruling in Joined Cases C-402/05 P and C-415/05 P Kadi & Al Barakaat v. Council, judgment 3 September 2008, which shows the Court's determination to ensure an effective judicial protection of individuals.
2. In March 2008, 17 member states had made declarations pertaining to the Court Justice's competence under Article 35 (in chronological order: Germany, Austria, Belgium, Spain, Finland, France Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Czech Republic, Slovenia, Sweden). Of these member states it is only Spain that has limited the right to refer a preliminary reference to courts against whose ruling there is no judicial remedy.
3. During 2007 it took the Court of Justice on average 19.3 months to deliver a preliminary ruling.
4. This also applies to Judicial Cooperation in Civil matters, which was equally transferred to the first pillar by the Amsterdam Treaty and which also is governed by Article 68 TEC.
5. Case C-540/03 European Parliament v. the Council of the European Union [2006] ECR 1-5769.
6. New problems might however arise, which will be addressed in Sect. 3 of this editorial.
7. The possibility for certain countries to opt out should of course also be taken into account.
8. The Treaty of Lisbon also brings other changes to the judicial system, and these are in this issue discussed by Bernard Chevalier in Les nouveaux développements de la procédure préjudicielle dans le domaine de l'espace judiciaire européen: la procédure préjudicielle d'urgence et les réformes principales prévues par le traité de Lisbonne.
9. The procedure is provided for in Article 23 a of the Statute of the Court of Justice and Article 104 b of its Rules of Procedure.
10. See C-195/08 PPU Rinau, judgment of 11 July 2008 (58 days),
11. C-296/08 PPU Esteban Goicoecha (40 days) judgment of 12 August 2008,
12. C-388/08 PPU Leymann (87 days), judgment of 1 December 2008.
13. See Rules of Procedure of the Court of Justice, Article 104 (b).
14. The Advocate General's opinion is not made public and there is at present a debate going on whether this opinion should be published, which might, indeed, prolong the procedure.
15. Article 23 a of the Statute and Article 104 (b) para 2, Rules of Procedure of the Court of Justice.
16. It is still uncertain exactly under what circumstances the court will really consider there to be urgency and what factors it will consider important. Some guidelines are given in the Supplement to the Court's information note on references from national courts for a preliminary ruling following the implementation of the urgent preliminary ruling procedure applicable to references concerning the area of freedom, security and justice p. 7, http://curia.europa.eu/en/instit/txtdoefr/txtsenvigueur/noteppu.pdf, but this will be further developed in case-law.
17. See Case C-176/03 Commission v Council (Environmental Crimes) [2005] ECR I-7879,
18. Case C-440/05 Commission v Council (Ship source pollution) [2007] ECR I-9097.
19. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158, 30.4.2004, pp. 77-123.
20. Case C-127/08 Metock and others, judgment of 25 July 2008.
21. The accelerated procedure is provided for in Article 104 a of the Rules of Procedure.
22. It is not surprising that there has not been any request for an urgent preliminary reference proceedings in matters of Title IV of the EC Treaty.
23. This problem would be addressed with the entry into force of the Treaty of Lisbon; in asylum and immigration matters all national courts would be competent to refer preliminary rulings, and hence also ask for an urgent preliminary ruling.
24. Except for the limitations which the countries that have the right to opt-out from judicial cooperation in criminal matters (Denmark, Ireland and the United Kingdom) might have.