Judicial reform and the treaty of nice

Common Market Law Review

Volumn 38, Issue 3, 2001, Pages 499-523

  Johnston, Angus ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85102786262     PISSN: 01650750     EISSN: 18758320     Source Type: Journal    
DOI: 10.1023/a:1010644018511     Document Type: Article

References (65)

1. 1. Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts O.J. 2001, C 80/1, 10 March 2001.
2. 2. For a more in-depth discussion of the various possible models for reform, see the forthcoming publication Dashwood and Johnston (Eds.), The Future of the European Judicial System. (Oxford, Hart Publishing, 2001), especially the Chapter entitled “Synthesis of the Debate”.
3. 3. Which was declared by the Tampere European Council to be at the top of the political agenda: see Presidency Conclusions, Tampere European Council, 19 Oct. 1999, paras. 2 and 3 of the introductory section: see the summary on the Council’s website at http://ue.eu.int/en/Info/eurocouncil/index. htm.
4. 4. Available on the Court’s website: http://www.curia.eu.int/en/txts/intergov/ave.pdf (here-after, the “Courts’ Paper”).
5. 5. “The Report by the Working Party on the Future of the European Communities’ Court System” (Jan. 2000), reproduced in Dashwood and Johnston, op. cit. supra note 2.
6. 6. Additional Commission contribution to the Intergovernmental Conference on institu-tional reform – Reform of the Community courts (March 2000), reproduced in Dashwood and Johnston, op. cit. supra note 2.
7. 7. An interesting step along the way was provided by a Presidency Note to the Government Representatives Group of 31 March 2000 (CONFER 4729/00), summarizing the preliminary discussions of the Friends of the Presidency Group, undertaken in the first few weeks of March 2000. This shows general consensus on the urgent need for reform of the Community’s judicial system, but equally betrays certain disagreements on key matters such as appeals against CFI determinations of appeals from lower instances (such as an OHIM Board of Appeal or a judicial panel) and docket control (or an American-like certiorari system) by the ECJ of appeals from the CFI.
8. 8. See e.g. the stinging attack delivered by Rasmussen, “Remedying the crumbling EC judicial system”, 37 CML Rev. (2000), 1071, at 1081–1083, who includes the ECJ’s develop-ment of its own jurisdiction among the “roots of the malaise” (e.g. the excessively limited acte clair strategy in Case 283/81, CILFIT, [1982] ECR 3415; the Court’s general “activism” and the Dzodzi line of Cases (joined Cases C-297/88 and C-197/89, Dzodzi v. Belgium, [1990] ECR I-3783); see also Case C-28/95, Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2, [1997] ECR I-4161).
9. 9. The Courts’ Paper, p. 3.
10. 10. Council Regulation (EC) No 44/2001 of 22 Dec. 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1 (16 Jan. 2001); Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses O.J. 2001, L 160/19 (30 June 2000).
11. 11. On a general note, the author would like to express the frustration of academics and practitioners at the apparently rapid departure from the Amsterdam renumbering scheme, which claimed to intend to avoid the messy use of Art. 000a and Art. 999b (remember the provisions on the environment after the Maastricht IGC, which went up to Art. 130u(!)). Yet here, the IGC has re-embarked upon this process, where it might well have been possible to accommodate all of the proposed amendments by slightly more judicious drafting. No doubt the next IGC will embark upon a “re-simplification”, especially if it seeks to develop any kind of basic statement of competences. Those who must draw up cross-reference tables to make sense of such changes are no doubt left in a state of trepidation…
12. 12. The attachment of the Statute to the Treaty on European Union is an appropriate reflection of the limited, but increasingly important jurisdiction of the Court of Justice in areas covered by that Treaty.
13. 13. Originally published in O.J. 1988, L 319/1, but the text contained many errors so a corrected version was published in O.J. 1989, C 215/1. Further amendments brought extensions to the jurisdiction of the CFI: see Decisions 93/350, O.J. 1993, L 144/21 and 94/149 O.J. 1994, L 66/29.
14. 14. As provided for by Art. 10 of the Treaty of Nice, which constitutes an interesting example of the use of what is effectively the constitution-making power of the Member States at an IGC to repeal a legislative measure.
15. 15. By retaining in force Art. 3 of Decision 88/581/ECSC, EEC, Euratom, insofar as the CFI exercises the jurisdiction of the ECJ under the ECSC Treaty. Meanwhile, the provisions of the new single Statute are made applicable to ECSC matters and Arts. 1 to 20, 44, 45, 46 (second and third paras.), 47 to 49, 51, 52, 54 and 55 of the ECSC Statute of the Court are repealed (Art. 8 of the Treaty of Nice).
16. 16. For a detailed commentary on both the Treaty amendments and the new Statute, see Dashwood and Johnston, “The Outcome at Nice: B. Annotated Texts” in Dashwood and Johnston, op. cit. supra note 2.
17. 17. See, for a selection of views, the seminal article by Jacque´ and Weiler, “On the road to European Union – A new judicial architecture: An agenda for the Intergovernmental Conference”, 27 CML Rev. (1990), 185, the summary and suggestions of Scorey, “A new model for the Communities’ judicial architecture in the new Union”, 21 EL Rev. (1996), 224 and Rasmussen’s recent critique and proposals, op. cit. supra note 8.
18. 18. Art. 225a EC.
19. 19. These fields are listed in Art. 225(1) EC as the “actions or proceedings referred to in Articles 230, 232, 235, 236 and 238” of the EC Treaty, covering actions for annulment, actions for failure to act, damages claims under Art. 288 EC, staff cases and cases concerning arbitration clauses in contracts, respectively. Excepted from this are those cases assigned to a judicial panel and those reserved in the Statute for the ECJ.
20. 20. Covering Commission decisions relating to the clearance of accounts under the European Agricultural Guidance and Guarantee Fund, implementation decisions under the common transport policy, decisions relating to funds, financial instruments or Action Programmes providing for the grant of Community financial support, and all actions based on arbitration clauses (as such clauses are commonly included in contracts entered into by a Community institution (usually the Commission) with a third party).
21. 21. This had been one proposal to relieve the ECJ of the burden (especially time- and translation-wise) of the numerous Art. 226 EC enforcement actions that Member States do not even contest; another suggestion had been the conferment of the power on the Commission to adopt a binding determination of a Member State’s failure to fulfil its obligations under the Treaty, subject to an appeal to a European Court. For political reasons, this seems not even to have been considered by the IGC, despite the obvious benefits that such a procedure could bring for the speedy administration of justice.
22. 22. Art. 51 of the Statute.
23. 23. Declaration No. 12 to the Final Act of the IGC on Art. 225 of the Treaty Establishing the European Community, O.J. 2001, C 80/1, p. 79.
24. 24. And yet, will the medium term be soon enough in judicial reform terms? Rasmussen, op. cit. supra note 8, certainly does not believe so and he may well be proved right, hence the stress laid here upon the need for the Council to act quickly in the negotiation of the implementation of the Nice reforms.
25. 25. See the ECJ’s development of the Community’s general principles of fundamental rights in cases such as Case 4/73, Nold, [1974] ECR 491 and Case 5/88, Wachauf, [1989] ECR 2609, which many perceive to be a response to the reluctance of the German and Italian Constitutional Courts to accept the doctrines of direct effect and supremacy of EC law, at least without some guarantee that Human Rights protection would also be forthcoming on a Community level.
26. 26. I.e., this could cover the conferment of jurisdiction on the ECJ, the CFI or on a judicial panel: see Declaration No. 17 to The Final Act of the IGC on Art. 229a of the Treaty Establishing the European Community, which states that “Art. 229a does not prejudge the choice of the judicial framework which may be set up to deal with” such disputes (O.J. 2001, C 80/1, p. 80).
27. 27. For a summary of some of the ideas in circulation, see Dashwood and Johnston, “Synthesis of the Debate”, op. cit. supra note 2.
28. 28. See the Foglia saga (Case 104/79, Foglia v. Novello, [1990] ECR 745 and Case 244/80, Foglia v. Novello (No. 2), [1981] ECR 3045) and cases such as Case C-83/91, Meilicke [1992] ECR I-4871 and Case C-343/90, Lourenco Dias, [1992] ECR I-4673, as well as the ECJ’s own “Information Note on References by National Courts for Preliminary Rulings” (9 Dec. 1996) [1997] 1 CMLR 78; [1997] EuLR 55 (or see the Court’s website at: http://www.curia.eu.int/en/txts/others/txt8.pdf).
29. 29. Declaration No. 12 to The Final Act of the IGC, cited supra note 23.
30. 30. 30 Since the Statute, as annexed to the various Treaties at Nice, does not yet make any attempt to specify such areas.
31. 31. Especially in the light of the possible use of the new Art. 229a EC: it is submitted that care will need to be taken to ensure that the problems of parallel proceedings on similar matters before different courts at the European level are avoided. Indeed, if this becomes a relevant consideration in this sphere, it may be difficult to resist its logic when it comes to the general consideration of the extension of the jurisdiction of the CFI in direct actions brought by Member States. For a useful discussion of the “parallel actions” issue, see the Thirteenth Report of the House of Lords Select Committee on the European Communities, Session 1998–1999, Enlarging the Jurisdiction of the Court of First Instance (5713/99 of 6 July 1999) (available on the House of Lords’ website, at the following address: http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldselect/ldeucom/82/8201.htm (N.B. now the Select Committee on the European Union)).
32. 32. Declaration No. 15 to The Final Act of the IGC on Art. 225 of the Treaty Establishing the European Community O.J. 2001, C 80/1, p. 80.
33. 33. A similar debate arises regarding the new judicial panels, where a CFI decision on appeal from such a panel is then heard on appeal before the ECJ. We will return to this below.
34. 34. Declaration No. 13 to The Final Act of the IGC on Art. 225(2) and (3) of the Treaty Establishing the European Community O.J. 2001, C 80/1, p. 79.
35. 35. Declaration No. 14 to The Final Act of the IGC on Art. 225(2) and (3) of the Treaty Establishing the European Community (ibid.).
36. 36. As a result, during the accession process there may come a point when the ECJ has an even number of judges. Any difficulty that some had thought might be posed for fulfilling the requirement that decisions can only validly be taken when there is an uneven number of judges sitting in deliberation (hence the 1995 enlargement problems when Italy was to have an extra judge to prevent this) is of course dealt with by fixing the appropriate quorum: if eleven judges are sitting, then the Full Court can rule on the matter (cf. Art. 17 of the Statute).
37. 37. A term quite possibly borrowed from the last amendment to the structure of the European Court of Human Rights in Strasbourg: cf. Art. 27(1) ECHR and the discussion in Dashwood and Johnston, “Synthesis of the Debate”, op. cit. supra note 2.
38. 38. And seemingly sounding the death knell of the seven-judge Chamber, presumably because it was not thought to offer any significant advantages over the combination of five-judge chambers and the Grand Chamber.
39. 39. Although this would require the amendment of the rule that the President of the Court must preside over the Grand Chamber, since this rule is contained in the Statute, such a change would require simply the unanimous approval of the Council (Art. 245 EC). Under the current provisions, where only one Grand Chamber will operate, the Working Party Report envisages that consistency and continuity in the case law will be preserved by the creation of a “permanent core” of members, viz.: the President of the Court and the Presidents of the five-judge Chambers (for the Working Party Report, see supra note 5).
40. 40. Such as the system of “referral up” to the highest organ after consultation between Chambers where one proposes to depart from the case law of another, as used in Germany (with the Great Senate) and under the ECHR.
41. 41. Who, after the amendment to the qualifications required of a CFI judge, must now (under Art. 224, second paragraph) possess the ability for appointment to “high judicial office”: a welcome reflection of the practice of Member States and a further (perhaps symbolic, but nevertheless important) underlining of the CFI’s growing status.
42. 42. In response to the Courts’ proposals with regard to the new intellectual property cases (see the Court’s website, at: http://www.curia.eu.int/en/txts/propositions/intelcourt.pdf).
43. 43. Declaration No. 16 to The Final Act of the IGC on Art. 225a of the Treaty Establishing the European Community O.J. 2001, C 80/1, p. 80.
44. 44. Although, in an interesting unilateral Declaration made by Luxembourg, a hint is given that the IP rights are indeed the next main contenders for this treatment. Luxembourg made clear that, if judicial panels were to be set up to replace the OHIM Boards of Appeal (which were established pursuant to the Community Trade Mark Regulation), it would not seek to claim the seat of such panels (O.J. 2001, C 80/1, p. 80). Presumably, this was to appease Spanish fears, but it also seems to provide a clear indication of things to come: not only delegation, but also (further) decentralization of judicial functions may be on the future agenda. This starts to move, albeit tentatively, towards some of the more radical proposals for root and branch reform of the judicial architecture of the Union (e.g. Jacque´ and Weiler’s suggestion of the establishment of “Community Regional Courts”, op. cit. supra note 17, 192–195.
45. 45. The existence of these divisions between the different Member State delegations has been clear from the outset. The Presidency Note to the Government Representatives Group of 31 March 2000 (CONFER 4729/00) records (point III.5, pp. 4–5) this disagreement and suggested that the ECJ’s proposal to deal with such details in the drafting of the Statute might be the best way forward. The inclusion of this possibility in Art. 225a reflects a significant level of support for such an appeal, while the use of a permissive “may” when describing the availability of such review and the restriction thereof to “the limits laid down in the Statute” both suggest that an equally significant number of delegations had grave doubts about the frequency with which the Court should be involved in such reviews. It should be remembered, of course, that staff cases are often an interesting proving ground for general principles of law, which are then later applied in other administrative areas. Thus, to exclude all possibility of ECJ involvement is perhaps too strict an approach.
46. 46. Declaration No. 16, cited supra note 43.
47. 47. See, e.g. Rasmussen’s recent article, op. cit. supra note 8, 1095–1098 and some of the contributions in Dashwood and Johnston, op. cit. supra note 2.
48. 48. Available on the Court’s website at: http://www.curia.eu.int/en/txts/others/trad.pdf.
49. 49. Indeed, in their proposals regarding the new intellectual property cases (see supra note 42, 8–9), the Courts made clear that the increased burden required not only an increase in the number of judges at the CFI, but also the creation of a task force of legal secretaries and a strengthening of the Registry and the translation service. While the new judges are in the pipeline (so to speak), little has been heard about the key issue of support staff and resources.
50. 50. Of course, this begs the question: which provisions are considered “fundamental”? I am here concerned to provide an assessment of the outcome of the Treaty of Nice and its potential, while in no way denying that its approach to the deep structural questions of jurisdiction and court levels and instances is open to challenge (both by current scholars and by the rapid pace of future developments).
51. 51. As noted in the Introductory note to the Court’s proposals for procedural reform included in Dashwood and Johnston, op. cit. supra note 2, the unanimous vote required can often lead to a “re-opening” of the bargaining process when the Council comes to approve amendments proposed by the Court to its Rules of Procedure, which can prove detrimental to the coherent updating of such provisions in some cases. One must trust that future Council deliberations will not indulge in such tactics on a regular basis with regard to the single Statute, now that the Rules of Procedure fall under the qualified majority voting rules.
52. 52. See Arts. 29–31 of the ECJ Rules of Procedure and Art. 35–37 of the CFI Rules of Procedure.
53. 53. Most recently, the Court has made a further specific proposal in relation: (a) to the transmission of documents to the European Parliament (as well as the Council) under Art. 16(7) of the ECJ’s Rules of Procedure, where an act adopted under the co-decision procedure is claimed to be inapplicable in proceedings to which neither the Council nor the Parliament are a party; and (b) to the agreement allowing Iceland and Norway to lodge written statements with the Court in relation to the Schengen acquis and its development (under Art. 103(4) ECJ RoP). See the Court’s website for the text and fuller explanation of these proposals: http://www.curia.eu.int/en/txts/propositions/txt5a.pdf.
54. 54. Amendments to the Rules of Procedure of the Court of Justice O.J. 2000, L 122/43, of 24 May 2000.
55. 55. See the Introductory note to the Court’s proposals included in Dashwood and Johnston, op. cit. supra note 2, which details the amendments made by the Council and juxtaposes them with the Court’s original proposals.
56. 56. See supra note 54, Art. 2.
57. 57. A summary is available on the Court’s website at http://www.curia.eu.int/en/txts/com20001206 en.pdf, while the text of these amendments was published in O.J. 2000, L 322 (19 Dec. 2000). Briefly, the changes allow the use of a fast-track procedure where cases do not lend themselves to the use of interim measures (new Art. 76a of the Rules of Procedure of the CFI), the possibility of dispensing with the second exchange of pleadings (amended Art. 47 Rules of Procedure), the shortening of the time limit for interventions (amended Art. 115(1) and new Art. 116(6) Rules of Procedure) and the rationalization of the rules on time allowances for distance from the Court in the light of modern means of communication (new Art. 43(6), amended Articles 44(2), 100 and 102(2) Rules of Procedure). These rules entered into force on 1 Feb. 2001.
58. 58. Guest Editorial by Meij, “Architects or judges? Some comments in relation to the current debate”, 37 CML Rev. (2000), 1039, at 1040.
59. 59. See the cases cited supra note 28.
60. rd ed. (London: Penguin, 1999), p. 319. See also, more recently, Cases C-300 & 392/98, Parfums Christian Dior SA v. Tuk Consultancy BV (C-300/98) and Assco v. Layher BV (C-392/98), Judgment of 14 Dec. 2000, nyr.
61. 61. See O’Keeffe, “Is the spirit of Article 177 under attack? Preliminary references and admissibility.” 23 EL Rev. (1998), 509.
62. 62. See Point II.A.2(e) of the Working Party Report, cited supra note 5.
63. 63. See supra note 58, 1044–1045.
64. 64. See Dashwood and Johnston, “Synthesis of the Debate”, op. cit. supra note 2, for a discussion of this line of argument.
65. 65. Ibid., thus allowing a continued spirit of co-operation while providing the opportunity for the European receiving Court to reject the case, where the rejection would effectively close the national procedure, thus not contributing to any further delays in the overall procedure: an ingenious idea that was suggested during the CELS conference of 3 July 1999, which was held to discuss the Courts’ Paper of May 1999.