REPORT OF THE COURT OF JUSTICE ON CERTAIN ASPECTS OF THE
OF THE TREATY ON EUROPEAN UNION
Luxembourg, May 1995
AUTOR : CORTE DE JUSTIÇA DA UNIÃO EUROPÉIA
1. The European Council, meeting at Corfu on 24 and 25 June 1994, decided
to set up a Study Group to prepare for the work of the 1996 Intergovernmental
Conference provided for under Article N(2) of the Treaty on European Union. It invited the institutions, before the Study Group begins its work on 1 June 1995, to
draw up reports on the operation of the Treaty on European Union. 2. In responding to that request, the Court of Justice must reconcile its concern to provide a
useful contribution to the work of the Group with the duty of discretion incumbent upon it as a judicial institution.
Under the revision procedure laid down by the Treaties, it is essentially
the Member States who have the task of drawing up and approving such amendments
deemed necessary to meet the requirements of a Union which is, necessarily, always in a state of evolution. In that context, the Court's duty is to indicate what is
needed, or indeed indispensable, to allow the judicial system of the Union to continue carrying out its task effectively. It is of the utmost importance that the Union,
based on the principle of the rule of law, should possess a system of courts capable of ensuring that that rule is observed.
This report will therefore concentrate on the judicial system and will touch on other aspects only in so far as they may have implications for its operation.
After first outlining the role of the judicature within the framework
of the Union, the Court's report will deal with the application of certain
provisions of the Treaty on
European Union, and submit observations on prospective amendments affecting or likely to have repercussions on the judicial system.
I THE ROLE OF THE COURTS IN THE EUROPEAN UNION
3. The Union, like the European Communities on which it is founded,
is governed by the rule of law. Its very existence is conditional on recognition
by the Member
States, by the institutions and by individuals of the binding nature of its rules.
The Court of Justice, which is charged with ensuring that in the interpretation
and application of the Treaties the law is observed, is responsible for
legality of acts and the uniform application of the common rules. The Treaties, the protocols annexed to certain conventions between Member States, and certain
agreements concluded by the Communities with non-member States, confer various kinds of jurisdiction upon the Court. It is called on to rule on direct actions
brought by the Member States, by the institutions and by individuals; to maintain close cooperation with national courts and tribunals through the preliminary ruling
procedure; and to give opinions on certain agreements envisaged by the Communities. The Court thus carries out tasks which, in the legal systems of the Member
States, are those of the constitutional courts, the courts of general jurisdiction or the administrative courts or tribunals, as the case may be.
In its constitutional role, the Court rules on the respective powers
of the Communities and of the Member States, and on those of the Communities
in relation to
other forms of cooperation within the framework of the Union and, generally, determines the scope of the provisions of the Treaties whose observance it is its duty to
ensure. It ensures that the delimitation of powers between the institutions is safeguarded, thereby helping to maintain the institutional balance. It examines whether
fundamental rights and general principles of law have been observed by the institutions, and by the Member States when their actions fall within the scope of
Community law. It rules on the relationship between Community law and national law and on the reciprocal obligations between the Member States and the
Community institutions. Finally, it may be called upon to judge whether international commitments envisaged by the Communities are compatible with the Treaties.
As regards the remainder of the Court's jurisdiction, the setting up
of a two-tier system for all actions brought by natural or legal persons,
which are now dealt with
by the Court of First Instance subject to the possibility of an appeal to the Court of Justice, has undoubtedly afforded greater protection to individuals and has
enabled the latter to devote itself more fully to its essential task of ensuring the uniform interpretation of the law, under conditions which preserve the quality and
efficiency of the judicial system.
4. The Court considers it indispensable, if the essential features of
the Community legal order are to be maintained, that the functions and
prerogatives of its judicial
organs be safeguarded in the forthcoming process of revision. The success of Community law in embedding itself so thoroughly in the legal life of the Member States
is due to its having been perceived, interpreted and applied by the nationals, the administrations and the courts and tribunals of all the Member States as a uniform
body of rules upon which individuals may rely in their national courts. Even before there was the idea of citizenship of the Union, the Court had inferred from the
Treaties the concept of a new legal order applying to individuals and had in many cases ensured that those individuals could exercise effectively the rights conferred
Any decision affecting the structure of the judicial system must therefore
ensure that the courts remain independent and their judgments binding.
Were that not to be
the case, the very foundations of the Community legal order would be undermined.
By virtue of Article L of the Treaty on European Union, the Court of
Justice has, for all practical purposes, no jurisdiction over activities
of the Union which fall
within the spheres of common foreign and security policy and of cooperation in the fields of justice and home affairs. In that regard, the attention of the
Intergovernmental Conference should be drawn to the legal problems which may arise in the long, or even the short, term. Thus, it is obvious that judicial protection
of individuals affected by the activities of the Union, especially in the context of cooperation in the fields of justice and home affairs, must be guaranteed and
structured in such a way as to ensure consistent interpretation and application both of Community law and of the provisions adopted within the framework of such
cooperation. Further, it may be necessary to determine the limits of the powers of the Union vis-à-vis the Member States, and of those of each of the institutions of
the Union. Finally, proper machinery should be set up to ensure the uniform implementation of the decisions taken.
5. It is obvious that the need to ensure uniform interpretation and
application of Community law and of the conventions which are inseparably
bound up with the
achievement of the objectives of the Treaties presupposes the existence of a single judicial body, such as the Court of Justice, which can give definitive rulings on the
law for the whole of the Community. That requirement is essential in any case which is constitutional in character or which otherwise raises a question of importance
for the development of the law.
II THE APPLICATION OF THE TREATY ON EUROPEAN UNION
6. As far as the Court of Justice is concerned, the effect of the amendments
introduced by the Treaty on European Union has to date been only limited.
for that are, firstly, that the Treaty has only recently come into force and, secondly, that a certain period is bound to elapse between the introduction o>
and their repercussions in terms of litigation.
7. At a formal level, the amendments required by the Treaty on European
Union have been made to the EC Statute of the Court and to the Rules of
of the Court of Justice and of the Court of First Instance. The amendments to the Statute were approved by the Council, at the request of the Court, by decision of
22 December 1994. The Court of Justice adopted the amendments to its Rules of Procedure on 21 February 1995, following approval by the Council. The
Court of First Instance adopted the amendments to its Rules of Procedure on 17 February 1995, following approval by the Council and with the agreement of the
Court of Justice.
8. At a practical level, as yet the first innovation to have borne fruit
to any appreciable extent is the one whose implementation depended on the
Court itself, namely
the new version of Article 165(3). Under that provision, the Court of Justice may now assign any case to a Chamber unless a Member State or an institution which is
a party to the proceedings requests that the case be heard in plenary session. Whilst cases raising fundamental issues are still heard in plenary session, the Court
makes regular use of this new possibility in cases which previously had to be heard by the plenary. This has probably contributed to the shortening of the length of
proceedings revealed in the most recent statistics. That achievement has been made possible by the attitude of the Member States and the institutions, which have
confined to exceptional cases their requests that the Court sit in plenary session.
9. As regards the other Treaty amendments of direct concern to the Court,
one action has been brought under the new version of Article 173(1) of
the EC Treaty,
for annulment of a measure adopted by the European Parliament and the Council in accordance with the procedure laid down in Article 189b of the EC Treaty.
The new version of Article 173(1) of the EC Treaty, which endorses the
solution provided by the Court's case-law, namely that an action for
annulment may lie
against measures adopted by the European Parliament intended to have legal effects vis-à-vis third parties, has also formed the basis for a recent action brought by
Similarly, the European Parliament, whose right to bring an action for
annulment of an act of the Council or the Commission in order to safeguard
its prerogatives had
already been recognized and indeed exercised on a number of occasions before the Treaty on European Union entered into force, has been able to bring three
further actions for annulment on the basis of the new version of Article 173(3) of the EC Treaty, which endorses the previous case-law.
The Court has not been called upon to apply the other amendments relating
specifically to the judicial system of the Union. That is true, for example,
of the new
version of Article 171 of the EC Treaty (and of the corresponding provision of the Euratom Treaty), which enables the Commission to bring an action before the
Court of Justice seeking imposition of penalties on a Member State which has failed to comply with a judgment finding that it had infringed the Treaty; similarly there
have been as yet no cases concerning the European Monetary Institute or pursuant to the last subparagraph of Article K.3(2)(c) of the Treaty on European Union,
which allows attribution of jurisdiction to the Court of Justice in respect of the interpretation and application of conventions concluded within the framework of
cooperation in the fields of justice and home affairs.
As regards the new version of Article 168a of the EC Treaty (and the
corresponding provisions of the ECSC and Euratom Treaties), which makes
it possible to
confer jurisdiction on the Court of First Instance to hear and determine certain classes of action or proceedings brought by the Member States or the institutions,
with the exception of questions referred for a preliminary ruling, the Court of Justice considers that the possibility of applying that provision can only be evaluated in
the light of experience gained from exercise by the Court of First Instance of the jurisdiction recently transferred to it to hear and determine actions brought by
10. Some of the other amendments introduced by the Treaty on European Union have already given rise to cases currently pending before the Court of Justice.
These include the principle of subsidiarity embodied in Article 3b of
the EC Treaty, the new provisions relating to movement of capital in
Articles 73b to 73h of
that Treaty and certain of the new legal bases introduced into the EC Treaty.
III POSSIBLE REVISION OF PROVISIONS RELATING TO THE JUDICIAL SYSTEM
11. The development of the Community legal order has been to a large
extent the fruit of the dialogue which has built up between the national
courts and the Court of
Justice through the preliminary ruling procedure. It is through such cooperation that the essential characteristics of the Community legal order have been identified, in
particular its primacy over the laws of the Member States, the direct effect of a whole series of provisions and the right of individuals to obtain redress when their
rights are infringed by a breach of Community law for which a Member State is responsible. To limit access to the Court would have the effect of jeopardizing the
uniform application and interpretation of Community law throughout the Union, and could deprive individuals of effective judicial protection and undermine the unity
of the case-law.
But that is not all. The preliminary ruling system is the veritable
cornerstone of the operation of the internal market, since it plays a fundamental
role in ensuring that
the law established by the Treaties retains its Community character with a view to guaranteeing that that law has the same effect in all circumstances in all the
Member States of the European Union. Any weakening, even if only potential, of the uniform application and interpretation of Community law throughout the Union
would be liable to give rise to distortions of competition and discrimination between economic operators, thus jeopardizing equality of opportunity as between those
operators and consequently the proper functioning of the internal market.
One of the Court's essential tasks is to ensure just such a uniform
interpretation, and it discharges that duty by answering the questions
put to it by the national courts
and tribunals. The possibility of referring a question to the Court of Justice must therefore remain open to all those courts and tribunals.
It is true that the effectiveness of the preliminary ruling procedure,
which from a technical point of view is merely a step in the national proceedings,
depends on the
time it takes. If it takes too long, national courts may be discouraged from submitting questions for a preliminary ruling. The Court is aware of the need to reduce
further the time taken to deal with such questions and would stress in that connection that the recent transfer to the Court of First Instance of all direct actions
brought by individuals should make it possible to obtain a significant reduction in the time taken for other types of proceedings, in particular references for a
The Court is currently examining further measures to increase its productivity.
It should be pointed out in that regard that for cases of great importance
constitutional or economic importance it is hardly possible, or even desirable, to speed up the proceedings before the Court. For cases of lesser importance,
however, procedural simplification may certainly be envisaged and could have beneficial effects. The measures necessary for that purpose fall within the framework
of the Statute of the Court and its Rules of Procedure, or are pure matters of practice, and do not require any amendment to the Treaties.
12. In view of the considerable period of time which elapsed before
its Rules of Procedure were adapted in line with the Treaty on European
Union (it was not
possible to adopt the necessary amendments until February 1995), the Court considers that the rule in Article 188(3) of the EC Treaty (and in the corresponding
provisions of the other Treaties), which requires the unanimous approval of the Council for any amendment to those Rules, should be relaxed. Thus, the Court might
be authorized to adopt its Rules of Procedure without the approval of the Council or, if the Member States felt it indispensable to retain the right to be consulted,
such approval might be deemed to be given on expiry of a specified period in the absence of amendments by the Council to the Court's proposal. A similar
amendment would need to be made to Article 168a(4) of the EC Treaty and to the corresponding provisions of the other Treaties concerning the Rules of Procedure
of the Court of First Instance. 13. In its requests submitted to the Council following the introduction of a two-tier court system, the Court of Justice has already
stressed that such a system is not appropriate for preliminary ruling procedures both because it would be likely to lead to unacceptable procedural delays and
because it would raise problems as to the authority of judgments given at first instance and as to identification of the parties entitled to lodge an appeal. The Court's
jurisdiction to give preliminary rulings cannot be split up on the basis of pre-established criteria relating to the subject-matter of the case or the status of the referring
court, which might jeopardize the consistency of the case-law, or on the basis of a flexible system of case-by-case referrals from the Court of Justice to the Court of
First Instance, which might run counter to certain conceptions of the ‘lawful judge’ (juge légal). 14. The Court has been informed of certain proposals, first, for
amending Article 173 of the EC Treaty and the corresponding provisions of the other Treaties to allow the European Parliament to bring actions for annulment
without having to establish an interest and, second, for giving the Parliament the right to request the Court's opinion on an international agreement envisaged by the
Community, in accordance with Article 228(6) of the EC Treaty. It is, of course, for the Intergovernmental Conference to decide what action is to be taken on those
proposals. The Court wishes to point out that there should be no technical objection to such amendments and that, as regards the procedure for obtaining opinions, it
has already allowed the Parliament to submit observations in connection with requests made by Member States, the Council or the Commission. However, the Court
doubts whether it would be appropriate to remove to the judicial arena disputes which could just as satisfactorily be settled at a political level, given the mechanisms
provided for that purpose. 15. The Court has begun to reflect on the future judicial structure of the Union. The organization of the judicial system will in any event
depend on political decisions as regards developing the process of union among the peoples of Europe and as regards the prospects of further enlargement.
At the present stage of development, the Court feels that the structure
of the judicial system should not be altered. In particular, there seems
to be no need to amend
Article 168a of the EC Treaty and the corresponding provisions of the other Treaties with regard to the allocation of tasks between the Court of Justice and the
Court of First Instance. A more detailed assessment cannot be made until it has become possible to evaluate the capacity of both Courts to deal satisfactorily with
the volume of litigation assigned to them. In any case, the obvious need to maintain an efficient court system means that the number of courts should not be increased
unless there are objective reasons for doing so, particularly since the national courts are called upon to play a central role as the courts with general jurisdiction for
However, if closer integration is achieved in certain fields, with a
concomitant increase in the volume of litigation, it might be that, in
the longer term, it would be
desirable for the Chambers of the Court of First Instance to become specialized or perhaps for new specialized Community courts to be established. Once the
principle of the two-tier system is accepted, there is a certain logic in having the vast majority of direct actions dealt with by one or more courts of first instance and
in subjecting certain appeals to the Court of Justice to a filtering system. Increasing the number of courts would be unlikely to endanger the unity of the case-law
provided there is still a supreme court to ensure uniformity of interpretation through appeals or preliminary rulings as the case may be.
16. With regard to the prospects of enlargement of the Union, the Court
wishes to draw the attention of the Intergovernmental Conference to the
maintaining the link between the number of Judges and the number of Member States, even though the Treaties do not provide for any link between nationality and
membership of the Court.
In that regard, two factors must be balanced.
On the one hand, any significant increase in the number of Judges might
mean that the plenary session of the Court would cross the invisible boundary
collegiate court and a deliberative assembly. Moreover, as the great majority of cases would be heard by Chambers, this increase could pose a threat to the
consistency of the case-law.
On the other hand, the presence of members from all the national legal
systems on the Court is undoubtedly conducive to harmonious development
case-law, taking into account concepts regarded as fundamental in the various Member States and thus enhancing the acceptability of the solutions arrived at. It may
also be considered that the presence of a Judge from each Member State enhances the legitimacy of the Court.
Finally, it should be noted that the question of the number of Judges
arises in a completely different way in the Court of First Instance, which
normally sits in
Chambers and whose decisions are subject to an appeal to the Court of Justice.
17. The Court does not intend to express any opinion with regard to
the procedure for the appointment of its members or the term of their appointment,
those aspects which concern the preservation of its independence and its functional efficiency.
The Court stresses that the procedure for appointment laid down by the
Treaties and the practice generally followed in renewing the terms of office
of its members
have satisfactorily ensured its independence and the continuity of its case-law. The Court would not, however, object to a reform which would involve an extension
of the term of office with a concomitant condition that the appointment be non-renewable. Such a reform would provide an even firmer basis for the independence of
its members and would strengthen the continuity of its case-law. Provided that the fixed term of appointment of each member were calculated from the time of taking
office, such a solution would also have the advantage, over time, of limiting the operational inconveniences regularly suffered by the Court's activities as a result of the
partial replacement rule.
However, without needing to express an opinion at this stage on the
other proposals which have been put forward, the Court considers that a
reform involving a
hearing of each nominee by a parliamentary committee would be unacceptable. Prospective appointees would be unable adequately to answer the questions put to
them without betraying the discretion incumbent upon persons whose independence must, in the words of the Treaties, be beyond doubt and without prejudging
positions they might have to adopt with regard to contentious issues which they would have to decide in the exercise of their judicial function.
18. The Court would like to put forward once again the suggestion, already
raised during the preparations for the Treaty on European Union, that Article
the EC Treaty (and the corresponding provisions of the ECSC and Euratom Treaties) should be amended to allow the Advocates General as well as the Judges to
take part in the election of the President of the Court from among the Judges. The basis for that proposal lies in the fact that the status of Advocate General is
identical to that of Judge; without prejudice to their specific function, they are members of the Court in the same way as the Judges. As such, moreover, they have
the same responsibilities with regard to administrative decisions and are concerned in the same way with the functioning of the institution. Since the President
organizes the business and directs the administration of the Court, it would be perfectly logical for the Advocates General to take part in the election together with the
Judges. It is evident that the President, who directs the hearings and deliberations of the Court sitting in plenary session, can be chosen only from among the Judges.
The Advocates General would thus be entitled to vote but not to stand for election.
IV REPERCUSSIONS ON THE JUDICIAL SYSTEM OF CERTAIN AMENDMENTS ENVISAGED
19. The Court is aware that the Intergovernmental Conference is called
upon to examine problems of a constitutional nature, such as changes in
the nomenclature of
acts and the introduction of a hierarchy of norms, together with the introduction into the Treaty of a catalogue of fundamental rights in keeping with the democratic
nature of the Union, which renders the protection of human rights an essential element of European construction. Whilst it is not for the Court to express a view on
the desirability of such reforms, it nevertheless notes that they have important aspects which will necessarily have repercussions on the system of judicial review.
20. In the first place, if a catalogue of fundamental rights were to
be introduced into the text of the Treaty, the question would arise as
to the mechanism for reviewing
observance of those rights in legislative and administrative measures adopted in the framework of Community law.
In the exercise of its present jurisdiction, the Court already examines
whether fundamental rights have been respected by the legislative and executive
the Communities and by the Member States when their actions fall within the field of Community law. In doing so, it draws on the constitutional traditions common to
the Member States and on the international instruments relating to the protection of human rights in which the Member States have cooperated or to which they are
parties, in particular the European Convention on Human Rights. The Court would not, therefore, be taking on a new role in reviewing respect for of such
fundamental rights as might be provided for in the Treaty. It may be asked, however, whether the right to bring an action for annulment under Article 173 of the EC
Treaty (and the corresponding provisions of the other Treaties), which individuals enjoy only in regard to acts of direct and individual concern to them, is sufficient to
guarantee for them effective judicial protection against possible infringements of their fundamental rights arising from the legislative activity of the institutions.
21. Secondly, if the Intergovernmental Conference were to decide to
revise the nomenclature of the acts of the institutions and possibly to
establish a hierarchy
amongst those acts, it would be essential to take account of the consequences which such changes would have for the system of remedies, in particular the right of
individuals to bring actions for the annulment of such acts.
22. It would be premature to formulate any more detailed observations
but, in view of the fundamental importance of those matters for the judicial
individuals, the Court wishes to be involved at the appropriate moment in any process of reflection.
23. Finally, in the Court's opinion, the forthcoming process of revision
might provide an opportunity for codifying and streamlining the constitutive
multiplicity of Treaties forming the constitutional basis for the law of the Union, of which one (the ECSC Treaty) expires in July 2002, the sometimes artificial
compartmentalization entailed by the system of three pillars, the survival of many superseded or obsolete provisions, and a numbering system which uses both letters
and figures, all run counter to the need for transparency and put citizens of the Union in an unsatisfactory position from the point of view of legal certainty.
* * * * *
24. The Court has confined itself, at the present stage, to expressing
observations of a general nature concerning, essentially, the judicial
sphere. The Court reserves
the possibility of submitting to the Study Group its observations on the reports of the other institutions in so far as they concern the judicial system or include
proposals likely to have repercussions on it. Furthermore, the Court would like to be associated in an appropriate manner with the preparatory work prior to the
revision of the Treaties. In any event, the Court must be consulted should the Intergovernmental Conference intend to amend the Treaty provisions relating to the
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