Proposal for a COUNCIL DECISION establishing the European Civil Service Tribunal

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. The Nice Treaty inserted a new Article 225a in the EC Treaty and a new Article 160 in the Euratom Treaty, reading as follows:

"The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Court of Justice or at the request of the Court of Justice and after consulting the European Parliament and the Commission, may create judicial panels to hear and determine at first instance certain classes of action or proceeding brought in specific areas.

The decision establishing a judicial panel shall lay down the rules on the organisation of the panel and the extent of the jurisdiction conferred upon it.

Decisions given by judicial panels may be subject to a right of appeal on points of law only or, when provided for in the decision establishing the panel, a right of appeal also on matters of fact, before the Court of First Instance.

The members of the judicial panels shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to judicial office. They shall be appointed by the Council, acting unanimously.

The judicial panels shall establish their Rules of Procedure in agreement with the Court of Justice. Those Rules shall require the approval of the Council, acting by a qualified majority.

Unless the decision establishing the judicial panel provides otherwise, the provisions of this Treaty relating to the Court of Justice and the provisions of the Statute of the Court of Justice shall apply to the judicial panels."

Articles 245 EC and 160 Euratom further provide (second paragraph) that:

"The Council, acting unanimously ... at the request of the Commission and after consulting the European Parliament and the Court of Justice, may amend the provisions of the Statute, with the exception of Title I."

2. By Declaration No 16 on Article 225a of the EC Treaty, adopted on 26 February 2001 at Nice, the Conference asked the Court of Justice and the Commission "to prepare as swiftly as possible a draft decision establishing a judicial panel which has jurisdiction to deliver judgments at first instance on disputes between the Community and its servants".

3. The new judicial panel to be established under the above provisions and declaration will exercise the jurisdiction currently exercised by the Court of First Instance in staff matters. This proposal accordingly incorporates the relevant provisions of Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities, [1] now reproduced in the Protocol on the Statute of the Court of Justice annexed to the Union, EC and Euratom Treaties.

[1] OJ L 319, 25.11.1988.

4. Proposed changes

Certain amendments have been made to the Decision establishing the Court of First Instance (CFI) to reflect the specific features of civil-service litigation and experience gained here.

Number of judges

The number of judges proposed here - six - matches the caseload currently represented for the CFI by this type of case, running at about 120 a year (cf. p. 10, commentary on Article 2).

Judicial appointment procedure

Since the new judicial panel, unlike the Court of Justice and the CFI, will not consist of a judge from each Member State and is in any case a specialised tribunal, there is a need for an appointment procedure to facilitate decision-making by the Council (cf. pp. 10 and 11, commentary on Articles 2 and 3).

Function of Advocate-General

This proposal does not take over Article 49 of the Statute of the Court of Justice, whereby judges of the CFI can be called on to exercise the functions of Advocate-General.

As it happens the CFI has made use of this possibility only in two or three competition cases in its early years. Experience has shown that there is no need for an Advocate-General in this type of litigation, especially as there is to be another court at a higher level.

Moreover, under Article 225(2) of the EC Treaty, judgments given by the CFI on appeal from the new judicial panel are amenable to review by the Court of Justice on a motion by its first Advocate-General. [2]

[2] A proposal to amplify the Statute of the Court of Justice accordingly is in the process of adoption by the Court of Justice.

Judge sitting alone

It is proposed that this form of composition should not be provided for, although it is allowed by Article 50 of the Statute of the Court of Justice, as the new tribunal will be a novel court that will have to assert its authority. Provision was made for judges to sit alone in the CFI only in 1999, eleven years after its establishment.

Procedural simplifications

Certain procedural simplifications are provided for to improve the timeliness of judgments while respecting the parties' right to a hearing.

The new tribunal may decide whether it is necessary for statements of reply and rejoinders to be deposited and may decide to refrain from hearing oral arguments where it considers that the four written pleadings give it sufficient information.

Provision is also made for the tribunal to examine the possibilities for settling the dispute on an amicable basis at any stage of the procedure (cf. p.14, commentary on Article 7).

Settlement of costs

It is proposed to align the settlement of costs on the rules applicable to all disputes brought before Community courts.

5. This proposal makes no provision for the remuneration of judges.

Articles 210 EC and 123 Euratom state: "The Council shall, acting by a qualified majority, determine the salaries, allowances and pensions of the President and Members of the Commission, and of the President, Judges, Advocates-General and Registrar of the Court of Justice and of the Members and Registrar of the Court of First Instance....".

As Articles 225a EC and 140b Euratom do not derogate from these provisions, it is not for the Commission to make proposals on these matters.

When the CFI was established, the Council inserted [3] a new Article 21a in Regulation No 422/67/EEC, No 5/67/Euratom of 25 July 1967 determining the emoluments of the President and members of the Commission and of the President, Judges, Advocates-General and Registrar of the Court of Justice [4], and the percentages provided for there could be adapted for the president and judges of the new tribunal.

[3] Regulation No 4045/88, 19.12.1988, OJ L 356, 24.12.1988.

[4] OJ P 187, 8.08.1967, p. 1

6. Detailed article-by-article commentary on this proposal

The proposal consists of a decision and an annex. The decision contains four articles:

i) Article 1 provides for the establishment of the tribunal.

ii) Article 2 inserts a new Title VI in the Statute of the Court of Justice, as well as an Annex I, the text of which is set out in annex to the proposal for a decision,

iii) Article 3 contains transitional provisions.

iv) Article 4 provides for the entry into force of the Council Decision.

See the detailed article-by-article commentary on the decision (point 7 below) and on Annex I to the Court Statutes (point 8 below).

To make this detailed commentary easier to read, the articles to which the comments refer have been reproduced in points 7 and 8 of this explanatory memorandum.

7. Detailed article-by-article commentary on the proposal for a decision

Article 1 Establishment of the judicial panel

A judicial panel shall be attached to the Court of First Instance of the European Communities to hear disputes involving the European civil service and shall be known as the "European Civil Service Tribunal". The European Civil Service Tribunal shall have its headquarters at the Court of First Instance.

Commentary

i) The word "attached" is taken from the second paragraph of Article 220 of the Treaty. It also corresponds to the formulation in Article 1 of Council Decision 88/591//ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance ("CFI") (OJ L 319, 25.11.1988, p. 1), itself taken over from the former Article 168a.

ii) The name "European Civil Service Tribunal" is loosely based on the Convention's principle of departing from the Treaty term "judicial panels" (Articles I-28(1) and III-264 of the draft Constitution (CONV 850/03, 18.7.2003) mention specialised courts) and going a stage further; since such specialised courts are commonly called tribunals in English, it is proposed that this body be so called.

In its Final Report dated 25 Match 2003 (CONV 636/03- Cercle I-13, point 15), the Convention Working Circle on the Court of Justice stated that:

"The current name could stand. This would not prevent these panels being called "courts", as in the case of the "Community Patent Court", in accordance with the political agreement in the Council on 3 March 2003. However, it seems preferable to call them "specialised courts". That name would have the advantage of avoiding confusion in certain languages with the "chambres" for certain specific cases, which might be set up within the Court (or the CFI), as is the case in Member States' supreme courts."

iii) Under Article 1 of the Decision of 12 December 1992 on the headquarters of the institutions, the Court of Justice and the Court of First Instance are based in Luxembourg.

Article 2

Amendments to the Statute of the Court of Justice

The Protocol on the Statute of the Court of Justice shall be amended as follows:

1) The following Title VI shall be added:

"Title VI

JUDICIAL PANELS

Article 65

The provisions relating to the jurisdiction, composition, organisation and procedure of the judicial panels established under Articles 225a of the EC Treaty and 140b of the Euratom Treaty are set forth in an Annex to this Statute."

2) Annex I, as set out in annex to this Decision, is added.

Commentary

Annex I contains provisions relating to the tribunal's jurisdiction, composition, organisation and procedure. Placing all these provisions in an annex to the Statute of the Court of Justice combines all the provisions concerning the Community courts in a single instrument without disrupting overall readability. Other annexes could then follow if the Council decided to establish further judicial panels in the future.

Article 3 Transitional provisions

1. The first President of the Civil Service Tribunal shall be appointed for three years in the same manner as its judges, unless the Council decides that the procedure laid down in the first paragraph of Article 4 of Annex I to the Statute of the Court of Justice, as attached in annex to this Decision, shall be applied.

2. Immediately after all members of the Civil Service Tribunal have taken oath, the President of the Council shall proceed to choose by lot the members of the Tribunal whose terms of office are to expire at the end of the first three years in accordance with the second paragraph of Article 2 of Annex 1 to the Statute of the Court of Justice.

3. Cases referred to in Article 1 of Annex 1 to the Statute of the Court of Justice of which the Court of First Instance is seised on the date on which that Article enters into force but in which the written procedure provided for in Article 52 of the Rules of Procedure of the Court of First Instance has not yet been completed shall be referred back to the Civil Service Tribunal.

4. Until the entry into force of the rules of procedure of the Civil Service Tribunal, the Rules of Procedure of the Court of First Instance shall apply mutatis mutandis.

Commentary

Paragraph 1

Taken over from the first paragraph of Article 11 of Decision 88/591/ECSC, EEC, Euratom establishing the CFI.

Paragraph 2

Taken over from Article 12 of Decision 88/591 establishing the CFI, except that the partial renewal of the judges in the Civil Service Tribunal is not provided for by the Treaty but by Article 2 of Annex 1 to the Statute of the Court of Justice, inserted by Article 2 of this Decision.

Paragraph 3

Corresponds to Article 14 of Decision 88/591 establishing the CFI, except that it has been felt preferable for the jurisdiction of the Tribunal to depend on an objective factor such as the end of the written procedure rather than a purely internal event in the Court of First Instance such as the presentation of the preliminary report by the judge rapporteur.

Paragraph 4

Corresponds to the second and third paragraphs of Article 11 of Decision 88/591 establishing the CFI.

Article 4 Entry into force

This Decision shall enter into force on the day following its publication in the Official Journal of the European Union, with the exception of Article 1 of Annex 1 to the Statute of the Court of Justice, as set out in annex to this Decision.

Article 1 of Annex 1 to the Statute of the Court of Justice shall enter into force on the day of the publication in the Official Journal of the European Union of the Decision of the President of the Court of Justice recording that the Civil Service Tribunal has been constituted in accordance with law.

Commentary

Taken over from Article 13 of Decision 88/591 establishing the CFI.

8. Detailed article-by-article commentary on Annex I to the Statute of the Court of Justice, as set out in annex to the proposal for a Decision

Annex I

The European Civil Service Tribunal

Article 1

The European Civil Service Tribunal (the "Civil Service Tribunal") shall exercise at first instance the jurisdiction in disputes between the Communities and their servants referred to in Article 236 of the EC Treaty and Article 152 of the Euratom Treaty, including disputes between all bodies or agencies and their servants in respect of which jurisdiction is conferred on the Court of Justice.

Commentary

* The first limb of the sentence corresponds to Article 3(1)(a) of Decision 88/591/ECSC, EEC, Euratom establishing the CFI.

* The second limb of the sentence covers all staff disputes within the jurisdiction of the Court of Justice. Examples:

- Article 30 of Decision 2002/187/JAI setting up Eurojust (OJ L 63, 6.3.2002, p.1),

- Article 36(2) of the Protocol on the Statutes of the ESCB and the ECB,

- Article 112 of Regulation (EC) No 40/94 on the Community trademark (OJ L 11, 14.1.1994, p. 1): staff of the Alicante Office).

Article 2

The Civil Service Tribunal shall consist of six judges, appointed for a period of six years by the Council from among candidates presented by the Member States after consulting the committee provided for by Article 3.

Every three years there shall be a partial replacement of the judges. Retiring judges may be reappointed.

Commentary

i) Number of judges

The proposed number is based on the following considerations:

* a three-member tribunal would be too small for the current caseload (120 or so cases each year); and it must always be possible to replace a judge who is unable to act;

* a five-member tribunal, implying a permanent trial formation of five judges, would be disproportionate as staff cases are currently tried by either a three-member bench or a judge sitting alone;

* but the caseload is liable to expand with the enlargement-related increase in the number of staff; and

* account must also be taken of the suggested arrangements for assistance to judges (cf. commentary on Article 6 of this Annex.

As matters stand, therefore, the tribunal's caseload and modus operandi would seem to call for two three-member sections, giving a total of six judges.

ii) Renewable term of office of six years, as provided by the Treaty for judges at the Court of Justice and the CFI (Articles 223 and 224 of the EC Treaty).

This tried-and-tested formula would be supported by the conclusions of the Convention: cf. Draft Constitution, Part I, Article I-28(2) (CONV 850/03, 18.7.2003).

iii) Appointment procedure

* Article 225a of the EC Treaty merely provides for judges to be appointed by "the Council, acting unanimously". Provision therefore has to be made for the manner in which candidates will be presented.

* Consultation of a committee would seem to be a proper way of facilitating decision-making in the Council (cf. commentary on Article 3 of this Annex).

Article 3

A committee shall be set up to give an opinion on candidates' suitability to perform the duties of judge at the Civil Service Tribunal before the appointment decision is taken. The committee may append to its Opinion a list of candidates having the most suitable high-level experience. Such list shall contain the names of twice as many candidates as there are judges to be appointed by the Council.

The committee shall comprise seven persons chosen from among former members of the Court of Justice and the Court of First Instance and lawyers of recognised competence. The committee's membership and operating rules shall be determined by the Council, acting by a qualified majority on a recommendation by the President of the Court of Justice.

Commentary

This Article is based on the conclusions of the Convention, and is designed to facilitate decision-making by the Council.

Articles III-260 and III-261 of the draft Constitution, Part III (CONV 850/03, 18.7.2003), provide for the judges and Advocates-General of the Court of Justice and the judges of the CFI to be appointed by common accord of the governments of the Member States after consulting the panel provided for in Article III-262.

Article III-262 reads:

"A panel shall be set up in order to give an opinion on candidates' suitability to perform the duties of Judge and Advocate-General of the European Court of Justice and the High Court before the governments of the Member States take the decisions referred to in Articles III-260 and III-261.

The panel shall comprise seven persons chosen from among former members of the European Court of Justice and the High Court, members of national supreme courts and lawyers of recognised competence, one of whom shall be proposed by the European Parliament. The Council of Ministers shall adopt a European decision establishing the panel's operating rules and a European decision appointing its members. It shall act on the initiative of the President of the European Court of Justice."

The departures from the text of the draft Constitution are the following:

i) the possibility for the committee to append to its opinion a list of candidates having the most suitable experience.

This could facilitate decision-making by the Council since the number of Member States far exceeds the number of judges at the tribunal and the task in any event is to appoint members of a specialised court;

ii) the committee's membership is slightly modified: it would no longer contain members from national supreme courts or members designated by the European Parliament, since it is specialised litigation that is being provided for.

Article 4

1. The judges shall elect the President of the Civil Service Tribunal from among their number for a term of three years. He may be re-elected.

2. The Civil Service Tribunal shall sit in sections of three judges. It may, in certain cases determined by its Rules of Procedure, sit in a section of five judges.

3. The President of the Civil Service Tribunal shall preside over the section of five judges and one of the two sections of three judges. The President of the other section of three judges shall be designated as provided by paragraph 1.

4. The composition of the sections and the assignment of cases to them shall be governed by the rules of procedure.

Commentary

Paragraph 1

Formulation corresponding to the third paragraph of Articles 223 and 224 of the EC Treaty; cf. Article 2(2) of Decision 88/591/ECSC, EEC, Euratom.

NB: since the judges at the new tribunal will not know each other, it is provided (p. 18, Article 3(1)) that when the Tribunal is established the President will be appointed by the Council, as was done when the CFI was established.

Paragraph 2

Formulation based on Article 50 of the Statute of the Court of Justice, the section of five judges replacing the plenary court for present purposes.

Paragraph 3

Corresponds to practice at the Court of Justice and the CFI: the President of a section of three judges also presides over the extended five-judge formation.

Paragraph 4

Formulation corresponding to the second paragraph of Article 50 of the Statute of the Court of Justice.

Article 5

The judges of the Civil Service Tribunal shall be independent. They may not be bound by instructions. Articles 2 to 7, 14 and 15, the first, second and fifth paragraphs of Article 17 and Article 18 of the Statute of the Court of Justice shall apply to the Civil Service Tribunal and its members.

The oath referred to in Article 2 of the Statute shall be taken before the Court of Justice, and the decisions referred to in Articles 3, 4 and 6 shall be adopted by that Court of Justice after consulting the Civil Service Tribunal.

Commentary

i) formulation corresponding to the first paragraph of Article 47 of the Statute of the Court of Justice (enumerating the provisions of the Statute that apply to the CFI and its members).

The following have been left out of the enumeration in Article 47:

- Article 8, which states that the provisions of Articles 2 to 7 shall apply to the Advocates-General;

- the fourth paragraph of Article 17, determining the quorum where the Court of Justice or CFI sit in full court or plenary formation of 15 judges.

ii) the oath and decisions on the status of judges at the Civil Service Tribunal remain in the hands of the Court of Justice as the supreme court.

The fact that the Nice Treaty gives the CFI a new role and status (jurisdiction to hear appeals from the judicial panels attached to it) should have hierarchical consequences only in relation to the actual courts themselves.

Article 6

1. The Civil Service Tribunal shall be supported by the administrative departments of the Court of Justice and the Court of First Instance. The President of the Court of Justice or, in appropriate cases, the President of the Court of First Instance, shall determine by common accord with the president of the Civil Service Tribunal, the conditions under which officials and other servants attached to the Court of Justice or the Court of First Instance shall render their services to the Civil Service Tribunal to enable it to function.

2. The Civil Service Tribunal shall appoint its Registrar and lay down the rules governing his service. The fourth paragraph of Article 3 and Articles 10, 11 and 14 of the Statute of the Court of Justice shall apply to the Registrar of the Tribunal.

Commentary

Paragraph 1

Corresponds to Article 52 of the Statute of the Court of Justice, except for the first sentence of paragraph 1, which is added to clarify the administrative relationship with the Court of Justice and the Court of First Instance.

Paragraph 2

Corresponds to the provisions for the Registrar of the CFI: fourth paragraph of Article 224 of the EC Treaty and second paragraph of Article 47 of the Statute of the Court of Justice.

Regarding staff made available to the Civil Service Tribunal, it is proposed that a formulation rather like that used for the CFI when it was set up to handle specialised litigation (trademarks and competition) be applied. There were two teams of three legal assistants specialising in competition law and trademark law, administratively attached to the President of the CFI but available to help every judge rapporteur with cases within their specialisms.

The judges at the Civil Service Tribunal would consequently not have their personal staff, with two or three law clerks for each judge as at the Court of Justice or the CFI, but would be assisted by a group of four lawyers (grades A6 to A3) specialising in the Community civil service. Two secretarial posts could be assigned to the team, the judges each also having their own secretariat.

It will be necessary to check with the Court of Justice and the CFI: whether:

* the formulation "by common accord with the President of the Court of Justice or the President of the CFI", used in the CFI Decision, can be taken over in this way for the presidents of judicial panels, bearing in mind that other such panels will be attached to the CFI in the future; and

* if so, how the Court would give effect to the formula in practice.

Article 7

1. The procedure before the Civil Service Tribunal shall be governed by Title III of the Statute of the Court of Justice, with the exception of Articles 22 and 23. Such further and more detailed provisions as may be necessary shall be laid down in the rules of procedure.

2. Without prejudice to Article 40 of the Statute of the Court of Justice, the written stage of the procedure shall comprise the presentation of the application and of the statement of defence, unless the Civil Service Tribunal decides that a second exchange of written pleadings is necessary. Where there is such second exchange, the Civil Service Tribunal may, after hearing the parties, decide to proceed to judgment without an oral procedure.

3. At all stages of the procedure, including the time when the application is filed, the Civil Service Tribunal shall examine the possibilities of an amicable settlement of the dispute and shall be at pains to facilitate such settlement.

4. The European Civil Service Tribunal shall rule on the costs of a case. Subject to the specific provisions of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs should the court so decide.

Commentary

Paragraph 1

First sentence

Taken over from Decision 88/591/ECSC, EEC, Euratom establishing the CFI (Article 5, inserting Article 46 in the EC Statute of the Court of Justice) and reproduced in the first paragraph of Article 53 of the Statute.

NB: the change made to Article 53 of the Statute of the Court of Justice - in comparison with the former Article 46 - is due to the fact that the CFI will in future also exercise preliminary ruling jurisdiction.

Second sentence

Corresponds to the second paragraph of Article 53 of the Statute.

Paragraph 2

First sentence

The aim is to lighten the procedure and settle disputes rapidly where the documentation is full enough to allow the parties to develop their arguments at the hearing. Unlike the Rules of Procedure of the Court of Justice (Articles 41(1) and 117(1)) and the CFI (Article 47(1)), under which replies and rejoinders are deposited primarily if the parties so wish, the Civil Service Tribunal is given the power to determine whether supplementary pleadings are actually needed or whether it can move straight on to the oral procedure.

Second sentence

The Civil Service Tribunal must have the possibility of refraining from holding a full hearing where it feels it has adequate information on the dispute after the four written pleadings have been deposited.

Paragraph 3

The Civil Service Tribunal will also have the task of exploring every possibility of coming to an amicable settlement of the dispute.

Paragraph 4

Corresponds to the provisions of Article 38 of the Statute, Article 87 of the Rules of Procedure of the Court of First Instance and Article 69 of the Rules of Procedure of the Court of Justice.

Article 8

1. Where an application or other procedural document addressed to the Civil Service Tribunal is lodged by mistake with the Registrar of the Court of First Instance, it shall be transmitted immediately by that Registrar to the Registrar of the Civil Service Tribunal; likewise, where an application or other procedural document addressed to the Court of First Instance is lodged by mistake with the Registrar of the Civil Service Tribunal, it shall be transmitted immediately by that Registrar to the Registrar of the Court of First Instance.

2. Where the Civil Service Tribunal finds that it does not have jurisdiction to hear and determine an action in respect of which the Court of First Instance has jurisdiction, it shall refer that action to the Court of First Instance; likewise, where the Court of First Instance finds that an action falls within the jurisdiction of the Civil Service Tribunal, it shall refer that action to the Civil Service Tribunal, whereupon that Tribunal may not decline jurisdiction.

3. Where the Civil Service Tribunal and the Court of First Instance are seised of cases in which the same relief is sought, the same issue of interpretation is raised or the validity of the same act is called in question, the Civil Service Tribunal may, after hearing the parties, stay the proceedings before it until such time as the Court of First Instance shall have delivered judgment.

Commentary

These three paragraphs correspond to the three paragraphs of Article 54 of the Statute (ex Article 47, cf. Article 7 of Decision 88/591/ECSC, EEC, Euratom establishing the CFI).

Article 9

An appeal may be brought before the Court of First Instance, within two months of the notification of the decision appealed against, against final decisions of the Civil Service Tribunal and decisions of that Tribunal disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of jurisdiction or inadmissibility.

Such an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. Only parties intervening in the dispute before the Civil Service Tribunal may appeal to the Court of First Instance. However, interveners other than the Member States and the institutions of the Communities may bring such an appeal only where the decision of the Civil Service Tribunal directly affects them.

Commentary

Reproduces the relevant provisions of Article 56 of the Statute of the Court of Justice.

Article 10

1. Any person whose application to intervene has been dismissed by the Civil Service Tribunal may appeal to the Court of First Instance within two weeks from the notification of the decision dismissing the application.

2. The parties to the proceedings may appeal to the Court of First Instance against any decision of the Civil Service Tribunal made pursuant to Article 242 or Article 243 or the fourth paragraph of Article 256 of the EC Treaty or Article 157 or Article 158 or the third paragraph of Article 164 of the EAEC Treaty within two months from their notification.

3. The President of the Civil Service Tribunal may, by way of summary procedure, which may, in so far as necessary, differ from some of the rules contained in this Annex and which shall be laid down in the rules of procedure, adjudicate upon appeals brought in accordance with paragraphs 1 and 2 of this Article.

Commentary

Corresponds to the three paragraphs of Article 57 of the Statute of the Court of Justice. Paragraph 3 is taken over from Article 39 of the Statute, to which the third paragraph of Article 57 refers.

Article 11

1. An appeal to the Court of First Instance shall be limited to points of law. It shall lie on the grounds of lack of jurisdiction of the Civil Service Tribunal, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Tribunal.

2. No appeal shall lie regarding only the amount of the costs or the party ordered to pay them.

Commentary

Paragraphs 1 and 2

Correspond to the two paragraphs of Article 58 of the Statute of the Court of Justice, reproduced here given that the third paragraph of Article 225a of the Treaty provides for the possibility of appeals on points of law or on points of law and fact.

Article 12

1. Without prejudice to Articles 242 and 243 of the EC Treaty or Articles 157 and 158 of the EAEC Treaty, an appeal shall not have suspensory effect.

2. Where an appeal is brought against a decision of the Civil Service Tribunal, the procedure before the Court of First Instance shall consist of a written part and an oral part. In accordance with conditions laid down in the rules of procedure, the Court of First Instance, having heard the parties, may dispense with the oral procedure.

Commentary

Paragraph 1

Corresponds to Article 60 of the Statute of the Court of Justice.

Paragraph 2

Corresponds to Article 59 of the Statute of the Court of Justice.

Article 13

1. If the appeal is well founded, the Court of First Instance shall quash the decision of the Civil Service Tribunal. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Tribunal for judgment.

2. Where a case is referred back to the Civil Service Tribunal, the Tribunal shall be bound by the decision of the Court of First Instance on points of law.

Commentary

Paragraph 1

Corresponds to the first paragraph of Article 61 of the Statute of the Court of Justice, but clarifies it to avoid situations where the Court of First Instance refers the case back to the Civil Service Tribunal when the case is ready for trial, as this would be a source of pointless delay.

Paragraph 2

Corresponds to the second paragraph of Article 61 of the Statute of the Court of Justice.

2003/0280 (CNS)

Proposal for a COUNCIL DECISION establishing the European Civil Service Tribunal

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 225a and 245 thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Articles 140b and 160 thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the Court of Justice,

Having regard to the opinion of the European Parliament,

Whereas:

(1) Article 225a of the EC Treaty and Article 140b of the Euratom Treaty empower the Council to create judicial panels to hear and determine at first instance certain classes of action or proceeding brought in specific areas and to lay down the rules on the organisation of the panel and the extent of the jurisdiction conferred upon it.

(2) The establishment of a specific judicial panel to exercise jurisdiction at first instance in European civil service disputes, currently within the jurisdiction of the Court of First Instance of the European Communities, would improve the operation of the Community courts system. It answers the call made in Declaration No 16 relating to Article 225a of the EC Treaty, adopted when the Treaty of Nice was signed.

(3) A judicial panel should accordingly be attached to the Court of First Instance, that shall for institutional and organisational purposes be an integral part of the Court of Justice an institution with members enjoying a similar status to members of the Court of First Instance.

(4) The new judicial panel should be given a name that distinguishes it in its trial formations from the trial formations of the Court of First Instance.

(5) To make the court system generally easy to understand, the provisions relating to the judicial panel's jurisdiction, composition, organisation and procedure should be laid down in an Annex to the Statute of the Court of Justice.

(6) The number of judges of the judicial panel should match its caseload. To facilitate decision-making by the Council in the appointment of judges, provision should be made for the Council to establish an independent Advisory Committee to verify that applications received meet the relevant conditions.

(7) The judicial panel should try cases by a procedure matching the specific features of the disputes that are to be referred to it, examining the possibilities for amicable settlement of disputes at all stages of the procedure.

(8) In accordance with the third paragraph of Article 225a of the EC Treaty and the third paragraph of Article 140b of the Euratom Treaty, appeals may be lodged at the Court of First Instance against decisions of the judicial panel on points of law only in the same conditions as those governing appeals lodged at the Court of Justice against decisions of the Court of First Instance. The relevant provisions of the Statute of the Court of Justice are reproduced in the Annex to the Statute relating to the judicial panel, to avoid cross-references that would make the general set of provisions difficult to read.

(9) Provision should be made in this Decision for transitional arrangements so that the judicial panel can exercise its functions as soon as it is established,

HAS DECIDED AS FOLLOWS:

Article 1

A judicial panel shall be attached to the Court of First Instance of the European Communities to hear disputes involving the European civil service and shall be known as the "European Civil Service Tribunal". The European Civil Service Tribunal shall have its headquarters at the Court of First Instance.

Article 2

The Protocol on the Statute of the Court of Justice shall be amended as follows:

1) The following Title VI shall be added:

"Title VI

JUDICIAL PANELS

Article 65

The provisions relating to the jurisdiction, composition, organisation and procedure of the judicial panels established under Articles 225a of the EC Treaty and 140b of the Euratom Treaty are set forth in an Annex to this Statute."

2) Annex I, as set out in annex to this Decision, is added.

Article 3

1. The first President of the Civil Service Tribunal shall be appointed for three years in the same manner as its judges, unless the Council decides that the procedure laid down in the first paragraph of Article 4 of Annex I to the Statute of the Court of Justice, as attached in annex to this Decision, shall be applied.

2. Immediately after all members of the Civil Service Tribunal have taken oath, the President of the Council shall proceed to choose by lot the members of the Tribunal whose terms of office are to expire at the end of the first three years in accordance with the second paragraph of Article 2 of Annex 1 to the Statute of the Court of Justice.

3. Cases referred to in Article 1 of Annex 1 to the Statute of the Court of Justice of which the Court of First Instance is seised on the date on which that Article enters into force but in which the written procedure provided for in Article 52 of the Rules of Procedure of the Court of First Instance has not yet been completed shall be referred back to the Civil Service Tribunal.

4. Until the entry into force of the rules of procedure of the Civil Service Tribunal, the Rules of Procedure of the Court of First Instance shall apply mutatis mutandis.

Article 4

This Decision shall enter into force on the day following its publication in the Official Journal of the European Union, with the exception of Article 1 of Annex 1 to the Statute of the Court of Justice, as set out in annex to this Decision.

Article 1 of Annex 1 to the Statute of the Court of Justice shall enter into force on the day of the publication in the Official Journal of the European Union of the Decision of the President of the Court of Justice recording that the Civil Service Tribunal has been constituted in accordance with law.

Done at Brussels, [...]

For the Council

The President [...]

ANNEX

Annex I

The European Civil Service Tribunal

Article 1

The European Civil Service Tribunal (the "Civil Service Tribunal") shall exercise at first instance the jurisdiction in disputes between the Communities and their servants referred to in Article 236 of the EC Treaty and Article 152 of the Euratom Treaty, including disputes between all bodies or agencies and their servants in respect of which jurisdiction is conferred on the Court of Justice.

Article 2

The Civil Service Tribunal shall consist of six judges, appointed for a period of six years by the Council from among candidates presented by the Member States after consulting the committee provided for by Article 3.

Every three years there shall be a partial replacement of the judges. Retiring judges may be reappointed.

Article 3

A committee shall be set up to give an opinion on candidates' suitability to perform the duties of judge at the Civil Service Tribunal before the appointment decision is taken. The committee may append to its Opinion a list of candidates having the most suitable high-level experience. Such list shall contain the names of twice as many candidates as there are judges to be appointed by the Council.

The committee shall comprise seven persons chosen from among former members of the Court of Justice and the Court of First Instance and lawyers of recognised competence. The committee's membership and operating rules shall be determined by the Council, acting by a qualified majority on a recommendation by the President of the Court of Justice.

Article 4

1. The judges shall elect the President of the Civil Service Tribunal from among their number for a term of three years. He may be re-elected.

2. The Civil Service Tribunal shall sit in sections of three judges. It may, in certain cases determined by its Rules of Procedure, sit in a section of five judges.

3. The President of the Civil Service Tribunal shall preside over the section of five judges and one of the two sections of three judges. The President of the other section of three judges shall be designated as provided by paragraph 1.

4. The composition of the sections and the assignment of cases to them shall be governed by the rules of procedure.

Article 5

The judges of the Civil Service Tribunal shall be independent. They may not be bound by instructions. Articles 2 to 7, 14, 15, the first, second and fifth paragraphs of Article 17, and Article 18 of the Statute of the Court of Justice shall apply to the Civil Service Tribunal and its members.

The oath referred to in Article 2 of the Statute shall be taken before the Court of Justice, and the decisions referred to in Articles 3, 4 and 6 shall be adopted by that Court of Justice after consulting the Civil Service Tribunal.

Article 6

1. The Civil Service Tribunal shall be supported by the administrative departments of the Court of Justice and the Court of First Instance. The President of the Court of Justice or, in appropriate cases, the President of the Court of First Instance, shall determine by common accord with the president of the Civil Service Tribunal, the conditions under which officials and other servants attached to the Court of Justice or the Court of First Instance shall render their services to the Civil Service Tribunal to enable it to function.

2. The Civil Service Tribunal shall appoint its Registrar and lay down the rules governing his service. The fourth paragraph of Article 3 and Articles 10, 11 and 14 of the Statute of the Court of Justice shall apply to the Registrar of the Tribunal.

Article 7

1. The procedure before the Civil Service Tribunal shall be governed by Title III of the Statute of the Court of Justice, with the exception of Articles 22 and 23. Such further and more detailed provisions as may be necessary shall be laid down in the rules of procedure.

2. Without prejudice to Article 40 of the Statute of the Court of Justice, the written stage of the procedure shall comprise the presentation of the application and of the statement of defence, unless the Civil Service Tribunal decides that a second exchange of written pleadings is necessary. Where there is such second exchange, the Civil Service Tribunal may, after hearing the parties, decide to proceed to judgment without an oral procedure.

3. At all stages of the procedure, including the time when the application is filed, the Civil Service Tribunal shall examine the possibilities of an amicable settlement of the dispute and shall be at pains to facilitate such settlement.

4. The European Civil Service Tribunal shall rule on the costs of a case. Subject to the specific provisions of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs should the court so decide.

Article 8

1. Where an application or other procedural document addressed to the Civil Service Tribunal is lodged by mistake with the Registrar of the Court of First Instance, it shall be transmitted immediately by that Registrar to the Registrar of the Civil Service Tribunal; likewise, where an application or other procedural document addressed to the Court of First Instance is lodged by mistake with the Registrar of the Civil Service Tribunal, it shall be transmitted immediately by that Registrar to the Registrar of the Court of First Instance.

2. Where the Civil Service Tribunal finds that it does not have jurisdiction to hear and determine an action in respect of which the Court of First Instance has jurisdiction, it shall refer that action to the Court of First Instance; likewise, where the Court of First Instance finds that an action falls within the jurisdiction of the Civil Service Tribunal, it shall refer that action to the Civil Service Tribunal, whereupon that Tribunal may not decline jurisdiction.

3. Where the Civil Service Tribunal and the Court of First Instance are seised of cases in which the same relief is sought, the same issue of interpretation is raised or the validity of the same act is called in question, the Civil Service Tribunal may, after hearing the parties, stay the proceedings before it until such time as the Court of First Instance shall have delivered judgment.

Article 9

An appeal may be brought before the Court of First Instance, within two months of the notification of the decision appealed against, against final decisions of the Civil Service Tribunal and decisions of that Tribunal disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of jurisdiction or inadmissibility.

Such an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. Only parties intervening in the dispute before the Civil Service Tribunal may appeal to the Court of First Instance. However, interveners other than the Member States and the institutions of the Communities may bring such an appeal only where the decision of the Civil Service Tribunal directly affects them.

Article 10

1. Any person whose application to intervene has been dismissed by the Civil Service Tribunal may appeal to the Court of First Instance within two weeks from the notification of the decision dismissing the application.

2. The parties to the proceedings may appeal to the Court of First Instance against any decision of the Civil Service Tribunal made pursuant to Article 242 or Article 243 or the fourth paragraph of Article 256 of the EC Treaty or Article 157 or Article 158 or the third paragraph of Article 164 of the EAEC Treaty within two months from their notification.

3. The President of the Civil Service Tribunal may, by way of summary procedure, which may, in so far as necessary, differ from some of the rules contained in this Annex and which shall be laid down in the rules of procedure, adjudicate upon appeals brought in accordance with paragraphs 1 and 2 of this Article.

Article 11

1. An appeal to the Court of First Instance shall be limited to points of law. It shall lie on the grounds of lack of jurisdiction of the Civil Service Tribunal, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Tribunal.

2. No appeal shall lie regarding only the amount of the costs or the party ordered to pay them.

Article 12

1. Without prejudice to Articles 242 and 243 of the EC Treaty or Articles 157 and 158 of the EAEC Treaty, an appeal shall not have suspensory effect.

2. Where an appeal is brought against a decision of the Civil Service Tribunal, the procedure before the Court of First Instance shall consist of a written part and an oral part. In accordance with conditions laid down in the rules of procedure, the Court of First Instance, having heard the parties, may dispense with the oral procedure.

Article 13

1. If the appeal is well founded, the Court of First Instance shall quash the decision of the Civil Service Tribunal. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Tribunal for judgment.

2. Where a case is referred back to the Civil Service Tribunal, the Tribunal shall be bound by the decision of the Court of First Instance on points of law.

LEGISLATIVE FINANCIAL STATEMENT

Policy area(s): institutional

Activit(y/ies): Implementation of Treaty of Nice

Title of action: Proposal for a Council Decision establishing the European Civil Service Tribunal

1. BUDGET LINE(S) + HEADING(S)

Specific budget line to be inserted in Section IV - Court of Justice

2. OVERALL FIGURES

2.1 Total allocation for action (Part B): EUR million for commitment

2.2 Period of application

2.3 Overall multiannual estimate on expenditure

(a) Schedule of commitment appropriations/payment appropriations (financial intervention) (see point 6.1.1)

EUR million (to 3rd decimal place)

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(b) Technical and administrative assistance and support expenditure (see point 6.1.2)

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(c) Overall financial impact of human resources and other administrative expenditure (cf. points 7.2 and 7.3)

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2.4 Compatibility with the financial programming and the financial perspective

[X] Proposal is compatible with existing financial programming.

[...] Proposal will entail reprogramming of the relevant heading in the financial perspective.

[...] This may entail application of the provisions of the Interinstitutional Agreement.

2.5 Financial impact on revenue:

[X] No financial implications (involves technical aspects regarding implementation of a measure)

OR

[...] Proposal has financial impact - the effect on revenue is as follows:

EUR million (to one decimal place)

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3. BUDGET CHARACTERISTICS

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4. LEGAL BASIS

Articles 225a and 245 of the EC Treaty and Articles 140b and 160 of the Euratom Treaty.

5.1 Need for Community intervention

5.1.1 Objectives pursued

This proposal for a Council Decision to establish a court of first instance specialising in civil service disputes is one component of the reform of the court system provided for by the Treaty of Nice (second paragraph of Article 220 and Article 225a of the EC Treaty) to remedy the growing hold-ups in the Community courts. It answers the call made in Declaration No 16 on Article 225a, adopted at Nice, whereby the Conference asked the Court of Justice and the Commission "to prepare as swiftly as possible a draft decision establishing a judicial panel which has jurisdiction to deliver judgments at first instance on disputes between the Community and its servants".

Establishing this Tribunal will relieve the Court of First Instance of the caseload in this area, representing a third of its current load. In accordance with Article 225(2) of the EC Treaty, the role of the Court of First Instance here will henceforth be confined to hearing appeals against decisions by the new Tribunal, and the Court of Justice will be involved only in exceptional situations in the procedure for reviewing judgments given by the Court of First Instance.

5.1.2 Measures taken in connection with ex ante evaluation

The reform provided for by the Nice Treaty was prompted by an Additional Commission contribution to the Intergovernmental Conference on institutional reform: Reform of the Community courts (COM(2000) 109 final, 1.3.2000).

5.1.3 Measures taken following ex post evaluation

5.2 Actions envisaged and budget intervention arrangements

The establishment of the new European Civil Service Tribunal mainly entails budgetary measures enabling it to function. The judges of the Tribunal will need suitable premises and proper support and assistance in the exercise of their functions (registrar, administrators, secretariat). In accordance with Article 220 of the EC Treaty, the Tribunal will be attached to the Court of First Instance. It will accordingly call on the administrative departments of the Court of Justice and the Court of First Instance (translators, judgment readers, interpreters), whose staffing will require adjustment accordingly.

5.3 Methods of implementation

The necessary staff will be made available to the new Tribunal by the Court of Justice.

6. FINANCIAL IMPACT

6.1 Total financial impact on Part B - (over the entire programming period)

6.1.1 Financial intervention

Commitments in EUR million (to the 3rd decimal place)

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6.2 Calculation of costs by measure envisaged in Part B (over the entire programming period)

Commitments (in EUR million to three decimal places)

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7. IMPACT ON STAFF AND ADMINISTRATIVE EXPENDITURE

7.1 Impact on human resources

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The 6 A posts would be as follows: 1 registrar, 4 administrators for the group of lawyers (see commentary on Article 6 of the draft), 1 administrator for administrative matters (who might belong to the President's staff).

The 2 B posts would be as follows: 1 post for the registrar's assistant (who will be in charge of the registry team, under the authority of the registrar), 1 post for handling documentation.

The 10 C posts would be as follows: 6 secretaries for the 6 judges, 1 secretary for the registrar, 1 secretary for the registry team, 2 secretaries for the group of lawyers.

7.2 Overall financial impact of human resources

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The amounts are total expenditure for twelve months.

7.3 Other administrative expenditure deriving from the action

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The amounts are total expenditure for twelve months.

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*For the first year EUR692 000 should be added for start-up costs.

8. FOLLOW-UP AND EVALUATION

Not necessary.

9. ANTI-FRAUD MEASURES

Not applicable. The proposal would establish a new Community court and does not affect any Community policies at risk of fraud.

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