COMMISSION OPINION on the request for the amendment of Articles 16 and 17 of the Statute of the Court of Justice on the composition of the Grand Chamber and the quorum for decisions of the full Court, presented by the Court of Justice in accordance with the second paragraph of Article 245 of the EC Treaty and the second paragraph of Article 160 of the EAEC Treaty

COMMISSION OPINION

on the request for the amendment of Articles 16 and 17 of the Statute of the Court of Justice on the composition of the Grand Chamber and the quorum for decisions of the full Court, presented by the Court of Justice in accordance with the second paragraph of Article 245 of the EC Treaty and the second paragraph of Article 160 of the EAEC Treaty

The Court of Justice proposes

- amending Article 16 of the Statute in order to increase the number of Judges making up the Grand Chamber from 11 to 13,

- and amending Article 17 of the Statute in order to increase the quorum for decisions of the full Court from 11 to 15 Judges. [1]

[1] The quorum for the Grand Chamber remains unchanged (nine Judges).

I. Regarding the amendment of Article 16 of the Statute

1. Article 16 of the Statute acquired its present form with the Treaty of Nice, which was specifically intended to adjust the composition and functioning of the institutions in preparation for enlargement. [2] Article 16 is one of the provisions adopted for that purpose and as such did not require further adjustment in the course of the negotiations for the recent accession treaties.

[2] As made clear, inter alia, by Declaration No 20, adopted at the Nice Summit, the Intergovernmental Conference worked on the basis of an enlargement of the Union to 27 members.

2. The Grand Chamber, which is now the plenary session for Court judgments, was created, as the Court pointed out in its discussion paper for the 2000 Intergovernmental Conference (pp.27-28), [3] in order to prevent a situation in which "any significant increase in the number of Judges might mean that the plenary session of the Court would cross the invisible boundary between a collegiate court and a deliberative assembly". It should be noted that the Court is returning here to a concern it had initially expressed on this point in its 1995 report, [4] since the plenary session for judgments, enlarged at that time to 15 Judges, is already no longer able to meet the demands of effective deliberation.

[3] Contribution by the Court of Justice and the Court of First Instance on the future of the judicial system of the European Union, presented to the meeting of Justice Ministers in May 1999.

[4] Report by the Court of Justice of May 1995, mentioned in footnote 5 of the Court's discussion paper of May 1999, referred to above.

3. Unlike any other institution, the plenary session for Community judgments, whose prime function is to act as a court for the Union as a whole, in fact constitutes a critical threshold beyond which it becomes difficult to maintain the rigour and consistency of grounds for judgments, which are indispensable for a court's rulings. This was also the view expressed by the Due Report, [5] which stated "If the quality of the Court's rulings is to be maintained, there must necessarily be a strict limit on the number of Judges attending plenary sessions."

[5] Working party on the future of the European Communities' court system, set up by the Commission with a view to the 2000 IGC and chaired by the former President of the Court of Justice, O. Due. This working party also included the former President of the Court of First Instance and former Judges and Advocates-General of the Court of Justice. The terms of the Due report were largely taken over by the Commission in its supplementary contribution to the IGC of 1 March 2000.

4. The number of judges in the Grand Chamber, laid down by the Nice Treaty, was therefore determined not in terms of the total number of Judges in the Court as it is today or in a Court increased to 25 or 27 members, but according to a threshold of effectiveness of the Court on which all parties agreed. Moreover, the composition of the Grand Chamber has been defined in such a way as to ensure the regular participation of all the Judges of the Court [6] in accordance with the rotation system established since that time by Article 11b of the Rules of Procedure of the Court of Justice.

[6] Under Article 16 of the Statute, the Grand Chamber is presided over by the President of the Court and must include the Presidents of the chambers of five Judges. The other Grand Chamber Judges are appointed in accordance with the conditions laid down in the Rules of Procedure.

5. It is clear from the foregoing that, in the Commission's opinion, it would be preferable to maintain the balance embodied by Article 16 of the Statute. If it is nevertheless decided to increase the number of Judges in the Grand Chamber, the Commission stresses that this increase should not be linked to the number of Judges making up the Court.

II. Regarding the amendment of Article 17 of the Statute as proposed by the Court of Justice.

1. When the Nice Treaty was signed, the exact number of countries acceding and the order in which they would do so had not yet been formally decided upon, [7] so the Treaty merely aligned the quorum for the full Court on the number of Judges making up the Grand Chamber.

[7] The accession of ten of the twelve candidate states was decided upon at the Copenhagen Summit in 2002

2. The Commission regards the proposal to increase the quorum for the full Court from 11 to 15 Judges as appropriate. When the Community increased to nine Member States the quorum for the full Court was set at seven Judges and this quorum remained unchanged through the subsequent enlargements which saw the number of Judges of the Court increase to eleven, then thirteen.

3. However, for the reasons set out above, the Commission would stress that this quorum should not, under any circumstances, be used as a reference for a future enlargement of the Grand Chamber, since this would call into question the entire debate on the matter, conducted in particular by the Court, the Commission and the Member States, since the Court's 1995 report, and compromise the imperative of maintaining the clarity and consistency of the Court's rulings which are essential to a Community based on the rule of law once it has been enlarged to twenty-five or twenty-seven members.