COMMISSION OPINION PURSUANT TO ARTICLE 225(2) OF THE EC TREATY on the request for an extension of the Court of First Instance's jurisdiction powers and on the request for an increase in the number of judges at the Court of First Instance (trade mark cases)

(presented by the Commission)

By letter dated 14 December 1998, the President of the Court of Justice sent to the President of the Council a draft of a decision to extend the jurisdiction of the Court of First Instance, set out in Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988, as amended by Decision 94/149/ECSC, EC of 7 March 1994.

By letter dated 27 April 1999, the President of the Court of Justice sent a request to the President of the Council that the number of judges at the Court of First Instance be increased so that it could cope with the new trade mark litigation.

In this opinion, the Commission gives its view on those two requests made by the Court of Justice, pursuant to Article 225(2) of the Treaty.

I. Request for an extension of the Court of First Instance's jurisdiction powers

1. The Court of Justice requests that an exception be made to the current rule on the division of jurisdiction between the Court of Justice and the Court of First Instance so that actions for annulment brought by the Member States in certain fields and concerning certain types of measure would from now on fall within the jurisdiction of the Court of First Instance.

The fields and measures mentioned by the Court of Justice are decisions on the clearance of the accounts of the EAGGF Guarantee Section, implementing acts - adopted in the exercise of powers delegated by a basic act - in the transport policy field and under funds, financial instruments or programmes of action providing for the granting of Community financial support, the competition rules applicable to undertakings, state aid, trade protection measures (dumping) and any actions based on arbitration clauses, including those brought by institutional plaintiffs.

The Court's request would affect about 20 cases per year.

2. The Commission shares the motivation behind the request in that it is intended to ensure better administration of justice and a more rational division of jurisdiction between the Court of Justice and the Court of First Instance.

However, it considers that amendment of the rules on the division of jurisdiction between the Court and the Court of First Instance must be based on simple criteria which are clearer than those proposed here and stem from thorough reform of the structure of the Community judiciary, essential to the future preservation of a Community based on the rule of law.

Conclusion:

The Commission considers that the Court of Justices request on the extension of the Court of Fist Instances jurisdiction must be taken into account in the context of current work in the Intergovernmetnal Conference on the reform of the Community courts.

II. Request for an increase in the number of judges at the Court of First Instance (trade mark cases)

As it indicated in its Contribution to the Intergovernmental Conference of 1 March 2000, the Commission considers that increasing the number of judges at the Court of First Instance is one possible solution, if this were sufficient to contain its workload, to begin with at least for trade mark cases.

In this connection, the Commission would make the following remarks:

1. To date, the number of actions brought before the Court of First Instance in the trade marks field remains small (10 cases according to the January 2000 report by Mr Marinho of the European Parliament).

This figure is well below the estimates made by the Office for Harmonisation in the Internal Market (OHIM) in Alicante, that were mentioned in the Court's request of 7 February 1997 regarding the introduction of the single-judge system, which predicted that 400 cases would be brought before the Court of First Instance as of 1997. It would also appear to be below the estimate contained in the Court's request of 27 April 1999 (around 100 cases from 2000 onwards).

2. According to the information provided by the CFI in the context of the Council working party and by Parliament's rapporteur (Marinho report, mentioned above), the gap between the OHIM estimates and the number of actions brought so far before the Court of First Instance is due to the bottleneck in which the OHIM already finds itself : the number of cases pending before the Boards of Appeal was apparently 544 in September 1999 [1], which represents two years' work [2].

[1] It was 110 cases in October 1998, according to the Marinho report.

[2] The Boards of Appeal issue between 7 and 37 decisions per month.

Given the above, there is no doubt that the number of actions brought before the Court of First Instance in this field will increase in the medium term.

3. While the Commission is not opposed to the principle of an increase in the number of judges at the Court of First Instance, it considers that, for trade mark litigation and for intellectual property cases more generally, such a measure would be palliative only, and would in no way release the Council from introducing the reforms made necessary both by the need to handle these special cases and by the situation at the Court of First Instance in general.

An increase in the number of judges at the Court of First Instance for the purposes of handling trade mark cases:

- will not solve the problem of the bottleneck at the OHIM Boards of Appeal mentioned above, which should be resolved if it is not to result in the very near future in cases taking unacceptable lengths of time to come to judgment;

- is likely to prove inadequate all too quickly if, as the Court of Justice indicates in its note dated 27 April 1999, the "cruising rate" of cases brought before the CFI in this field were to reach between 200 and 400 cases per year [3];

[3] Although the complexity of the cases currently handled by the Court of First Instance cannot be compared to that of trade mark litigation, it should be remembered that the Court of First Instance handles on average 240 cases per year.

- takes no account of the other categories of intellectual property litigation: designs and models, utility models, and especially the category that will consist, doubtless in comparable proportions to trade mark litigation, of cases related to the Community patent which is currently being prepared.

4. For all these reasons, the Commission thinks that alternative solutions should be found for special cases and that the Court of First Instance should be put in a position to decide cases much more expeditiously in all its other areas of jurisdiction.

As regards trade mark litigation, reforms should be implemented quickly so that the forecast wave of cases does not reach the Court of First Instance. In the Commission's view, the structures governing the operation of the OHIM's Boards of Appeal should be modified and they should be given the status of a court of first instance, the decisions of which would be appealable, on points of law only, before the Court of Justice.

An appropriate solution should also be found for the Community patent.

In any event, the Court of First Instance should be permanently relieved of those special cases, so as to be able to decide within a satisfactory time frame on the other important cases currently within its jurisdiction and on those which will be added in the medium term as a result of a reallocation of powers between the Court of Justice and the Court of First Instance.

Conclusion:

An increase in the number of judges at the Court of First Instance can be justified if its purpose is to enable the Court of First Instance not to handle trade mark litigation, from which it should be relieved, but to decide within considerably shorter time frames on the other types of litigation which fall within its current and future jurisdiction.