COMMISSION OPINION on the request for an amendment to Article 51 of the Statute of the Court of Justice, made by the Court in response to Declaration No 12, annexed to the Treaty of Nice, on Article 225 of the EC Treaty as amended by the Treaty of Nice

2002/0226 (CNS)

COMMISSION OPINION on the request for an amendment to Article 51 of the Statute of the Court of Justice, made by the Court in response to Declaration No 12, annexed to the Treaty of Nice, on Article 225 of the EC Treaty as amended by the Treaty of Nice [1]

[1] "The Conference calls on the Court of Justice and the Commission to give overall consideration as soon as possible to the division of jurisdiction between the Court of Justice and the Court of First Instance, in particular in the area of direct actions, and to submit suitable proposals for examination by the competent bodies as soon as the Treaty of Nice enters into force."

The Court of Justice proposal

The Court of Justice proposes that Article 51 of its Statute be amended as follows: [2]

[2] Council Doc. No 10790- JUR 232-, 1.10.2001.

By way of exception to the rule laid down in Article 225(1) of the EC Treaty and Article 140a(1) of the EAEC Treaty, the Court of Justice shall have jurisdiction in actions brought under Articles 230 and 232 of the EC Treaty or 146 and 148 of the EAEC Treaty by a Member State, an institution of the Communities, or the European Central Bank against an act or failure to act by the European Parliament or the Council or by the two institutions jointly.

The Court shall also have jurisdiction in actions brought under those Articles by an institution of the Communities or by the ECB against an act or failure to act on the part of the Commission or by an institution of the Communities against an act or failure to act on the part of the ECB.

The proposed provisions mean that:

* the Court would retain exclusive jurisdiction [3] over actions for annulment or on the grounds of failure to act:

[3] Except for actions against infringements - which are not covered in the Court's proposal (but which might be transferred on the basis of the second sentence of the first subparagraph of Article 225(1)) - and jurisdiction regarding questions referred for a preliminary ruling and opinions.

- brought against the Council, the EP, or both by the Member States, the institutions or the ECB; and

- brought against the Commission or the ECB, but only if brought by another institution or the ECB;

* the jurisdiction of the Court of First Instance (CFI) would be extended to cover actions for annulment or on the grounds of failure to act that are brought by Member States against the Commission and the ECB.

The Court's proposal is based on "a statistical and material examination of actions brought by institutions and Member States over the past five years (1996-2000)" [4] (Doc. No 10790, explanatory memorandum, p. 4, penultimate paragraph)

[4] See Council Doc. No 5604/02- JUR 26- of 24.01.2002.

Assessment of the Court's proposal

Preliminary comments

a) The Court's proposal does not touch on a possible transfer to the CFI of jurisdiction for questions referred for a preliminary ruling pursuant to Article 225(3) of the EC Treaty as amended by the Treaty of Nice.

The Commission agrees with this approach, since the prime innovation of the Treaty of Nice was to make the CFI an ordinary court of law for direct actions; it did not envisage transferring jurisdiction for preliminary rulings except in specific areas to be determined at a later stage, possibly as part of a broader review linked to the introduction of specialised judicial panels within the meaning of Article 225(2) of the EC Treaty as amended by the Treaty of Nice.

b) The proposal aims to implement that part of the reform provided for in the first sentence of Article 225(1), the Court's view being that "the possibilities opened up by the last sentence of the first paragraph of Article 225(1) of the Treaty should not be exploited at this stage" (explanatory memorandum, p. 4, 4th para.).

The Commission also supports this approach, as transferring to the CFI jurisdiction for actions other than those referred to in the first sentence (i.e. actions for failure to fulfil an obligation) is not a priority at this stage.

c) The explanatory memorandum accompanying the proposal shows that the Court sought to draw a simple and unambiguous dividing line, so that the architecture of the system would remain clear and the notions employed would not be open to divergent interpretations (p. 4, 1st para.)

This essential objective, however, must go hand in hand with a redrawing of the division of powers in line with the terms and spirit of the Treaty of Nice.

d) The Court states in this respect that in the context of the Treaty of Nice "the circumstances in which (it) will retain exclusive jurisdiction must be specifically justified".

It added that the "guiding thread" in its proposal was to "confirm the quasi constitutional role assigned (to it)" and that "in this spirit, reviewing basic legislative activity and resolving interinstitutional conflicts should remain its (sole) prerogative" (bottom of p. 3).

The Commission fully agrees with this analysis. The aim of the Treaty of Nice is indeed to reserve for the Court of Justice cases of major significance, so that in future it can concentrate on its triple role as a constitutional court (opinions, infringements, major direct actions), as the court of appeal against rulings at first instance given by the CFI, and as the supreme arbiter of interpretation by way of preliminary rulings and the procedure for reviewing decisions by the Court of First Instance. [5]

[5] Introduced by Article 225(2) and (3) (last subparagraphs) of the EC Treaty as amended by the Treaty of Nice.

Major direct actions clearly include interinstitutional actions and actions brought by the Member States or the institutions against basic legislative instruments.

Such actions directly concern the functioning of the Community in terms of the balance of jurisdictions and powers laid down by the Treaties between the institutions and the Member States, on the one hand, and between the institutions, on the other. As such, these actions must be reserved for the exclusive jurisdiction of the Court, in accordance with the Treaty of Nice.

e) However, the Commission notes that:

i] as regards interinstitutional actions, the Court's proposal concerns only actions between the European Parliament, the Council, the Commission and the ECB. In the Commission's opinion, the Court's jurisdiction must include any interinstitutional dispute and must therefore also cover

* actions between the institutions and the bodies, offices and agencies [6] "set up by, or on the basis of, this Treaty" [7] in the words of Article 286(1) of the EC Treaty, and

[6] See Article 1(3) of Parliament and Council Regulation No 1073/1999 of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office - OLAF (OJ L 136, p. 1).

[7] See, for example, Case C-15/00 Commission v EIB; bodies set up under the Treaty (CoR, ESC) or under secondary legislation, such as the European Agency for the Evaluation of Medicinal Products (Regulation No 2309/93 of 22.7.1993) or the European Agency for Reconstruction Regulation No 2454/199 of 15.11.1999).

* any dispute challenging the rules of procedure or provisions governing the functioning of an institution or body of the Community. This applies in especially to actions brought by MEPs against provisions of their institution's rules of procedure or decisions approving framework agreements concluded between the institutions (see II.B below).

ii] the Commission also believes that the criterion for dividing jurisdiction between the Court and the CFI proposed by the Court - in other words the identity of the defendant, together with that of the applicant to define the new dividing line between jurisdictions - does not exactly fulfil the objective sought by the Treaty of Nice, since it would:

* keep and reserve actions for the jurisdiction of the Court where maintaining its sole prerogative is no longer be justified under the Treaty of Nice,

* and would transfer to and maintain under the jurisdiction of the CFI the review of acts where this should be the sole prerogative of the Court.

I. Applying the criterion of the defendant - here, the Council - would reserve for the Court cases which should now be transferred to the jurisdiction of the CFI.

By proposing to reserve for itself any act by the Council and the EP, the Court, as it clearly states (explanatory memorandum, [8] p. 5, al 3), is aiming to cover acts adopted under the codecision procedure and acts adopted under the individual powers of each of the two institutions.

[8] Doc. No 10790, cited in footnote 1.

Yet in exercising its own powers, the Council adopts a considerable number of acts that could not all be "reserved" for review by the Court under the terms of the Treaty of Nice.

A. Decisions on State aid taken by the Council under Article 88(2) of the EC Treaty

Under the logic of the Treaty of Nice, the Court of Justice is expected, as the Court itself acknowledges, to concentrate on its quasi-constitutional role and should not be given responsibility for this type of action.

It should be recalled that in its 1998 proposal the Court had proposed transferring such actions to the jurisdiction of the CFI, precisely in order to remedy "the fragmentation of jurisdictions potentially affecting this kind of action in particular, where actions against a single act depend on who the applicant is". [9]

[9] Council Doc. No 5713/99 -JUR 54- of 25.02.1999 (Explanatory memorandum, p. 4).

Actions on State aid should, overall, now revert to the jurisdiction of the CFI, whoever the applicant and defendant may be, except in the case of regulations adopted by the Council under Article 89 (former Article 94), given their nature as basic legislative instruments (see below).

B. Protective trade measures, especially regulations by which the Council imposes definitive antidumping or countervailing duties [10]

[10] Regulations adopted under a provision in a basic instrument, such as Article 12 of Council Regulation No 2423/88 of 11.7.1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ L 209), after intervention of the Commission Regulation introducing a provisional antidumping or countervailing duty (Article 11).

For the same reasons as indicated above, actions brought by the Member States against this type of measure should be transferred to the jurisdiction of the CFI, as the Court proposed in 1998.

C. Measures implementing a basic legislative instrument adopted under a Treaty provision

In the explanatory memorandum accompanying its proposal, the Court states (p. 5):

As for the 30 actions brought against the Council (during the 1996-2000 reference period chosen by the Court), it appeared that the balance in most cases tended towards exclusive jurisdiction of the Court. The number of cases not open to such assessment was too small to consider introducing a sub-criterion, as this would only cause confusion that is not justified by any real statistical advantage ...

According to the note analysing the actions brought before the Court during the reference period (Doc. No 5604, p. 11-15, referred to hereafter as "the Note"), the 30 actions brought against the Council can be broken down as follows:

14 concern the Council's basic legislative activity, ...

3 actions relate to the management of a common market organisation and do not seem, a priori, to be necessarily the prerogative of the Court

For the 13 remaining actions, assignment is open to question. They involve 4 actions concerning measures taken under the common commercial policy and 9 actions concerning measures adopted under the common fisheries policy.

It is important to note the doubts expressed here by the Court itself as regards whether jurisdiction for these actions should be retained.

In the Commission's opinion, examination of the different measures challenged in the 30 actions suggests that the proposed criterion of the defendant as it stands should not be used as the rule for dividing jurisdiction between the Court and the Court of First Instance as sought by the Treaty of Nice.

Examination of the 30 actions shows that only 13 of them concern basic legislative instruments adopted under a provision of the Treaty.

They are:

- the 12 cases mentioned (Note pp. 11 to 13) in the first series of 14 cases which do concern basic legislative instruments (disputes over legal bases, with the exception of Cases C-93/00 and C-445/00),

- and one of the four cases relating to the common commercial policy cited in the Note (p. 14), in this instance Case C-149/96 [11] concerning a Council Decision under Articles 113 and 228(2) of the EC Treaty.

[11] [1999] ECR I-8427.

The 17 other cases do not concern basic legislative activity but rather measures taken by the Council under authority conferred by an act adopted under the Treaty.

Examples are the two cases cited (Note, p. 13) in the first series of 14 cases, namely:

- Case C-445/00 Austria v Council, which concerns an act adopted by the Council following a regulatory committee procedure, under Article 16 of Protocol No 9 to the Act of Accession of Austria, Finland and Sweden,

- and Case C-93/00 Parliament v Council, which concerned Regulation No 2772/1999 providing for the general rules for a compulsory beef labelling system, adopted by the Council, by a QM on a proposal from the Commission, in accordance with Article 19(6) of Regulation No 820/97. [12]

[12] Council Regulation No 820/97 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products (OJ L 117, p. 1). Article 19(6) reads: "By 1 January 2000, the Council, acting by a qualified majority on a proposal from the Commission, shall take a decision as to whether compulsory indication of data other than those provided for in paragraph 2 and extension of the scope of this Regulation to products other than those indicated in the first indent of Article 2 are possible and desirable."

1. In the case of measures adopted under committee procedures, [13]

[13] Initially defined in Council Decision 87/373 of 13.7.1987 (OJ 1987 L 197, p. 33), subsequently replaced by Council Decision 1999/468 (OJ 1999 L 184, p. 23).

it should be remembered that these procedures provide for intervention by the Council in the event of a negative opinion or sometimes in the absence of an opinion from the committee of representatives of the Member States [14] or, in the case of the safeguard committee, where a Member State refers the Commission's decision to the Council, [15] and that at the end of the procedure the measure in question is adopted either by the Council or, if the Council fails to act within the prescribed time limit, by the Commission.

[14] As emphasised in points 16, 23 and 24 of the Court's ruling of 23.2.2001 in Case C-445/00 Austria v Council [2001] ECR I-1464; see also Case C-352/96, included by the Court in the list of commercial policy cases concerning Regulation No 1552/96 (OJ L 190, p. 1: referral to the Council after negative opinion of the management committee).

[15] See the other commercial policy cases listed by the Court: C-110/97 concerning Regulation No 304/97 (OJ L 51, p. 1: Commission act referred to the Council by the UK); C-301/97 concerning Regulation No 1036/97 (OJ L 151, p. 8: Commission act referred to the Council by Spain and the UK).

This means that from the point of view of their substance, scope and effects, the measures adopted at the end of a committee procedure are, whoever the author, of the same nature. [16]

[16] A valuable comparison, especially with Case C-89/96 Portugal v Commission concerning Regulation No 3053/95 adopted by the Commission under Articles 17 and 19 of Council Regulation 3030/93, after a favourable opinion from the textiles committee (OJ L 323, p. 1) or with Cases C-159/96 Portugal v Commission, C-289/96 Denmark v Commission, C-293/96 Germany v Commission, C-299 France v Commission, included by the Court in the list of actions brought against the Commission.

Dividing up these measures between the Council and the Commission and making them subject to review by the Court or the CFI depending on whether the act challenged was adopted by the Council or the Commission, would seem to be an artificial distinction.

2. Other measures adopted by the Council under authority conferred by a basic legislative instrument

Under Article 202 (former Article 145) of the Treaty, the Council may, in specific cases, reserve the right to exercise implementing powers itself.

These rather rare cases, when viewed against the background of all implementing measures adopted under Community law, [17] mainly occur in sectors such as the CAP and the common fisheries policy, which call for numerous technical measures to implement the basic legislation.

[17] Under Article 1 of Decision 1999/468, implementing powers are, as a rule, conferred on the Commission, "Other than in specific and substantiated cases where the basic instrument reserves to the Council the right to exercise directly certain implementing powers".

During the reference period chosen by the Court, the technical measures adopted by the Council are illustrated by Case C-93/00, cited earlier, [18] by the three cases concerning common organisations of the market, and by the nine cases concerning the common fisheries policy.

[18] See footnote 6.

Two arguments lead us to conclude that all these measures should be subject to review by the CFI:

a) Their technicality

Regulation No 2772/1999, [19] at issue in Case C-93/00 Parliament v Council, provides for general rules for a compulsory beef labelling system - in a single article which confines itself to referring to provisions of basic Regulation No 820/97.

[19] OJ 1999 L 334, p. 1.

The Council regulations at issue in the three cases concerning common organisations of the market (p. 13) are all aimed at fixing the intervention prices that are to apply for certain farm products during the marketing year.

The regulations challenged in the nine cases under the common fisheries policy (p. 14 and 15) were to lay down technical measures, in particular the total allowable catches (TACs) for certain fish stocks. [20]

[20] In particular Regulation No 3074/95 (OJ 1995 L 330, p. 1).

In view of the role assigned to the Court by the Treaty of Nice, the review of such measures should not be "reserved" to it at first and last instance.

b) The context

The Council regulations at issue in the 13 actions referred to above were all adopted under the same procedure, [21] in accordance with the provision laid down for this purpose by the basic legislative instrument.

[21] The Council acting by a QM, on a proposal from the Commission.

However, it should be noted that all the basic legislative instruments in question laying down this procedure also provide for committee procedures and also make reference to the procedures of the Treaty for the adoption of certain additional measures.

So, for example, in the field of fisheries, Council Regulation No 3760/92 [22] lays down at one and the same time:

[22] OJ 1992 L 389, p. 1

- in Article 8(4), the procedure by which the Council adopted the various acts challenged in the 9 cases cited earlier (by a QM on a proposal from the Commission),

- in Article 15, a procedure delegating powers to the Commission (without involving a committee), and to the Council, which may take a different decision within one month of receiving a request from a Member State,

- and in Article 17 and 18 a classic management committee procedure. [23]

[23] The same is true of Regulation No 1785/81 on the common organisation of the markets in the sugar sector (OJ L 177, p. 4, amended in OJ L 206/1996, p. 43), which was the basis for the acts challenged in Cases C-340/98 and C-357/99 and adopted under that procedure, as provided for in Articles 3(5), 5(5) and 8(4) of the Regulation.

i) But measures adopted by the Council alone under authority conferred by a basic instrument cannot be distinguished, in terms of importance, from acts which it or the Commission adopt under committee procedures provided for in the same basic instrument.

It must be emphasised that under Article 2 of Council Decision 1999/468, [24] the Commission and the Council are required to adopt:

[24] See footnote 11.

"(a) ... measures ... relating to the application of the common agricultural and common fisheries policies, or to the implementation of programmes with substantial budgetary implications",

and

"(b) measures of general scope designed to apply the essential provisions of basic instruments, including measures concerning the protection of the health or safety of humans, animals ...",

as well as measures

"to adapt or update" basic legislative instruments adopted under the Treaty.

The measures taken by the Commission and the Council are therefore adopted:

* in all areas, sometimes complex and involving sensitive political choices.

One example is the various Commission and Council decisions on certain emergency protection measures against bovine spongiform encephalitis, listed in the Court's judgment of 21.6.2000 in Case C-514/99 [25] (cited in the Court's Note, p. 9);

[25] Case C-514/99 France v Commission, [2000] ECR I-4706; see also Case C-180/96 United Kingdom v Commission, Court's note, p. 6.

* and under arrangements which may, as the Court points out in respect of the Council Regulation challenged in Case C-93/00 (Regulation No 2772/1999), go beyond simple implementation or which may be treated as quasi-legislative acts. [26]

[26] See the cases listed under "Adaptation of legislation adopted by the Council" in the Court's analytical Note, p. 11.

For example:

- points 6 and 19 of the Court's judgment in Case 25/70 Köster, in which the Court held that the Commission could be empowered to supplement fragmentary measures contained in a basic instrument ([1970] ECR 1161, and specifically 1172-1175),

- point 41 of the Court's judgment in Case 240/90 Germany v Commission, according to which "since the Council has laid down in its basic regulation the essential rules governing the matter in question, it may delegate to the Commission general implementing power without having to specify the essential components of the delegated power; for that purpose, a provision drafted in general terms provides a sufficient basis for the authority to act" ([1992] ECR 5435).

All of the above leads to the conclusion that measures implementing a basic instrument cannot be distinguished according to their author or the adoption procedure; they form a single category designed to implement that act, and it would be artificial to separate the two.

ii) This view is confirmed in this instance by the terms of the basic regulations examined, which all provide, alongside the various procedures mentioned above, for reference to the legislative procedure laid down in the Treaty [27] for the adoption of certain expressly defined additional measures.

[27] For instance, Regulation No 3760/92 refers to the procedure of Article 43 of the Treaty for the adoption of measures under Article 4(1), 5(1) and 8(3);

In other words, in connection with the basic instruments in question, the legislator distinguished between the different measures to be taken at executive level and those to be adopted at legislative level to supplement the system established.

iii) Lastly it should be noted that this finding is not confined to the sectors discussed here.

To quote just a few examples:

* surveillance measures adopted by the Council by a QM on a proposal from the Commission, [28] such measures sometime being in parallel with safeguard measures adopted by the Commission or the Council under a committee procedure; [29] the Court had also proposed that review of such measures should be transferred to the CFI in 1998;

[28] For example, Article 17 of Council Regulation No 3285/94 of 22.12.1994 on the common rules for imports and repealing Regulation (EC) No 518/94 (OJ L 349, 31.12.1994, p. 53).

[29] Article 16 of Regulation No 3285/94; see previous footnote.

* commercial policy measures adopted by the Council or the Commission under the safeguard procedure established by Article 14 of Regulation No 3286/94, [30] or by the Council under Article 13(3) of the same Regulation, under the terms of which the Council acts by a QM on a proposal from the Commission, in accordance with Article 113 of the Treaty.

[30] Council Regulation No 3286/94 of 22.12.1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under auspices of the WTO (OJ L 349, 31.12.1994, p. 71)

c) In the light of the foregoing, the Commission takes the view that:

i) measures implementing a basic instrument adopted under Treaty constitute an single whole and should be subject to review by a single court, in this instance the CFI;

ii) on the other hand, the Court should have sole jurisdiction over actions brought by the Member States, the institutions, or the ECB for annulment of acts adopted under a provision of the Treaty or on the grounds of failure to act under a Treaty provision, except for decisions taken in the fields of competition and State aids (see below).

The proposed solution satisfies the Court's dual objective, which was to preserve its sole jurisdiction for "review of the basic legislative activity of the institutions" (explanatory memorandum, bottom of p. 4) and to "effect significant transfers in quantitative terms" to the CFI (explanatory memorandum, p. 4, penultimate paragraph).

In this connection, it should be emphasised that in quantitative terms, compared with the Court's proposal, the present solution would involve the transfer of 17 additional cases [31] to the jurisdiction of the CFI; it is, however, understood that certain actions brought against the Commission would, on the other hand, remain within the jurisdiction of the Court, in this instance the 4 cases concerning directives adopted under Article 86(3) (former Article 90(3)) of the EC Treaty) (Court's Note, p. 10-11).

[31] 13 of the 30 actions brought against the Council during the reference period - namely the 9 fisheries policy cases, the 3 commercial policy cases, and Case C-93/00 - that should be reserved for the jurisdiction of the Court.

II. The Court's proposal implies transferring to and maintaining under the jurisdiction of the CFI the review of acts that should be the sole prerogative of the Court.

A. Acts for which review cannot be transferred to the CFI

1. Legislative acts adopted by institutions other than the Council and Parliament

Particular mention should be made of:

- directives adopted by the Commission under Article 86(3) (former Article 90(3)) of the EC Treaty, and

- regulations adopted by the ECB under Article 110(1) of the Treaty, which undoubtedly constitute basic legislative instruments.

It is sufficient to refer to Article 110(2), which reproduces almost exactly the terms of Article 249 (former Article 189) of the Treaty.

Such acts correspond to legislative activity as defined by the Council in Article 7 of its Rules of Procedure. [32] Under the terms of that provision,

[32] OJ L 149, 23.06.2000, p. 1.

"The Council acts in its legislative capacity within the meaning of the second subparagraph of Article 207(3) of the EC Treaty when it adopts rules which are legally binding in or for the Member States, by means of regulations, directives, framework decisions or decisions on the basis of the relevant provisions of the Treaty".

2. Non-legislative acts falling within the jurisdiction of the Court by their nature

This applies in particular to decisions adopted by the Commission under Articles 11(2) and (3) of the EC Treaty, relating to enhanced cooperation, which should be reserved for review by the Court, in order to maintain consistent review of decisions adopted in this area by the Commission and the Council.

As indicated earlier, review of legislative and non-legislative acts adopted on the basis of a provision of the Treaty should be reserved for exclusive review by the Court. [33]

[33] Actions such as Case C-100/99 Italy v Council and Commission (Doc. No 5604/02, p. 15), which concerned both an act adopted under a Treaty provision (Council Regulation No 2800/98 on transitional measures to be applied under the common agricultural policy with a view to the introduction of the euro, adopted under Article 42 and 43 of the EC Treaty) and an implementing regulation adopted by the Commission on the basis of Article 9 (committee procedure) of Council Regulation No 2799/98 (Regulation No 2808/98 laying down detailed rules for the application of the agrimonetary system for the euro in agriculture) would fall under the jurisdiction of the Court.

This does not, however, mean a reversal of the transfer already made to the CFI as regards actions in the fields of competition and State aids. Decisions taken in this respect by the Commission or the Council on the base of Treaty provisions should be a matter for review by the CFI and thus constitute an exception to the proposed rule for the division of jurisdiction.

B. Actions for which review should not remain within the jurisdiction of the CFI

Since the Treaty of Nice tends towards an overall redistribution of jurisdiction between the Court and the CFI, the Commission considers that all actions for the annulment of provisions of an institution's rules of procedure should fall under the sole jurisdiction of the Court.

The Commission would point out that under the Court's proposal, resolutions and internal decisions by the European Parliament would only fall under the Court's review if the action were brought by a Member State. [34] In the Commission's opinion, however, any action for annulment or failure to act in this area concerns the functioning of the institutional system and should therefore be a matter for the Court alone.

[34] For example, Case C- 267/96 France v Parliament (cited at the bottom of p. 15 of the Note) seeking annulment of a Parliament decision fixing the timetable for its sittings, which it was claimed was adopted in violation of the decision agreed by common accord between the Member States at Edinburgh in 1992 on the seat of the EP.

In the case of Parliament, particular mention should be made of the following cases:

- T-222/99 Martinez-De Gaulle v Parliament, T-327/99 Front National v Parliament and T-329/99 Bonino and Others v Parliament: action for annulment of the EP's decision of 14.9.99 on the interpretation of Article 29(1) of Parliament's Rules of Procedure, dissolving the technical Group of independent Members (judgment of 2.10.2001)

- T-236 Stauner and Others v Parliament seeking annulment of the framework agreement approved by the EP on 5.7.2000 on the grounds that it would undermine Members' right to put questions to the Commission under Article 197(3) of the EC Treaty (order of 17.1.2002)

- T-17/00 Rotley v Parliament seeking annulment of a Parliament decision amending its Rules of Procedure following the interinstitutional agreement of 25.5.1999 between the EP, the Council and the Commission, concerning internal investigations by OLAF; this decision would violate the legislative procedure, their immunity as Members of Parliament and the independence of their mandate (judgment of 26.2.2002).

* * *

Having regard to all the above considerations, the Commission proposes to amend Article 51 of the Statute as shown in the annex.

Annex

Proposed amendment to the Court's draft

(changes to the Court's text are shown in bold)

Article 51

By way of exception to the rule laid down in Article 225(1) of the EC Treaty and Article 140a(1) of the EAEC Treaty, the Court of Justice shall have sole jurisdiction in actions brought under Articles 230 and 232 of the EC Treaty and Articles 146 and 148 of the EAEC Treaty by a Member State, an institution of the Communities, or the ECB against an act based on a provision of the EC Treaty or the EAEC Treaty or a failure to act under those Treaties, except for:

- decisions adopted by the Commission or the Council under Article 88(2) of the EC Treaty; and

- decisions adopted by the Commission under Article 38, Article 76(2), Articles 81, 82, 85 and 86(3), and Article 134 of the EC Treaty.

The Court of Justice shall also have sole jurisdiction in actions brought under those Articles:

i) between the institutions, the ECB, or the bodies, offices and agencies [35] set up by or on the basis of the EC Treaty; [36] or

[35] The wording is that of Article 286(1) of the EC Treaty.

[36] i.e. interinstitutional actions.

ii) against any act governing the operation of an institution, the ECB, or a Community body, office or agency; [37]