[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 11.2.2005

SEC(2005) 207 final

COMMISSION OPINION

on the request to amend the Statute of the Court of Justice, presented by the Court of Justice in accordance with the second paragraph of Article 245 of the EC Treaty, to lay down the conditions and limits for review by the Court of Justice of decisions delivered by the Court of First Instance under Article 225(2) and (3) of the EC Treaty

COMMISSION OPINION

on the request to amend the Statute of the Court of Justice, presented by the Court of Justice in accordance with the second paragraph of Article 245 of the EC Treaty, to lay down the conditions and limits for review by the Court of Justice of decisions delivered by the Court of First Instance under Article 225(2) and (3) of the EC Treaty

1. The Court proposes inserting three articles between Article 62 and 63, numbered 62a to 62c[1], which lay down respectively

a) the non-suspensory nature of the review procedure, “without prejudice to Articles 242 and 243 of the EC Treaty ”[2],

b) the essential terms of the review procedure

To this end, the Court provides for:

i) the organisation of a written procedure including lodgement of written pleadings or observations:

- within a time limit to be agreed by the parties to the proceedings before the Court of First Instance (CFI), in the case of a review of a CFI appeal judgement, and by the parties to the proceedings before the national courts in the case of a review of a CFI preliminary ruling,

- in the two cases referred to above, by the Member States and institutions under the conditions laid down in Article 23 of the Statute, on preliminary-ruling procedures;

ii) the possibility for the Court of launching an oral procedure;

c) the effects of reviews on Court of First Instance judgments which could affect the unity or consistency of Community law:

- for an appeal judgment, the provision is based on Article 61 of the Statute relating to appeals,

- for a preliminary ruling, it is provided that “ the answer given as a result of the review to the question referred by the national court "shall be substituted" for that given by the Court of First Instance ”.

2. The Court specifies that supplementary provisions shall be incorporated in the rules of procedure of the Court of Justice and of the Court of First Instance under Article 63 of the Statute.

It also stipulates that “ in preliminary reference proceedings it will be essential in particular to provide for the national court to be kept informed as to the initiation and progress of the review procedure, so that it may await the adoption of a position by the Court of Justice in full knowledge of all the circumstances before it gives its decision on the dispute in the main proceedings. ”

3. The purpose of the Court’s request is to fulfil Declarations Nos 13, 14 and 15 adopted at the Nice European Council on 26 February 2001.

Preliminary observations

4. The provisions of the Treaty of Nice on EU courts stem from a dual objective:

- to redefine the structure of the judiciary so as to reduce pressure on the Court of Justice and the Court of First Instance,

- to keep the Court in its role as sole Supreme Court in the Union, whatever powers are conferred on the Court of First Instance.

The review procedure fulfils the second part of the objective when the Court of First Instance rules on appeals or makes preliminary rulings[3].

5. The review procedure is novel in the sense that it introduces a further judicial check on appeal proceedings or preliminary rulings. It satisfies the wish of the authors of the Treaty not to set up a third level of jurisdiction in the Court of Justice for direct actions, nor a second level of jurisdiction for preliminary rulings.

6. In the Commission's opinion, the deliberately exceptional nature of this procedure requires that specific statutory measures be taken.

I. The proposal for review and the decision to open the review procedure should have suspensory effect

7. The review procedure cannot be compared to an action or appeal brought by a party to a dispute, using whatever legal means they choose. For this reason, the Commission feels that there is no reason to align the review procedure with the provisions on ordinary actions or appeals[4].

8. It should be noted that the non-suspensory nature of ordinary actions or appeals is essentially justified by the need to avoid vexatious actions or appeals brought by applicants solely for the purposes of delaying implementation of the contested legislation or of the court's decision. The review procedure poses no such risk since, in accordance with Article 62 of the Statute, the First Advocate-General of the Court has sole right of initiative to launch the review procedure.

9. Article 225(2) and (3) of the Treaty provide that the judgments which may be reviewed by the Court of Justice are appeals and preliminary rulings by the Court of First Instance and that the review procedure may only be invoked “exceptionally … where there is a serious risk of the unity or consistency of Community law being affected”.

10. These provisions show that the review procedure is an exceptional measure in that its purpose is to avoid serious difficulties for the Community which might arise from the implementation of a Court of First Instance judgment.

11. In the Commission's view, the fact that the Court’s review applies to appeals and preliminary rulings should be emphasised. These judgments are aimed at ensuring the unity of interpretation and uniformity of application of the law and therefore fulfil an essential function in the Community legal system. Appeals and preliminary-ruling jurisdictions are also exercised, as a general principle, on an exclusive and definitive basis.

12. However, in so far as CFI judgments, as an exception to this principle, can be reviewed by the Court of Justice for the reason that they may carry a risk for the unity or consistency of Community law, they may no longer be considered as being definitive and should not therefore be notified, nor enter into force with immediate effect. The Commission considers that they should only enter into force at the end of the one-month period referred to in Article 62 of the Statute, if the First Advocate-General has not submitted a request for review, or if a request has been made, at the end of the second one-month period laid down in the same provision, if the Court decides not to open the review procedure.

13. The fact that the review procedure is very rarely invoked does not weaken this assertion. The Commission considers that it is important to ensure that a single response in law is given for all appeals and preliminary rulings to ensure that legal certainty is preserved and to eliminate any risk of inconsistency in the application of Community law.

14. It follows from the above that the suspensory nature of the procedure appears to be inherent in the procedure itself and must, consequently, be recognised as such in the Statute.

15. The Court proposes the less automatic solution of only delaying implementation of the CFI judgment at the request of the First Advocate-General, in accordance with Article 242 of the Treaty.

16. In the Commission’s opinion, this solution is risky because it does not cover all the circumstances in which a review could lead to an amendment of the Court of First Instance’s judgment. Steps must be taken to avoid a situation where, because a request for suspension was not made, a judgment by the Court of First Instance which could lead to the difficulties referred to above, is temporarily implemented and subsequently has to be amended after the Court of Justice's review.

17. For the reasons set out above, the Commission considers that the suspensory nature of the review procedure would be the best way to guarantee the aims of this rarely-used procedure. It would also allow the review procedure to be simplified, and therefore speeded up, in that the First Advocate-General and the Court of Justice can examine the substance of the case immediately, without first having to decide on a possible suspension of implementation of the Court of First Instance’s judgment or on provisional measures which, according to the mechanism envisaged, can be proposed by the First Advocate-General under Article 242 or Article 243 of the Treaty.

18. Finally, the Commission considers that the suspensory nature of the review procedure is preferable to preserve:

- the authority of a final judgment (“res judicata”), which could be put at risk in the case of notification of several decisions for the same case, all of them intended to set out the legal rule,

- the specific nature of this procedure, the aim of which is not only to lay down case law for the future, such as a referral in the interest of the law, but also to benefit the parties to the dispute.

These last two points call for the following complementary observations.

As regards direct actions

19. By decision of 2 November 2004, the Council set up the European Civil Service Tribunal, in accordance with Article 225a of the Treaty.

It should be borne in mind that:

- under Article 11 of the annex to that decision, appeals against the European Civil Service Tribunal brought before the Court of First Instance are confined to points of law,

- under Article 13 of the same annex[5], where the appeal is well-founded and the Tribunal's decision consequently quashed, the Court of First Instance 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.

20. It follows from the above that if, as the Court proposes, the review did not have suspensory effect, the Court of First Instance would have to judge the case on the basis of the Tribunal’s interpretation of law, even though that law could subsequently be modified by the Court of Justice.

21. It should also be noted that following the review, the Court’s proposal is to send the case back to the Court of First Instance, unless the outcome of the proceedings flows from the findings of fact on which the Court of First Instance based its decision. In this case, the Court of Justice will make a final judgment (Article 62c of the proposal).

Consequently, there is a risk that the proposed system will lead to several judicial decisions setting out the rule of law for the same case, firstly at appeal level (Court of First Instance decision, followed in some cases by a decision by the European Civil Service Tribunal) and then at review level (Court of Justice decision, followed where applicable by a decision by the Court of First Instance).

22. This sequence of events could recreate the very type of judicial encumbrance which the Nice Treaty was attempting to eliminate and could place the authority of a final judgment (res judicata) at risk.

Preliminary rulings

23. At this stage, no responsibility for preliminary rulings has been conferred on the CFI. However, in so far as the Court's proposal also covers the review of preliminary rulings by the CFI, the Commission would stress that the suspensory nature of the Court's review procedure is to be particularly recommended in this area.

The review procedure should not be invoked as a second level of preliminary proceedings. Both the credibility of the preliminary-ruling procedure and the economy and effectiveness of the review procedure are at stake here.

24. The credibility of the preliminary ruling procedure and, more specifically, the obligation of courts of final instance to refer cases for a ruling is based on the fact that national courts are required to consult the Court of Justice as the sole regulatory body specialised in interpretation and assessment of the validity of Community law. It is not appropriate therefore for the national court to be presented with two different preliminary rulings, one formulated by the Court of First Instance and the other by the Court of Justice, which according to the current proposal would be "substituted" for that of the Court of First Instance.

25. The proposed system could also prove to be difficult to manage for the national courts and could considerably reduce the effectiveness of the review procedure.

The referral to the Court of Justice takes place during a stay of proceedings ordered by the national court, which usually ends when the preliminary ruling is handed down, that is when the Court of First Instance notifies its judgment. The national court could therefore find that it is obliged to implement the Court of First Instance’s judgment.

In these circumstances, there is a risk that it will not be possible to take into account the information which the Court of Justice envisages giving the national court “so that it may await the adoption of a position by the Court of Justice in full knowledge of all the circumstances before it gives its decision on the dispute in the main proceedings”, and consequently that the review procedure will lose its effectiveness from the viewpoint of the parties to the dispute.

26. As the Court states, it is clear from the Treaty and the above declarations that the "review" is not an appeal in the interest of the law, in the usual sense of the term, as it emerged from debates during the Intergovernmental Conference (IGC) that this type of appeal could not be incorporated in the judicial structure envisaged at that time.

The purpose of an appeal in the interest of the law is generally to ensure that a decision of a lower court does not constitute case law in cases where the parties choose not to bring their action before the court of final instance, which is the only one competent to rule on certain matters[6]. In this context, the fact that a decision handed down on an appeal in the interest of the law does not alter judgments of which have become res judicata [7], but simply amends case law for the future, is perfectly acceptable.

The current issue is different in that the action in the Court of Justice relates either to an appeal or to a preliminary ruling of the Court of First Instance, in other words to cases in which the parties have already exhausted all the legal avenues open to them.

In view of this particular situation, the IGC had to conclude that the review by the Court of Justice should not only correct case law for the future but should also benefit the parties to the dispute in a tangible manner, where its review recommends a different solution from the Court of First Instance.

27. It is important therefore that the statutory provisions on the review procedure guarantee that the effect of the Court’s judgment is not reduced to that of an appeal in the interest of the law, but that it materially benefit the parties to the dispute.

28. The arguments above demonstrate that the statutory provisions on review should stipulate the suspensory nature of the request for review and of the decision to invoke the review procedure, so that a single response is given to appeals confined to questions of law and that a single ruling is handed down in the case of preliminary proceedings brought before the Court of First Instance.

II. The review should take place under an emergency procedure

29. Establishing such a procedure for preliminary rulings is required by Declaration No 15 of the Treaty of Nice. An accelerated procedure would also seemed to be justified for direct actions, since reviews are likely to be rare and should be focused on specific points of the Court of First Instance’s judgment, regarding which all of the information, including arguments already exchanged, would be transmitted to the Court of Justice.

30. The procedure envisaged by the Court of Justice seems to go in this direction in that the holding of an oral procedure would not be automatic.

31. But the provisions on the written procedure should be clarified. The proposed mechanism provides that the parties to the proceedings should have the right to submit their observations within a time limit to be set by the Court of Justice, while the Member States and the institutions may submit their observations in accordance with Article 23 of the Statute, or two months from the notification of the points to be reviewed.

32. The Commission is of the opinion that the time limit for submission of statements of case or written observations should be the same for the parties, the Member States and the institutions and should not be more than two or three weeks.

33. It would also be useful to establish a deadline for handing down the definitive judgment to be notified to the parties or to the national court.

III. Conclusion

1. For the reasons set out above, the Commission considers that the provisions relating to the review procedure should:

a ) establish the suspensory nature of the request for review and of the decision to invoke the review procedure;

b ) stipulate that the decisions of the Court of First Instance under Article 225(2) and (3) of the Treaty will be considered as final judgments:

- after the one-month period referred to in the second paragraph of Article 62 of the Statute, provided that the First Advocate General has not proposed a review of the decision, and

- where the First Advocate General has proposed a review, at the end of the second one-month period referred to in the second paragraph of Article 62 of the Statute, where the Court has decided not to open the review procedure;

c ) establish an emergency procedure;

d ) establish an appropriate time limit for the handing down of the judgment to be notified to the parties or to the national court.

2. The Commission considers that, in line with Declaration No 14 of the Treaty of Nice, it would be useful to establish an evaluation mechanism for the review procedure.

[1] Council document No 12464/03 JUR 359 COUR 24 of 12 September 2003.

[2] Similar provision to Article 60 of the Statute on appeals.

[3] The Court’s control over the CFI’s jurisdiction at first instance being exercised by appeal.

[4] Article 242 of the Treaty and Article 60 of the Statute of the Court (laying down the non -suspensory nature of actions and appeals).

[5] Which reproduces the terms of Article 61 of the Statute on appeals against CFI decisions.

[6] See Article 68(1) of the EC Treaty, which provides that only the national courts of final instance can refer matters to the Court of Justice for a preliminary ruling.

[7] See Article 68(3) of the EC Treaty.