Commission Opinion on the request for an amendment to Articles 51 and 54 of the Statute of the Court of Justice, presented by the Court in accordance with the second paragraph of Article 245 of the EC Treaty, in order to change the division of jurisdiction in direct actions between the Court of Justice and the Court of First Instance as referred to in Article 225(1) of the EC Treaty
Date: 2003-11-10
Institutions: European Commission
Subjects: Court of Justice of the European Union, General Court (EU), division of powers, right of action

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 10.11.2003
COM(2003) 660 final

COMMISSION OPINION

on the request for an amendment to Articles 51 and 54 of the Statute of the Court of
Justice, presented by the Court in accordance with the second paragraph of Article 245
of the EC Treaty, in order to change the division of jurisdiction in direct actions between
the Court of Justice and the Court of First Instance as referred to in Article 225(1) of
the EC Treaty

The proposal by the Court of Justice

The  Court  of  Justice  proposes  amending  Article 51  of  the  Statute  to  read  as
follows:

"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,  jurisdiction  shall  be  reserved  to  the  Court  of
Justice in the actions referred to in Articles 230 and 232 of the EC Treaty and Articles
146 and 148 of the EAEC Treaty when they are brought by a Member State against

– an act of or failure to act by the European Parliament or the Council, or by both
those institutions acting jointly, except for

° decisions taken by the Council under the third subparagraph of Article 88(2) of the
EC Treaty;

° acts of the Council adopted pursuant to a Council regulation concerning measures
to protect trade within the meaning of Article 133 of the EC Treaty;

°  acts  of  the  Council  by  which  it  exercises  implementing  powers  directly  in
accordance with the third indent of Article 202 of the EC Treaty;

– against an act of or failure to act by the Commission under Article 11a of the EC
Treaty.

Jurisdiction shall also be reserved to the Court of Justice in the actions referred to in
the same articles  when they are brought  by an  institution  of  the  Communities  or  by
the  European  Central  Bank  against  an  act  of  or  failure  to  act  by  the  European
Parliament, the Council, both those institutions acting jointly, or the Commission, or
brought by an institution of the Communities against an act of or failure to act by the
European Central Bank."

The  technical amendment to  the third  paragraph  of  Article 54  of  the  Statute  is
underlined in the text reproduced below:

"Where  the  Court  of  Justice  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  Court  of  First  Instance  may,  after
hearing  the  parties,  stay  the  proceedings  before  it  until  such  time  as  the  Court  of
Justice shall have delivered judgment or, in the case of actions brought pursuant  to
Article 230 of the EC Treaty or Article 146 of the EAEC Treaty, decline jurisdiction in
order that the Court of Justice may rule on such actions."

The Court explains that this proposal was drawn up on the basis of "a statistical
and  substantive  analysis  ...  of  the  actions  brought  by  the  institutions  and  by
Member States ... during the previous five years (1996 to 2000)".1

1

Council Doc. No 6283, 13.02.2003, p. 3.

2

                                                
Preliminary remarks

a) The proposal forms part of the reforms provided for by the Treaty of Nice which
seek to lighten the caseload of the Court of Justice on the one hand, by changing the
division  of  jurisdiction  between  the  Court  of  Justice  and  the  Court  of  First  Instance
(hereinafter, “the CFI”), and the caseload of the CFI, on the other, by relieving it, in
particular,  of  disputes  concerning  the  public  service,  by  establishing  a  new  court  of
first instance under Article 225a of the Treaty.

It  is  clear  from  Declarations  12  and  16  adopted  at  the  Nice  summit  that  these  two
reforms go together. It is important to ensure, therefore, that they can be introduced if
not simultaneously  at least as  close  together in time  as  possible,  in  order  to  avoid  a
significant  increase  in  the  duration  of  the  proceedings  at  the  CFI,2  which  would
inevitably result from "the transfer of a significant number of cases" from the Court of
Justice to the CFI, as envisaged by this proposal,3 before the CFI had been relieved of
its responsibility for disputes concerning the public service.

b) The Court’s proposal does not deal with the question of a possible transfer to the
CFI  of  jurisdiction  for  preliminary  rulings  as  provided  for  in  Article 225(3)  of  the
Treaty.

The  Commission  agrees  with  this  approach,  insofar  as  the  prime  innovation  of  the
Treaty of Nice was to make the CFI the court of general jurisdiction for direct actions
and  it  did  not  envisage  transferring  jurisdiction  for  preliminary  rulings  except  in
specific areas to be determined at a later stage, possibly when the specialised judicial
panels referred to in Article 225(2) of the Treaty are set up.

c)  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  “There  is  no  need,  at  this
stage,  to  exploit  the  possibilities  afforded  by  the  final  sentence  of  the  first
subparagraph of Article 225(1) EC.” (Council Doc. 6283, p. 2).

The  Commission  also  supports  this  approach,  as  transferring  jurisdiction  to  the  CFI
for actions for failure to fulfil an obligation is not a priority at this stage.

d) Introducing its proposal and describing its scope,4 the Court states that within the
framework of the new Article 225(1) of the Treaty, which makes the CFI the ordinary
court of law for all the direct actions referred to in the first sentence of that paragraph,
"those  cases  in  which  the  Court  of  Justice  retains  exclusive  jurisdiction  must  be
justified  by  particular  circumstances." In  this  spirit  the  Court  believes  that  it  should
retain  exclusive  jurisdiction  at  first  and  last  instance  "only  in  respect  of  judicial
review  of  basic  legislative  activity  and  in  respect  of  the  determination  of  inter-
institutional disputes".

The Commission fully agrees with this analysis. The aim of this new provision in the
Treaty is indeed to reserve for the Court of Justice cases of major significance, so that

2

3

4

Which  would  be  contrary  to  the  objectives  of  the  Treaty  of  Nice.  On  the  subject  of  the
duration  of  proceedings  see  Case  C-185/95P  Baustahlgewebe  v  Commission  [1998]  ECR
I-8485 (paragraphs 15 and 26-49, particularly paragraphs 44-47).
Council Doc. 6283, p. 2.
Council Doc. 6283, p. 2.

3

                                                
in future it can concentrate on its triple role as a constitutional court (important direct
actions,  infringements  and  opinions),  as  the  court  of  appeal  against  rulings  at  first
instance given by the CFI, and supreme arbiter of interpretation by way of preliminary
rulings  and  the  procedure  for  reviewing  decisions  given  by  the  Court  of  First
Instance.5

Important direct actions clearly include actions brought by the Member States or the
institutions against basic legislative acts, and inter-institutional actions. Such actions
directly  concern  the  functioning  of  the  Community  in  terms  of  the  balance  of
jurisdictions and powers laid down by the Treaties both between the institutions and
the Member States, on the onte hand, and between the institutions themselves, on the
other.  As  such,  these  actions  must  be  reserved  for  the  exclusive  jurisdiction  of  the
Court.

The Court's proposal prompts a number of comments by the Commission on the
substance  of  the  amendment,  concerning  the  acts  and  disputes  in  respect  of
which jurisdiction is to be reserved to the Court of Justice, and some suggestions
as to the form of the wording proposed.

SUBSTANCE

ACTS RESERVED TO THE JURISDICTION OF THE COURT OF JUSTICE

I. Legislative acts

1. The Commission agrees with the Court's proposal as regards acts of the European
Parliament  and/or  the  Council.  Basic  legislative  acts  adopted  on  the  basis  of  a
provision of the Treaty undoubtedly fall within the jurisdiction of the Court pursuant
to Article 225(1) of the Treaty.

This underlying principle of the proposal rightly leads the Court to  exclude from its
jurisdiction  at  first  and  last  instance  decisions  taken  by  the  Council  under
Article 88(2)  of  the  EC  Treaty,6 measures  to  protect  trade,  especially  regulations  by
which the Council imposes definitive anti-dumping or countervailing duties,7 as well

5

6

7

Procedure introduced by Article 225(2) and (3) (last subparagraphs) of the Treaty.
As the Court already suggested in 1998, state aid cases should all be subject to the jurisdiction
of the CFI, regardless of the identity of the appellant or the defendant "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” (Council Doc. No 5713/99 JUR
54, 25.02.1999, explanatory memorandum, p. 4).
Regulations  adopted  under  a  provision  in  a  basic  instrument,  such  as  Article 12  of  Council
Regulation No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports
from  countries  not  members  of  the  European  Economic  Community  (OJ L 209,  2.8.1988,
p. 1), after intervention of the Commission Regulation introducing a provisional anti-dumping
or countervailing duty (Article 11). For the same reasons as those given for State  Aid cases,
the Court proposed in 1998 that  responsibility  for  reviewing  these  measures  be  given  to  the
CFI.

4

                                                
as  implementing  measures  taken  by  the  Council  on  the  basis  of  an  empowering
provision in a basic legislative act.

A comprehensive analysis of all the implementing measures that were the subject of
disputes during the reference period selected  by the  Court  reveals  that  the  measures
adopted by the Council, either directly or at the end of a committee procedure, and the
implementing  measures  adopted  by  the  Commission  together  form  a  category  of
implementing measures that should be subject to review by a single court, in this case
the CFI.8

In  the  light  of  this  analysis  and  the  principle  underlying  the  Court's  proposal,  the
Commission  takes  the  view  that  the  word  "directly"  should  be  deleted  from  the
proposed wording (first paragraph, first indent, third bullet point).9

Retaining this wording (which is taken from Article 202 of the Treaty)10 would have
the effect of making the CFI responsible for reviewing acts adopted "directly" by the
Council while reserving for the Court of Justice the power to review acts adopted by
the same institution at the end of a committee procedure.11

Such  a  distinction  would  have  no  justification  within  the  body  of  implementing
powers and  would  consequently introduce an inconsistency into the new  division of
jurisdictions envisaged by the Treaty of Nice.12

2. The Commission shares the Court's view that the legislative acts that should remain
within its exclusive jurisdiction are not confined to acts adopted by the Parliament and
the Council.

The Court rightly retains jurisdiction in actions against acts of the Commission in the
field of enhanced cooperation under Article 11a of the EC Treaty. As the Court points
out, this power is similar to that exercised by the Council under Article 11(2) of the
EC Treaty, the normative implications of which are beyond doubt.

8

9

10

11

12

Commission Opinion, SEC (2002) 994, 20 September 2002, pp. 8-12.
See proposed redrafting in section on the wording in "The provisions themselves".
Which  concerns  implementing  acts  adopted  by  the  Council  without  prior  committee
procedure.
Procedures  provided  for  in  the  basic  legislative  acts,  in  accordance  with  Council  Decision
1999/468  of  28  June  1999  laying  down  the  procedures  for  the  exercise  of  implementing
powers  conferred  on  the  Commission  (OJ  L  184,  17.7.1999,  p.  23),  which  replaced  the
Decision of 13.07.1987 (OJ L 197, 18.7.1987, p. 33).
See note 8 above.

5

                                                
3.  However,  the  Commission  believes  that  the  objective  of  reserving  exclusive
jurisdiction  to  the  Court  for  basic  legislative  acts  cannot  be  attained  with  all  the
consistency  required  for  a  new  division  of  jurisdictions  if  other  legislative  acts
adopted on the basis of the Treaty by the Commission,  on the  one hand,  and by the
ECB,  on  the  other,  continue  to  be  excluded  from  its  jurisdiction  at  first  and  last
instance.

a) Legislative acts adopted by the Commission.

i) Directives adopted under Article 86(3) (formerly 90(3)) of the EC Treaty

In the course of the reference period selected by the Court, several directives adopted
by the Commission under former Article 90(3) (now Article 86(3)) of the Treaty were
the  subject  of  four  actions  by  Member  States.13  However,  these  four  cases  were
removed from the Court's register by orders dated 19.5.1998 and 26.6.1998.

We must therefore refer to earlier cases to establish the legislative nature of these acts
and the institutional scope of the actions brought before the Court.

In  Joined  Cases  188  to  190/80,  three  Member  States  applied  for  the  annulment  of
Commission Directive 80/723/EEC on the transparency of financial relations between
Member  States  and  public  undertakings.14  In  Case  C-202/88  France,  supported  by
four  other  Member  States,  sought  the  annulment  of  Directive  88/301/EC  on
competition in the markets in telecommunications terminal equipment.15

It is clear  from  these  judgments  that  Article 90(3)  (now  Article 86(3))  of  the  Treaty
empowers  the  Commission  "to  lay  down  general  rules  specifying  the  obligations
arising  from  the  Treaty  which  are  binding  on  the  Member  States  as  regards  the
undertakings  referred to in Article 90(1)  and  (2)",16 that  this  power  is  separate  from
the  power  exercised  by  the  Commission  under  Article 169  (now  Article 226)  of  the
Treaty17 and from the general power exercised by the Council under the Treaty.18

The actions in Joined Cases 188 to 190/80 were dismissed by the Court. The claims of
lack of competence on the part of the Commission and misuse of procedure made in
Case  C-202/88  were  also  rejected.  Although  certain  provisions  of  Directive
88/301/EC, which was the subject of the latter action, were annulled by the Court, this

13

14

15

16

17

18

for 

television  networks 

the  provision  of  already 

Cases C-11/96 Spain v Commission and C-12/96 Portugal v Commission concerned Directive
95/51/EC amending Directive 90/388/EEC  with regard to the abolition of the restrictions on
the  use  of  cable 
liberalised
telecommunications services (OJ L 256, 26.10.1995, p. 49). Cases C-123/96 and 199/96 Spain
v Commission concerned Directives 96/2/EC and 96/19/EC amending Directive 90/388/EEC.
Joined cases 188 to 190/80, France, Italy and the United Kingdom v Commission [1982] ECR
2545.  NB:  Directive  80/723/EEC  was  amended  by  Commission  Directive  2000/52/EC  of
26.7.2000 (OJ L 193, 29.7.2000, p. 75).
C-202/88  France  (supported  by  Germany,  Belgium  Greece  and  Italy)  v  Commission  [1991]
ECR I-1259.
Case C-202/88, paragraph 14.
Case C-202/88, paragraphs 16 and 17.
Case C-202/88, paragraphs 25 and 26.

6

                                                
was due to a failure to justify the withdrawal of certain special rights19 and to the fact
that  the  Directive  in  question  targeted  certain  anti-competitive  practices  by
undertakings, although Article 90(3) (now Article 86(3)) of the Treaty confers powers
on the Commission only in relation to State measures.20

These  precedents  show  that  actions  brought  by  Member  States  against  directives
enacted by the Commission under Article 86(3) of the Treaty are of an institutional, or
even constitutional, nature in that they relate  to the various  powers  exercised by the
Commission under the Treaty and on the division of powers between the Commission
and the Council.

It should also be pointed out that directives cannot in principle be the subject of direct
actions in the CFI by natural or legal persons, but can be the subject of references to
the Court for preliminary rulings.

In the light of the above, the Commission takes the view that jurisdiction in respect of
directives adopted under Article 86(3) of the Treaty should be reserved to the Court of
Justice.

ii)  regulations  adopted  by 
Article 48(3)) of the EC Treaty

the  Commission  under  Article 39(3)(d)  (formerly

According to this provision, freedom of movement for workers

"3. …shall entail the right ...

d)  to  remain  in  the  territory  of  a  Member  State  after  having  been  employed  in  that
State, subject to conditions which shall be embodied in  implementing regulations  to
be drawn up by the Commission."

There can be no doubt as to the legislative nature of this power. The fact that the last
basic  act  adopted  by  the  Commission  in  this  field  dates  back  to  197021  is  no
justification  for  not  including  Article 39(3)(d)  of  the  Treaty  in  the  context  of  a
reallocation of jurisdiction, with a view to giving the Court exclusive power to review
legislative acts adopted on the basis of the Treaty.

b) Acts adopted by the ECB

Under Chapter 2 of Title VII (Part Three) of the Treaty and Chapters VII and VIII of
the  Protocol  on  the  Statute  of  the  ESCB  and  the  ECB22  (hereinafter  “the  ESCB
Statute”), rule-making powers in the field of monetary policy are shared between the
ECB and the Council.23

19

20

21

22

23

Case C-202/88, paragraph 46.
Case C-202/88, paragraphs 55 and 56.
Commission  Regulation  No  1251/70  of  29 June  1970  (OJ  L  142, 30.6.1970,  p.  24)  was  the
subject of the Givane judgment of 9.1.2003 (Case C-257/00 [2003] ECR I-345).
Compendium of Treaties 1999- Book I- Vol. I, pp. 467 to 501.
Unlike the situation in economic policy matters; cf. Article 111(4) of the Treaty and Article 6
of the ESCB Statute.

7

                                                
The Council exercises general legislative power, with the possibility, on the one hand,
of  amending  the  provisions  of  the  ESCB  Statute  mentioned  in  Article 107(5)  of  the
Treaty  (Article 41  of  the  ESCB  Statute)  and,  on  the  other,  of  adopting  the
“complementary” provisions24 provided for in the Articles of the Statute referred to in
Article 107(6) of the Treaty (Article 42 of the ESCB Statute).

However,  under  Article 110(1)  of  the  Treaty  (Article 34.1  of  the  ESCB  Statute)  the
ECB has the power to adopt the measures necessary to implement the tasks defined by
the ESCB Statute.

In  practice,  this  power  consists  of  making  “regulations”  to  the  extent  necessary  to
implement the tasks defined in the ESCB Statute (first indent of Article 110(1) of the
Treaty), i.e:

-  “to  define  and  implement  the  monetary  policy  of  the  Community” (first  indent  of
Article 3.1 of the ESCB Statute; first indent of Article 105(2) of the Treaty);25

- “to require credit institutions established in Member States to hold minimum reserve
on accounts with the ECB and national central banks in pursuance of monetary policy
objectives.” (Article19.1 of the ESCB Statute);26

- “to ensure efficient and sound clearing and payment systems within the Community
and with other countries” (Article 22 of the ESCB Statute).

It also consists of taking “decisions” necessary for carrying out the tasks entrusted to
the ESCB under the Treaty and the ESCB Statute (second indent of Article 110(1) of
the Treaty).

Regarding  ECB  regulations,  Article 110(2)  of  the  Treaty  (Article 34.2  of  the  ESCB
Statute)  reproduces  the  exact  words  of  Article 249  (formerly  Article 189)  of  the
Treaty: “A regulation [of the ECB] shall have general application. It shall be binding
in its entirety and directly applicable in all Member States.”

The  first  indent  of  Article 110(1)  adds  that  the  ECB  may  also  make  regulations  “in
cases  which  shall  be  laid  down  in  the  acts  of  the  Council  referred  to  in
Article 107(6)”.

These  are  implementing  acts  adopted  on  the  basis  of  an  empowering  provision  in  a
basic  act  of  the  Council.27  The  same  applies  to  acts  adopted  by  the  ECB  in  matters

24

25

26

27

As  can  be  seen  from  the  Title  of  Chapter  VIII  of  the  ESCB Statute:  “Amendment  of  the
Statute  and  complementary  legislation”,  Compendium  of  Treaties  1999-  Book  I-  Vol.  I,
p. 495.
Article 3.1 of the ESCB Statute was implemented by an instrument entitled Guideline of the
European Central Bank of 31 August 2000 on monetary policy instruments and procedures of
the Eurosystem (OJ L 310, 11.12.2000, p.1).
Article implemented  by  ECB  Regulation  (EC)  No  2818/98  on  the  application  of  minimum
reserves (OJ L 356, 30.12.1998, p.1).
Example: ECB Regulation (EC) No 2174/2002 concerning the consolidated balance sheet of
the monetary financial institutions sector (OJ L 330 du 6.12.2002, p.29) adopted on the basis
of Articles 5.1 and 6.4 of Council Regulation (EC) No 2533/98 concerning the collection of
statistical information by the ECB (OJ L 318, 27.11.1998, p.8), itself adopted on the basis of
Article 5.4 of the ESCB Statute, mentioned in Article 107(6) of the Treaty.

8

                                                
covered by Article 110(3) of the Treaty, whereby the Council may empower the ECB
to  impose  fines  or  periodic  penalty  payments  on  undertakings  for  failure  to  comply
with  its  regulations  and  decisions,28  or  Article 105(6)  of  the  Treaty,  whereby  the
Council  may  confer  on  the  ECB  specific  tasks  relating  to  prudential  supervision  of
credit  institutions  and  other  financial  institutions  with  the  exception  of  insurance
undertakings.

The Commission is of the opinion that the same  approach  should be applied  to
acts of the ECB as to other Community acts.

The review of implementing acts adopted by the ECB on the basis of an empowering
provision in a basic act of the Council can be entrusted to the CFI.

However,  jurisdiction  in  respect  of  other  acts  adopted  by  the  ECB  under
Article 110(1) of the Treaty or the ESCB Statute should be  reserved  to the Court of
Justice.

There can be no doubt as to the status as basic legislative acts of regulations or other
acts enacted on the basis of the first  indent of Article 110(1)  of the Treaty,  in  terms
either of their legal basis and effects, or of the substance of the measures adopted. In
the  Commission’s  opinion,  the  complementarity  between  these  measures  and  acts
adopted by the Council  under  Article107(6)  or  Article 107(5)  of  the  Treaty  requires
that the same court, in this case,the Court of Justice, have the power to review them.

Regulations on minimum reserves adopted by the ECB on the basis of Article 19.1 of
the  ESCB  Statute29  and  by  the  Council  on  the  basis  of  Article 19.2  of  the  ESCB
Statute are good examples of complementary provisions.30

It follows that there is a risk that Member States might bring actions challenging such
acts of the ECB to clarify the division of powers between the ECB and the Council. In
the Commission’s opinion, account should therefore be taken of this in the drafting of
Article 51 of the Statute of the Court.

The decisions referred to in the second indent of Article 110(1) of the Treaty certainly
do not belong formally in the category of basic legislative acts.

28

29

30

Such as ECB Regulation (EC) No 2157/1999 on the powers of the European Central Bank to
impose sanctions (OJ L 264, 12.10.1999, p.21),  which  refers  to  Article 110(3)  of  the  Treaty
and  was  adopted  on  the  basis  of,  in  particular,  Article 6(2)  of  Council  Regulation  (EC)  No
2532/98 (OJ L 318, 27.11.1998, p.4), itself adopted on the basis of the former Article 108A(3)
(now Article 110(3)) of the Treaty and Article 34.3 of the Statute, mentioned in Article 107(6)
of the Treaty.
ECB  Regulation  (EC)  No  2818/98  of  1  December  1998  on  the  application  of  minimum
reserves, reference at foot-note 26. Regulation amended by ECB Regulation No1921/2000 (OJ
L 229, 9.09.2000, p.34) and ECB Regulation No 690/2002 (OJ L 106, 23.04.2002, p. 9).
Council  Regulation  No  2531/98  of  23.11.1998  on  the  application  of  minimum  reserves
(OJ L 318, 27.11.1998, p. 1).

9

                                                
But  the  Commission  is  of  the  opinion  that  jurisdiction  in  respect  of  ECB  decisions
should be reserved to the Court of Justice, since:

-  as  the  Treaty  itself  states,  they  are  directly  linked  to  the  performance  of  tasks
entrusted to the ESCB and are taken under the ESCB Statute;

- they are linked with large numbers of Council acts as a result of the distribution of
powers by the Treaty and the ESCB Statute;31 and

- actions brought by Member States challenging such acts would, by their very nature,
be  institutional  actions  or,  in  any  case,  be  of  considerable  importance  in  this  new
sector, where there is as yet no case-law.

In  view  of  these  considerations,  the  Commission  is  of  the  opinion  that,  in  actions
brought  by  the  Member  States  challenging  acts  of  the  ECB  issued  under
Article 110(1) of the Treaty or other provisions of the ESCB Statute, excluding acts
adopted on the basis of an empowering provision in an act of the Council, jurisdiction
should be reserved to the Court of Justice.

II. Other acts to be reserved to the jurisdiction of the Court

a)  Commission  decisions  or  failure  to  act  under  Articles  99  to  104  of  the  EC
Treaty

Under Articles 99 to 104 of the Treaty, measures taken by the Council in the field of
economic policy are based on Commission reports and recommendations.

The  possibility  that  Member  States  will  bring  actions  against  the  Commission  for
failure to act or for annulment of action taken must be borne in mind in the context of
jurisdiction reserved to the Court of Justice.

b) Acts of the institutions not mentioned in Article 249 of the Treaty, but having
legal effects

The  Court  proposes  reserving  for  its  own  jurisdiction  “an  act  of  ...  the  European
Parliament or the Council, or ... both those institutions acting jointly”.

This  formulation  embraces  not  only  basic  legislative  acts  adopted  by  the  Council
alone or in codecision with the Parliament but also acts adopted by those institutions
regarding their operation, such as resolutions on the Parliament’s seat32 or the location
of  its  departments33  and  acts  such  as  the  Code  of  Conduct  on  access  to  Council
documents.34

31

32

33

34

See ESCB Statute, in particular Articles 5.3, 5.4, 6 and 12.5, in conjunction with Article111(4)
of the Treaty, the first and second paragraphs of Article 20 and Articles 28 et 29.
C-230/81 Luxembourg v Parliament [1983] ECR 255, 281.
C-108/83 Luxembourg v Parliament [1984] ECR 1945, 1947.
C-58/94  Netherlands  v  Council  [1996]  ECR  I-2169;  an  action  was  brought  against  the
Commission  on  the  subject  of  the  same  code  of  conduct  adopted  by  the  Council  and  the
Commission: Case C-303/90 France v Commission [1991] ECR I-5315,5343.

10

                                                
The Commission  shares this  approach  but  considers  that  the  same  must  apply  to  all
institutions. Provisions adopted by the institutions in the exercise of their institutional
autonomy and intended to have legal effects inevitably affect the balance of powers of
the institutions.35 Jurisdiction in actions by the Member States  challenging such acts
should therefore be reserved to the Court.

Insofar as the Court’s proposal already extends to such acts as adopted by Parliament
or  the  Council  and  is  extended  as  regards  the  ECB,  it  only  remains  to  adjust  the
wording in such a way that it also covers acts of the Commission in this respect.

DISPUTES BETWEEN INSTITUTIONS

The Court’s proposal is intended to reserve disputes between institutions, between an
institution  and  the  ECB  and  between  the  ECB  and  an  institution  for  its  own
jurisdiction.

In the Commission’s opinion, the Court’s jurisdiction should extend to all institutional
disputes and therefore include actions brought by an institution, and possibly even by
a Member State,36 against bodies or agencies which are, in the words of Article 286(1)
of the Treaty “set up by, or on the basis of, [the] Treaty”.

The  Commission  is  of  the  opinion  that  the  performance  of  certain  tasks  in  certain
areas,  in  particular  tasks  of  implementation  involving  the  power  to  take  decisions
regarding third parties, calls for high-level powers and expertise which are not always
available to the Community administration.37 In such cases the legislature can set up
an  Agency,38  a  body  enjoying  legal  personality  and  the  autonomy  necessary  to
exercise its functions.

In  the  context  of  the  new  distribution  of  powers  under  Article 225(1)  of  the  Treaty,
actions brought by an institution or a Member State against such a body should not be
within the jurisdiction of the CFI if, by its nature, the dispute that is to come before
the  Community  courts  concerns  the  extent  of  the  powers  enjoyed  by  the  body  in
question and its place in the institutional structure.

The point here is not to give bodies and agencies a right to proceed in the Court where
the  Treaty  does  confer  it,  but  to  keep  actions  brought  by  the  Member  States  or  the
institutions against such bodies within the jurisdiction of the Court.

35

36

37

38

In  Case  C-366/88  France  v  Commission  [1990]  ECR  I-3571,  3595,  the  Court  annulled  the
Commission’s internal instructions defining its staff’s powers in relation to third parties in the
management of the EAGGF on the grounds that they were not confined to clarifying the basic
Regulation but added to it. In Case C-325/91 France v Commission [1993] ECR I-3283, 3303,
the Court of Justice annulled the Commission Communication on the application of Directive
80/723/EEC  on  the  transparency  of  financial  relations  between  Member  States  and  public
undertakings in the manufacturing sector, published in OJ 1991 C 273, p.2, and notified to all
Member States.
Action  provided  for  by,  for  example,  Article 42  of  Regulation  (EC)  No  1592/2002  of  the
European Parliament and of the Council of 15 July 2002 on common rules in the field of civil
aviation and establishing a European Aviation Safety Agency (OJ L 240, 7.9.2002, p. 1).
Commission  Communication  on  the  operating  framework  for  the  European  Regulatory
Agencies: COM(2002)718 final, 11.12.2002.
See current list of agencies in COM(2002) 718, p.3.

11

                                                
The Commission is of the opinion that the arrangement proposed by the Court should
be amplified accordingly.

THE TEXT OF THE PROPOSAL

I. The Commission suggests that the wording proposed by the Court be amplified on
the basis of the observations set out above.

First Paragraph

The  Commission  first  of  all  suggests  a  purely  drafting  change  to  facilitate  the
identification of the implementing acts of the Council, since the citations in those acts
refer  not  to  Article 202  of  the  Treaty,  but  to  the  provision  in  the  basic  act  which
empowers the Council to adopt the implementing measure in question.39

It  also  suggests  amplifying  the  wording  proposed  by  the  Court  in  order  to  add  the
legislative and non-legislative acts referred to above to those acts reserved to its own
jurisdiction.

Second Paragraph

The Commission suggests simplifying the drafting and adding a reference to actions
brought by Community institutions against a body or agency set up by, or on the basis
of, the Treaty.

The amended wording is set out in Annex 1.

II. However, different wording could be envisaged.

The Commission is of the opinion that it would be worth checking whether the new
distribution of jurisdiction between the Court and the CFI would not be clearer, in the
spirit of the Treaty of Nice, if acts in respect of which the Court has jurisdiction were
grouped by category (acts based on the Treaty, autonomous acts etc.) rather than just
listed on the basis of the enacting institution.

The list of acts adopted on the basis of the Treaty, which inevitably has to be made if
we  follow  the  form  of  wording  chosen  by  the  Court,  in  particular  as  regards
Commission acts, is liable to be incomplete and therefore lack certainty. It could also
threaten  the  admissibility  of  certain  actions  for  failure  to  act  and  actions  for
annulment brought by the Member States against the Commission, particularly in the
field of economic policy (Articles 99 to 104 of the EC Treaty).

39

See, for example, Council Regulation (EC) No 2772/1999 of 21 December 1999 providing for
the  general  rules  for  a  compulsory  beef  labelling  system  (OJ  L  334,  28.12.1999),  the  first
citation  of  which  reads:  “Having  regard  to  Council  Regulation  (EC)  No  820/97  of  21  April
1997, establishing…, and in particular Article 19 thereof”.

12

                                                
An  approach  whereby  jurisdiction  in  respect  of  acts  adopted  on  the  basis  of  the
Treaty, with the exception of those relating, in particular, to competition, state aid and
commercial  policy,  is  reserved  to  the  Court  therefore  seems  preferable.  Such  an
approach might well also make it easier to adapt to changes flowing from the  future
constitutional Treaty.

The proposed wording is set out in Annex 2.

13

The amended wording (underlined) would be as follows:

ANNEX 1

“1. 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,  jurisdiction  shall  be  reserved  to  the  Court  of
Justice in the actions referred to in Articles 230 and 232 of the EC Treaty and Articles
146 and 148 of the EAEC Treaty when they are brought by a Member State against:

i) an act of or failure to act by the European Parliament or the Council, or by both
those institutions acting jointly, except for:

° decisions taken by the Council under the third subparagraph of Article 88(2) of the
EC Treaty;

° acts of the Council adopted pursuant to a Council regulation concerning measures
to protect trade within the meaning of Article 133 of the EC Treaty;

° acts of the Council adopted on the basis of an empowering provision in an act of the
Council or of the European Parliament and the Council, adopted on the basis of the
Treaty;

ii) an act of or failure to act by the Commission under Article 11a, Article 39(3)(d),
Article 86(3) and Articles 99 to 104 of the EC Treaty;

iii) an act not mentioned in Article 249 of the EC Treaty, adopted by the Commission
and intended to have legal effects;

iv)  acts  of  or  failures  to  act  by  the  ECB  under  Article 110(1)  of  the  EC  Treaty  or
other40 provisions of the Protocol on the Statute of the ESCB and the ECB;

v) an act  of or failure to  act by a body  or  agency  set  up  by,  or  on  the  basis  of,  the
Treaty.

2. Jurisdiction shall also be reserved to the Court of Justice in actions brought by:

-  an  institution  of  the  Communities  against  an  act  of  or  failure  to  act  by  another
institution  of  the  Communities  or  the  European  Central  Bank  or  by  the  European
Central Bank against an act of or failure to act by an institution of the Communities,

-  an  institution  of  the  Communities  against  an  act  of  or  failure  to  act  by  a  body  or
agency set up by, or on the basis of, the Treaty.”

40

Other than those referred to in the first indent of Article 110(1) of the Treaty.

14

                                                
Alternative wording

ANNEX 2

« 1. 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,  jurisdiction  shall  be  reserved  to  the  Court  of
Justice in the actions referred to in Articles 230 and 232 of the EC Treaty and Articles
146 and 148 of the EAEC Treaty when they are brought by a Member State against:

i) an act based on a provision of the EC Treaty or the EAEC Treaty or a failure to act
by  the  Parliament  and  the  Council,  the  Council  or  the  Commission  under  the  EC
Treaty or the EAEC Treaty, except for:

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

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

ii)  acts  of  or  failures  to  act  by  the  ECB  under  Article 110(1)  of  the  EC  Treaty  or
other41 provisions of the Protocol on the Statutes of the ESCB and the ECB;

iii) an act not mentioned in Article 249 of the EC Treaty, adopted by an institution of
the Communities and intended to have legal effects;

iv) an act of or failure to act by a body or agency set up by, or on the basis of, the
Treaty.

2. Jurisdiction shall also be reserved to the Court of Justice in actions brought by:

-  an  institution  of  the  Communities  against  an  act  of  or  failure  to  act  by  another
institution  of  the  Communities  or  the  European  Central  Bank  or  by  the  European
Central Bank against an act of or failure to act by an institution of the Communities,

-  an  institution  of  the  Communities  against  an  act  of  or  failure  to  act  by  a  body  or
agency set up by, or on the basis of, the Treaty.”

41

Other than those referred to in the first indent of Article 110(1) of the Treaty.

15