Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the Court of Justice of the European Communities - Adaptation of the provisions of Title IV of the Treaty establishing the European Community relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection
Date: 2006-06-28
Institutions: European Commission
Subjects: Court of Justice of the European Union, EU Member State, free movement of persons, institutional cooperation, judicial cooperation in criminal matters in the EU, jurisdiction, residence permit, right of asylum

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.6.2006 
COM(2006) 346 final 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN 
ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS 
AND THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES 

Adaptation of the provisions of Title IV of the Treaty establishing the European 
Community relating to the jurisdiction of the Court of Justice with a view to ensuring 
more effective judicial protection 

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COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN 
ECONOMIC AND SOCIAL COMMITTEE, THE COMMITTEE OF THE REGIONS 
AND THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES 

Adaptation of the provisions of Title IV of the Treaty establishing the European 
Community relating to the jurisdiction of the Court of Justice with a view to ensuring 
more effective judicial protection 

Introduction 

Private individuals should be able to enjoy effective judicial protection of the rights that they 
derive from Community law1. For this purpose, the Treaty establishes a full system of forms 
of  action  and  procedures,  in  which  close  cooperation  between  the  Court  of  Justice  and  the 
national  courts,  organised  by  the  preliminary  ruling  procedure  (Article  234  of  the  Treaty 
establishing the European Community (the “EC Treaty”)), is an essential component. 

The  Amsterdam  Treaty  sets  the  objective  of  progressively  establishing  an  area  of  freedom, 
security and justice. For this purpose, some of the matters previously covered by Title VI of 
the Treaty on European Union (the “third pillar”) were brought within the EC Treaty under 
certain  conditions.  Meanwhile,  establishing  this  area  has  become  a  Union  priority  thanks  to 
the political impetus given in particular by the European Council in 1999 (Tampere) and 2004 
(Hague programme) and the sound cooperation of all the institutions. 

In  the  development  of  this  area  of  freedom,  security  and  justice,  respect  for  fundamental 
rights, and in particular effective judicial protection for everybody, must occupy an essential 
place. The second indent of Article 67(2) of the EC Treaty accordingly requires the Council, 
at the end of the transitional period of five years following the entry into force of the Treaty of 
Amsterdam,  to  take  a  decision  “with  a  view  to  adapting  the  provisions  concerning  the 
jurisdiction of the Court of Justice” (i.e. Article 68 of the Treaty). 

But  the  Commission  notes  that  the  transitional  period  expired  on  1  May  2004  and  that  the 
Council has not launched work to fulfil this legal obligation2. 

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2 

See,  in  particular,  the  judgments  of  the  Court  of  Justice  in  Case  294/83  Greens  v  Parliament  [1983] 
ECR  1339,  para  23;  Case  222/84  Johnston  [1986]  ECR  1651,  para  18;  Case  C-50/00  P  Unión  de 
pequeños agricultores [2002] ECR I-6677, paras 38–40. 
The Council decided, on the basis of the second indent of Article 67(2) of the EC Treaty to extend the 
application of the codecision procedure; see Decision of 22 December 2004 (2004/927/EC), OJ L 396, 
31.12.2004, p. 45. The Commission had the following statement entered in the Council minutes: “The 
Commission  would  wish  to  recall  that  Article  67(2)  foresees  a  decision  of  the  Council  not  only 
providing  for  the  areas  which  should  be  governed  by  codecision  but  also  adapting  the  provisions 
relating to the powers of the Court of Justice. The passage to codecision for a majority of the domains 
of  Title  IV  as  presented  in  this  present  decision  contributes  in  no  small  measure  to  increasing  the 
democratic  legitimacy  of  instruments  adopted  under  this  title  and  the  Commission  can  welcome  the 
decision  to  that  extent.  That  being  so,  it  is  unacceptable  that  the  decision  does  not  provide  for  any 
adaptation of the competences of the Court, thus perpetuating a situation where access to the Court of 
Justice  remains  limited.  The  Commission  is  absolutely  convinced  that,  in  this  area  which  so  closely 
touches  on  the  rights  of  individuals,  an  increased  access  to  justice  is  equally  essential  to  enhance 
legitimacy.”  The  European  Parliament  took  the  same  position  in  the  Bourlanges  Report  adopted  on 
16 December 2004. 

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The  purpose  of  this  communication  is  to  contribute  to  the  adaptation  of  the  special 
provisions  of  Article  68  of  the  EC  Treaty  concerning  the  jurisdiction  of  the  Court  of 
Justice  in  the  fields  covered  by  Title  IV.  In  the  Commission’s  opinion,  this  adaptation 
should consist of aligning that jurisdiction on the general scheme of the Treaty. A draft 
Council Decision to that end is attached. 

For the reasons explained below, the Commission considers that the best way of adapting the 
provisions of Title IV relating to the Court is to bring them into line with the standard rules on 
judicial protection of the Treaty, in all fields covered by Title IV. The specific provisions of 
Article 68 of the EC Treaty should therefore cease to apply. This is necessary, first of all, for 
Article 68(1), which prohibits national courts other than those of final instance from applying 
to the Court for preliminary rulings, whereas Article 234, which establishes the procedure for 
cooperation  with  the  courts  of  the  Member  States,  allows  any  national  court  to  do  so.  The 
same applies to the procedure provided for in Article 68(3)3, which loses its raison d’être once 
the standard preliminary ruling procedure is established. Lastly, there is no longer any reason 
for  excluding  the  jurisdiction  of  the  Court  for  certain  measures,  as  provided  for  in  Article 
68(2)4. 

The sections below develop the arguments on which the Commission’s position is based. In 
particular,  alignment of  the rules concerning the jurisdiction of the Court in Title IV on the 
ordinary law will: 

•  ensure the uniform application and interpretation of Community law in this area as in all 

others (infra, item a); 

•  make it possible to strengthen judicial protection, in fields that are particularly sensitive in 

terms of fundamental rights (infra, item b); 

•  remedy  a  paradoxical  retrograde  step  in  judicial  protection  as  a  result  of  the  Amsterdam 

Treaty in civil matters covered by Article 65 of the EC Treaty (infra, item c); and 

•  enable the Community judicial system to perform normally without any fear of operating 

problems in this area (infra, item d). 

a) 

Ensure the uniform application and interpretation of Community law 

Since  the  Amsterdam  Treaty  entered  into  force,  the  Union  has  been  running  a  major 
legislative  programme,  launched  by  the  Tampere  European  Council  and  reaffirmed  in  the 
Hague  programme,  in  the  areas  of  cooperation  in  civil  matters,  asylum,  immigration,  visas 
and  the  free  movement  of  persons.  An  impressive  body  of  Community  law  is  emerging  in 
response to the expectations of Europe’s citizens and residents, who wish to live in a genuine 
area of freedom, security and justice. 

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4 

“The Council, the Commission or a Member State may request the Court of Justice to give a ruling on a 
question  of  interpretation  of  this  title  or  of  acts  of  the  institutions  of  the  Community  based  on  this 
title...”. 
“... the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to 
Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security.” 

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This body of legislation, like any other part of Community law, needs to be interpreted and 
applied uniformly throughout the Union, and the guarantor of this is the Court of Justice. As it 
expands, not only quantitatively but especially in terms of the importance of the rights that it 
confers, there is a vital need to ensure that it is applied in the same way throughout the Union. 

The  ideal  procedure  to  enable  the  Court  to  guarantee  the  unity  of  Community  law  is  the 
preliminary  ruling  procedure  of  Article  234  of  the  EC  Treaty.  This  procedure,  which 
organises  close  cooperation  between  the  national  courts  and  the  Court  of  Justice,  is  the 
keystone of the Community legal order. An essential element of the procedure is the principle 
that all national courts can dialogue with the Court. 

Any enduring exemption from this principle prevents the Court of Justice from pursuing its 
mission of guaranteeing the unity of Community law for the benefit of all potential litigants. 
In  1995  the  Court  warned  that  “to  limit  access  to  the  Court  would  have  the  effect  of 
jeopardising  the  uniform  application  and  interpretation  of  Community  law  throughout  the 
Union, and could deprive individuals of effective judicial protection and undermine the unity 
of the case-law… The preliminary ruling system is the veritable cornerstone of the operation 
of the internal market, since it plays a fundamental role in ensuring that the law established 
by the Treaties retains its Community character with a view to guaranteeing that that law has 
the same effect in all circumstances in all the Member States of the European Union… One of 
the Court’s essential tasks is to ensure just such a uniform interpretation, and it discharges 
that duty by answering the questions put to it by the national courts and tribunals”5. 

The  Court  reiterated  the  point  later,  regretting  the  development  of  “a  situation  in  which  the 
mechanisms  for  judicial  protection  vary  within  the  Union”  since  the  transition  from  the 
European  Communities  to  the  European  Union  in  1993,  and  recommending  that  “rendering 
the  system  of  judicial  protection  uniform  on  the  basis  of  the  Community  model  would 
actually  appear  to  be  the  best  way  of  ensuring  observance  of  the  law  in  all  spheres  of  the 
European Union”6. 

The  Commission  stresses  that  consistency  is  an  essential  element  of  the  area  of  freedom, 
security  and  justice.  Uniform  interpretation  of  the  body  of  legislation  that  has  now  been 
accumulated is essential in order to guarantee this consistency. As an example, it is obvious 
that  the  homogeneous  application  of  the  acquis  in  the  field  of  immigration  and  asylum  will 
greatly  help  to  limit  secondary  movements  between  Member  States,  which  has  been  a 
constant concern since the area was established. Experience in cooperation in civil matters is 
just  as  eloquent:  while  the  Court  has  been  able  to  make  the  Brussels  I  Convention  an 
extremely  effective  instrument  in  the  service  of  litigants  since  1971  (see  infra,  item  c), 
conversely,  since  it  has  not  been  able  to  exert  its  role  of  standardising  concepts  under  the 

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6 

Report of the Court of Justice on certain aspects of the application of the Treaty on European Union, 
1995, pp. 5-6. 
See address by President Rodriguez Iglesias at the European Convention, CONV 572/03, 20 February 
2003.  See  also  the  Court  of  Justice  discussion  paper  on  “The  future  of  the  judicial  system  of  the 
European Union” of 2000, pp. 22 to 23 where, while noting the exemption made in Article 68 of the EC 
Treaty,  restated  the  general  principle,  to  stress  that  “it  seems  necessary  for  all  national  courts  and 
tribunals to retain the right to refer questions to the Court of Justice” and that “the uniform application 
of  Community  law  frequently  depends  on  the  answer  to  a  question  of  interpretation  raised  before  a 
national court not having to await the outcome of appeal proceedings but being given by the Court of 
Justice at the outset, so that the case-law can become established at an early stage in the Member States 
of the Union”. 

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Rome  Convention  of  1980  on  the  law  applicable  to  contractual  obligations7,  there  are  wide 
divergences in the interpretation of that convention in the different Member States. 

The Commission now considers that the time has come to provide for Article 234 of the EC 
Treaty to apply in this area, where the legislation is advancing so dynamically. The more the 
‘acquis communautaire’ in the fields covered by Title IV develops, thanks in particular to the 
extension of the qualified majority and co-decision procedure decided on in December 2004, 
the less grounds there are for the limits on the Court’s jurisdiction, conceived only for a five-
year  transitional  period.  The  Commission  already  made  this  point  in  its  statement  of 
December 20048. 

b) 

Strengthen judicial protection 

The  principle  of  effective  judicial  protection  is  one  of  the  general  principles  of  Community 
law. It is one of the fundamental rights that help to define the very concept of the rule of law. 
The exception from this principle in Article 68 of the EC Treaty applies in policy areas which 
are  particularly  sensitive  in  terms  of  fundamental  rights  and  concern  the  protection  of 
especially vulnerable people. 

Restrictions  on  the  right  to  refer  to  the  Court  under  Article  68(1)  of  the  EC  Treaty  raise 
problems of judicial protection in two types of case. 

First, in national disputes concerning personal rights generated by legislation adopted under 
Title IV, the national courts of first instance and of appeal cannot ask the Court to interpret 
the applicable Community law. Litigants can therefore be forced to exhaust national redress 
procedures right up to the supreme court level to have a question referred for a preliminary 
ruling to clarify their rights. 

Moreover, persons who consider that their  fundamental rights are violated  by a Community 
instrument adopted on the basis of Title IV have no access to any kind of judicial protection 
before having run the gamut of national redress procedures. Only the Court of Justice can rule 
on the invalidity of a Community instrument9. Consequently, a national court of first instance 
or of appeal, even if it is convinced that the relevant instrument is illegal, is still obliged by 
Article 68(1) of the EC Treaty to apply it without being able to refer the question to the Court 
of  Justice.  More  serious  still,  it  seems  that  such  a  court  cannot  even  grant  any  kind  of 
provisional  judicial  protection,  since  it  is  possible  to  provisionally  disapply  a  Community 
instrument  only  if  there  is  also  a  reference  for  a  preliminary  ruling  on  the  validity  of  the 
instrument10. 

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9 
10 

The  Commission  recently  proposed  a  Regulation  to  convert  this  Convention  into  a  Community 
instrument  [proposal  for  a  Parliament  and  Council  Regulation  on  the  law  applicable  to  contractual 
obligations (Rome I) - COM(2005) 650]. 
See footnote on page 2. 
Case 314/85 Foto- Frost [1987] ECR 4199. 
Joined  cases  C-143/88  and  C-92/89  Zuckerfabrik  Süderdithmarschen  [1991]  ECR  I-415;  C-465/93 
Atlanta  [1995]  ECR  I-3761.  It  seems  that  the  fundamental  principles  emerging  from  Foto-Frost, 
Zuckerfabrik and Atlanta should also apply to Title IV. Admittedly, there are those who argue that there 
should be an exception and that in this area, exceptionally, national courts should be given the power to 
disapply Community acts that they consider contrary to the Treaty, in order to avoid the problems  of 
judicial  protection  mentioned  in  this  communication.  But  this  would  seriously  compromise  the 
autonomy and uniformity of Community law. 

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In both cases, the restricted jurisdiction enjoyed by the Court under Article 68(1) of the EC 
Treaty is likely to have the practical effect of depriving people of effective judicial protection. 
This  is  all  the  more  the  case  as  in  the  matters  in  question  people  often  do  not  have  the 
financial resources needed to exhaust all national redress procedures, and/or they need rapid 
legal  guidance.  Persons  protected  by  the  law  under  Title  IV  include  asylum-seekers  and 
applicants  for  family  reunification  under  Directives  2003/86/EC,  2004/83/EC  and 
2005/85/EC, third-country nationals challenging expulsion orders or discriminatory treatment, 
but  also  minors  affected  by  disputes  covering  maintenance  responsibilities,  in  particular,  or 
the parental responsibility in the broad sense of Regulation (EC) No 2201/200311. In addition, 
in civil and commercial matters to which Regulations (EC) No 44/2001, (EC) No 1348/2000, 
(EC) No 1206/2001 or (EC) No 805/2004 apply, litigation can easily become illusory or too 
expensive for small- and medium-sized enterprises if they have to go right up to the national 
supreme court before the Court of Justice can rule on their rights. 

Incidentally, the need to take a case all the way up to the highest level simply in order to refer 
to the Court after months or years of procedure also breaks the rule of procedural economy. 
The  result  is  to  unnecessarily  waste  the  resources  of  the  national  courts,  which  are  free  in 
other  areas  to  decide  when  a  preliminary  ruling  is  the  most  efficient  response.  As  regards 
fundamental rights in particular, early intervention by the Court of Justice under Article 234 
of the EC Treaty can help to settle upstream problems and obviate the need to raise serious 
legal issues with successive national courts and even in the European Court of Human Rights. 

Article  68(2)  excludes  the  jurisdiction  of  the  Court  of  Justice  “to  rule  on  any  measure  or 
decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the 
safeguarding of internal security”12. 

The  wording  of  this  paragraph  appears  to  exclude  any  review  by  the  Court  of  Justice  of 
Community measures adopted by the legislature on the basis of Article 62(1) of the EC Treaty 
that cover the maintenance of law and order and the safeguarding of internal security. This in 
practice  means  Community  rules  for  the  abolition  of  controls  on  persons  at  the  Union’s 
internal  borders,  including  the  exceptional  possibilities  of  reintroducing  such  controls 
temporarily. Since, by definition, the national courts cannot rule either on the validity of such 
Community  rules13,  the  result  is  to  exclude  any  possibility  of  judicial  review,  which  is 
difficult to justify in an area of freedom, security and justice. 

11 

12 

13 

In view of the need to ensure constant and effective protection of minors, disputes relating to parental 
responsibility, as defined by Regulation (EC) No 2201/2003, often have to be decided at short notice. 
Although  decisions  taken  under  Regulation  (EC)  No  2201/2003  are  often  appealed,  they  very  rarely 
reach the supreme courts. 
The  third  subparagraph  of  Article  2(1)  of  the  Protocol  integrating  the  Schengen  acquis  into  the 
framework of the European Union contains a clause excluding the jurisdiction of the Court of Justice, in 
which  the  parts  concerning  the  Schengen  acquis  integrated  into  Community  law  are  parallel  to 
Article 68(2) of the EC Treaty and will have therefore have to be “adapted” in parallel with it. 
The  Commission  considers  that,  contrary  to  what  has  sometimes  been  argued,  this  paragraph  cannot 
apply to national measures covering the maintenance of law and order and the safeguarding of internal 
security. This is clear from the very wording of paragraph 2. Neither in the procedure of Article 226 of 
the EC Treaty nor in the procedure of Article 234 of the Treaty does the Court of Justice ever “rule on” 
national measures or decisions, and such measures are not “taken pursuant to Article 62(1)”. 

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Excluding  the  Court’s  jurisdiction  over  public-policy  measures  is  also  inconsistent  with  the 
rest of the Treaty. The Court’s function since the origins of the Community has been to rule 
on the conformity with Community law of national measures taken to maintain public law and 
order  and  internal  security  in  areas  to  which  the  treaties  apply.  Consider  the  example  of 
national legislation and administrative implementing rules which can restrict the freedom of 
movement of goods and capital but also of Union citizens, and which might even go so far as 
to include expulsions of Union citizens by a host Member State to the Member State of origin 
to  safeguard  public  policy14.  Since  then  the  Court  of  Justice  has  always  reviewed 
proportionality and all the other guarantees15 that circumscribe the exercise of these powers of 
the  Member  States,  and  its  review  has  been  attentive  to  the  delicate  nature  of  public  policy 
issues while leaving the Member States with proper room for discretion16. In the field of Title 
IV  itself,  the  Member  States  also  take  a  variety  of  other  measures  in  the  interest  of  public 
policy  which  are  amenable  to  the  Court’s  jurisdiction.  In  any  event,  the  proper  way  of 
safeguarding  public  policy  in  a  Community  governed  by  the  rule  of  law  is  to  adopt 
substantive  measures,  both  legislative  and  executive,  and  not  to  exclude  the  right  to  take 
action in the court. 

Lastly, the Commission wonders about the possible consequences in relation to the European 
Convention on Human Rights if there is no adaptation of Article 68 of the EC Treaty. For one 
thing,  the  European  Court  of  Human  Rights  has  held  that  Member  States  are  collectively 
liable for any violation of the Convention resulting directly from Community primary law17. 
For another, that Court did consider that the protection of the fundamental rights offered by 
Community  law  as  regards  acts  of  the  institutions  was  “equivalent”  to  that  ensured  by  the 
mechanism of the convention; but it concluded that this equivalence was present on the basis 
of the ordinary law of the Treaty regarding the jurisdiction of the Court of Justice18. 

To sum up, the Commission considers that the need to strengthen judicial protection makes it 
urgent that Article 68(1) and (2) of the EC Treaty cease to apply and that the standard rules of 
the Treaty come into operation. 

c) 

Remedy a gap in judicial protection in cooperation in civil matters 

Between 1971 and 2002, when Regulation (EC) No 44/2001 entered into force, the Court of 
Justice  had  jurisdiction  to  give  preliminary  rulings  on  the  interpretation  of  the  “Brussels  I” 
Convention of 196819, requested not only by the courts of final instance in the Member States 
but  also  by  courts  of  appeal20.  For  thirty  years  the  Court  was  regularly  able  to  provide  the 

14 

15 
16 
17 
18 

19 

20 

These measures are based in particular on Articles 39(3) and 46 of the EC Treaty and must respect the 
guarantees of Directive 64/221/EEC on the coordination of special measures concerning the movement 
and  residence  of  foreign  nationals  which  are  justified  on  grounds  of  public  policy,  public  security  or 
public health (OJ 56, 4.4.1964, p. 850). This Directive is replaced, with effect from 30 April 2006, by 
Directive 2004/38/EC of 29 April 2004. 
See in particular Directive 64/221/EEC, referred to above.  
See in particular Case C-100/2001 Olazábal [2002] ECR I-10981. 
Judgment of 18 February 1999 Matthews v United Kingdom (Application No 24833/94). 
Judgment of 30 June 2005 Bosphorus v Ireland (Application No 45036/98), paras 96–99 and 160–165. 
The  European  Court  concluded  that  the  implementation  of  obligations  resulting  from  secondary 
legislation enjoys a “presumption of conformity” with the Convention. 
Convention  of  27  September  1968  on  jurisdiction  and  the  enforcement  of  judgments  in  civil  and 
commercial matters. 
Article 2 of the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention 
of  27  September  1968  on  jurisdiction  and  the  enforcement  of  judgments  in  civil  and  commercial 

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national appeal courts – and, therefore, citizens and companies active in civil and commercial 
matters – with valuable interpretations of this Convention, which was an extraordinary factor 
for European integration. 

It  is  therefore  paradoxical  that  the  Amsterdam  Treaty,  which  communitises  this  matter  and 
enables the legislature to convert the previous conventions into regulations, at the same time, 
by means of Article 68(1) of the EC Treaty, heavily restricts the jurisdiction of the Court of 
Justice to interpret these regulations, by precluding appeal courts and allowing only courts of 
final instance to apply for preliminary rulings. 

If  such  a  restriction  on  review  by  the  national  courts  had  been  in  force  between  1971  and 
2002, there is no doubt that the bulk of the Court’s decisions in civil and commercial matters21 
would never have been given, or would have been available to assist citizens and firms only 
after  additional  delay  and  cost.  There  is  absolutely  no  reason  why  citizens  and  operators 
should have to accept that their judicial protection now is more limited than it was for thirty 
years. 

The transitional period being over, it is therefore time for the Council to use the second indent 
of Article 67(2) of the EC Treaty to remedy this widening gap in protection and introduce the 
standard rules of Article 234 as regards on judicial cooperation in civil matters. 

d) 

Trust in the proper functioning of the Court of Justice 

One  of  the  reasons  for  Article  68(1)  of  the  EC  Treaty  seems  to  be  a  concern  to  avoid 
overloading the Court of Justice with a mass of references for preliminary rulings in matters 
covered by Title IV. A second fear could be that, in certain fields such as the right of asylum, 
the preliminary ruling procedure could have held up national judicial proceedings. 

The Commission considers that the Court, the efficiency of the means of internal organisation 
which it now enjoys and the new possibilities created by the Nice Treaty must be trusted. The 
Court  has  managed  to  significantly  reduce  the  average  duration  of  preliminary  ruling 
proceedings22. Moreover, it has already shown that the new expedited procedure means that it 
can give preliminary rulings more quickly if necessary. In addition, where necessary, special 
rules  allowing  immediate  treatment  of  particularly  urgent  cases  might  be  inserted  in  the 
Statute  of  the  Court  of  Justice  –  thanks  to  the  new  legal  basis  in  the  second  paragraph  of 
Article 245, introduced by the Nice Treaty – and in its Rules of Procedure. 

Otherwise, in fields where national proceedings are no less urgent, including proceedings in 
criminal matters, the Treaties do not confine the possibility of referring to the Court of Justice 

21 

22 

matters.  In  the  cases  concerning  Article  37  of  the  Brussels  Convention,  even  courts  of  first  instance 
were entitled to refer to the Court of Justice. 
It  is  particularly  striking  to  note  that  Court  judgments  of  major  importance  for  the  operation  of  the 
Brussels  Convention  and,  therefore,  for  Regulation  (EC)  No  44/2001,  were  given  on  references  from 
appeal courts. “Handelskwekerij Bier v Mines de Potasse d’Alsace” (Case 21/76), “De Bloos v Bouyer” 
(Case  14/76),  “Tessili”  (Case  12/76),  “Denilauler”  (Case  125/79),  “Mund  &  Fester  v  Hatrex 
Internationaal  Transport”  (Case  C-398/92),  “Reichert”  (Case  C-261/90)  and  “Group  Josi”  (Case 
C-412/98) are typical cases, the latter having clarified the applicability of the convention to applicants 
domiciled  in  third  countries.  Owuzu-Jackson  (Case  C-281/02)  is  another,  being  a  leading  case  on  the 
scope of the Brussels Convention. 
See  the  Court’s  press  release  14/06  of  13  February  2006,  “Statistics  concerning  judicial  activity  in 
2005 – consolidation and continuation of the progress recorded in 2004”. 

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to national courts of final instance. Thus, while judicial protection is completely insufficient 
in  Title  VI  of  the  EU  Treaty,  since  under  Article  35(2)  it  presupposes  an  opt-in  by  the 
Member States and only 14 of them have done this, it is paradoxical to note that the Member 
States making use of this opt-in retain the freedom to choose to allow all the courts to refer 
questions  for  preliminary  ruling  to  the  Court  of  Justice,  which  eleven  of  them  have  done, 
whereas this is not possible in Title IV. 

In  any  event,  the  Commission  believes  that,  at  the  present  stage  of  the  development  of  the 
area  of  freedom,  security  and  justice,  considerations  related  to  the  Court’s  workload  do  not 
suffice  to  justify  the  maintenance  of  a  provision  which  can  undermine  effective  judicial 
protection and the unity of Community law. 

Conclusion 

Like Europe in general, the area of freedom, security and justice is being built in stages. Since 
the entry into force of the Amsterdam Treaty and the Tampere European Council, Title IV has 
made  it  possible  to  create  an  impressive  body  of  legislation  for  the  benefit  of  the  Union’s 
citizens and residents in so many aspects of their daily life. 

The transitional period having expired, it is now urgent for the Council to fulfil its obligation 
under Article 67 of the EC Treaty and restore the Court’s full jurisdiction to give preliminary 
rulings on legislation that has been adopted. This is necessary in order to fully guarantee the 
fundamental right to effective judicial protection and the uniformity of Community law, and 
thus to remedy a shortcoming which is no longer justifiable in a genuine “judicial area”. 

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ANNEX 

DRAFT 
COUNCIL DECISION 

adapting the provisions concerning the Court of Justice in fields covered by Title IV of 
Part Three of the Treaty establishing the European Community 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular  the 
second indent of Article 67(2) thereof, 

Having regard to the opinion of the European Parliament, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

By  virtue  of  Article  68(1)  of  the  Treaty,  Article  234  of  the  Treaty  is  applicable  to 
Title IV of Part Three of the Treaty under the circumstances and conditions specified 
in  that  provision.  Under  Article  68(2),  the  Court  of  Justice  in  any  event  has  no 
jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating 
to the maintenance of law and order and the safeguarding of internal security. In the 
same  way,  the  third  subparagraph  of  Article  2(1)  of  the  Protocol  integrating  the 
Schengen acquis into the framework of the European Union excludes the jurisdiction 
of the Court of Justice to rule on measures or decisions relating to the maintenance of 
law and order and the safeguarding of internal security in the context of the Schengen 
acquis. Under Article 68(3) of the Treaty, the Council, the Commission or a Member 
State may request the Court of Justice to give a ruling on a question of interpretation 
of this title or of acts of the Community institutions based on it. The ruling given by 
the  Court  of  Justice  in  response  to  such  a  request  must  not  apply  to  judgments  of 
courts or tribunals of the Member States which have become res judicata. 

Under  the  second  indent  of  Article  67(2)  of  the  Treaty,  the  Council,  acting 
unanimously  after  consulting  the  European  Parliament,  is  to  take  a  decision,  after  a 
five-year transitional period after the entry into force of the Amsterdam Treaty, with a 
view to adapting the provisions relating to the powers of the Court of Justice. 

That  adaptation  should  be  made  by  aligning  the  special  provisions  existing  in  the 
fields covered by Title IV on the standard rules of the Treaty. The special provisions 
should therefore cease to apply and be replaced by application of the general rules of 
the Treaty, and in particular Article 234. 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark 
annexed to the Treaty on European Union and to the Treaty establishing the European 
Community,  Denmark  is  not  taking  part  in  the  adoption  of  this  Decision  and  is  not 
bound by it or subject to its application, 

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HAS DECIDED AS FOLLOWS: 

Sole Article 

With effect from [1 January 2007], Article 234 of the Treaty shall apply to any request 
1. 
made  to  the  Court  of  Justice  by  a  national  court  to  rule  on  a  question  concerning  the 
interpretation of Title IV of Part Three of the Treaty or on the validity and interpretation of 
acts of the Community institutions on the basis of that Title, including requests made before 
[1 January 2007] on which the Court of Justice has not yet ruled at that date. 

2. 
With effect from [1 January 2007], the second sentence of the third subparagraph of 
Article  2(1)  of  the  Protocol  integrating  the  Schengen  acquis  into  the  framework  of  the 
European Union shall cease to apply in matters to which Community law applies. 

3. 

With effect from [1 January 2007], Article 68 of the Treaty shall cease to apply. 

Done at Brussels, […] 

For the Council 
The President 

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