COMMISSION OPINION on the requests for the amendment of the Statute of the Court of Justice of the European Union, presented by the Court
Date: 2011-09-30
Institutions: European Commission
Subjects: Civil Service Tribunal, Court of Justice of the European Union, General Court (EU), appointment of members, institutional reform, institutional structure, operation of the Institutions, rules of procedure

EUROPEAN COMMISSION 

Brussels, 30.9.2011 
COM(2011) 596 final 

COMMISSION OPINION 

of 30.9.2011 

on the requests for the amendment of the Statute of the Court of Justice of the European 
Union, presented by the Court 

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COMMISSION OPINION 

of 30.9.2011 

on the requests for the amendment of the Statute of the Court of Justice of the European 
Union, presented by the Court 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 257, first paragraph, and 281, second paragraph, thereof, 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

In  two  requests  of  28  March  2011,  the  Court  of  Justice  of  the  European  Union 
proposed several amendments to its Statute together with the adoption of a regulation 
concerning temporary judges of the Civil Service Tribunal. Following the entry into 
force of the Lisbon Treaty, these provisions should, for the first time, be adopted by 
the  European  Parliament  and  the  Council,  acting  in  accordance  with  the  ordinary 
legislative procedure. 

The  proposed  amendments  concern  to  varying  degrees  the  three  courts  currently 
making  up  the  Court  of  Justice  of  the  European  Union:  the  Court  of  Justice,  the 
General Court and the Civil Service Tribunal. 

In relation to the Court of Justice itself, the amendments are intended to establish the 
office  of  Vice-President  of  the  Court  and  to  determine  the  tasks  to  be  entrusted  to 
him/her (Articles 9a, new, and 39, second paragraph), to modify the composition of 
the  Grand  Chamber  (Article  16,  second  paragraph),  to  increase  the  quorum  for 
decisions  by  the  Grand  Chamber  and  the  full  Court  (Article  17,  third  and  fourth 
paragraphs), and to abolish the reading at the hearing of the report presented by the 
Judge-Rapporteur (Article 20, fourth paragraph). 

In relation to the General Court, in order to cope with the increase in its caseload and 
the resulting increase in the time taken to handle cases, it is proposed that the number 
of judges be increased to 39 (Article 48). 

In relation to the Civil Service Tribunal, the Court requests that it be assigned three 
temporary judges upon whom it could call in the event that a judge is prevented from 
attending for a long period of time (amendment of Article 62c and of Annex I to the 
Statute and adoption of a regulation specific to the Civil Service Tribunal). 

Lastly, a final amendment is proposed that would affect the three courts in the same 
way, namely dropping the provision on periods of grace based on considerations of 
distance  (deletion  of  Article  45,  first  paragraph),  which  would  in  fact  result  in  the 
disappearance of the ten-day fixed period which is currently added to the procedural 
deadlines. 

The  Court  proposes  that  all  of  these  amendments  should  come  into  force 
immediately, in particular the increase in the number of judges at the General Court. 
Exceptionally,  three  changes  relating  to  the  Court  of  Justice  –  the  establishment  of 
the  office  of  Vice-President,  the  modification  of  the  composition  of  the  Grand 

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8. 

9. 

10. 

11. 

12. 

13. 

14. 

Chamber and the adaptation of the quorum for decisions – cannot be applied until the 
first occasion when the Judges are partially replaced. 

The  Commission  welcomes  the  Court's  initiative  in  submitting  amendments  to  its 
Statute to the EU legislature. Both the nature and the volume of litigation before the 
EU courts have changed radically in recent years, mainly because of the development 
of  EU  law  in  new  areas  and  the  increase  in  the  number  of  Member  States.  The 
enlargement  of  the  EU  has  also  exerted  considerable  influence  on  the  internal 
structure  of  the  courts,  mainly  because  of  the  increase  in  the  number  of  their 
Members and in the number of languages that can be used in litigation. Lastly, other 
changes can be foreseen in the short and medium terms, in particular following the 
entry into force of the Lisbon Treaty. The organisation, resources and functioning of 
the courts need to be adapted so that they can cope with all these developments. 

In the explanatory note accompanying its requests, the Court of Justice provides an 
in-depth  analysis  of  the  current  situation,  sets  out  the  requirements  for  reform  and 
puts forward solutions that could satisfy these requirements. The Commission agrees 
with this analysis to a very large extent. 

However, the Court's proposals do call for thorough discussion as they are likely to 
influence the configuration of justice within the EU on a lasting basis. A change to 
the statute of a court is never insignificant as the legitimacy of the court's decisions is 
based  on  its  statute.  The  statute  must  protect  the  independence,  impartiality  and 
authority  of  the  court  while  ensuring  effective  access  to  justice  by  guaranteeing 
efficient and diligent acts. 

The  Commission  sets  out  in  detail  below  for  the  legislature's  attention  the  reasons 
why it is supporting the Court's proposals, while at the same time suggesting changes 
and additions to certain points. 

The  Commission  is  aware  of  the  budgetary  consequences  of  the  Court's  proposals. 
Nevertheless,  first  it  would  like  to  stress  that  granting  effective  judicial  protection, 
for instance in court judgments handed down within a reasonable period of time, is a 
crucial  obligation.  Second,  while  not  as  visible  as  a  budget  increase,  the  adverse 
financial consequences of inefficient justice are quite likely to cost more than such an 
increase. 

Amendments relating to the Court of Justice 

As  regards  the  Court  of  Justice  proper,  the  establishment  of  the  office  of 
Vice-President  is  justified.  As  the  Court  states,  the  President's  workload  has 
increased  considerably  with  time  and  it  would  be  useful  if  he  could  be  replaced  or 
assisted by a vice-president in carrying out his duties.  

The President of the Court has a large number of responsibilities which are crucial to 
the  smooth  running  of  the  Court.  In  this  respect,  the  Commission  would  like  to 
emphasise  the  importance  of  the  diligent  handling  of  proceedings  for  interim 
measures and appeals against interim measures, for which the President of the Court 
is  mainly  responsible.  It  is  vital  that  applications  for  a  stay  of  execution  or  other 
interim  measures,  whether  at  first  instance  or  on  appeal,  should  be  dealt  with  as 
promptly as possible. Otherwise this may affect the conduct of economic operators, 

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Member States  and  EU  institutions.  It  has  happened  that  some  appeals  against  the 
General  Court's  orders  for  interim  measures  were  dealt  with  only  after  lengthy 
periods, sometimes over a year. Such long periods are difficult to reconcile with the 
principle  of  effective  interim  judicial  protection.  The  establishment  of  the  office  of 
Vice-President should help improve the situation from this point of view. 

A few comments must be made regarding the conditions under which the President 
of  the  Court  could  be  replaced  by  the  Vice-President.  According  to  the  Court's 
proposal,  the  President  would  be  replaced  "when  he  is  prevented  from  attending, 
when the office of President is vacant or at the President’s request". The wording of 
Article 9a implies that, in addition to cases where he is prevented from attending, the 
President would have discretion to request that he be replaced on an ad hoc basis, for 
all  types  of  responsibilities  –  judicial,  protocol  or  administrative.  However,  in  the 
specific  case  of  proceedings  for 
the  new  Article  39, 
second paragraph, as proposed by the Court, provides for replacement only "should 
the  President  be  prevented  from  attending",  and  not  at  his  request.  This  specific 
provision  in  Article  39  should  probably  be  interpreted  as  a  derogation  from  the 
general  rule  in  Article  9a  which  permits  the  replacement  of  the  President  at  his 
request.  

interim  measures, 

In  the  Commission's  view,  it  is  justified  that  the  choice  of  judge  responsible  for 
guaranteeing  interim  judicial  protection  should  be  an  objective  choice,  namely  the 
President,  unless  he  is  prevented  from  attending.  It  would  be  inappropriate  for  the 
President to decide in a discretionary manner and on an ad hoc basis to have himself 
replaced in proceedings for interim measures. The Commission considers, however, 
that  this  reasoning  is  valid  for  all  the  President's  judicial  acts  (in  other  words,  not 
only  responsibility  for  giving  an  interim  decision  or  a  decision  in  appeals  against 
interim measures, but also chairing hearings and deliberations by the full court and 
the  Grand  Chamber).  By  way  of  an  additional  guarantee  against  judicial  bias,  it 
would  be  preferable  if  litigation  were  to  be  allocated  to  the  President  and 
Vice-President  in  line  with  abstract,  general  principles  decided  in  advance  (the 
principle  of  "right  to  a  lawful  judge")  rather  than  on  a  case-by-case  basis.  The 
Commission therefore suggests that the President should be replaced "at his request" 
only  for  his  protocol  and  administrative  responsibilities  (including  chairing  general 
meetings  of  the  Court).  To  this  end  it  proposes  that  the  second  paragraph  of 
Article 9a should be worded as follows: 

The  Vice-President  shall  assist  the  President  of  the  Court.  He  shall  take  the 
latter’s  place  when  he  is  prevented  from  attending  or  when  the  office  of 
President  is  vacant.  He  shall  also  take  his  place  at  the  President's  request, 
except  in  order  to  chair  the  full  court  and  the  Grand  Chamber  and  for  the 
responsibilities set out in Article 39. 

Lastly,  as  regards  the  arrangements  for  appointing  the  Vice-President,  the 
Commission is in favour of the principle of an election for a renewable term of three 
years,  as  proposed  by  the  Court.  The  Vice-President's  term  would  thus  be  brought 
into line with that of the President of the Court. 

The  Court's  second  proposal  concerns  the  composition  of  the  Grand  Chamber, 
which  would  be  increased  from  13  to  15  judges;  the  automatic  participation  of  the 
Presidents of Chambers of five Judges would cease. 

15. 

16. 

17. 

18. 

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19. 

20. 

21. 

22. 

23. 

24. 

In the Commission's opinion, it is essential to have a Grand Chamber in the Court of 
Justice  dealing  with  complex  cases  or  cases  which  raise  important  questions  of 
principle in order to ensure the harmonious development of the Court's case-law. Not 
only does this guarantee that the opinions of a large number of judges in the Court 
will be taken into account, but it also contributes to the continuity of case-law over 
time.  Moreover,  the  permanent  presence  of  the  Presidents  of  Chambers  of 
five Judges  in  the  Grand  Chamber  and  in  the  Chambers  they  chair  contributes  to 
maintaining a coherent case-law approach between these different formations of the 
Court.  

In  a  Court  consisting  of  27  members,  a  Grand  Chamber  of  15  Judges  could  more 
easily  fulfil  the  above-mentioned  objectives.  The  same  applies  to  the  automatic 
presence of the Vice-President. These amendments must therefore be supported.  

However,  abolishing  the  automatic  participation  of  the  Presidents  of  Chambers  of 
five  Judges  is  a  reform  whose  overall  added  value  is  more  difficult  to  gauge.  This 
development  would  admittedly  relieve  these  Judges  of  part  of  their  considerable 
workload.  It  would  also  allow  the  other  Judges  to  take  part  more  frequently  in  the 
work of the Grand Chamber, thus ensuring that more account is taken of the diversity 
of Member States and the variety of national legal systems. On the other hand, this 
reform would introduce a much bigger change than before in the composition of the 
Grand Chamber (only two permanent members out  of fifteen instead of five out of 
thirteen,  as  is  the  case  at  the  moment),  with  the  ensuing  risks  in  terms  of  the 
coherence and stability of the Grand Chamber's case-law. In addition, the Presidents 
of  the  Chambers  of  five  Judges  would  no  longer  be  fully  informed  of  the 
deliberations within the Grand Chamber, on the occasions in which they no long take 
part in it. 

In  this  respect,  the  Commission  considers  that  it  is  possible  to  adapt  the  Court's 
proposal slightly to ensure more stability in the composition of the Grand Chamber, 
while at the same time achieving the objectives pursued by the reform. 

This change would amount to keeping the composition suggested by the Court while 
adding a rule that three Presidents of Chambers of five Judges must always form part 
of this Grand Chamber. 

The  Rules  of  Procedure  would  contain  conditions  governing  the  participation  of 
judges  in  each  case,  probably  involving  a  system  of  two  rotating  lists  (instead  of  a 
single  list  as  is  the  case  at  the  moment):  one  consisting  of  the  Presidents  of  the 
Chambers  of  five  Judges  and  the  second  one  consisting  of  the  other  judges.  The 
second paragraph of Article 16 would state: 

The Grand Chamber shall consist of 15 Judges. It shall be presided over by the 
President  of  the  Court.  The  Vice-President,  three  Presidents  of  Chambers  of 
five Judges and other judges shall also form part of the Grand Chamber. The 
rules  for  appointing  the  three  Presidents  of  Chambers  of  five  Judges  and  the 
other judges are laid down in the Rules of Procedure. 

25. 

The  Commission  is  in  favour  of  increasing  the  quorum  for  decisions  by  the 
Grand Chamber (11 judges) and the full court (17 judges), as proposed by the Court. 

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26. 

27. 

28. 

29. 

Lastly, the amendment of Article 20 in order to abolish the reading at the hearing of 
the report presented by the Judge-Rapporteur would simply be abolishing a rule that 
is already obsolete. This would not raise any objections. 

In  conclusion,  the  Commission  supports  all  the  proposals  made  in  relation  to  the 
Court of Justice, but would suggest: 

•  stating  in  which  cases  the  President  of  the  Court  can  be  replaced  by  the 

Vice-President; 

•  ensuring more stability in the composition of the enlarged Grand Chamber. 

Amendments relating to the General Court 

The  Court  is  aware  of  the  need  to  make  vigorous  efforts  to  deal  rapidly  with  the 
growing  number  of  cases  pending  before  the  General  Court  and  to  reduce  the  time 
taken  to  handle  cases.  As  it  says  in  the  explanatory  note,  the  Court  had  to  choose 
between the two routes to reform offered by the Treaties: increasing the number of 
judges or establishing one or more specialised courts. It is proposing to increase the 
number of judges at the General Court to 39. 

Subject  to  the  comments  made  below,  the  Commission  agrees  with  the  Court's 
choice.  First,  an  urgent  solution  is  needed  for  the  considerable  number  of  cases 
currently pending at the General Court. Only by immediately increasing the number 
of judges, using existing administrative structures, will it be possible to stem the flow 
of  new  cases  and  effectively  tackle  the  backlog  of  cases.  Creating  one  or  more 
specialised courts would produce a result  only after a considerable period of time1. 
Moreover,  a  flexible  solution  is  needed  to  deal  with  the  fluctuations  in  litigation 
which  the  General  Court  has  to  deal  with.  Developments  in  secondary  legislation 
regularly  generate  new  classes  of  litigation,  the  extent  and  stability  of  which  it  is 
difficult  to  foresee  over  time.  While  the  REACH  regulation,  for  instance,  has  been 
regularly  cited  in  recent  years  as  a  potential  source  of  considerable  litigation,  the 
highest  rate  of  increase  has  in  fact  been  in  appeals  against  decisions  concerning 
sanctions  against  people  or  entities  based  on  mechanisms  established  under  the 
Common Foreign and Security Policy. In the same way, it is difficult to foresee the 
effects  in  the  medium  term  of  the  recent  establishment  of  a  number  of  agencies, 
particularly  in  the  financial  field.  In  view  of  this  volatility,  establishing  specialised 
courts  would  not  be  enough  to  deal  with  these  developments,  at  least  at  present.  A 
more flexible solution would be to establish specialised chambers within the General 
Court itself, a matter that is discussed below in this opinion. Establishing specialised 
courts  would  not  provide  a  lasting  solution  either  to  the  problem  of  the  General 
Court's excess workload, a problem which is affecting not only certain specific areas 
but also and above all complex cases such as those relating to competition and state 
aid. 

1 

For example, over two years elapsed between the proposal for a decision establishing the Civil Service 
Tribunal (COM(2003) 705 of 19 October 2003) and the time it actually came into operation (Decision 
of the President of the Court of Justice recording that the European Union Civil Service Tribunal has 
been constituted in accordance with law, OJ L 325 of 12 December 2005). 

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30. 

31. 

32. 

33. 

34. 

Establishing  the  number  of  additional  judges  regarded  as  adequate  necessarily 
involves  some  uncertainty.  The  proposal  to  add  twelve  judges  to  establish  four 
additional  chambers  should  be  enough,  however,  to  substantially  increase  the 
General Court's capacity to handle cases. 

The  proposed  amendment  of  Article  48  of  the  Statut  also  requires  a  corresponding 
change in Article 47. The current wording of Article 47 makes several provisions of 
the  Statute  applicable  to  the  General  Court  and  its  members,  in  particular  the  first 
paragraph  of  Article  9  which  states  that  "When,  every  three  years,  the  Judges  are 
partially replaced, 14 and 13 Judges shall be replaced alternately." Once the number 
of judges at the General Court is no longer the same as at the Court of Justice, this 
provision  can  no  longer  be  applied  as  it  stands  to  the  General  Court.  The 
Commission therefore suggests that the Court's proposal be modified as follows: 

– 

add a point 6a worded as follows: 

The first paragraph of Article 47 is replaced by the following: 

Article  9a2,  Articles  14  and  15,  the  first,  second,  fourth  and  fifth  paragraphs  of 
Article 17, and Article 18 shall apply to the General Court and its members. 

– 

point 7 is reworded as follows: 

Article 48 is replaced by the following: 

"The General Court shall consist of 39 Judges. 

When, every three years, the Judges are partially replaced, 20 and 19 Judges shall 
be replaced alternately." 

In  addition  to  this  technical  change,  the  addition  of  12  judges  raises  two  important 
questions: the organisation of a General Court extended to 39 judges, and the system 
of  appointing  judges.  These  two  questions,  which  are  partly  related,  are  discussed 
below. 

As regards the internal organisation of the General Court, the Commission thinks 
that it is necessary to adopt supplementary amendments to the Statute to enhance the 
impact that increasing the number of judges would have on the Court's efficiency. In 
addition, these amendments would result in corresponding adaptations of the General 
Court's Rules of Procedure. 

The  General  Court  is  currently  run  on  the  basis  of  rigorous  equality  between  the 
different  Chambers,  each  of  which  is  automatically  assigned  all  classes  of  cases  in 
turn.  The  President  of  the  General  Court  can  derogate  from  this  system  only  in 
exceptional cases. This method of organisation forces all the judges to master areas 
of law as diverse as competition law, intellectual property law, agricultural litigation, 
etc. The composition of the Appeal Chamber is based on rotation. 

2 

In relation to adding the reference to Article 9a, see point 39 of this opinion. 

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35. 

36. 

37. 

38. 

39. 

40. 

41. 

The  Commission  considers  that  these  features  could  not  be  maintained  in  a  court 
consisting of 39 judges. The large number of chambers would result in an even more 
fragmented distribution of the various classes of case. Out of the 600 cases and more 
that  arrive  each  year,  each  Judge-Rapporteur  would  be  allocated  approximately 
15 cases covering a very wide range of subjects.  

Some  subject-matter  specialisation  by  several  General  Court  chambers  would  thus 
appear  to  be  necessary  to  ensure  more  efficient  and  rapid  handling  of  cases,  while 
preserving the necessary flexibility so as to adapt to emerging types of disputes. 

While it is for the General Court to set down the details of such specialisation in its 
Rules  of  Procedure,  the  principle  should  be  enshrined  in  the  Statute  itself  to 
guarantee  permanence.  Specifically,  it  could  be  stated  that  the  General  Court  is 
establishing an appropriate number of specialised chambers, and in any case at least 
two.  To  do  this,  Article  50  of  the  Statute  could  contain  an  additional  paragraph 
inserted between the first and second paragraphs, which would read as follows: 

"In  the  case  of  subjects  for  which  a  large  volume  of  litigation  exists,  the 
General  Court  shall  have  an  appropriate  number  of  specialised  chambers  to 
which  such  cases  are  assigned.  There  cannot  be  fewer  than  two  specialised 
chambers." 

The current system is designed in such a way that the President of the General Court 
is largely tied up with requests for interim measures and does not have enough time 
to  devote  to  the  general  management  of  litigation.  Moreover,  he  largely  lacks  the 
wherewithal for this type of management. 

The Commission therefore recommends establishing the office of Vice-President of 
the  General  Court,  as  proposed  for  the  Court  of  Justice.  To  do  this,  it  might  be 
enough to make the new Article 9a applicable to the General Court. A reference to 
this provision should therefore be added to the first paragraph of Article 47. At the 
same time, the General Court's Rules of Procedure should be modified to strengthen 
the  President's  powers  in  relation  to  the  management  of  cases  and,  in  particular,  to 
the allocation of cases to judges. 

To enhance the effectiveness of this change, the Vice-President could share with the 
President  the  task  of  managing  applications  for  interim  measures.  In  this  case,  the 
first paragraph of Article 47 would refer only to the first paragraph of Article 9a and 
a new Article 48a would be introduced, which would read as follows: 

The  Vice-President  shall  assist  the  President  of  the  Court.  He  shall  take  the 
latter’s  place  when  he  is  prevented  from  attending  or  when  the  office  of 
President  is  vacant.  He  shall  also  take  his  place  for  the  tasks  set  out  in 
Article 39 in line with the conditions provided for in the Rules of Procedure. 

Lastly,  on  a  practical  level,  the  Commission  considers  that,  once  an  agreement  in 
principle  has  been  reached  on  increasing  the  number  of  judges,  the  General  Court 
should  receive  the  budget  resources  allowing  it  to  recruit  a  significant  number  of 
additional legal secretaries, without waiting for the adoption and entry into force of 
the amendments to the Statute. These new legal secretaries, assigned  to the  current 

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42. 

43. 

44. 

45. 

46. 

47. 

48. 

Judges,  could  allow  the  latter  to  start  handling  pending  cases  until  the  new  judges 
take up office. The legal secretaries could then be transferred to the new judges. 

Once  the  number  of  judges  at  the  General  Court  has  been  increased,  the  second 
question  that  arises  concerns  the  arrangements  for  nominating  judges.  The  rules 
for appointing judges to the General Court are laid down directly in the Treaties. As 
is the case for the Court of Justice, judges are appointed by common accord of the 
governments of the Member States for a term of six years (Article 19(2) TEU, and 
Article 254, second paragraph, TFEU). Article 254 also states that membership is to 
be partially renewed every three years. The only element that can be established by 
the Statute is the number of judges (first paragraph of Article 254 TFEU), provided 
that the General Court has at least one judge per Member State (Article 19(2), TEU). 

Since  the  legislature  is  not  responsible  for  supplementing  these  rules,  the 
Member States must agree informally on arrangements for nominating judges. Given 
that  the  number  of  judges  to  be  appointed  does  not  correspond  to  the  number  of 
Member  States  or  to  a  multiple  of  that  number,  it  is  essential  to  have  such 
arrangements to ensure swift, non-conflicting appointments. 

The Commission therefore asks the Member States, at the time of the approval of the 
amendments to the Statute by the legislature, to adopt a joint declaration setting out 
the  nomination  arrangements  they  have  agreed. The declaration could be published 
in the Official Journal of the European Union for information purposes. 

The  Commission  considers  that  the  Member  States  should  ensure  that  several 
fundamental objectives are borne in mind when adopting nomination arrangements. 
First, care must be taken to ensure the nomination of the most suitable people who 
are  best  qualified  for  carrying  out  the  tasks  concerned.  This  objective  is  already 
partly  assured  by  the  opinions  given  by  the  panel  established  pursuant  to 
Article 255 TFEU. Then, a certain amount of stability in terms of the composition of 
the  General  Court  must  be  guaranteed  by  maintaining  as  far  as  can  be  the 
possibilities  of  renewing  the  terms  of  judges.  Given  the  technical  nature  of  the 
subjects handled by the General Court and the increased need for specialisation there, 
it  is  important  that  the  judges  who  have  worked  efficiently  can  possibly  have  their 
terms  renewed.  If  the  increase  from  27  judges  to  39  were  to  undermine  this 
possibility, then this reform should be seriously reconsidered. At the same time, the 
Commission is aware that the Member States would like to have a system that would 
guarantee as far as possible that all national legal systems are properly represented in 
the composition of the General Court. 

The  increase  from  27  judges  to  39,  with  a  partial  replacement  of  20  and  19  judges 
every  three  years,  would  undoubtedly  make  it  more  difficult  to  pursue  these 
objectives simultaneously. 

The Commission feels, however, that it is possible to find a balanced solution, and to 
this  end  it  submits  the  following  two  alternative  systems  to  the  Member  States  for 
consideration.  

The  first  model  is  designed  to  ensure  strict  equality  between  Member  States  by 
means of an egalitarian rotating system, while retaining the possibilities of renewal 
of  terms  as  far  as  possible.  The  two  basic  principles  involved  would  be  that  the 

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General Court must comprise at least one judge and at most two judges having the 
nationality  of  each  Member  State  and,  when  two  judges  have  the  same  nationality, 
their terms must be staggered over the three-year period (if the terms were to fall at 
the  same  time,  this  could  undermine  the  independence  of  these  judges,  who  would 
find  themselves  competing  for  the  next  term).  In  line  with  these  two  principles, 
judges would be appointed as follows: 

•  A rotation list would be drawn up covering the 27 Member States. The list could 
be established by drawing lots or following the order laid down in Article 3(3) of 
Protocol No 36 to the Treaties. 

•  Each time there is a partial replacement, the Member States which do not have a 
national  among  the  20  (or  19)  judges  who  are  halfway  through  their  term  are 
identified,  and  the  corresponding  number  of  judges  with  the  nationality  of  those 
Member States are nominated as a priority. This may involve judges whose term 
has  just  expired  (provided  that  this  includes  judges  with  the  nationalities 
identified) or new judges.  

•  Then, in order to determine the nationality of the judges still to be nominated, the 
rotation  list  already  drawn  up  would  be  followed,  ensuring  a  maximum  of 
two judges per Member State. Again, this may involve judges whose term has just 
expired (provided that this includes judges with the nationalities identified) or new 
judges. 

•  During  the  subsequent  partial  replacement,  the  same  procedure  would  be 
followed,  going  down  the  rotation  list  (in  other  words,  starting  from  the 
Member State directly following the one coinciding with the nationality of the last 
judge appointed the previous time). 

•  All  the  candidates  thus  identified  are  interviewed  by  the  panel  provided  for  in 
Article  255  TFEU.  Regardless  of  the  substance  of  the  panel's  opinion,  the 
nomination system is followed without derogation. In other words, if an individual 
applicant  is  called  into  doubt,  the  Member  State  concerned  should  put  forward 
another candidate. 

49. 

The  second  model  proposed  by  the  Commission  is  designed  to  reflect  a  balance 
between  the  objective  of  ensuring  the  best  possible  representation  of  all  national 
legal systems and the need to respond to the requirements of a General Court which 
is structured more in terms of specialised chambers for each subject. To this end, half 
of the new judges (in other words six) would be nominated in line with a procedure 
that meets this need for specialisation. 

50. 

As  in  the  first  model,  the  basic  principle  would  be  that  the  General  Court  should 
comprise  at  least  one  judge  and  at  most  two  judges  having  the  nationality  of  each 
Member State. The judges would be nominated as follows: 

• 

During each partial replacement, three judges would be selected, having regard 
to the judicial qualifications required to sit in one of the specialised chambers 
to be established by the General Court. To this end, each Member State can put 
forward one candidate. Selection from among these candidates is carried out by 
the  Member  States  based  on  a  prior  opinion  by  the  panel  provided  for  in 

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Article 255 TFEU. The Member States must ask the panel to take into account 
in  its  opinion  the  candidates'  qualifications  in  the  area  of  the  specialised 
chamber  in  question  and  to  state  an  order  of  merit  for  the  candidates  whose 
suitability  is  confirmed.  To  avoid  bottlenecks  or  delays  in  appointments,  the 
Member  States  should  agree  beforehand  on  the  position  to  be  adopted 
following the panel's opinion. 

• 

The other 16 or 17 judges would be appointed according to the rotation system 
set out in the first model, with one slight change: when, following a selection 
process taking account of specialisation, a national of a Member State has been 
appointed  in  the  context  of  the  partial  replacement  in  question,  this 
Member State  will  not  be  able,  during  the  same  replacement  exercise,  to 
exercise  the  right  to  nominate  a  judge  which  it  would  have  by  virtue  of  the 
rotation list. 

The  arrangements  for  the  first-time  nomination  of  the  twelve  additional  judges 
should  also  be  specified.  Given  the  urgency  of  the  present  situation,  it  is  not 
advisable  to  wait  until  the  next  partial  replacements  of  the  composition  of  the 
General  Court  in  2013  and  2016  in  order  to  add  to  it  two  successive  groups  of  six 
judges. On the contrary, the 12 new judges must be appointed as quickly as possible 
following the entry into force of the amendment to the Statute. At the same time, the 
terms of these new judges must be brought into line with those of the current judges 
to  comply  with  Article  254  TFEU,  which  provides  for  a  partial  replacement  every 
three years. To do this, the Commission suggests bringing the term of office of the 
new judges into line with the frequency of the partial renewal of the General Court 
by  extending  its  effective  duration  as  necessary.  Concomitant  compliance  with  all 
these  requirements  means,  by  necessity,  that  the  first  new  judges  will  have  to 
perform  their  duties  for  a  period  that  does  not  correspond  to  the  six-year  term  set 
down in the Treaties. 

51. 

52. 

Given  this,  the  Commission  considers  that,  for  reasons  of  legal  certainty,  a 
transitional provision must be added to the Court's proposal. It would state that the 
new judges will take up their posts immediately before their first six-year term has 
formally started. It would also determine the effective duration of terms of each new 
judge. This rule could be inserted as a new paragraph 3 of Article 3: 

3.  The  12  judges  appointed  following  the  entry  into  force  of  this  regulation 
shall take up their posts immediately once they have taken the oath. Six of them 
shall  be  drawn  randomly  and  their  term  shall  end  six  years  after  the  first 
partial replacement of the General Court following the entry into force of this 
regulation. The term of the other six judges shall end six years after the second 
partial replacement of the General Court following the entry into force of this 
regulation. 

53. 

The Commission suggests that the nationality of the first 12 additional judges might 
be  determined  by  drawing  lots  or  in  line  with  the  order  set  out  in  Article  3(3)  of 
Protocol No 36 to the Treaties. 

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54. 

55. 

56. 

57. 

58. 

59. 

60. 

Amendments relating to the Civil Service Tribunal 

The  Court  proposes  making  provision  for  the  possibility  of  attaching  temporary 
Judges  to  the  specialised  courts  to  allow  them  to  replace  judges  prevented  from 
attending for an extended period of time. In fact, this possibility can only be applied 
in relation to the Civil Service Tribunal, and a specific regulation is proposed for this 
court. According to the regulation, the Council would appoint three temporary judges 
from among former Members of the Court of Justice. A temporary judge would be 
required to perform judicial duties in the event of the actual or foreseeable absence of 
a judge of the Tribunal for at least three months. 

The Commission is aware of the fact that, in a court comprising a small number of 
judges,  the  prolonged  absence  of  one  or  more  members  can  cause  considerable 
practical difficulties. The solution proposed to remedy this appears to be appropriate. 

The  Civil  Service  Tribunal's  Rules  of  Procedure  would  have  to  be  amended 
following  the  adoption  of  this  regulation,  in  particular  to  adapt  the  rules  on  the 
composition of the chambers and the assignment of cases. Temporary judges would 
exercise their prerogatives solely in the context of dealing with cases to which they 
were assigned, which means that they would not take part in the rotation system set 
out in the Rules of Procedure. 

Several comments must be made about Articles 2 and 5 of this draft regulation. 

In the case of Article 2, it would be appropriate to lay down the order in which the 
three temporary judges are required to undertake judicial duties when, in accordance 
with  the  conditions  laid  down,  one  of  the  member  judges  is  unable  to  attend.  The 
Commission recommends defining this order in the Council decision containing the 
list of temporary judges. This could be done by adding the following sentence to the 
end of the first paragraph of Article 2(1): 

The list determines the order in which temporary judges are called to perform 
judicial duties, in line with the second paragraph of Article 2(2). 

In  addition,  the  words  "in  the  order  laid  down"  should  be  inserted  after  the  words 
"the  President  of  the  Tribunal  shall  call  upon  a  temporary  Judge"  in  Article  2(2), 
second paragraph. 

A single term is used in the French version of Article 5 ("cessation des fonctions" of 
temporary judges) [*Translator's note: the English version uses two different terms, 
"cease"  and  "end"]  to  deal  with  what  is  in  fact  two  quite  separate  sets  of 
circumstances: the first and third paragraphs concern definitive removal from the list, 
while  the  second  paragraph  concerns  the  end  of  the  actual  period  during  which  a 
temporary  judge  performs  judicial  duties;  in  this  case  the  temporary  judge  remains 
on the list but stops performing his duties because of the return of the judge who was 
absent.  The  Commission  suggests  distinguishing  more  clearly  between  these  two 
situations by setting them out in two separate articles. 

61. 

Moreover, in the event of the return of the judge who was absent, the Tribunal (all 
the permanent judges of the Tribunal or those forming part of the relevant formation 
of the Tribunal?) can decide on a discretionary basis that a temporary judge should 

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continue  to  perform  his  duties  until  the  cases  in  which  he  has  been  sitting  are 
completed (entirely or partly?). The Commission has some criticism to make about 
this approach since it could weaken the independence of temporary judges given that 
the  permanent  judges  with  whom  they  work  would  decide  whether  or  not  they 
continue to perform their duties. For this reason, it considers that it would be more 
appropriate  to  adopt  an  objective  criterion  to  determine  the  cases  which  the 
temporary  judge  would  continue  to  handle  even  after  the  return  of  the  judge  he  is 
replacing. It suggests that temporary judges should continue to perform their duties 
until  all  the  cases  to  which  they  have  been  assigned  have  been  completed.  This 
would  ensure  greater  stability  in  the  composition  of  court  formations.  The 
Commission therefore recommends rewording Article 5 of the Regulation as follows: 

 Article 5 

 A  temporary  judge's  name  shall  be  removed  from  the  list  provided  for  in  the 
first subparagraph of Article 2(1) on his death or resignation, or by decision to 
deprive him of his office as provided by the first and second subparagraphs of 
Article 6 of the Statute. 

 Any temporary judge whose name is removed from the list provided for by the 
first  subparagraph  of  Article  2(1)  shall  be  replaced,  in  accordance  with  the 
procedure under that provision, for the remainder of the period of validity of 
the list. 

 Article 5a 

 The  duties  of  a  temporary  judge  shall  end  when  the  Judge  whom  he  has 
replaced  is  no  longer  prevented  from  acting.  However,  the  temporary  Judge 
shall  continue  to  perform  his  duties  until  the  cases  to  which  he  has  been 
assigned are completed. 

Amendments relating to all three Courts 

62. 

63. 

64. 

65. 

3 

Lastly,  the  Court  proposes  dropping  the  provision  on  the  ten-day  fixed  period  of 
grace based on considerations of distance on the grounds that it is no longer justified 
in this era of new technology. 

It is true that the ten-day fixed period no longer fulfils the objective for which it was 
created,  namely  compensation  for  the  time  needed  to  send  correspondence  to  the 
courts. Nevertheless, this additional period of time is sometimes valuable in allowing 
the parties and those concerned to lodge their pleadings and comments in time. 

The  Commission  considers  that  this  amendment  is  not  a  priority;  for  its  part,  it  is 
quite satisfied with the current  arrangements.  On  the  other  hand,  it  would  make  no 
objection should the consideration of distance be dropped. 

If the ten-day grace period is dropped, the Commission would recommend extending 
some specific periods set down in the Statute3: 

Periods specified directly in the Treaties cannot be changed, such as the two-month period for lodging 
an action for annulment (Article 263 TFEU) and the one-month period set down in Article 269 TFEU. 

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• 

• 

• 

The two-month period for submitting written observations on cases referred to 
the  Court  of  Justice  (Article  23,  second  paragraph,  of  the  Statute)  should  be 
extended to ten weeks given the complex preparation which these observations 
often require, in particular for the Member States and institutions. 

The  two-month  period  for  appealing  against  certain  decisions  of  the  General 
Court (Article 56, first paragraph) and of the Civil Service Tribunal (Article 9, 
first paragraph, of Annex I) should also be extended to ten weeks as within this 
period,  the  parties  must  in  turn  adopt  the  decision  in  principle  to  bring  an 
appeal (which can take a certain amount of time for reasons relating to internal 
procedures) and draft the said appeal. 

The two-week period for appealing against a decision of the General Court or 
Civil Service Tribunal dismissing an application to intervene (Article 57, first 
paragraph, and Article 10, first paragraph, of Annex I) should be increased to 
three weeks. 

66. 

Other  periods  set  by  the  Rules  of  Procedures  of  the  three  Courts  should  also  be 
extended: 

• 

• 

• 

Seven  days  for  an  application  to  submit  a  reply  or  rejoinder  following  a 
response  in  an  appeal  (Article  117(1)  and  (2),  last  sentence,  RP  Court  of 
Justice, and Article 143(1) and (2), last sentence, RP General Court); 

One  month  to  lodge  observations  on  the  questions  subject  to  review 
(Article 123e, second paragraph, RP Court of Justice); 

Two  months  to  lodge  observations  on  references  for  a  preliminary  ruling 
(EFTA) (Article 123g, third paragraph, RP Court of Justice). 

67. 

Lastly, it would be desirable if, in return for dropping the considerations of distance, 
the  procedural  deadlines  were  suspended  during  the  first  two  weeks  of  August  and 
between  20  December  and  3  January.  During  these  periods  of  judicial  vacations,  it 
would be particularly difficult to comply with short ten-day deadlines. 

Conclusion 

The  Commission  hereby  issues  a  favourable  opinion  on  the  amendment  of  the  Statute 
proposed by the Court of Justice subject to the changes set out in points 16, 23 and 24, 31, 37, 
40, 52, 58, 59, 61 and 65 of this opinion, and provided that arrangements for nominating the 
judges to the General Court are adopted concomitantly by the Member States. 

This opinion shall be forwarded to the European Parliament and the Council. 

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