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# 52011DC0596

**COMMISSION OPINION on the requests for the amendment of the Statute of the Court of Justice of the European Union, presented by the Court /\* COM/2011/0596 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

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.
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.

2.
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.

3.
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).

4.
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).

5.
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).

6.
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.

7.
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 Chamber and the adaptation of the
quorum for decisions – cannot be applied until the first occasion when the
Judges are partially replaced.

8.
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.

9.
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.

10.
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.

11.
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.

12.
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

13.
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.

14.
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, 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.

15.
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 interim
measures, 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.

16.
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.

17.
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.

18.
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.

19.
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.

20.
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.

21.
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.

22.
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.

23.
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.

24.
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.

26.
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.

27.
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

28.
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.

29.
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 time[1].
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.

30.
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.

31.
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 9a[2],
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."

32.
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.

33.
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.

34.
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.

35.
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.

36.
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.

37.
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."

38.
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.

39.
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.

40.
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.

41.
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 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.

42.
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).

43.
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.

44.
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.

45.
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.

46.
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.

47.
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.

48.
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 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 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.

51.
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.

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.

              Amendments relating to
the Civil Service Tribunal

54.
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.

55.
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.

56.
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.

57.
Several comments must be made about Articles 2
and 5 of this draft regulation.

58.
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).

59.
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.

60.
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 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.
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.

63.
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.

64.
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.

65.
If the ten-day grace period is dropped, the
Commission would recommend extending some specific periods set down in the
Statute[3]:

·
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.

[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).

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

[3]               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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