Annexes to SEC(2005)207 - Request to amend the Statute of the Court of Justice, presented by the Court of Justice in accordance with the second paragraph of Article 245 of the EC Treaty, to lay down the conditions and limits for review by the Court of Justice of decisions delivered by the Court of First Instance under Article 225(2) and (3) of the EC Treaty - Main contents
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| dossier | SEC(2005)207 - Request to amend the Statute of the Court of Justice, presented by the Court of Justice in accordance with the second ... |
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| document | SEC(2005)207  |
| date | February 11, 2005 |
- under Article 13 of the same annex[5], where the appeal is well-founded and the Tribunal's decision consequently quashed, the Court of First Instance may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Tribunal for judgment.
20. It follows from the above that if, as the Court proposes, the review did not have suspensory effect, the Court of First Instance would have to judge the case on the basis of the Tribunal’s interpretation of law, even though that law could subsequently be modified by the Court of Justice.
21. It should also be noted that following the review, the Court’s proposal is to send the case back to the Court of First Instance, unless the outcome of the proceedings flows from the findings of fact on which the Court of First Instance based its decision. In this case, the Court of Justice will make a final judgment (Article 62c of the proposal).
Consequently, there is a risk that the proposed system will lead to several judicial decisions setting out the rule of law for the same case, firstly at appeal level (Court of First Instance decision, followed in some cases by a decision by the European Civil Service Tribunal) and then at review level (Court of Justice decision, followed where applicable by a decision by the Court of First Instance).
22. This sequence of events could recreate the very type of judicial encumbrance which the Nice Treaty was attempting to eliminate and could place the authority of a final judgment (res judicata) at risk.
Preliminary rulings
23. At this stage, no responsibility for preliminary rulings has been conferred on the CFI. However, in so far as the Court's proposal also covers the review of preliminary rulings by the CFI, the Commission would stress that the suspensory nature of the Court's review procedure is to be particularly recommended in this area.
The review procedure should not be invoked as a second level of preliminary proceedings. Both the credibility of the preliminary-ruling procedure and the economy and effectiveness of the review procedure are at stake here.
24. The credibility of the preliminary ruling procedure and, more specifically, the obligation of courts of final instance to refer cases for a ruling is based on the fact that national courts are required to consult the Court of Justice as the sole regulatory body specialised in interpretation and assessment of the validity of Community law. It is not appropriate therefore for the national court to be presented with two different preliminary rulings, one formulated by the Court of First Instance and the other by the Court of Justice, which according to the current proposal would be "substituted" for that of the Court of First Instance.
25. The proposed system could also prove to be difficult to manage for the national courts and could considerably reduce the effectiveness of the review procedure.
The referral to the Court of Justice takes place during a stay of proceedings ordered by the national court, which usually ends when the preliminary ruling is handed down, that is when the Court of First Instance notifies its judgment. The national court could therefore find that it is obliged to implement the Court of First Instance’s judgment.
In these circumstances, there is a risk that it will not be possible to take into account the information which the Court of Justice envisages giving the national court “so that it may await the adoption of a position by the Court of Justice in full knowledge of all the circumstances before it gives its decision on the dispute in the main proceedings”, and consequently that the review procedure will lose its effectiveness from the viewpoint of the parties to the dispute.
26. As the Court states, it is clear from the Treaty and the above declarations that the "review" is not an appeal in the interest of the law, in the usual sense of the term, as it emerged from debates during the Intergovernmental Conference (IGC) that this type of appeal could not be incorporated in the judicial structure envisaged at that time.
The purpose of an appeal in the interest of the law is generally to ensure that a decision of a lower court does not constitute case law in cases where the parties choose not to bring their action before the court of final instance, which is the only one competent to rule on certain matters[6]. In this context, the fact that a decision handed down on an appeal in the interest of the law does not alter judgments of which have become res judicata [7], but simply amends case law for the future, is perfectly acceptable.
The current issue is different in that the action in the Court of Justice relates either to an appeal or to a preliminary ruling of the Court of First Instance, in other words to cases in which the parties have already exhausted all the legal avenues open to them.
In view of this particular situation, the IGC had to conclude that the review by the Court of Justice should not only correct case law for the future but should also benefit the parties to the dispute in a tangible manner, where its review recommends a different solution from the Court of First Instance.
27. It is important therefore that the statutory provisions on the review procedure guarantee that the effect of the Court’s judgment is not reduced to that of an appeal in the interest of the law, but that it materially benefit the parties to the dispute.
28. The arguments above demonstrate that the statutory provisions on review should stipulate the suspensory nature of the request for review and of the decision to invoke the review procedure, so that a single response is given to appeals confined to questions of law and that a single ruling is handed down in the case of preliminary proceedings brought before the Court of First Instance.
II. The review should take place under an emergency procedure
29. Establishing such a procedure for preliminary rulings is required by Declaration No 15 of the Treaty of Nice. An accelerated procedure would also seemed to be justified for direct actions, since reviews are likely to be rare and should be focused on specific points of the Court of First Instance’s judgment, regarding which all of the information, including arguments already exchanged, would be transmitted to the Court of Justice.
30. The procedure envisaged by the Court of Justice seems to go in this direction in that the holding of an oral procedure would not be automatic.
31. But the provisions on the written procedure should be clarified. The proposed mechanism provides that the parties to the proceedings should have the right to submit their observations within a time limit to be set by the Court of Justice, while the Member States and the institutions may submit their observations in accordance with Article 23 of the Statute, or two months from the notification of the points to be reviewed.
32. The Commission is of the opinion that the time limit for submission of statements of case or written observations should be the same for the parties, the Member States and the institutions and should not be more than two or three weeks.
33. It would also be useful to establish a deadline for handing down the definitive judgment to be notified to the parties or to the national court.
III. Conclusion
1. For the reasons set out above, the Commission considers that the provisions relating to the review procedure should:
a ) establish the suspensory nature of the request for review and of the decision to invoke the review procedure;
b ) stipulate that the decisions of the Court of First Instance under Article 225(2) and (3) of the Treaty will be considered as final judgments:
- after the one-month period referred to in the second paragraph of Article 62 of the Statute, provided that the First Advocate General has not proposed a review of the decision, and
- where the First Advocate General has proposed a review, at the end of the second one-month period referred to in the second paragraph of Article 62 of the Statute, where the Court has decided not to open the review procedure;
c ) establish an emergency procedure;
d ) establish an appropriate time limit for the handing down of the judgment to be notified to the parties or to the national court.
2. The Commission considers that, in line with Declaration No 14 of the Treaty of Nice, it would be useful to establish an evaluation mechanism for the review procedure.
[1] Council document No 12464/03 JUR 359 COUR 24 of 12 September 2003.
[2] Similar provision to Article 60 of the Statute on appeals.
[3] The Court’s control over the CFI’s jurisdiction at first instance being exercised by appeal.
[4] Article 242 of the Treaty and Article 60 of the Statute of the Court (laying down the non -suspensory nature of actions and appeals).
[5] Which reproduces the terms of Article 61 of the Statute on appeals against CFI decisions.
[6] See Article 68(1) of the EC Treaty, which provides that only the national courts of final instance can refer matters to the Court of Justice for a preliminary ruling.
[7] See Article 68(3) of the EC Treaty.