REPORT on the draft Council decision adapting the provisions concerning the Court of Justice in fields covered by Title IV of Part Three of the Treaty establishing the European Community

27.3.2007 - (COM(2006)0346 – C6-0304/2006 – 2006/0808(CNS)) - *

Committee on Legal Affairs
Rapporteur: József Szájer

Procedure : 2006/0808(CNS)
Document stages in plenary
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on the draft Council decision adapting the provisions concerning the Court of Justice in fields covered by Title IV of Part Three of the Treaty establishing the European Community

(COM(2006)0346 – C6-0304/2006 – 2006/0808(CNS))

(Consultation procedure)

The European Parliament,

–   having regard to the draft Council decision, annexed to the Commission communication (COM(2006)0346 - C6-0304/2006),

–   having regard to Article 67(2), second indent, of the EC Treaty, pursuant to which the Council consulted Parliament,

–   having regard to Rule 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs(A6-0082/2007),

1.  Approves the draft Council decision;

2.  Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

3.  Calls for initiation of the conciliation procedure under the Joint Declaration of 4 March 1975 if the Council intends to depart from the text approved by Parliament;

4.  Asks the Council to consult Parliament again if it intends to amend the draft decision substantially;

5.  Calls on the Council to speed up the activation of the "passerelle" clauses in order to remove the restrictions of the powers of the Court of Justice in connection with Title IV of the Treaty, while pointing out that it has already called on the Council to remove those restrictions on the powers of the Court;

6.  Instructs its President to forward its position to the Council and the Commission.



According to the Court of Justice, the preliminary ruling procedure is "essential for the preservation of the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all States of the Community"[1].

Whereas Art. 234 empowers the Court of Justice to give preliminary rulings on the interpretation of Community law and on the validity of acts of the Community institutions, Art. 68(1) restricts the possibility to make references for preliminary rulings concerning measures based on Title IV of the EC Treaty (Visas, asylum, immigration and other policies related to free movement of persons) to courts and tribunals "against whose decisions there is no judicial remedy under national law". In addition, Article 68(2) lays down that the Court of Justice has no jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of national security, a provision mirrored in the context of the Schengen acquis by Art. 2(1) of the Protocol integrating that acquis into the framework of the European Union. Lastly, Art. 68(3) provides for a species of preliminary ruling procedure to be brought, not by national courts, but by the Council, the Commission or a Member State on a question of interpretation of Title IV or acts of the institutions based thereon.

From the point of view of the Legal Affairs Committee's competence for judicial cooperation in civil matters, and particularly private international law, it is noteworthy that the "communitarisation" of the conventions on jurisdiction and recognition and enforcement of judgments in civil and commercial matters and in matrimonial matters by Regulations Nos 44/2001 and 1347/2000 constituted a step backwards as compared with the former protocols to those conventions, which conferred jurisdiction to seek preliminary rulings also on appellate courts and not merely on courts of last instance[2].

The Commission is now proposing that the second indent of Art. 67(2)[3] be utilised in order to render Art. 68 ineffective. It also proposes that Art. 2(1) of the Protocol integrating the Schengen acquis should cease to apply.

As a result, the Court could apply the standard rules of Art. 234 without any restriction to requests for preliminary rulings from courts of last instance only.

This proposal would:

· ensure the uniform application and interpretation of Community law also in this area;

· make it possible to strengthen judicial protection in fields that are particularly sensitive in terms of fundamental rights;

· remedy the retrograde step in judicial protection in civil matters covered by Art. 65 as a result of the Amsterdam Treaty;

· enable the Community judicial system to perform normally in this area.

More specifically, the proposal would be conducive to the uniform interpretation and application of the EC law - and hence to a uniform system of judicial protection - in the area covered by Title IV.

Again, the full application of the preliminary ruling procedure to Title IV would reinforce the judicial protection of people concerned. At present, persons who consider that their fundamental rights have been violated by a Community act adopted under that Title can refer a question for a preliminary ruling to the Court of Justice only if they have exhausted all national remedies in the sense that they have to take their case to the court of final appeal. The expense of doing so may deter litigants and justice may suffer. It is questionable whether the present position is compatible with the Union's obligations under the European Convention on Human Rights. If the proposal is accepted, even national courts of first instance will be able to refer a question for a preliminary ruling.

It should be noted that the Commission has stressed that the resulting additional references for preliminary ruling in this area will not increase the Court's workload unreasonably if reliance is placed on the efficiency of the means of internal organisation which have been adopted and the new possibilities created by the Nice Treaty, such as the accelerated procedure.[4]

What is more, the Court of Justice proposes creating a new type of procedure - the emergency preliminary ruling procedure - which would enable a case to be dealt with in an even shorter time than that allowed by the accelerated procedure. Under that procedure, cases requiring to be dealt with particularly expeditiously could be entrusted to a special Chamber that would follow a streamlined procedure, possibly counterbalanced by the opportunity for re-examination.


In view of the above considerations, the Commission's proposal should be commended and Parliament's request to the Council to remove the restrictions on the powers of the Court of Justice in the context of Title IV of the TEC restated. Indeed, Parliament has already called on the Council "to adopt as a matter of urgency, in keeping with Parliament's opinion, the draft Decision based on Art. 67(2) TEC with regard to removing the restrictions on the powers of the Court of Justice in the context of Title IV of the TEC and to do everything to speed up the handling of preliminary rulings"[5].

It is necessary to activate the "passerelle" clause provided for in Art. 67 in order to remedy the democratic deficit that still characterises the area of freedom, security and justice and to extend the scope of judicial protection in the sensitive fields covered by Title IV of the EC Treaty in response to the growth of powers of the Community institutions.

  • [1]  Case 166/73 Rheinmühlen v. Einfuhr- und Vorratsstelle Getreide [1974] ECR 33, para. 2.
  • [2]  See Lenaerts, Arts, Maselis, Bray (ed.), Procedural Law of the European Union, Sweet & Maxwell, London, 2006, at 22-001.
  • [3]  Art. 67:
    1. During a transitional period of five years following the entry into force of the Treaty of Amsterdam, the Council shall act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament.
    2. After this period of five years:
    - the Council shall act on proposals from the Commission; the Commission shall examine any request made by a Member State that it submit a proposal to the Council,
    - the Council, acting unanimously after consulting the European Parliament, shall take a decision with a view to providing for all or parts of the areas covered by this title to be governed by the procedure referred to in Article 251 and adapting the provisions relating to the powers of the Court of Justice. ....
  • [4]  Under to the accelerated procedure for preliminary references, the President of the ECJ may exceptionally decide at the request of the national court, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to apply an accelerated procedure where the circumstances referred to establish that a ruling on the question put to the Court is a matter of exceptional urgency. The President immediately fixes the date for the hearing, which is notified to any possible participants, who may lodge statements of case or written observations within no less than 15 days.
  • [5]  See P6_TA-PROV(2006)0525, author Cavada



Adaptation of the provisions of Title IV of the EC Treaty relating to the jurisdiction of the Court of Justice


COM(2006)0346 - C6-0304/2006 - 2006/0808(CNS)

Date of consulting Parliament


Committee responsible

       Date announced in plenary



Committee(s) asked for opinion(s)

       Date announced in plenary






Not delivering opinions

       Date of decision







       Date appointed

József Szájer




Discussed in committee





Date adopted





Result of final vote







Members present for the final vote

Marek Aleksander Czarnecki, Cristian Dumitrescu, Monica Frassoni, Giuseppe Gargani, Klaus-Heiner Lehne, Katalin Lévai, Antonio Masip Hidalgo, Hans-Peter Mayer, Manuel Medina Ortega, Aloyzas Sakalas, Francesco Enrico Speroni, Rainer Wieland, Jaroslav Zvěřina, Tadeusz Zwiefka

Substitute(s) present for the final vote

Mogens N.J. Camre, Nicole Fontaine, Janelly Fourtou, Jean-Paul Gauzès, Eva Lichtenberger, Arlene McCarthy, Marie Panayotopoulos-Cassiotou, Michel Rocard, Gabriele Stauner, József Szájer, Jacques Toubon

Substitute(s) under Rule 178(2) present for the final vote

Toine Manders