REPORT on the draft regulation of the European Parliament and of the Council relating to temporary judges of the European Union Civil Service Tribunal

5.6.2012 - (01923/2011 – C7‑0091/2011 – 2011/0902(COD)) - ***I

Committee on Legal Affairs
Rapporteur: Alexandra Thein

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the draft regulation of the European Parliament and of the Council relating to temporary judges of the European Union Civil Service Tribunal

(01923/2011 – C7‑0091/2011 – 2011/0902(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–   having regard to the request by the Court of Justice submitted to Parliament and the Council (01923/2011),

–   having regard to Articles 257 and 281 of the Treaty on the Functioning of the European Union, pursuant to which the draft act was submitted to Parliament (C7‑0091/2011),

–   having regard to Article 294(3) and (15) of the Treaty on the Functioning of the European Union,

–   having regard to the opinion of the Commission (COM(2011)0596),

–   having regard to Rule 55 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs (A7-0184/2012),

1.  Adopts its position at first reading hereinafter set out;

2.  Instructs its President to forward its position to the Council, the Court of Justice, the Commission and the national parliaments.

AMENDMENTS BY THE EUROPEAN PARLIAMENT^[1]*

to the Draft Act

---------------------------------------------------------

REGULATION (EU, EURATOM) No …/2012OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of

relating to temporary Judges of the European Union Civil Service Tribunal

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 257 thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 106a thereof,

Having regard to Protocol No 3 on the Statute of the Court of Justice of the European Union, and in particular Article 62c thereof and Article 2(2) of Annex I thereto,

Having regard to the request of the Court of Justice[2],

Having regard to the opinion of the European Commission[3],

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure[4],

Whereas:

(1)         It is necessary, in accordance with the second paragraph of Article 62c of Protocol No 3 on the Statute of the Court of Justice of the European Union ('the Statute') and Article 2(2) of Annex I thereto, to lay down the rules governing the appointment of temporary Judges to the European Union Civil Service Tribunal ('the Civil Service Tribunal'), their rights and duties, the conditions under which they may perform their duties and the circumstances in which they would cease to perform those duties.

(2)         Temporary Judges should be chosen from among persons who are capable of performing the duties of Judge at the Civil Service Tribunal immediately. The appointment of former Members of the Court of Justice, of the General Court or of the Civil Service Tribunal can ensure that those requirements are met.

(3)         In view of the circumstances in which temporary Judges would be designated, the process should have the requisite flexibility. To that end, the Council should be responsible for drawing up a list of three persons capable of being designated as temporary Judge. Should it become necessary to replace, on a temporary basis, a Judge who, on medical grounds, is prevented from acting, the Civil Service Tribunal would take the decision to avail itself of the assistance of a temporary Judge. Pursuant to that decision, the President of the Civil Service Tribunal would call upon one of the persons whose names are included on the list adopted by the Council in the order laid down in that list to undertake judicial duties.

(4)         The method of remuneration of temporary Judges should also be provided for, as should the question of the effects of their duties and of that remuneration on the emoluments to which they are entitled as former Members of the Court of Justice of the European Union.

(5)         Finally, it is important to make provision for the cessation of temporary Judges' duties,

HAVE ADOPTED THIS REGULATION:

Article 1

In this Regulation:

–         ‘Statute’ means the Protocol on the Statute of the Court of Justice of the European Union;

–         ‘Civil Service Tribunal’ means the European Union Civil Service Tribunal;

–         ‘Regulation No 422/67/EEC and No 5/67/Euratom’ means Regulation No 422/67/EEC, No 5/67/Euratom of the Council of 25 July 1967 determining the emoluments of the President and Members of the Commission, of the President, Judges, Advocates- General and Registrar of the Court of Justice, of the President, Members and Registrar of the Court of First Instance and of the President, Members and Registrar of the European Union Civil Service Tribunal[5]; 

– ‘President of the Tribunal’ means the President of the European Union Civil Service Tribunal.

Article 2

1.          On a proposal from the President of the Court of Justice, the Council, acting unanimously, shall draw up a list of three persons to be temporary Judges within the meaning of the second paragraph of Article 62c of the Statute. That list shall determine the order in which temporary Judges are called upon to undertake judicial duties, in line with the second subparagraph of paragraph 2 of this Article.

Temporary Judges shall be chosen from among former Members of the Court of Justice of the European Union who are able to place themselves at the disposal of the Civil Service Tribunal.

Temporary Judges shall be appointed for a period of four years and may be reappointed.

2.          The Civil Service Tribunal may decide to avail itself of the assistance of a temporary Judge if it determines that a Judge is or will be prevented, on medical grounds, from participating in judicial business and that the situation will be or is likely to be of at least three months' duration, and if it takes the view that that Judge is nevertheless not suffering from disablement deemed to be total.

Pursuant to the decision referred to in the first subparagraph, the President of the Civil Service Tribunal shall call upon a temporary Judge in the order laid down in the list provided for in the first subparagraph of paragraph 1 to undertake judicial duties. He shall inform the President of the Court of Justice accordingly.

Where a Judge will foreseeably be prevented from acting and the Civil Service Tribunal takes a prospective decision, the temporary Judge may not take up his duties or participate in judicial business until the Judge whom he is to replace is actually prevented from acting.

3.          Articles 2 to 6 and 18 of the Statute shall apply to temporary Judges. The oath provided for by Article 2 of the Statute shall be taken when the temporary Judge first takes up his duties.

Article 3

Temporary Judges who are called upon to take up their duties shall exercise the prerogatives of a Judge solely in the context of dealing with cases to which they are assigned.

They shall be assisted by the services of the Civil Service Tribunal.

Article 4

1.          Temporary Judges shall receive remuneration of an amount equal to 1/30th of the basic monthly salary allocated to Judges under Article 21c(2) of Regulation No 422/67/EEC and No 5/67/Euratom for each day, duly recorded by the President of the Tribunal, during which they perform their duties.

▌Article 6(a) and (b) of Regulation No 422/67/EEC and No 5/67/Euratom shall apply to temporary Judges who are required to travel away from their place of residence in order to perform their duties.

2.          The amount by which the remuneration provided for in the first subparagraph of paragraph 1 together with the pension provided for in Article 8 of Regulation No 422/67/EEC and No 5/67/Euratom exceeds the remuneration, before deduction of taxes, which the temporary Judge received as a member of the Court of Justice of the European Union shall be deducted from that pension. The remuneration provided for in paragraph 1 shall also be taken into account for the purposes of the application of Article 7(3) of that Regulation.

Temporary Judges shall not be entitled to a transitional allowance or pension under Articles 7 and 8 of Regulation No 422/67/EEC and No 5/67/Euratom.

Article 19 of Regulation No 422/67/EEC and No 5/67/Euratom shall apply to the remuneration provided for in the first subparagraph of paragraph 1 of this Article.

Temporary Judges shall not be entitled, in that capacity, to benefit under the social security scheme provided for in the Staff Regulations of Officials of the European Union. Performance of the duties of temporary Judge shall not be treated as gainful employment or occupation within the meaning of Article 11 of Regulation No 422/67/EEC and No 5/67/Euratom.

3.          The remuneration provided for in the first subparagraph of paragraph 1 shall be subject to the tax provided for by Council Regulation (EEC, Euratom, ECSC) No 260/68 of 29 February 1968 laying down the conditions and procedure for applying the tax for the benefit of the European Union[6].

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 or her death or resignation, or by decision to deprive him or her of his or her office as provided for in the first and second paragraphs of Article 6 of the Statute.

▌

Any temporary Judge whose name is removed from the list provided for in 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 5 a

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 have been disposed of.

Article 6

This Regulation shall enter into force on the first day of the month following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at …, on …

For the European Parliament                                    For the CouncilPresident

  President

• [1] ^* Amendments: new or amended text is highlighted in bold italics; deletions are indicated by the symbol ▌.
• [2]             Request of 28 March 2011 (not yet published in the Official Journal).
• [3]             Opinion of 30 September 2011 (not yet published in the Official Journal).
• [4]             Position of the European Parliament of ... (not yet published in the Official Journal) and decision of the Council of ....
• [5]           OJ 187, 8.8.1967., p. 1.
• [6]           OJ L 56, 4.3.1968, p. 8.

EXPLANATORY STATEMENT

The Court of Justice has submitted a proposal for a regulation which would allow temporary judges to be appointed to the European Union Civil Service Tribunal. The Civil Service Tribunal consists of seven Judges. As a result, its operation can be seriously affected if one of its members falls ill and is unable to perform his or her duties for an extended period, without however suffering from disablement within the meaning of Article 10 of Council Regulation No 422/67/EEC, No 5/67/Euratom[1].  

In order to ensure that the European Civil Service Tribunal is not placed in a situation in which it cannot carry out its judicial functions, it is proposed to amend Art. 62c of the Statute of the Court by providing, in general terms, for the possibility of attaching temporary Judges to the specialised courts. Under Article 62c of the Statute, as thus amended, the attachment of temporary Judges to the Civil Service Tribunal requires an amendment to Annex I to the Statute.

Rules have been put forward to govern the appointment of temporary Judges, their rights and obligations, the conditions under which they are to perform their duties and the circumstances in which they will cease to perform those duties. The main thrust of the proposal is as follows: on a proposal from the President of the Court of Justice, the Council of the European Union shall draw up a list of three persons to be temporary Judges. Temporary Judges are to be chosen from among former Members of the Court of Justice of the European Union who are able to place themselves at the disposal of the Civil Service Tribunal. Temporary Judges will be appointed for a period of four years and may be reappointed. The Civil Service Tribunal may decide to avail itself of the assistance of a temporary Judge if it determines that a Judge is or will be prevented, on medical grounds, from participating in judicial business and that the situation will be or is likely to be of at least three months’ duration, and it takes the view that that Judge is nevertheless not suffering from total disablement.

In these circumstances, the President of the Tribunal will be able to call upon the services of a temporary Judge. Such temporary Judges are to have the prerogatives of a Judge solely in dealing with cases to which they are assigned. In other words, temporary Judges would be able to perform only strictly judicial duties and would not be entitled to participate in the administration of the Civil Service Tribunal or in the election of the President of the Tribunal or Presidents of Chambers. As far as their remuneration is concerned, temporary Judges are to be paid an amount equal to 1/30th of the basic monthly salary allocated to Judges under Article 21c(2) of Regulation No 422/67/EEC, 5/67/Euratom for each day. Temporary Judges are also to be entitled to reimbursement of their travel and hotel expenses in respect of journeys to Luxembourg in the course of their duties. The amount by which the remuneration together with the pension provided for in Article 8 of Regulation No 422/67/EEC, 5/67/Euratom exceeds the remuneration, before deduction of taxes, which the temporary Judge was receiving as a member of the Court of Justice of the European Union is to be deducted from that pension. Lastly, the draft regulation sets out the circumstances under which the duties of temporary judges will cease. This will take place on their death or resignation, or by decision to deprive them of their office as provided by the Statute. The duties of temporary Judges shall also end when the Judge whom they replaced is no longer prevented from acting.

The Committee commends this proposal of the Court of Justice as a sensible solution to a practical problem which can be very disruptive to the work of the European Civil Service Tribunal. The proposed amendments are purely technical and reproduce those put forward by the Commission in its opinion.

• [1]  Regulation No 422/67/EEC, 5/67/Euratom of the Council of 25 July 1967 determining the emoluments of the President and members of the Commission and of the President, Judges, Advocates-General and Registrar of the Court of Justice, English special edition: Series I Chapter 1967 p. 222, as amended.

PROCEDURE

Title	Proposal for a regulation of the European Parliament and of the Council relating to temporary judges of the European Union civil service tribunal
References	01923/2011 – C7-0091/2011 – 2011/0902(COD)
Committee responsible        Date announced in plenary	JURI 7.4.2011
Rapporteur(s)        Date appointed	Alexandra Thein 12.4.2011
Previous rapporteur(s)	Diana Wallis
Discussed in committee	21.6.2011	21.11.2011	26.1.2012
Date adopted	31.5.2012
Result of final vote	+: –: 0:	23 0 0
Members present for the final vote	Raffaele Baldassarre, Luigi Berlinguer, Sebastian Valentin Bodu, Françoise Castex, Christian Engström, Marielle Gallo, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Gerald Häfner, Sajjad Karim, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Evelyn Regner, Rebecca Taylor, Alexandra Thein, Cecilia Wikström, Zbigniew Ziobro, Tadeusz Zwiefka
Substitute(s) present for the final vote	Sergio Gaetano Cofferati, Luis de Grandes Pascual, Eva Lichtenberger, Axel Voss
Substitute(s) under Rule 187(2) present for the final vote	Mikael Gustafsson, Elisabeth Morin-Chartier
Date tabled	5.6.2012