Report - A7-0185/2012Report
A7-0185/2012
European Parliament

REPORT on the draft regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto

5.6.2012 - (02074/2011 – C7‑0090/2011 – 2011/0901A(COD)) - ***I

Committee on Legal Affairs
Rapporteur: Alexandra Thein


Procedure : 2011/0901A(COD)
Document stages in plenary
Document selected :  
A7-0185/2012
Texts tabled :
A7-0185/2012
Debates :
Votes :
Texts adopted :

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the draft regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto

(02074/2011 – C7‑0090/2011 – 2011/0901A(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 (02074/2011),

–   having regard to the first and second paragraphs of Article 257 and the second paragraph of Article 281 of the Treaty on the Functioning of the European Union, pursuant to which the draft act was submitted to Parliament (C7‑0090/2011),

–   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 the letter of the Court of Justice of 8 May 2012,

–   having regard to the letter of the Commission of 30 May 2012,

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

–   having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Budgets and the Committee on Constitutional Affairs (A7-0185/2012),

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

2.  Notes that, having regard to the partial renewal of the Court of Justice on 7 October 2012 and the urgent need to find a solution guaranteeing a proper functioning of the Civil Service Tribunal, it is necessary for the proposed modifications of the Statute relating to the Court of Justice, to the organisation of the General Court and to the Civil Service Tribunal to be adopted without further delay, as pointed out in the letter of the President of the Court of Justice of the European Union of 8 May 2012;

3.  Reserves its right to examine the part of the request on the membership of the General Court submitted by the Court at a later stage;

4.  Resolves to hold a debate in Parliament in the near future on the merits of introducing the possibility of issuing dissenting opinions at the Court of Justice;

5.  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

amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto

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 ▌the first and second paragraphs of Article 257 and the second paragraph of Article 281 thereof,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 106a(1) thereof,

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)         In order to increase the participation of all Judges in the decisions of the Grand Chamber of the Court of Justice, there should be an increase in the number of Judges who may participate in the Grand Chamber, and the automatic participation of all of the Presidents of Chambers of five Judges should cease.

(2)         Corresponding adjustments should be made to the quorum of the Grand Chamber and of the full Court.

(3)         The increasing responsibilities of the Presidents of the Court of Justice and of the General Court require the establishment in each of those courts of an office of Vice-President ▌ in order to assist the President in carrying out those responsibilities.

▌

(5)         As a consequence of the progressive expansion of its jurisdiction since its creation, the number of cases before the General Court has been steadily increasing.

(6)         The number of cases brought before the General Court exceeds the number of cases disposed of each year, resulting in a significant increase in the number of cases pending before that court, and an increase in the duration of proceedings.

(7)         There is a continuing need to tackle delays arising from the heavy workload of the General Court, and it is, therefore, appropriate to work towards putting in place appropriate measures by the time of the partial renewal of the membership of that Court in 2013.

(7a)       With a view to the partial renewal of the Court of Justice on 7 October 2012 and in accordance with the letter of the President of the Court of Justice of the European Union of 8 May 2012, as a first step, only modifications to the Statute concerning the organisation of the Court of Justice and the General Court should be adopted. Examination of the part of the request on the membership of the General Court submitted by the Court should be reserved for a later stage.

(7b)       In view of the urgent need to find a solution that guarantees its proper functioning, the modifications concerning the Civil Service Tribunal should be adopted together with the amendments concerning the Court of Justice.

(10)       In order to enable the specialised courts to continue to function satisfactorily in the absence of a Judge who, while not suffering from disablement deemed to be total, is prevented from participating in judicial business for an extended period of time, provision should be made for the possibility of attaching temporary Judges to those courts.

(11)       Protocol No 3 on the Statute of the Court of Justice of the European Union and Annex I thereto should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Protocol No 3 on the Statute of the Court of Justice of the European Union is hereby amended as follows:

(1)         the following article is inserted:

"Article 9a

The Judges shall elect the President and the Vice-President of the Court of Justice from among their number for a term of three years. They may be re-elected.

The Vice-President shall assist the President in accordance with the conditions laid down in the Rules of Procedure. He shall take the latter’s place when he is prevented from attending or when the office of President is vacant ▌."

(2)         in Article 16, the second paragraph is replaced by the following:

"The Grand Chamber shall consist of 15 Judges. It shall be presided over by the President of the Court. The Vice-President of the Court , three Presidents of Chambers of five Judges and other Judges ▌appointed in accordance with the conditions laid down in the Rules of Procedure shall also form part of the Grand Chamber."

(3)         in Article 17, the third and fourth paragraphs are replaced by the following:

"Decisions of the Grand Chamber shall be valid only if 11 Judges are sitting.

Decisions of the full Court shall be valid only if 17 Judges are sitting."

(4)         in Article 20, the fourth paragraph is replaced by the following:

"The oral procedure shall consist of the hearing by the Court of agents, advisers and lawyers and of the submissions of the Advocate-General, as well as the hearing, if any, of witnesses and experts."

(5)         in Article 39, the second paragraph is replaced by the following two paragraphs:

"The powers referred to in the first paragraph may, under the conditions laid down in the Rules of Procedure, be exercised by the Vice-President of the Court of Justice.

Should the President and the Vice-President be prevented from attending, their places shall be taken by ▌ another Judge under the conditions laid down in the Rules of Procedure."

(6a)       in Article 47, the first paragraph is replaced by the following:

"The first paragraph of Article 9, Article 9a, 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."

(8)         the following paragraph is added to Article 62c:

"The European Parliament and the Council, acting in accordance with Article 257 of the Treaty on the Functioning of the European Union, may attach temporary Judges to the specialised courts in order to cover the absence of Judges who, while not suffering from disablement deemed to be total, are prevented from participating in judicial business for an extended period of time. In that event, the European Parliament and the Council shall lay down the conditions under which the temporary Judges shall be appointed, their rights and duties, the detailed rules governing the performance of their duties and the circumstances in which they shall cease to perform those duties.".

Article 2

In Article 2 of Annex I to Protocol No 3 on the Statute of the Court of Justice of the European Union, the existing text becomes paragraph 1 and the following paragraph is added:

‘2. Temporary Judges shall be appointed, in addition to the Judges referred to in the first subparagraph of paragraph 1, in order to take the place of those Judges who, while not suffering from disablement deemed to be total, are prevented from participating in judicial business for an extended period of time.’

Article 3

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.

Points 1, 2, 3, ▌5 and 6a of Article 1 shall apply from the first occasion when the Judges are partially replaced, as provided for in Article 9 of Protocol No 3 on the Statute of the Court of Justice 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 ....

EXPLANATORY STATEMENT

Background

The Court of Justice has submitted proposals for the amendment of the Statute of the Court of Justice and Annex I.

(1) Proposals relating to the Court of Justice

The Court considers it desirable to establish the office of Vice-President of the Court of Justice and to amend the rules relating to the composition of the Grand Chamber.

The present structure of the Grand Chamber and the rules determining how it operates – a quorum of nine Judges together with the participation in every case of the President of the Court and the Presidents of the Chambers of five Judges – are the result of amendments introduced by the Treaty of Nice, which entered into force on 1 February 2003. Since then, there have been a number of changes affecting the work of the Court: (i) the accession of 12 new Member States; (ii) the transition from two to three Chambers of five Judges in May 2004 and to four Chambers of five Judges in October 2006; (iii) the introduction of the urgent preliminary ruling procedure in March 2008; and (iv) the introduction of the review procedure following the establishment of the Civil Service Tribunal.

At present, the President of the Court and the Presidents of the Chambers of five Judges have a very heavy workload, whereas other Judges sit in relatively few cases assigned to the Grand Chamber.

The proposal provides for: (a) broader participation by the Judges in cases assigned to the Grand Chamber, allowing them to sit far more frequently than at present. That would be achieved by amending Articles 16 and 17 of the Statute so as to increase to 15 the number of Judges constituting the Grand Chamber and to end the automatic participation of all the Presidents of five-judge Chambers in Grand Chamber cases. Corresponding adjustments would have to be made to the rules relating to the quorum of the Grand Chamber and of the full Court; (b) the establishment of the office of Vice-President: the latter would sit, like the President, in every case assigned to the Grand Chamber. The permanent presence of two persons, together with the more frequent participation of the other Judges in the work of the Grand Chamber, would ensure that its case-law is consistent. In addition to sitting in every Grand Chamber case, the Vice-President would also assist the President of the Court in his duties.

(2) Proposals relating to the General Court

For several years now, the number of cases disposed of by the General Court has been lower than the number of new cases, so that the number of pending cases is rising constantly. Between 1 January and 12 October 2011, 572 cases were brought and 549 were disposed of. As at 12 October 2011, 1 323 cases were pending. In comparison, between 1 January and 12 October 2010, 514 cases were brought and 401 were disposed of. As at 12 October 2010, 1 304 cases were pending.

This shows - even though a year-on-year comparison is difficult to make-, first, that the number of cases brought is continuing to increase (58 or 11.3% up on the same date in 2010). Secondly, the Court’s productivity has increased (37% or 148 cases up on the same date in 2010). Thirdly, the number of pending cases continues to rise (up by 19). Consequently, despite the Court’s substantial efforts, it cannot keep up. Moreover, what the figures do not show is the number of applications for the use of the accelerated procedure or the number of applications for interim measures, both of which are resource intensive.

By way of illustration, the Court states that the files of cases under examination occupy 505 metres of shelf space.

The present increase in workload is due to (i) the devolution of jurisdiction, since 2004, to rule on certain classes of action or proceedings brought by the Member States; (ii) the increase in litigation following the 2004 and 2007 accessions; (iii) the litigation engendered by the increase, resulting from greater European integration, in the number and variety of legislative and regulatory acts of the institutions, bodies, offices and agencies of the EU, and (iv) to the growth of litigation relating to Community trade mark applications. It is noted that many of the causes of action swelling the Court’s case load were unforeseen.

It is not that the Court has remained inactive in the face of this onslaught. Its Rules of Procedure have been amended to allow it to dispense with the oral procedure in intellectual-property cases, while clarifying the status of interveners in such cases, thus allowing them to be dealt with more expeditiously.

Secondly, in 2007 the Court opted to organise itself into eight different formations, plus an appeals chamber. It has also introduced a dynamic case management system. Thirdly, the report for the hearing is now produced in summary form for all cases. Fourthly, the President can now allocate new cases to chambers which are already dealing with other cases raising similar legal issues. Fifthly, new methods for drafting judgments and orders have been introduced and sixthly new high-performance computerised applications have been introduced to make documentation available instantly and to permit rapid exchanges as between cabinets and between cabinets, the registry and the various departments of the Court.

The Court of Justice believes that a structural solution is urgently required.  The Treaties offer two possible routes to reform:

(a) to establish specialised courts with jurisdiction to hear and determine direct actions in a specific area, in accordance with the first paragraph of Article 257 TFEU. The field of intellectual property has been mooted in that regard; (b) increasing the number of Judges of the General Court by means of an amendment to Article 48 of the Statute in accordance with the mechanism provided for in the second para. of Article 281 TFEU.

Having weighed up the two options at length, the Court of Justice has come to the conclusion that an increase in the number of Judges is clearly preferable to the establishment of a specialised court in the field of intellectual property. Its reasons relate to the effectiveness of the proposed solution, the urgency of the situation, the flexibility of the measure envisaged and the consistency of European Union law.

The Court of Justice therefore considers that an increase in the number of Judges by at least 12, bringing the number of General Court Judges to 39, is necessary.

The Committee finds the arguments put forward by the Court of Justice persuasive. However, while there is, in principle, an agreement to increase the number of judges at the General Court, a method for their designation has not yet been established. The Committee is therefore not dealing with this aspect of the request submitted by the Court of Justice at this stage and has deleted the relevant parts of the text in order to split the request into two parts. The Committee considers the remaining parts of the request submitted by the Court of Justice concerning the General Court still to be pending and reserves its right to examine them at a later stage with a view to adopting them in a separate regulation.

(3) The Commission’s opinion

The Committee has taken over most of the Commission’s recommendations. However, it feels that it would be unwise to require the Court to create at least two specialised chambers. It feels that this would be too rigid. It would prefer to leave the Court with the possibility of creating such chambers in its Rules of Procedure. Moreover, it is conscious that the Court already has the power to allocate cases of the same nature to one or more specified chambers.

OPINION of the Committee on Budgets (27.1.2012)

for the Committee on Legal Affairs

on the proposal for a regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto
(02074/2011- C7-0090/2011- 2011/0901A(COD))

Rapporteur: Angelika Werthmann

SHORT JUSTIFICATION

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.

As well as substantive changes, two of the proposals concern staff changes/increases requiring additional resources and thus having a direct impact on the EU budget:

1. Establishment of the office of Vice-President of the Court

The Court of Justice proposes the establishment of an additional office of Vice-President of the Court of Justice of the European Union.

a. Justification:

The Court of Justice argues that its President’s workload has increased considerably with time and it would therefore be useful if he could in future 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. He is mainly responsible for the handling of proceedings for interim measures and appeals against interim measures. It has happened that appeals against the General Court’s orders for interim measures have sometimes taken over a year to be dealt with. The establishment of the office of Vice-President should help improve the situation from this point of view.

b. Budgetary impact:

According to information provided by the Court of Justice, the additional annual cost of creating the office of Vice-President of the Court of Justice would be around EUR 38 000 in the form of changes to remuneration, allowances and entertainment allowances.

2. Increasing by 12 the number of judges at the General Court

a. Justification:

The Court of Justice argues that for some years now the gap between the number of cases processed by the General Court and the number of new cases has been widening and that the number of unprocessed cases is rising constantly. At the end of 2010, there were 1 300 cases pending, whereas, in the same year, 527 cases were disposed of. Between 2004 and 2010, the average duration of proceedings rose from 20.9 months to 27.2 months. Between 2000 and 2010, the number of new cases rose by 65%. The Court of Justice assumes that the number of cases per year will also continue to rise in the future.

After weighing up the options, it has decided on the proposal to increase the number of judges as the only way to cope with the essential need for effectiveness, urgency, flexibility and consistency in Court of Justice case-law.

b. Budgetary impact:

The proposal to increase the number of judges by 12, including the new staff posts, furniture etc. required for these judges, results in additional costs of around EUR 16 052 000 in the first year, dropping to around EUR 13 652 000 in subsequent years.

The Court of Justice’s estimate for the 2012 budget – i.e. the point at which the amended Statute could enter into force – makes provision for a total budget of around EUR 354 000 000.

The increase in the number of judges at the General Court proposed by the Court of Justice would thus entail a ca. 3.8% increase in the annual budget of the Court of Justice of the European Union the following year. If Parliament and the Council were to approve the Court’s proposal to amend its Statute, the additional costs involved in 2012 would have to be dealt with in a draft amending budget.

c. Recommendation:

The rapporteur is very well aware of the consequences of the Court of Justice’s proposals on the EU budget, especially given the current difficult economic situation facing the majority of the Member States and the extreme constraints on the EU budget. It should, however, be pointed out that not only is the granting of effective judicial protection, including in court judgments handed down within a reasonable period of time, a crucial obligation, but, whilst not as visible as a budget increase, the adverse financial consequences of inefficient justice are quite likely to cost more than such an increase.

*******

The Committee on Budgets calls on the Committee on Legal Affairs, as the committee responsible, to propose that Parliament adopts its position at first reading taking over the request by the Court of Justice.

Additional costs relating to the creation of a post of Vice-President at the Court of Justice

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Monthly basic

salary

 

 

Miscellaneous allowances (22%)

 

Impact

Impact

 

Total rounded

 

 

 

 

 

 

 

 

 

 

 

1 month

12 months

 

 up

 

Remuneration

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic AD16/3 salary

 

 

 

 

18 370.84

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basis of remuneration of a judge (112.5% of the basic AD16/3 salary)

 

20 667.20

 

 

 

 

 

 

 

 

 

Basis of remuneration of a Vice-President (125 % of the basic AD16/3 salary)

22 963.55

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Difference

2 296.36

 

505.20

 

2 801.55

33 618.64

 

34 000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Entertainment allowances

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Allowances of a Judge

 

 

 

 

 

607.71

 

 

 

 

 

 

 

 

 

Allowances of a Vice-President

 

 

 

 

911.38

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Difference

303.67

 

 

 

303.67

3 644.04

 

4 000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total impact over 12 months

38 000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Annex to the Summary Table: details of calculation of remunerations

Description

Number

Basis of calculation

Monthly

basic salary

Miscellaneous

allowances

Total monthly

Total impact

%

amount

1 month

12 months

Members of the General Court

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Remunerations

 

12

ABS AD16/3 * 104%

19 106

25.0%

4 776

23 882

286 585

3 439 021

 

 

 

 

 

 

 

 

 

 

 

Entertainment allowances

12

€554.17 per month

 

 

554.17

554

6 650

79 800

 

 

 

 

 

 

 

 

 

 

 

Special duty allowances

 

 

 

 

 

 

 

 

(Presidents of Chambers)

4

€739.47 per month

 

 

739.47

739

2 958

35 495

 

 

 

 

 

 

 

 

 

 

 

Total Members

 

 

 

 

 

 

296 193

3 554 316

 

 

 

 

 

 

 

 

 

Rounded up to

3 555 000

Chambers of the Members

 

 

 

 

 

 

 

 

Legal secretaries

Grade

 

 

 

 

 

 

 

 

 

 

AD 14/2

7

 

13 772

32.0%

4 407

18 179

127 252

1 527 025

 

 

AD 12/2

11

 

10 758

32.0%

3 443

14 201

156 207

1 874 481

 

 

AD 11/2

12

 

9 508

32.0%

3 043

12 551

150 612

1 807 340

 

 

AD 10/2

6

 

8 404

32.0%

2 689

11 093

66 558

798 693

Sub-total legal secretaries

36

 

 

 

 

 

500 628

6 007 539

 

 

 

 

 

 

 

 

 

 

 

Assistants

Grade

 

 

 

 

 

 

 

 

 

 

AST 4/2

12

 

4 006

32.0%

1 282

5 288

63 453

761 432

 

 

AST 3/2

12

 

3 541

32.0%

1 133

4 673

56 082

672 978

Sub-total assistants

24

 

 

 

 

 

119 534

1 434 410

 

 

 

 

 

 

 

 

 

 

 

Total Chambers

 

 

 

 

 

 

620 162

7 441 949

 

 

 

 

 

 

 

 

 

Rounded up to

7 442 000

Registry of the General Court

 

 

 

 

 

 

 

 

Administrators

Grade

 

 

 

 

 

 

 

 

 

 

AD 9/2

3

 

7 428

32.0%

2 377

9 804

29 413

352 956

 

 

AD 5/2

3

 

4 532

32.0%

1 450

5 983

17 948

215 378

Sub-total administrators

6

 

 

 

 

 

47 361

568 333

 

 

 

 

 

 

 

 

 

 

 

Assistants

Grade

 

 

 

 

 

 

 

 

 

 

AST 3/2

6

 

3 541

32.0%

1 133

4 673

28 041

336 489

 

 

AST 1/2

6

 

2 766

32.0%

885

3 651

21 904

262 852

Sub-total assistants

12

 

 

 

 

 

49 945

599 341

 

 

 

 

 

 

 

 

 

 

 

Total General Court Registry

 

 

 

 

 

 

97 306

1 167 675

 

 

 

 

 

 

 

 

 

Rounded up to

1 168 000

PROCEDURE

Title

Proposal for a regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto

References

02074/2011 – C7-0090/2011 – 2011/0901A(COD)

Committee responsible

       Date announced in plenary

JURI

7.4.2011

 

 

 

Committee(s) asked for opinion(s)

       Date announced in plenary

BUDG

29.9.2011

 

 

 

Date adopted

25.1.2012

 

 

 

Result of final vote

+:

–:

0:

29

2

0

Members present for the final vote

Reimer Böge, Lajos Bokros, Jean-Luc Dehaene, Göran Färm, José Manuel Fernandes, Eider Gardiazábal Rubial, Salvador Garriga Polledo, Jens Geier, Ivars Godmanis, Carl Haglund, Jutta Haug, Monika Hohlmeier, Anne E. Jensen, Ivailo Kalfin, Jan Kozłowski, Alain Lamassoure, Giovanni La Via, George Lyon, Barbara Matera, Claudio Morganti, Dominique Riquet, Potito Salatto, László Surján, Helga Trüpel, Derek Vaughan, Angelika Werthmann

Substitute(s) present for the final vote

François Alfonsi, Peter Jahr, Jan Mulder, Juan Andrés Naranjo Escobar, Paul Rübig, Adina-Ioana Vălean

Substitute(s) under Rule 187(2) present for the final vote

Derk Jan Eppink

OPINION of the Committee on Constitutional Affairs (5.3.2012)

for the Committee on Legal Affairs

on the proposal for a regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto
(02074/2011 – C7-0090/2011 – 2011/0901A(COD))

Rapporteur: Morten Messerschmidt

SHORT JUSTIFICATION

The Court of Justice (CJ) proposes four reforms which have to be enacted by the European Parliament (EP) and the Council (ordinary legislative procedure, EP and Council on an equal footing) after having received the opinion of the Commission[1].

General remark: An analysis of the Court's proposals is rendered difficult by the architecture of the judiciary of the European Union: one 'Court of Justice of the European Union' including the 'Court of Justice', the 'General Court' and 'specialised courts'[2] (up to now only the 'European Union Civil Service Tribunal'), and the fact that the provisions dealing with the structure and functioning of these judicial bodies are spread over four texts, the Treaty on European Union (TEU),the Treaty on the Functioning of the European Union(TFEU), the Statute of the Court (Statute, a protocol to the TFEU) and Rules of Procedure (RoP), all inter-linked with and supplementing each other.

The Court's proposal contains 4 major points (A. to D.).

A.  Establish the office of a Vice-President of the Court of Justice (see Article 1  1. and 2. of the Court's proposal)

Purpose of the reform

Sit alongside the President of the Court in every case assigned to the Grand Chamber. Substitute the President in his judicial functions when he is hindered to attend.

Assist or substitute the President in his functions other than judicial (representation, administration etc.)

Observations

The President, elected by all Judges among their number for three years, "shall direct the judicial business and the administration of the Court; he shall preside at hearings and deliberations."[3].

As the Court points out, "the responsibilities borne by the President have increased substantially following the successive enlargements of the European Union, particularly with regard to the representation and administration of the Court."

B.  Change the structure of the Grand Chamber and increase the number of Judges constituting it from 13 to 15 ( see Article 1 2. of the Court's proposal)

Purpose of the reform

Increase the capacity of the Chamber and involve more Judges in its business.

The Presidents of the four chambers of five Judges are up to now permanent or 'ex officio' members of the Grand Chamber. The Court proposes to delete this and have the Grand Chamber be composed out of 15 Judges[4].

Observations

The Court points out that at present the President of the Court and the Presidents of the Chambers of five Judges have a very heavy workload, whereas the other judges sit in relatively few cases assigned to the Grand Chamber.

C. Cater for the possibility of attaching temporary Judges to the Civil Service Tribunal (Article 1 8. and 2 of the Court's proposal to amend the Statute

Purpose of the reform

Replace a Judge of the Tribunal where he is prevented, on medical grounds, for probably more than three months from participating in judicial business. 

Observations

Temporary Judges will be chosen from a list of three former Members of the Court of Justice drawn up by the Council on a proposal from the President of the Court of Justice. The temporary Judge shall serve only as long as the Judge he is replacing, is hindered to be in office. The Court argues that this arrangement is flexible and guarantees that the Judges concerned are operational as soon as they are designated. It would also apply to other Specialised Courts established pursuant to Article 257 TFEU (up to now there is only the European Union Civil Service Tribunal).

D. Increase the number of Judges at the General Court from 27 to 39 (Article 1 7. of the Court's proposal)

Purpose of the reform 

Put the General Court in a position to cope with the backlog caused by the ever rising number of pending cases and respect the 'principle of reasonable time' for proceedings, enshrined in the Charter of Fundamental Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Observations

"The General Court shall include at least one judge per Member State"[5]. "...the Judges of the General Court shall be ...appointed by common accord of the governments of the Member States for six years..."[6]. Their number is at present fixed in the Statute at 27[7].

The General Court has jurisdiction namely to hear and determine at first instance actions or proceedings concerning the legality of legislative acts or acts of the Institutions, bodies, offices or agencies of the Union[8] with the exception of actions brought in certain cases by the Member States against an Institution of the Union or by an Institution against another Institution[9]. Decisions given by the General Court may be subject to a right of appeal to the Court of Justice on points of law only[10]. The General Court is thus confronted with the bulk of proceedings including cases of particularly complex nature with a considerable amount of factual information to be taken into consideration as competition and State aid cases and the actually numerous cases referring to Community trade mark applications. The Court draws the attention to the increasing number of pending cases, from 787 in 2000 to 1300 in 2010 (=65%).

The Court of Justice examines two options to resolve the problem of overload of the General Court: The establishment of a specialised court with jurisdiction to hear and determine actions in a specific area[11] and the increase of the number of Judges[12].

The first option was mooted by the General Court itself in respect of the field of intellectual property[13].

The Court of Justice comes to the conclusion that an increase in the number of Judges is clearly preferable to the establishment of a specialised court in the field of intellectual property. It relies mainly on reasons of effectiveness, urgency and flexibility.

According to this reasoning greater effectiveness sought by specialisation can be achieved in the same way by creating chambers within a General Court. An increase of the number of Judges and their appointment takes less time than the establishment of a new tribunal. As regards flexibility the Court contends that a General Court can easily adapt its human resources to the changing caseload in different areas of litigation.

The General Court justifies its proposal of creating a specialised Court as follows: The idea of the reform of the judiciary introduced by the Treaty of Nice and confirmed by the Treaty of Lisbon was to use specialised courts to hear cases in first instance as far as possible. Actions in the field of intellectual property are ideally suited for a transfer of jurisdiction to such a specialised court as this materia is specific, homogeneous and clearly defined. This type of cases occupies already at present a considerable place in the overall caseload of the General Court, counting for about one third. Judges, référendaires and officials, if chosen for their specific expertise in a given field, are more productive, in both quality and quantity. The example of the EU Staff Tribunal shows that higher productivity goes along with lower cost. Successive increases in the number of Judges of the General Court do not appear as a viable solution to the problem of overload which will appear again in the future.

The proposal of the Court of Justice does not deal with the question of how the additional 12 Judges would be appointed. The general rule of '" by common accord of the governments of the Member States" already quoted above, would therefore apply, or some kind of a rotation system would have to be installed.

A further option to alleviate the workload of the General Court would consist of reserving more types of actions to the Court of Justice than is presently the case pursuant to Article 51 of the Statute as the Court of Justice seems not to have an overload in the same way as the General Court.

E.  Introduction of a 'dissenting opinion' at the Court of Justice

A dissenting opinion is the possibility for a judge who has a diverging opinion on the decision envisaged by the majority of judges or the reasons on which is it based, to announce this opinion in the deliberations and have it be published alongside with the judgment. It constitutes thus an exception to the principle of the secrecy of the deliberations. The idea of having the possibility of such a dissenting opinion in the procedures of the Court of Justice is not new. There are weighty reasons to introduce this institute.It exists in a considerable number of Constitutional Courts of the European Union, more precisely nine of them: Denmark, Finland, Germany, Greece, Ireland, Portugal, Spain, Sweden and United Kingdom, without being put into question, disturbing the collegiality of the Court or undermining its reputation. It exists also in the Court of Human Rights where it is a common practice. If it is to be introduced however, this has to be done in a way which does not jeopardise the independence of Judges and a thorough debate on this issue is needed.

AMENDMENTS

The Committee on Constitutional Affairs calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following amendments in its report:

Amendment  1

Proposal for a regulation

Recital 1

Draft by the Court of Justice

Amendment

(1) In order to increase the participation of all the Judges in the decisions of the Grand Chamber of the Court of Justice, there should be an increase in the number of Judges who may participate in the Grand Chamber, and the automatic participation of the Presidents of Chambers of five Judges should cease.

(1) In order to provide for broader participation by all the Judges and to allow them to sit more frequently in cases assigned to the Grand Chamber of the Court of Justice, there should be an increase in the number of Judges who may participate in the Grand Chamber, and the automatic participation of the Presidents of Chambers of five Judges should cease.

Amendment  2

Proposal for a regulation

Recital 1 a (new)

Draft by the Court of Justice

Amendment

 

(1a) Increased resources could provide an opportunity for the reorganisation of proceedings in the 'other cases' category by order of priority, in particular competition cases, where special care must be taken to adhere to a reasonable deadline.

Amendment  3

Proposal for a regulation

Recital 1 b (new)

Draft by the Court of Justice

Amendment

 

(1b) An increase in the number of Judges is not enough to remedy delays. It is also necessary for some of the Chambers to be run on more specialised lines, improving flexibility and output in the General Court.

Amendment  4

Proposal for a regulation

Recital 5

Draft by the Court of Justice

Amendment

(5) As a consequence of the progressive expansion of its jurisdiction since its creation, the number of cases before the General Court is now constantly increasing.

(5) As a consequence of the progressive expansion of its jurisdiction since its creation, the number of cases before the General Court is now constantly increasing and delays in proceedings are also rising.

Amendment  5

Proposal for a regulation

Recital 9

Draft by the Court of Justice

Amendment

(9) Consequently, the necessary measures should be taken to address this situation, and the possibility, provided for by the Treaties, of increasing the number of Judges of the General Court is such as to enable both the volume of pending cases and the excessive duration of proceedings before the General Court to be reduced within a short time.

(9) Consequently, the necessary measures should be taken to address this situation, and the possibility, provided for by the Treaties, of increasing the number of Judges of the General Court from 27 to 39 is such as to enable both the volume of pending cases and the excessive duration of proceedings before the General Court to be reduced within a short time. Similarly, the more effective allocation of the General Court's caseload to the appropriate Chambers could significantly limit delays in proceedings.

Amendment  6

Proposal for a regulation

Recital 9 a (new)

Draft by the Court of Justice

Amendment

 

(9a) Once the number of Judges of the General Court has been increased, the question of their appointment will naturally arise. Regarding the system for appointing Judges, Member States should agree on rules offering every guarantee as regards the independence and impartiality and the competence and suitability of the persons appointed, as well as making for equality and balance in terms of their home Member States.

Amendment  7

Proposal for a regulation

Recital 9 b (new)

Draft by the Court of Justice

Amendment

 

(9b) The basic principle should be that the General Court should comprise at least one Judge and at most two Judges having the nationality of each Member State.

Amendment  8

Proposal for a regulation

Recital 9 c (new)

Draft by the Court of Justice

Amendment

 

(9c) To enable the General Court to operate more efficiently and ensure that proceedings can be dealt with and adjudicated on within a reasonable time, the General Court may set up specialised Chambers where this is warranted by the number of proceedings in a given field.

Amendment  9

Proposal for a regulation

Recital 9 d (new)

Draft by the Court of Justice

Amendment

 

(9d) As regards the internal organisation of the General Court, the office of Vice-President should, following the approach adopted for the Court of Justice, be established for the purpose of assisting the President.

Amendment  10

Proposal for a regulation

Recital 10

Draft by the Court of Justice

Amendment

(10) In order to enable the specialised courts to continue to function satisfactorily in the absence of a Judge who, while not suffering from disablement deemed to be total, is prevented from participating in judicial business for an extended period of time, provision should be made for the possibility of attaching temporary Judges to those courts.

(10) In order to enable the specialised courts to continue to function satisfactorily in the absence of a Judge who, while not suffering from disablement deemed to be total, is prevented from participating in judicial business for an extended period of time, provision should be made for the possibility of attaching temporary Judges to those courts. The appointment of temporary Judges should offer every guarantee as regards the independence and impartiality and the competence and suitability of the persons appointed, as well as making for equality and balance in terms of their home Member States.

Amendment  11

Proposal for a regulation

Recital 10 a (new)

Draft by the Court of Justice

Amendment

 

(10a) In order to avoid any doubts as to the authority of the temporary Judges, it is of the utmost importance that they be elected in a way which does not compromise the authority of the Court and which ensures their total independence.

Amendment  12

Proposal for a regulation

Recital 10 b (new)

Draft by the Court of Justice

Amendment

 

(10b) Temporary Judges must be subject to obligations of independence, impartiality, competence and aptitude and enjoy the same rights, in the performance of their duties, as permanent Judges.

Amendment  13

Proposal for a regulation

Recital 10 c (new)

Draft by the Court of Justice

Amendment

 

(10c) Whilst there is a need for the Court of Justice to introduce a mechanism allowing dissenting opinions to be expressed, this must not jeopardise the independence of Judges; a thorough debate on this issue is needed between experts, practitioners and other interested parties.

Amendment  14

Proposal for a regulation

Article 1 – paragraph 1 – point 6 a (new)

Draft by the Court of Justice

Amendment

 

6a. The first paragraph of Article 47 shall be replaced by the following:

 

"Article 9a, Article14,Article 15, the first, second, fourth, and fifth paragraphs of Article 17, and Article 18 shall apply to the General Court and its members."

Amendment  15

Proposal for a regulation

Article 1 – paragraph 1 – point 7

Draft by the Court of Justice

Amendment

7. In Article 48, the figure ‘27’ shall be replaced by the figure ‘39’.

7. Article 48 shall be 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."

Amendment  16

Proposal for a regulation

Article 1 – paragraph 1 – point 7 a (new)

Draft by the Court of Justice

Amendment

 

7a. The following paragraph shall be added to Article 48:

 

"Member States shall be represented by at least one Judge but by no more than two Judges of their nationality."

Amendment  17

Proposal for a regulation

Article 1 – paragraph 1 – point 7 b (new)

Draft by the Court of Justice

Amendment

 

7b. The following paragraph shall be inserted after the first paragraph of Article 50:

 

"To deal with matters in which there is a high volume of pending cases, the General Court may set up an appropriate number of specialised Chambers to which proceedings in the matters in question shall be assigned. "

Amendment  18

Proposal for a regulation

Article 1 – paragraph 1 – point 8

Draft by the Court of Justice

Amendment

The following paragraph shall be added to Article 62c:

The following paragraph shall be added to Article 62c:

"The Parliament and the Council, acting in accordance with Article 257 TFEU, may attach temporary Judges to the specialised courts in order to cover the absence of Judges who, while not suffering from disablement deemed to be total, are prevented from participating in judicial business for an extended period of time. In that event, the Parliament and the Council shall lay down the conditions under which the temporary Judges shall be appointed, their rights and duties, the detailed rules governing the performance of their duties and the circumstances in which they shall cease to perform those duties."

"The Parliament and the Council, acting in accordance with Article 257 TFEU, may attach temporary Judges to the specialised courts in order to cover the absence of Judges who, while not suffering from disablement deemed to be total, are prevented from participating in judicial business for an extended period of time. In that event, the Parliament and the Council shall lay down the conditions under which the temporary Judges shall be appointed, their rights and duties, the detailed rules governing the performance of their duties and the circumstances in which they shall cease to perform those duties. Those provisions shall ensure, moreover, that the temporary Judges enjoy the same rights and are entitled to assume the same functions as permanent Judges, in order to guarantee the uncompromised authority of the Court's judgments."

(This amendment replaces Amendment 4 of the draft opinion (PE 470.092 v01-00))

Amendment  19

Proposal for a regulation

Article 3 – paragraph 2 a (new)

Draft by the Court of Justice

Amendment

 

2a. 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 chosen at random and their term of office shall end six years after the first partial replacement of the General Court following the entry into force of this Regulation. The term of office 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.

PROCEDURE

Title

Proposal for a regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto

References

02074/2011 – C7-0090/2011 – 2011/0901A(COD)

Committee responsible

       Date announced in plenary

JURI

7.4.2011

 

 

 

Committee(s) asked for opinion(s)

       Date announced in plenary

AFCO

15.9.2011

 

 

 

Rapporteur(s)

       Date appointed

Morten Messerschmidt

12.7.2011

 

 

 

Discussed in committee

11.10.2011

 

 

 

Date adopted

28.2.2012

 

 

 

Result of final vote

+:

–:

0:

20

0

2

Members present for the final vote

Alfredo Antoniozzi, Andrew Henry William Brons, Andrew Duff, Ashley Fox, Zita Gurmai, Gerald Häfner, Daniel Hannan, Stanimir Ilchev, Constance Le Grip, Jaime Mayor Oreja, Morten Messerschmidt, Paulo Rangel, Algirdas Saudargas, József Szájer, Søren Bo Søndergaard, Rafał Trzaskowski, Luis Yáñez-Barnuevo García

Substitute(s) present for the final vote

John Stuart Agnew, Elmar Brok, Vital Moreira, Evelyn Regner, György Schöpflin, Tadeusz Zwiefka

Substitute(s) under Rule 187(2) present for the final vote

Leonardo Domenici
  • [1]  Article 281(2) TFEU.
  • [2]  Article 19(1) TEU.
  • [3]  Article 253(3) TFEU, Article 8 Rules of Procedure (RoP)
  • [4]  Article 16(2) Statute, Article 11b(1) and (2) Rules of Procedure (RoP)
  • [5]  Article 19(2) 2nd subparagraph TEU
  • [6]  Article 19(2) 3rd subparagraph TEU
  • [7]  Article 254(1) TFEU and Article 48 Statute
  • [8]  Article 256(1) 1st subparagraph TFEU
  • [9]  Article 51 Statute
  • [10]  Article 256(1) 2nd subparagraph TFEU
  • [11]  pursuant to Article 257TFEU
  • [12]  pursuant to Articles 19(2) TEU, 254(1) TFEU and 48 Statute
  • [13]  document sent to the President of the Court of Justice on 22 December 2009

PROCEDURE

Title

Proposal for a regulation of the European Parliament and of the Council amending the Statute of the Court of Justice of the European Union

References

02074/2011 – C7-0090/2011 – 2011/0901A(COD)

Committee responsible

       Date announced in plenary

JURI

7.4.2011

 

 

 

Committee(s) asked for opinion(s)

       Date announced in plenary

BUDG

29.9.2011

AFCO

15.9.2011

 

 

Rapporteur(s)

       Date appointed

Alexandra Thein

12.4.2011

 

 

 

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
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