Committee Reports > List of Committees > Joint > 1988 > Committee on the Secondary Legislation of the European Communities (5th Committee) > Report No. 06 - Establishment of a European Court of First Instance

REPORT

A. INTRODUCTION

1.Ratification of the Single European Act (SEA) represents the most significant development of the Community Treaties. The SEA has provided the Community with the political stimulus to overcome the obstacles to its economic development. The latter crystallises in the completion of the Internal Market. The SEA embraces the four main institutions of the Community - the Council of Ministers, the Commission, the European Parliament and the Court of Justice, thus acknowledging the interacting and complementary role of each of the institutions. If the rules governing the large Internal Market are to function effectively, this will require a system of courts capable of absorbing the litigation that is likely to be generated by these rules.

2.In this Report the Joint Committee wishes to concentrate on the Court of Justice and its proposal (8770/87) for the establishment of a Court of First Instance of the European Communities (CFI), as provided for in the SEA.

3.Orders of Reference of the Joint Committee

The authority to establish a CFI is derived from the SEA. Before the Joint Committee considered, and reported on, the SEA (1) it took into account specifically the question of whether it came within the Orders of Reference of the Joint Committee and determined that it came within the ambit of paragraph (a) (ii) which allows the Joint Committee to examine and report on “acts of the institutions of those [European] Communities” on the basis that it was the subject of Resolutions (2) of the European Parliament. As the proposal to establish a CFI is the subject of a Resolution of the European Parliament, the Joint Committee is satisfied that it comes within its competence.

Furthermore, as the proposal has its origins in the Court of Justice it would be unreasonable to conclude that it falls outside the definition of an act of a Community institution.

4.The Joint Committee acknowledges that, following the amendments to the Community Treaties effected by the SEA, consideration will have to be given to amending the Orders of Reference of the Joint Committee.

B. MAIN FEATURES OF THE PROPOSAL FOR A CFI

5.The Court of Justice proposes that a new court should be created to be attached to the Court. It would be a single court for all three communities with jurisdiction over specified subject matters which fall at present to the Court of Justice. Within its area of competence the Court would have sole jurisdiction, subject always to appeal to the Court of Justice on matters of law.

6.It is proposed that the CFI should be composed of seven judges and should sit in chambers of three judges. The proposal does not provide for the presence of Advocates-General.

7.Apart from actions brought by Member States or Community institutions and questions referred for preliminary ruling by national courts, the proposed CFI can have devolved on it any class of proceedings at present within the competence of the Court of Justice.

8.The CFI is to hear three types of cases:

(a)disputes between the Community and its servants,

(b)actions brought in connection with the implementation of the EEC Treaty competition rules, and in relation to dumping and subsidies,

(c)proceedings brought by undertakings in relation to the Commission’s activities in controlling the production, prices and restrictive practices of coal and steel undertakings under the ECSC Treaty.

9.Judgments of the CFI are to have the same effect as those of the Court of Justice. They will be enforceable in the Member States in accordance with national laws and procedures.

10.According to the SEA, the CFI will have the power to enact its own rules of procedure subject, however, to the agreement of the Court of Justice and the unanimous approval of the Council of Ministers.

C. A EUROPEAN COURT OF FIRST INSTANCE

11.The creation of a CFI has been made possible by the amendments to the Treaties introduced by the SEA.

These amendments provide that proceedings brought by natural or legal persons may be assigned to the new court; this excludes reference for preliminary rulings and infringement proceedings, which will remain within the exclusive jurisdiction of the Court of Justice. Decisions of the CFI will be subject to appeal to the Court of Justice on questions of law only.

12.In the past the Commission had made or supported proposals for the creation of a CFI for staff cases and a court for competition cases.

The Court of Justice which, by virtue of the provisions introduced by the SEA, has the power of initiative as regards the creation of a CFI, has made a wider proposal, although this does not exhaust all the forms of jurisdiction that could be conferred on the new court. In particular, jurisdiction in actions brought by firms concerning State aids (in substance similar to those brought by Member States before the Court of Justice) has been excluded.

13.Essentially, the Court of Justice proposes to assign to the CFI litigation involving the examination of complex facts, which is extremely time-consuming. Its main concern is to reduce the time taken by the proceedings remaining within its own jurisdiction, which has attained lengths the Court itself considers unacceptable (in 1987, an average of 18 months for preliminary rulings and 22 months for direct actions).

D. VIEWS OF THE JOINT COMMITTEE

14.Since the adoption of the SEA the Community has emerged from a period of relative lethargy. The successful Brussels Summit in February last has infused the Community with a new dynamism by providing secure financing for its policies over the next five years. The combined effect of the SEA and the Brussels Summit has been to move the Internal Market to centre stage. Already the Community has started on an ambitious programme of EC secondary legislation aimed at removing all forms of barriers to trade in the Community in order to complete a unified market of 320 million people in 1992.

15.The Joint Committee is strongly of the opinion that this process will further increase the heavy workload (1) of the Court of Justice and shares the Court’s concern about the effectiveness of judicial protection within the Community order.

There is, in the Joint Committee’s view, a need to relieve the Court of the burden of investigating facts in certain types of cases. The SEA provides the framework for the strengthening of the Community institutions to meet the challenge presented by the attainment of a unified market and the Joint Committee feels that the SEA’s provision for a CFI is an integral part of the process.

16.The Joint Committee feels that the CFI should have twelve judges (rather than seven as proposed) so that it will have the benefit of a judge familiar with the legal system of each Member State. The CFI should also have three or possibly four Advocates-General, depending on the number of Chambers to be established. There should be Advocates-General for all cases save such categories as may be excluded by the new Rules of Procedure. The Joint Committee favours a fixed term of years for Advocates-General rather than ad hoc appointment. This matter should be settled in the Statute setting up the CFI, rather than in the Rules of Procedure. The appointment of Advocates-General would, in the Joint Committee’s view, assist in the delivery of high quality judgments and help stem the rate of appeal to the Court of Justice. This latter point is the main weakness the Joint Committee identifies in the Court’s proposal.

17.The Joint Committee accepts the proposed jurisdiction of the Court and urges that, notwithstanding the reservations of the Commission, anti-dumping cases should be included within the competence of the new Tribunal.

18.The Joint Committee does not object in principle to the proposal for the establishment of chambers to hear different types of cases. However, it cautions against any proposal to permanently divide the members of the new court into two specialised chambers - one specialising in competition and steel, the other in staff and contract cases - as this would, in effect, divide the CFI into two Courts, whereas the SEA envisages only a single court.

19.The Joint Committee would not agree that there should be specialist Judges in particular types of cases (eg competition and steel). It would argue instead that judges should be adequately qualified to hold a high judicial office and fulfil the requirements of that Office. However, if it is decided that there should be specialisation it is felt that the CFI itself should decide the matter rather than to have specialisation predetermined.

E. CONCLUSION

20.An efficient and effective judicial procedure is necessary for the Community to achieve its objectives by ensuring that in the interpretation and application of the Treaties the law is observed. A CFI should relieve the congestion being experienced at present by the Court of Justice on account of its workload, and improve the administration of Justice in the Community. The quality of decisions of the new court is of paramount importance if the objectives of the proposal are to be achieved. The Joint Committee is mindful of the fact that a high rate of appeal from decisions of the CFI would vitiate the whole concept behind the proposal. It feels that the appointment of Advocates-General would be of more assistance to prevent such a possibility than insistence on special qualifications by members of the CFI or the fragmentation of the court into an administrative tribunal and a court of economic law.

JUNE, 1988.

(1) Report No. 34 of the Fourth Joint Committee (03.12.86).

(2) O.J. No. C36/144 (17.02.86) and O.J. No. C120/96 (20.05.86).

(1) See Appendix for details of the Court’s workload in recent years.