Adaptation of the provisions of Title IV of the Treaty establishing the European Community relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection

Introduction

Private individuals should be able to enjoy effective judicial protection of the rights that they derive from Community law [1]. For this purpose, the Treaty establishes a full system of forms of action and procedures, in which close cooperation between the Court of Justice and the national courts, organised by the preliminary ruling procedure (Article 234 of the Treaty establishing the European Community (the «EC Treaty»)), is an essential component.

The Amsterdam Treaty sets the objective of progressively establishing an area of freedom, security and justice. For this purpose, some of the matters previously covered by Title VI of the Treaty on European Union (the «third pillar») were brought within the EC Treaty under certain conditions. Meanwhile, establishing this area has become a Union priority thanks to the political impetus given in particular by the European Council in 1999 (Tampere) and 2004 (Hague programme) and the sound cooperation of all the institutions.

In the development of this area of freedom, security and justice, respect for fundamental rights, and in particular effective judicial protection for everybody, must occupy an essential place. The second indent of Article 67(2) of the EC Treaty accordingly requires the Council, at the end of the transitional period of five years following the entry into force of the Treaty of Amsterdam, to take a decision «with a view to adapting the provisions concerning the jurisdiction of the Court of Justice» (i.e. Article 68 of the Treaty).

But the Commission notes that the transitional period expired on 1 May 2004 and that the Council has not launched work to fulfil this legal obligation [2].

The purpose of this communication is to contribute to the adaptation of the special provisions of Article 68 of the EC Treaty concerning the jurisdiction of the Court of Justice in the fields covered by Title IV. In the Commission’s opinion, this adaptation should consist of aligning that jurisdiction on the general scheme of the Treaty. A draft Council Decision to that end is attached.

For the reasons explained below, the Commission considers that the best way of adapting the provisions of Title IV relating to the Court is to bring them into line with the standard rules on judicial protection of the Treaty, in all fields covered by Title IV. The specific provisions of Article 68 of the EC Treaty should therefore cease to apply. This is necessary, first of all, for Article 68(1), which prohibits national courts other than those of final instance from applying to the Court for preliminary rulings, whereas Article 234, which establishes the procedure for cooperation with the courts of the Member States, allows any national court to do so. The same applies to the procedure provided for in Article 68(3) [3], which loses its raison d’être once the standard preliminary ruling procedure is established. Lastly, there is no longer any reason for excluding the jurisdiction of the Court for certain measures, as provided for in Article 68(2) [4].

The sections below develop the arguments on which the Commission’s position is based. In particular, alignment of the rules concerning the jurisdiction of the Court in Title IV on the ordinary law will:

 ensure the uniform application and interpretation of Community law in this area as in all others (infra, item a);

 make it possible to strengthen judicial protection, in fields that are particularly sensitive in terms of fundamental rights (infra, item b);

 remedy a paradoxical retrograde step in judicial protection as a result of the Amsterdam Treaty in civil matters covered by Article 65 of the EC Treaty (infra, item c); and

 enable the Community judicial system to perform normally without any fear of operating problems in this area (infra, item d).

Download at .doc format

Adaptation of the provisions of Title IV of the Treaty establishing the European Community relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection