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CURRENT DEVELOPMENTS: I. COMMUNITY COURTS IN THE AREA OF JUDICIAL COOPERATION

Published online by Cambridge University Press:  17 January 2008

Bruno Nascmbene
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Abstract

A. The area of freedom, security and justice and the role of the Court of Justice

One of the subjects which has aroused particular interest in the study of the ‘area of freedom, security and justice’ introduced by the Treaty of Amsterdam as an objective of the European Union (EU) inherent in the principle of the free movement of persons (see the preamble to, and Article 2, the Treaty on EU) is the role of the European Court of Justice (Court). The interest is both theoretical and practical, because one of the main issues is the Court's jurisdiction to give preliminary rulings and thus relations between national and Community courts and the protection of the interests of individuals before national courts wherever there is a conflict between national and Community law and thus a question of interpretation of Community law arises in national proceedings. The Treaty of Nice, which came into force on 1 February 2003, altered the jurisdiction and organisation of the Community judicature and therefore affected the ‘area of freedom, security and justice’.1

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 54 , Issue 2 , April 2005 , pp. 489 - 497
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 Among the many articles on the area of freedom, security and justice which make particular reference to the jurisdiction of the Court, see Peers, S ‘Who's Judging the Watchmen? The Judicial System of the Area of Freedom, Security and Justice’ [1998] YEL 337Google Scholar and EU Justice and Home Affairs Law (1999) 139 et seq; and A Tizzaho La Cour de justice aprés Nice: le transfert de compétences au Tribunal de Premiere Instance [2002] II Diritto dell'Unione europea 597; see also the report of Constitutional working party X ‘Freedom, security and justice’ WGX-WD3 entitled ‘Instruments et procedures de l'Espace de liberté, sécurité et justice’, esp 12, reproduced in Kerchove, G de and Weyemberg, A (ed) Quelles réformes pour I'espace pénal européen (Bruxelles 2003) 41 et seq.Google Scholar

2 On the declarations of the Member States, see OJ 1999 L 114. A commentary on Art 35 EU is given by Daniele, L in Tizzano, A (a cura di), Trattati dell'Unione europea e della Comunitã europea (2004) 143 et seq.Google Scholar

3 See the judgment in Joined CasesC-187/01 andC-385/01 Grozutok and Brtigge [2003]ECR 1–1345, esp paras 36 and 37; see also the Opinion of Advocate General Ruiz-Jarabo Colomer. For a commentary on the matter, and in particular on the ne bis in idem principle, see Fletcher ‘Some developments to the ne bis in idem principle in the European Union: criminal proceedings against Hiüseyn Grözutok and Klaus Brügge’ [2003] Modern Law Review 769 and Amalfitano, ‘Dal ne bis in idem internazionale al ne bis in idem europeo], in Rivista di diritto internazionale private e processuale (2002) 945 et seq.Google Scholar

4 On the scope of the obligation, see Case 283/81 Cilfit [1982] ECR 3415 and, more recently, Case C-99/00 Lyckeskog [2002] ECR 1–4839. For a discussionGoogle Scholar, see Tridimas, T ‘Knocking on Heaven's door: fragmentation, efficiency and defiance in the Preliminary Reference Procedure’ (2003) 40 CMLRev 41 et seq. On Art 68 EC jurisdiction,Google Scholarsee Gaja, ‘The Growing Variety of Procedures Concerning Preliminary Rulings’ Keeffe, D O and Bavasso, P (ed) Judicial Review in the European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley, I (2000) 146 et seqGoogle Scholar

5 See the authors cited in n 4.Google Scholar

6 See the Order of 22 Mar 2002 in Case C-24/02 Marseilles Fret SA ECR 1–3383. (Under Art 2(1) of the Protocol, the Cour de Cassation and the Conseil d'Etat have jurisdiction. Article 2(2) relates to the jurisdiction of the courts of the contracting States where they rule on appeal–which was not the case for the Marseilles court. Art 2(3) refers to the jurisdiction set out in Art 37 of the Convention: for France, the Cow d'appel.) Regulation 44/2001, which came into force on 1 March 2002, applies to actions brought after that date (Art 66), implementing between the contracting States (with the exception of Denmark) the provisions of the Convention (Art 67 et seq, recitals 21 and 22). See also the Order of 10 June 2004 in Case C-555/03 Warbecq ECRI- 0000 (the Court had no jurisdiction because the referring Tribunal du travail de Charleroi was not a court of last instance)Google Scholar

7 The text of the Treaty, as set out in OJ 2004 C 310, signed on 29 October 2004.Google Scholar

8 See Kapteyn, , ‘Reflections on the Future of the Judicial System of the European Union after Nice’ [2001] YEL 173Google Scholar and Johnston, , ‘Judicial Reform and the Treaty of Nice’ (2001) 38 CMLRev 499.Google Scholar

9 Council decision of 2 November 2004 (2004/752/EC, Euratom) in OJ 2004 L 333Google Scholar

10 On the relationship between the Court and the CFI and on declining jurisdiction, see Klinke ‘Quelques réflexions à propos de la relation entre la Cour de justice et le Tribunal de prémiere instance des Communautés européennes, [2000] Revue des affaires européennes’ 239.Google Scholar

11 See the Order of 4 Feb 2000 in Case C-17/98 Emesa Sugar [2000] ECR 1–665, especially para. 77;Google ScholarSchemers, HG and Waelbroeck, D, Judicial Protection in the European Union (6th edn (2001) 668.Google Scholar On this and on the case law of the European Court of Human Rights, see Benott-Rohmer, F, ‘L'affaire Emesa Sugar: l'institution de l'avocat général de la Cour de Justice des Communautés européennes a l'épreuve de la jurisprudence Vermeulen de la Cour européenne des droits de 1'homme’ [2001] Cahiers droit eur 403.Google Scholar

12 See Mastroianni, ‘II Trattato di Nizza ed il riparto di competenze tea le istituzioni giudiziarie comunitarie] in Nascimbene (a cura di), Ilprocesso comunitario dopo Nizza (2003) 21 et seq. The European Civil Union Service Tribunal was instituted by Council decision of 2 November 2004 (see para 1).Google Scholar

13 On the possible future structure of the Court and the CFI according to the outline given, see the Convention document CONV 636/03 Cercle 113 (Final report of the discussion group on the functioning of the Court of Justice) 4 et seq. Declaration no 16, adopted by the Conference of the representatives of the Member States on Art 225a of the EC Treaty, annexed to the Final Act of the Treaty of Nice, contains a request to the Court of Justice and the Commission to prepare as soon as possible a draft decision on the institution of a judicial panel with jurisdiction to rule at first instance on disputes between the Community and its officials. Declaration no 17 on Art 229a EC states that that provision does not affect the choice of judicial framework to be defined in the future for dealing with disputes relating to the application of acts adopted pursuant to the Treaty establishing the European Community which create intellectual property rights. In another declaration, of which the Conference took note, annexed to the Final Act, the Luxembourg Government gave an undertaking not to request the location in Luxembourg of the appeal boards of the Office for Harmonization in the Internal Market (Trade Marks and Patents), which will remain in Alicante even in the event that they should become judicial panels within the meaning of Art 220 EC. For the text of the common political approach of the Council to the Community trade mark, see Council document 7159/03–PI 24 of 7 Mar 2003.Google Scholar

14 See CONV 636/03, 5 et seq and the contribution of the President of the Court to the working party.Google Scholar

15 See, to this effect, the judgment in Case C-50/00 P Union de Pequenos Agricultores [2002] ECR1–6677, esp paras 41 and 42. On the issues raised by that judgment and, in particular, by the Opinion of Advocate General Jacobs, which slightly predated the judgment in Case T-177/01 Jeégo-Queéré 2002] ECR n–2365 (the Opinion and the judgment of the CFI, by contrast with that of the Court, proposed a broader interpretation of ‘individual interest’ to bring an action against an act of general scope, within the meaning of Art 230(4) of the EC Treaty).Google Scholar

16 On the effectiveness of legal protection and the relationship with Article 47 of the Charter of Fundamental Rights, which ‘constitutes’ Part n of the Constitution inasmuch as it is an integral part of it (pursuant to Art 9 of Part I), see document CONV 354/02-WGH 16, the final report of Group H-Charter, 15 et seq.Google Scholar

17 See the judgment in Göziitök and Brugge, above n 3, and para 124 of the Opinion of A-G Ruiz-Jarabo Colomer.Google Scholar

18 See, to that effect, the judgment in Case C-132/93 Peterbroek [1995] ECR1–4599, para 12 and, more recently, the judgment in Uni´n de Pequenos Agricultores, above n 15, paras 41 and 42.Google Scholar

19 See the observations in the discussion document CONV 69/02 on ‘Justice and home affairs: state of progress and general issues’, esp 6; document CONV 116/02-WG n 1 of the group ‘Integration of the Charter’ esp 14; document CONV 426/02-WG X 14 the Final Report of Group X—The area of freedom, security and justice 24 et seq.Google Scholar

20 For observations of the Court on the question of delay, with particular reference to Art 6 ECHR, see Case C-185/95 P Baustahlgewebe [1998] ECR 1–8417.Google Scholar

21 See Condinanzi, Il Tribunale di prime grado delle Comunità europee e la giurisdizione comunitaria (1996).Google Scholar

22 On the linguistic regime of the institutions, see Art 290 of the EC Treaty, which refers to the Statute of the Court of Justice; see, in particular Art 64 of the Statute, pursuant to which the rules laid down therein remain in force until the adoption of a linguistic regime for the Court and the CFI: see Art 29 et seq and Art 35 et seq of the Rules of Procedure of the Court and of the CFI respectively.Google Scholar