Select Committee on European Scrutiny Thirty-Seventh Report

19 Extension of the jurisdiction of the Court of Justice of the European Communities in respect of matters falling under Title IV of the EC Treaty



COM(06) 346

Commission Communication: 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

Legal base
Document originated28 June 2006
Deposited in Parliament6 July 2006
DepartmentHome Office
Basis of considerationEM of 19 July 2006
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared : further information requested


19.1 The Treaty of Amsterdam inserted a number of provisions into the EC Treaty which now appear as Title IV (Articles 61 to 69 EC). These provisions concern visas, asylum, immigration and measures in the field of judicial co-operation in civil matters. These matters were the subject of intergovernmental agreement under the EU Treaty, but were transferred to the EC Treaty by the Treaty of Amsterdam.

19.2 By virtue of Article 69 EC, the application of Title IV is subject to the Provisions of the protocol on the position of the United Kingdom and Ireland. Under this Protocol, the United Kingdom does not take part in the adoption of measures under Title IV, unless it has notified the Council within three months of the presentation of a proposal that it wishes to participate. If the United Kingdom does give such a notification, it may take part in the adoption of the measure and is bound by it, should it be adopted. The United Kingdom may also notify the Council of its intention to be bound by a measure which has already been adopted under Title IV. Similar provisions apply to the position of Ireland.[45]

19.3 The jurisdiction of the European Court of Justice (ECJ) to give preliminary rulings on questions of interpretation submitted by a court or tribunal of a Member State is provided for by Article 234 EC. In relation to measures adopted under Title IV, Article 68 EC qualifies the interpretative jurisdiction conferred by Article 234 EC in a number of respects. First, it provides that a court or tribunal of a Member State "against whose decisions there is no judicial remedy under national law" must request a ruling from the ECJ if it considers that a decision on the interpretation of Title IV or on the validity or interpretation of acts of the institutions is necessary to enable it to give judgment. (In qualifying the application of Article 234 EC, Article 68 EC makes no provision to enable any other court or tribunal to refer a question of interpretation to the ECJ, so that the ECJ would have no jurisdiction to entertain such a reference.) Secondly, Article 68(2) EC provides that the ECJ shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) (i.e. measures on the crossing of external borders of the Member States) relating to the maintenance of law and order and the safeguarding of internal security. Thirdly, Article 68(3) provides that the Council, the Commission or any Member State may refer a question of interpretation to the ECJ, but in such a case the ruling given by the ECJ shall not apply to judgments of courts or tribunals of the Member States which "have become res judicata".[46]

19.4 Article 67(2)EC provides for the making of a decision by the Council to cause all or parts of Title IV to be governed by the co-decision procedure under Article 251 EC. Article 67(2)EC also provides for a decision "adapting the provisions relating to the powers of the Court of Justice". In 2004 the Council took a decision to extend the co-decision procedure to Title IV,[47] but no decision was made in relation to any adaptation of the provisions governing the powers of the ECJ.

The Commission's communication

19.5 The Commission's communication argues the case for the abrogation of Article 68 EC and for Article 234 EC to apply to Title IV and measures adopted under that Title. The communication has attached to it a draft Council Decision under Article 67 EC to effect such a change.

19.6 In its communication, the Commission states that the "best way" of adapting the provisions relating to the powers of the ECJ is for the specific provisions of Article 68 EC no longer to apply. The Commission argues that the provisions of Title IV should be brought into line "with the standard rules on judicial protection of the Treaty" and that an essential element of the preliminary ruling procedure of Article 234 EC is the principle that all national courts (and not merely those from which there is no further appeal) can "dialogue" with the ECJ.

19.7 The Commission argues further that the restrictions in Article 68 EC raise "problems of judicial protection" in two types of case. The first arises where a personal right "generated by legislation adopted under Title IV" is in issue in a dispute before the national court. In such a case, the Commission points out that national courts of first instance and of appeal cannot ask the ECJ to interpret the applicable Community law, so that "litigants can therefore be forced to exhaust national redress procedures right up to the supreme court level to have a question referred for preliminary ruling to clarify their rights". The second type of case arises where a person considers that a fundamental right has been violated by a Community instrument adopted under Title IV. In these cases, according to the Commission, the person has "no access to any kind of judicial protection before having run the gamut of national redress procedures" since only the ECJ can rule on the invalidity of a Community instrument[48] and that consequently a national court of first instance or of appeal "even if it is convinced that the relevant instrument is illegal", is still obliged by Article 68(1) of the EC Treaty to apply it without being able to refer the question to the Court of Justice.[49] The Commission adds that "more serious still" such a court cannot grant any kind of provisional judicial protection, since it is only possible provisionally to disapply a Community instrument if there is also a reference for a preliminary ruling on the validity of the instrument.[50]

19.8 The Commission argues that in both kinds of case "the restricted jurisdiction enjoyed by the Court is likely to have the practical effect of depriving people of effective judicial protection" and that "this is all the more the case" as in the matters in question "people often do not have the financial resources needed to exhaust all national redress procedures, and/or they need rapid legal guidance". The Commission notes that the persons protected under the law under Title IV "include asylum-seekers and applicants for family reunification under Directives 2003/86/EC, 2004/83/EC and 2005/85/EC, third country nationals challenging expulsion orders or discriminatory treatment, but also minors affected by disputes covering maintenance responsibilities, in particular, of the parental responsibilities in the broad sense of Regulation (EC) No 2201/2003". The Commission comments that, in relation to minors, disputes relating to parental responsibilities "often have to be decided at short notice"[51] and that, although decisions under Regulation (EC) No 2201/2003 are often appealed, "they very rarely reach the supreme courts". In relation to those civil and commercial matters to which Regulations (EC) No 44/2001, (EC) No 1348/2000, (EC) No 1206/2001 or (EC) No 805/2004 apply, the Commission states that litigation "can easily become illusory or too expensive for small and medium-sized enterprises if they have to go right up to the national supreme court before the Court of Justice can rule on their rights".[52]

19.9 The Commission also criticises the restrictions in Article 68(2) EC which exclude from the jurisdiction of the ECJ "any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security". The Commission considers that Article 62(1) EC does not apply to national measures for the maintenance of law and order and the safeguarding of internal security, but that it does apply to Community measures. According to the Commission, this in practice means Community rules for the abolition of controls on persons at the Union's internal borders, including the exceptional and temporary reintroduction of such rules. The Commission asserts that "since, by definition, the national courts cannot rule either on the validity of such Community rules, the result is to exclude any possibility of judicial review, which is difficult to justify in an area of freedom, security and justice".[53] The Commission states that in other areas covered by the EC Treaty the ECJ does have jurisdiction over measures taken by the Member States to maintain law and order and internal security, and refers by way of example to principles of Community law concerning the free movement of goods, services, capital and persons. It concludes that the "need to strengthen judicial protection" makes it "urgent" to cause Articles 68(1) and (2) to cease to apply.

19.10 In a separate line of argument, the Commission refers to the fact that courts of final instance and courts of appeal were permitted to make preliminary references to the ECJ on questions of interpretation of the 1968 Brussels Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The Commission recalls that when this Convention was converted into a Community Regulation (Regulation (EC) No 44/2001), the provisions of Article 68(1)EC restricting the jurisdiction of the ECJ then became applicable, so that only courts of final instance could refer questions of interpretation to the ECJ. The Commission concludes that "there is absolutely no reason why citizens and operators should have to accept that their judicial protection is now more limited that it was for thirty years" and that is therefore time for the Council to "remedy this widening gap in protection" and to introduce the rules of Article 234 EC as regards judicial co-operation in civil matters. (However, the Commission does not point out that Article 234 EC did not previously apply to the Brussels Convention and that first instance courts would be permitted for the first time to make references to the ECJ if such a change were made.)[54]

19.11 As for the impact of any increase in jurisdiction on the workload of the ECJ, this is only briefly considered in the communication, which contains no estimate of the number of cases likely to be involved, or of the effect this increase in the number of cases might have on the general work of the ECJ. The Commission states that one of the reasons for Article 68(1)EC "seems to be a concern to avoid overloading the Court of Justice with a mass of references for preliminary rulings". It suggests that a second fear "could be that, in certain fields such as the right of asylum, the preliminary ruling procedure could have held up national judicial proceedings".

19.12 The Commission's answer to these concerns is to state that "the Court, the efficiency of the means of internal organisation which it now enjoys and the new possibilities created by the Nice Treaty must be trusted". Relying on a press release issued by the ECJ in February 2006, the Commission states that the ECJ "has managed to significantly reduce the average duration of preliminary ruling proceedings", that with a new expedited procedure, the ECJ can give preliminary rulings "more quickly if necessary" and that "special rules allowing immediate treatment of particularly urgent cases might be inserted in the Statute [of the ECJ]" under Article 245(2) EC. The Commission remarks that in other fields, which are "no less urgent", the Treaties do not restrict to courts of final instance the right to refer cases for a preliminary ruling to the ECJ. It concludes that "considerations related to the Court's workload do not suffice to justify the maintenance of a provision [Article 68 EC] which can undermine effective judicial protection and the unity of Community law".

19.13 It is apparent from the press release issued by the ECJ on 13 February 2006[55] that progress has been made in reducing the average time taken to dispose of a preliminary reference to the ECJ, but that such cases still take, on average, a period of 20.4 months (compared with 23.5 months in 2004 and 25.5 in 2003).[56] There also appears to have been a reduction in the number of cases brought before the ECJ from 531 in 2004 to 474 in 2005, but the press release does not indicate how many of these were preliminary reference cases.

The Government's view

19.14 In her Explanatory Memorandum of 19 July 2006 the Parliamentary Under-Secretary of State at the Home Office (Joan Ryan) describes the Commission's communication and indicates that the Protocol on the position of the United Kingdom and Ireland (which provides for an "opt-in" arrangement) would apply to any proposal in this area. The Minister adds that the Government is considering the implications of the communication and the impact of any proposal on the UK, and that "preliminary views are that there are both benefits and risks associated with any Council Decision, the impacts of which are being considered".


19.15 We find neither the Commission's communication nor the Government's Explanatory Memorandum to be at all helpful on the key question of the likely impact on the workload of the ECJ of an extension of its jurisdiction. The communication is concerned mainly to advance a theoretical argument for conformity without taking into account the practical effects on parties to proceedings of the substantial delays and added costs which are caused by the preliminary reference procedure.

19.16 To take only two examples, we fail to see how the interests of a minor could be advantaged by the introduction of a system which would delay the taking of decisions in relation to the welfare of a child by nearly two years. It is also hard to see what public benefit would be derived from the creation of similar delays in relation to asylum and immigration cases.

19.17 It is regrettable that the Commission appears to have produced no impact assessment of any kind, or any kind of estimate of the number of cases which might be affected by this proposal. We ask the Minister if the Government will press for such an assessment to be made, and if it will provide us with its own assessment of the likely effects of the proposal. We note, in this regard, that even if the UK did not opt into the proposal, it would still be likely to have a general effect of the workload of the ECJ and thereby on the interests of UK parties to proceedings in other areas which are the subject of preliminary references.

19.18 We also ask the Minister to describe in more detail the criteria it will adopt in deciding whether or not to opt into a proposal to extend the jurisdiction of the ECJ in the way suggested.

19.19 We shall hold the document under scrutiny pending the Minister's reply.

45   The provisions of the Protocol on the position of the United Kingdom and Ireland are often referred to as conferring a right to "opt in" to Title IV measures. However, they do not confer any right to "opt out" i.e. to withdraw from negotiations once a notification to the Council of an intention to participate has been given. Back

46   I.e. which have finally determined an issue on the merits between the parties to a dispute. Back

47   Council Decision 2004/927/EC, OJ No. L 396 of 31.12.2004, p.45. Back

48   Case 314/85 Foto-Frost [1987] ECR 4199. Back

49   This is somewhat misleading, since the obligation to apply the supposedly illegal instrument flows from ECJ case law rather than Article 68(1) EC. Back

50   Cases C-143/88 and 92/89 Zuckerfabrik Süderdithmarschen [1991] ECR I-415 and Case C-465/93 Atlanta [1995] ECR I-3761. The Commission suggests that the fundamental principles of these cases "should also apply to Title IV", but cites no authority for this view.  Back

51   However, the Commission does not mention in this context the substantial delay which must inevitably arise from a preliminary reference to the ECJ. Back

52   However, the jurisdiction of the ECJ is limited to questions of interpretation, and does not include the power to "rule on" a person's rights, this being a question for the national legal system. The Commission itself makes this point in relation to Article 62(1) EC - see footnote 13 to the communication "neither in the procedure of Article 226 of the EC Treaty nor in the procedure of Article 234 of the Treaty does the Court of Justice ever 'rule on' national measures or decisions"(covering the maintenance of law and order and the safeguarding of internal security).  Back

53   However, nothing would prevent the compatibility of Community rules with the ECHR from being tested in the national courts and by the European Court of Human Rights. Back

54   The Commission states that first instance courts could make references under Article 37 of the Convention, but fails to point out that such courts are acting in an appellate capacity under that Article, so that referring to them as "first instance" courts is misleading. Back

55   ECJ press release No14/06. Back

56   In 1975 the time taken was around 6 months. Back

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