5 Treatment of questions referred to
the European Court for a preliminary ruling in the area of freedom,
security and justice
| (27880)
13272/06
| Treatment of questions referred for a preliminary ruling concerning the area of freedom, security and justice - discussion paper from the Court of Justice
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| Legal base | — |
| Deposited in Parliament | 10 October 2006
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 27 November 2006
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| Previous Committee Report | None; but see (27659): HC 34 -xxxvii (2005-06), para 19 (11 October 2006)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 Article 234 EC confers jurisdiction on the Court of Justice
(ECJ) to give preliminary rulings on questions referred by courts
of the Member States concerning the interpretation of the EC Treaty,
the validity and interpretation of acts of the EC institutions
(including the European Central Bank) and the interpretation of
the statutes of bodies established by the Council.
5.2 A court or tribunal of a Member State may refer such a question
to the ECJ where it considers that a decision on the question
is necessary to enable it to give judgment, and must do so if
the court or tribunal is one "against whose decisions there
is no judicial remedy under national law". The ECJ will then
hear the parties to the dispute before the national court or tribunal,
the Member States and the Community institutions and will deliver
a judgment in reply to the national court, which will then continue
its consideration of the matter in dispute and adopt a final decision.
5.3 In relation to measures adopted under Title IV EC (visas,
asylum, immigration and other policies related to the free movement
of persons) Article 68 EC qualifies the interpretative jurisdiction
conferred by Article 234 EC in a number of respects. Whereas a
court or tribunal of final instance[10]
must request an interpretative ruling on a question where it considers
this necessary to enable it to give judgment, there is no provision
for lower courts to request a similar ruling.
5.4 In relation to the interpretation of measures adopted under
the EU Treaty, Article 35(1) EU provides for the jurisdiction
of the ECJ to give preliminary rulings on the validity and interpretation
of measures adopted under Title VI EU, but only in cases where
the Member State concerned has made a declaration under Article
35(2) EU that it accepts the jurisdiction of the ECJ under Article
35(1) EU. A State making a declaration under Article 35(2) EU
may specify either that any court or tribunal may request a preliminary
ruling or that such requests may be made only by courts of final
instance. The United Kingdom, along with a number of other Member
States, has not made any declaration accepting the interpretative
jurisdiction of the ECJ.
5.5 The Brussels European Council of 4 and 5 November 2004, which
took place shortly after the signing of the Treaty establishing
a Constitution for Europe in Rome on 29 October 2004, stated that
it was "satisfied" that this Constitutional Treaty "greatly
increases the powers of the European Court" in the "relatively
new area of freedom, security and justice". The conclusions
of the European Council stated that it was necessary to enable
the ECJ to respond quickly to questions on points of law concerning
the area of freedom security and justice "as required by
Article III-369 of the Constitutional Treaty"[11]
and "with the Constitutional Treaty in prospect" invited
the Commission, after consulting the ECJ, to bring forward proposals
for a solution for the "speedy and appropriate" handling
of requests for preliminary rulings.
The document
5.6 The document is a discussion paper submitted by the President
of the ECJ in response to the conclusions of the Brussels European
Council, and sets out a number of considerations relating to a
possible "emergency preliminary ruling procedure". The
paper notes that the ECJ has considered on several occasions whether
it is possible to reduce the time taken for the treatment of questions
referred for a preliminary ruling and that the average duration
of preliminary reference procedures has been reduced from 25.5
months in 2003 to 20.4 in 2005.
5.7 The paper then refers to the ECJ's accelerated procedure,
adopted some five years ago but which has been used on three occasions,
only one of which concerned a preliminary reference. The paper
notes that the preliminary reference case took 76 days, with the
others taking 168 and 171 days between submission of the case
and the Court's ruling, respectively. Of this time, it appears
that only a week was taken up by the drafting of the Court's decision
and the delivery of the judgment, the remaining time being taken
up by the prescribed procedural time-limits and the need to translate
documents.
5.8 In the light of this experience, the paper contemplates a
new kind of procedure which would involve cases being allocated
to a special chamber which would handle all cases in which a request
for an emergency preliminary ruling is made by a national court.
The chamber would determine whether the case was urgent and whether
it will hear the case itself or refer it to a larger chamber.
The Advocate General would be heard both before the decision of
the application for an emergency preliminary reference and before
the ruling on the question of interpretation.
5.9 The paper suggests two main options for the emergency preliminary
ruling. Under the first, participation would be limited to the
parties to the dispute, the Commission and other institutions
responsible for the measure in question, and the Member State
whose court has made the application. Unlike the present procedure,
other Member States would not be entitled to participate. The
ECJ (or chamber thereof) would make an order, which would be notified
to all the Member States and the institutions.[12]
The Member States excluded from participation would be permitted
to apply, within a fixed period, for a re-examination of the case.
Failing any application for re-examination, the order would become
final.
5.10 Under the second option, the emergency procedure would be
open to all the parties presently entitled to participate (i.e.
all the Member States), but "stricter practical rules"
would apply, limiting translations to the questions referred for
preliminary ruling, applying shorter time-limits, having no written
observations or no opinion from the Advocate General (although,
according to the paper, he would still be heard in the same way
as under the accelerated procedure). The ECJ or chamber would
give judgment in the normal way, with no opportunity for re-examination.
5.11 In discussing the options, the paper notes the concern of
Member States to be able to participate in the preliminary ruling
procedure, "especially where these relate to new and sensitive
fields", but also states that limiting Member State involvement
would "reduce the time taken for the treatment of the case
by eliminating the stage of translation of the questions referred
for a preliminary ruling and streamlining the procedure".
The paper suggests that the second option would enable the Court
to reduce the duration of the written procedure, or to provide
for only an oral procedure, but indicates that the procedure would
take longer than under the first option.
The Government's view
5.12 In his Explanatory Memorandum of 27 November 2006 the Minister
for Europe at the Foreign and Commonwealth Office (Geoff Hoon)
explains that the United Kingdom has not accepted the ECJ's jurisdiction
to give preliminary rulings under Article 35(1) EU, so that any
new accelerated procedure would not apply to the United Kingdom
(or to Gibraltar), but that such a procedure would apply in respect
of preliminary rulings under Title IV EC (visas, asylum, immigration
and other policies related to the free movement of persons).
5.13 The Minister further explains that the paper is intended
to seek preliminary views from Member States, so as to inform
the ECJ whether, and on what basis, it should submit further proposals.
The Minister adds:
"The Government is still considering its detailed response.
The Government broadly welcomes the debate and sees the need for
accelerated procedures in the area of justice and home affairs.
The Government welcomes the Court's recognition that such procedures
must not be at the expense of Member States' participation in
development/interpretation of Community law".
Conclusion
5.14 We note that the Government is still considering its detailed
response, and we shall be grateful for a fuller exposition of
the Government's attitude in due course. In this regard, we should
be grateful for an account of any discussions of this matter with
the President of the ECJ at the Justice and Home Affairs Council
on 4 -5 December.
5.15 We agree with the Government that accelerated procedures
are required if the ECJ is to entertain preliminary references
in the field of justice and home affairs. It is hard to see how
the interests of justice, or indeed the requirements of Article
6 ECHR for a fair and public hearing within a reasonable time,
are served by a system which delays the disposal of cases by up
to two years. The problem is particularly acute where a person
is being held in custody in the meantime.
5.16 In our view, the first of the options suffers from the
considerable disadvantage of depriving Member States of the right
to participate in the preliminary reference procedure, whilst
conferring a privileged position on the Commission in an area
which is of particular sensitivity for the Member States. In any
event, it seems to us that in present circumstances this option
would require an amendment to Article 35(4) EU, and we ask the
Minister if he agrees with us on this point.
5.17 The first option also has the disadvantage of producing
an order which can only remain provisional until the time for
applying for re-examination has passed. The court making the reference
would be unable to dispose of the case within this period, so
that there would be no saving of time overall.
5.18 Both options appear to assume that the involvement of
the Advocate General is required, but we ask the Minister for
his comments on the proposition that, if procedure is to be simplified
and made more rapid, the role of the Advocate General could be
dispensed with.
5.19 We also ask the Minister if any assessment has been made
of the likely number of cases in which the emergency preliminary
ruling procedure would be used. It seems to us, having regard
to the subject-matter, that the emergency procedure risks becoming
normal, with unpredictable results on the capacity of the ECJ
to deal with its other work.
5.20 We shall hold the document under scrutiny pending the
Minister's reply.
10 i.e. courts or tribunals "against whose decisions
there is no judicial remedy under national law". Back
11
A somewhat narrower requirement is set out in Article III 369,
namely, that if a question is referred with regard to a person
held in custody, the ECJ "shall act with the minimum of delay".
Back
12
Presumably, this "order" would also be notified at this
stage to the parties to the dispute, but as much is not stated
in the paper. Back
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