4 Treatment of questions referred to
the European Court for a preliminary ruling in the area of freedom,
security and justice
| (a)
(27880)
13272/06
—
(b)
(28234)
17013/06
—
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Treatment of questions referred for a preliminary ruling concerning the area of freedom, security and justice — discussion paper from the Court of Justice
Supplement to the discussion paper on the treatment of questions referred for a preliminary ruling concerning the area of freedom, security and justice
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| Legal base | — |
| Deposited in Parliament | (b) 11 January 2007
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 1 February 2007
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| Previous Committee Report | HC 41-iii (2006-07), para 5 (6 December 2006) and see (27659): HC 41-ix (2006-07), para 5 (7 February 2007), 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
4.1 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.
4.2 In relation to 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 interpretative jurisdiction of the
ECJ. The United Kingdom, along with a number of other Member States,
has not made such a declaration accepting the interpretative jurisdiction
of the ECJ.
4.3 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,
concluded 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".[18] The
European Council "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.
4.4 We considered on 6 December 2006 a discussion
paper (document (a)) submitted by the President of the ECJ in
response to the conclusions of the Brussels European Council and
which set out a number of considerations relating to a possible
"emergency preliminary ruling procedure". In the light
of experience with the existing accelerated procedure, adopted
some five years ago but which had been used only once in a preliminary
reference case, the ECJ's paper contemplated 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 had been made by a national court. The chamber
would determine whether the case was urgent and whether it would
hear the case itself or refer it to a larger chamber.
4.5 We noted that the paper suggested 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 had 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.
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.
4.6 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.
4.7 We agreed with the Minister that some form of
accelerated procedure was required for the ECJ to entertain preliminary
references in the field of justice and home affairs. We found
it hard to see how the interests of justice, or the requirements
of Article 6 ECHR for a fair and public hearing within a reasonable
time, would be served by a system which delayed the disposal of
cases by up to two years. We thought that the first of the options
identified by the ECJ suffered 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 was of particular
sensitivity for the Member States. It also had the disadvantage
of producing an order which would in effect remain provisional
until the time for applying for re-examination had passed. It
seemed to us that 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.
4.8 We noted that both options appeared to assume
that the involvement of the Advocate General was required but
we asked the Minister if the role of the Advocate General could
be dispensed with in such cases in the interests of a simplified
and rapid procedure. We also asked the Minister if any assessment
had been made of the likely number of cases in which the emergency
preliminary ruling procedure would be used. Having regard to the
subject-matter, we were concerned that the emergency procedure
risked becoming normal, with unpredictable results on the capacity
of the ECJ to deal with its other work.
The supplement to the ECJ discussion paper
4.9 Following a consideration of the ECJ paper (document
(a)) at the Justice and Home Affairs Council on 4 December 2006,
the President of the Court was invited to submit a further paper
expanding on the options which had been outlined.
4.10 The resulting paper (document (b)) sets out
the two options identified in document (a) but in more detail.
It first describes the existing arrangements under Article 104a
of the Court's Rules of Procedure. These provide for an accelerated
procedure consisting of a limited time for submission of written
observations, a fixed date for an oral hearing and the hearing
of the Advocate General in closed session, without any formal
Opinion being presented. In other respects, the accelerated procedure
has the same steps as the normal preliminary reference procedure.
The paper points out that a substantial acceleration is achieved
only by giving the case absolute priority at every stage, and
that such acceleration is achieved "to the detriment of all
the other cases pending". The procedure has therefore been
used "with great caution" and has been applied only
once in a preliminary reference case.[19]
The paper concludes that applying the existing accelerated procedure
to a large number of references in a specific sphere is "hardly
practicable", and that there needs instead to be a reduction
and simplification of the stages in the normal preliminary reference
procedure.
4.11 The first of the proposed options would involve
an order being made at the first stage within a shortened period
with a limit on the parties who may be involved. The order would
be subject to review at a second stage, which review would follow
a procedure resembling the existing preliminary reference procedure.
Under this option, the referring court would seek the application
of an urgent preliminary reference. Such a procedure would be
available where the ECJ decides that the proceedings in which
the reference is made affect, for example, the protection of individual
freedom, or "the observance of a fundamental right, where
a delay in the protection of that right could cause serious and
irreparable damage for the person concerned".
4.12 The order for reference would be translated
immediately, but only into French (the working language of the
ECJ). Only the parties to the main proceedings, the Commission,
and the Member State from which the reference is made would be
permitted to submit written observations which would be translated
only into French. A specialised chamber of five judges would consider
whether an oral hearing should be held, having heard the Advocate
General on that issue. As with the procedure under Article 104a,
the Advocate General would not give a formal Opinion but would
be heard in closed session.
4.13 The ruling made by the ECJ on the reference
would have immediate effect in the main proceedings, but would
nevertheless be subject to review on the application of the First
Advocate General or a Member State. Such an application would
be determined within two months and, if granted, would be heard
by the ECJ in a differently constituted formation. According to
the paper, the opening of the review procedure would not change
the effects of the original order on the main proceedings, and
if the ECJ were to reach a different conclusion on the question
of interpretation, the new interpretation would apply but "without
prejudice to the effects already produced in the main proceeding".[20]
4.14 Under the second of the options, the procedure
for applying for an urgent preliminary reference, and the conditions
for its availability, would be the same as under the first option.
However, under the second option the questions referred for preliminary
ruling would be translated into all the official languages and
there would be no restrictions on those entitled to take part
in the proceedings. As with the first option, the Advocate General
would not present a formal Opinion, but would be heard in closed
session. The order made on the preliminary reference would be
definitive, with no provision for review.
4.15 The paper acknowledges that the procedure under
the second option would necessarily take more time than that under
the first, but notes that it would offer greater procedural safeguards
and would allow every Member State to take part in the case once
a reference is submitted.
The Government's view
4.16 In his Explanatory Memorandum of 1 February
2007, the Minister for Europe at the Foreign and Commonwealth
Office (Geoff Hoon) explains that the President of the ECJ presented
the Court's paper to the Justice and Home Affairs Council on 4-5
December 2006. The Minister reports that Ministers generally welcomed
the paper, but that there was no substantive discussion.
4.17 The Minister adds that the first option, as
it stands, is not acceptable to the Government as it does not
allow Member States to intervene in the preliminary reference
process. The Minister explains that the second option is more
attractive to the UK because of the guaranteed right of any Member
State to intervene in the process, and that this makes it unnecessary
to provide for any review. The Minister states that the second
option could be strengthened by expanding the criteria for its
use, by allowing any Member State to make a request for use of
the urgent procedure and by requiring the ECJ to publish its reasons
for granting or denying a request for the urgent procedure.
4.18 The Minister informs us that at the Council
Working Group meeting on 29 January, the first option received
little support. Whereas a considerable number supported the second
option, with various modifications, a number were undecided.
4.19 In reply to the comments we made on the role
of the Advocate General the Minister states that while dispensing
with the role of the Advocate General "might be theoretically
possible" it probably would not deliver a real benefit in
practice. The Minister concludes that "given the doubtful
negotiability of the option, HMG does not think it worth pursuing".
4.20 We also asked the Minister if any assessment
had been made of the number of cases in which the urgent preliminary
ruling procedure would be used. The Minister replies that he is
unable to give any such assessment, adding that the current criteria
for use of the existing accelerated procedure are too narrow and
that expanding them would result in more cases being heard.
Conclusion
4.21 We welcome the news that the first option
proposed by the ECJ in its paper seems not to command any general
acceptance. In our view, it suffered from serious disadvantages
for the Member States without producing much overall saving of
time.
4.22 We are concerned that no assessment seems
to have been made of the likely number of cases which might be
subject to the new urgent procedure. We agree with the Minister
that the proposed criteria for use of the new procedure may be
too narrow, but we also draw attention to the risk we identified
in our last report that the new procedure, especially with expanded
criteria, might in practice become normal in "freedom, security
and justice" cases, with consequent effects on the capacity
of the Court to deal with its other work.
4.23 We therefore ask the Minister to inform us
of any proposals made by the UK to expand the criteria and to
keep us informed of the state of negotiations on this matter.
4.24 We shall hold the documents under scrutiny
in the meantime.
18 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
19
In Case C-189/01 Jippes 2001 [ECR] I p. 5689. The case
concerned measures for the control of foot and mouth disease. Back
20
This could be particularly problematic in the case of criminal
sanctions and penalties. Back
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