Select Committee on European Communities Twenty-Fifth Report



  13.    The CFI was set up by the Council in 1988[2] to improve the handling of cases requiring close examination of complex facts and to reduce the case load of the Court of Justice. Under the Treaties, the judgments of the CFI are subject to appeal to the Court of Justice, but only on points of law. This means that on issues of fact the CFI's judgment is final. Despite initial fears that the Court of Justice might be overwhelmed by appeals against rulings of the CFI,[3] the incidence of appeals has in fact been fairly low. As a result, the CFI has the last word in a large majority of the cases falling within its jurisdiction.

  14.    The category of cases in which the CFI has jurisdiction is set out in the Decision of the Council by which the court was established. That category was initially confined to staff cases, certain proceedings brought by undertakings against the Commission under the ECSC Treaty and competition cases brought by undertakings under the EC Treaty. In addition, the CFI was given jurisdiction where a claim for damages was combined with a claim falling within one of the above categories. The CFI began hearing these cases at the end of October 1989.

  15.    The cases where the CFI originally had jurisdiction represented a relatively limited fraction of those which the Council was permitted by the Treaties to transfer to it. However, additional transfers in 1993 and 1994 extended the jurisdiction of the CFI to include all direct actions brought by natural and legal persons. The result is that actions for annulment or failure to act brought by a natural or legal person against an institution of the Community under Articles 173 or 175 respectively of the EC Treaty, as well as actions brought against the Community for damages under the second paragraph of Article 215, now commence in the CFI.

  16.    The extension of the jurisdiction of the CFI made it responsible for dealing with certain categories of case which did not exist when it was originally established. One such category consists of challenges to decisions of the Commission in the field of merger control.[4] Potentially more significant, at least in terms of volume, are challenges to decisions of the Boards of Appeal established under the Community Trade Mark Regulation.[5] That regulation creates a Community trade mark existing alongside national trade marks but having equal effect throughout the Community. Responsibility for implementing the regulation belongs to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). Appeal against decisions of the examiners and the various divisions of OHIM lies to independent Boards of Appeal within OHIM. Decisions of the Boards of Appeal are in turn amenable to judicial review before the Community Courts. Challenges to such decisions are regarded as a form of action for annulment under Article 173 of the EC Treaty and as falling for that reason within the jurisdiction of the CFI.

  17.    Since the entry into force of the Treaty on European Union, the Council has enjoyed the power to transfer to the CFI actions brought by Member States or by Community institutions. That power has not yet been exercised. The Council has no power to transfer to the CFI references for a preliminary ruling made under Article 177 of the EC Treaty or its counterparts in the ECSC and Euratom Treaties.


  18.    The CFI consists of 15 Judges appointed by the Member States for renewable terms of six years. Under the Treaties, each Judge must "possess the ability required for appointment to judicial office".[6] The Treaties do not say anything about the nationality of the Judges, but in practice there is one Judge from each Member State. The Judges elect a President from among their number for a term of three years with responsibility for directing the judicial business and the administration of the CFI. Every Judge is assisted by two Law Clerks (commonly known as référendaires or legal secretaries), qualified lawyers who provide help with research and drafting. In each case, one of the Judges will be designated to act as Rapporteur, with responsibility for preparing the case. Once the written pleadings have been lodged, the Judge­Rapporteur presents a report to the other Judges containing recommendations as to the future management of the case. He will draft the Report for the Hearing, which summarises the facts and the arguments of the parties, and the judgment itself. Unlike the Court of Justice, the CFI is not assisted by Advocates General on a permanent basis. However, each Judge (with the exception of the President) may be called upon to perform the function of Advocate General in difficult or complex cases. In practice, this is rarely done.

  19.    Like the Court of Justice, the CFI delivers a single collegiate judgment signed by the Judges who took part in the deliberations. There are no dissenting judgments. Although the Rules of Procedure of the CFI sometimes provide for certain steps to be taken by a Judge (normally the President) acting alone, the steps in question nearly always constitute measures of internal organisation, such as the designation of the Judge­Rapporteur or an Advocate General. There are, however, some situations in which the President is permitted to take decisions involving a limited substantive appraisal of the merits. Examples are applications for interim measures and applications to intervene made by prospective interveners who are not Member States or Community institutions.[7] It may also be noted that the task of undertaking certain procedural steps[8] may be assigned to the Judge­Rapporteur.

  20.    The CFI is permitted to sit in plenary session where "the legal difficulty or the importance of the case or special circumstances so justify".[9] In such circumstances, the CFI must be assisted by an Advocate General. The possibility of dealing with a case in plenary session is used by the CFI relatively rarely. In practice, it normally sits in Chambers of three or five Judges. There are currently five Chambers of three Judges and five Chambers of five Judges (known as chambres élargies or Chambers with extended composition), the membership of which overlaps. The CFI enjoys considerable flexibility in determining the basis on which cases are allocated among its Chambers. The present position is that cases concerning State aid and trade protection measures are assigned to Chambers of five Judges, while all other cases are assigned to Chambers of three Judges.[10]

  21.    A party is not permitted to ask for a change in the composition of the CFI or of any of its Chambers on the grounds of either the nationality of a Judge or the absence of a Judge of the nationality of that party. However, a case may be referred to a Chamber composed of a different number of Judges whenever the legal difficulty or importance of the case or special circumstances so justify. These conditions are the same as those applicable to reference of a case to the CFI sitting in plenary session. A case must be maintained before, or referred to, a Chamber of five Judges where a Member State or a Community institution which is a party to the proceedings so requests.[11] That rule echoes the third paragraph of Article 165 of the EC Treaty, which requires the Court of Justice to sit in plenary session "when a Member State or a Community institution that is a party to the proceedings so requests".

  22.    The language of proceedings before the CFI is chosen by the applicant from a list of twelve procedural languages set out in the Rules of Procedure. The language of the case must be used in the parties' written and oral pleadings and in supporting documents. It is the text of the judgment drawn up in that language which is authentic. However, a Member State is entitled when intervening to use its official language and the use of a procedural language other than the language of the case may be authorised in certain circumstances. As a matter of practice, the CFI generally uses French as its internal working language. This means that, whatever the language of the case, pleadings will normally be translated into French. Moreover, it is in that language that the draft of the judgment will usually be produced.

  23.    Like the Court of Justice, the CFI is permanently in session. Its judicial vacations run from 18 December to 10 January, from the Sunday before Easter to the second Sunday after Easter, and from 15 July to 15 September.[12] During vacations, the functions of President are exercised either by the President himself or by a President of Chamber or another Judge. In cases of urgency, the President has the power to convene the Judges during vacations.


  24.    In February 1997, the Court of Justice submitted to the Council a draft decision to enable the CFI to give decisions when constituted by a single Judge. The Treaties require the Council to consult the European Parliament and the Commission before giving effect to the Court's draft. The Council must act unanimously. In order to allow sufficient flexibility, the Court envisaged that the detailed arrangements for assigning cases to a single Judge would be left to the Rules of Procedure of the CFI. The Court's draft decision was therefore accompanied by a series of proposed amendments to the Rules of Procedure drawn up by the CFI with the agreement of the Court. Under the Treaties, these require the unanimous approval of the Council in order to take effect, but the Council does not need to consult any of the other institutions.

  25.    The proposal has undergone some significant changes since it was originally submitted to the Council. Under the latest version brought to the attention of the Committee, all cases would continue to be assigned to a Chamber. However, a Chamber composed of three Judges would be empowered to delegate certain cases assigned to it to a single Judge where, "owing to the lack of difficulty of the questions of law or fact raised, of [the] importance of those cases and of other special circumstances, they are suitable for being so heard and determined ...". In addition, annulment actions, actions for failure to act and actions for damages could only be delegated to a single Judge where they either (a) "do not raise questions not clarified by established case­law", or (b) "form part of a series of cases in which the same relief is sought and of which one has already been finally decided". The decision whether or not to delegate would be taken on a case­by­case basis by the Chamber concerned following receipt of a proposal from the Judge­Rapporteur. A Member State or a Community institution which was a party to the proceedings would have the right to prevent delegation to a single Judge. Other parties would merely have the right to be heard on the matter.

  26.    Where a decision to delegate was taken, only the Judge­Rapporteur would be eligible to sit as a single Judge. He would exercise the powers which would have belonged to the President of the Chamber had the case been maintained before three Judges. These might include deciding applications for interim relief. If the case subsequently turned out to be more difficult than originally thought, the single Judge would be permitted to refer the case back to the Chamber. Delegation to a single Judge would be expressly ruled out in cases raising the legality of an act of general application and cases concerning the rules on competition, mergers, aid granted by States and measures to protect trade.

2   See Decision 88/591, adopted under Art. 168a of the EC Treaty, Art. 32d of the ECSC Treaty and Art. 140a of the Euratom Treaty. The corrected text of the decision is published at OJ 1989 C 215/1. Back

3   See our 1987 Report, para 88. Back

4   See Reg 4064/89 on the control of concentrations between undertakings, OJ 1989 L 395/1 (as amended). Back

5   Regulation 40/94, OJ 1994 L 11/1. See also Regulation 2100/94 on Community plant variety rights, OJ 1994 L 227/1. Back

6   By contrast, the members of the Court of Justice must be chosen from persons who "possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognized competence". (Art. 167 of EC Treaty, Art. 32b of the ECSC Treaty and Art. 139 of the Euratom Treaty) Back

7   And who must furnish a statement of the circumstances establishing their right to do so. Member States and institutions enjoy an automatic right to intervene in cases before both the CFI and the Court of Justice. Back

8   See Arts. 64­67 of the Rules of Procedure of the CFI. Back

9   Rules of Procedure, Art. 14. Back

10   See OJ 1997 C 271/14, where the order in which cases are assigned to particular Chambers is also set out. Back

11   The term "party" in this context is taken to include interveners. Back

12   Art. 34, Rules of Procedure of the CFI. The CFI also observes official holidays in Luxembourg, where it has its seat. Back

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