APPENDIX 3
DRAFT AMENDMENTS TO COUNCIL DECISION 88/591/ECSC, EEC,
EURATOM OF 24 OCTOBER 1988, ESTABLISHING THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES TO ENABLE IT TO GIVE DECISIONS IN
CASES WHEN CONSTITUTED BY A SINGLE JUDGE
1. Since the creation of the Court of First Instance in 1989
the number of cases brought before it each year has been constantly
increasing. From 55 cases registered in 1990, the number increased
to 115 in 1992 and in 1995, after the jurisdiction of the Court
had been extended in 1993, reached 244, a figure which does not
take account of the voluminous series of milk-quota cases. This
development is the result in particular of the successive extensions
of jurisdiction accorded by the Council in 1993 and 1994. A further
substantial increase in the number of cases is to be expected
with the litigation relating to intellectual property rights,
in particular that resulting from the application of Council Regulation
No. 40/94 of 20 December 1993 on the Community trade mark (OJ
L 11 of 14 January 1994, page 1). According to the estimates made
by the Office for Harmonisation in the Internal Market (OHIM)
in Alicante, before it took up its activities, on the basis of
a forecast of 15,000 applications for registration in 1996, the
number of actions which will be brought against decisions of its
Boards of Appeal could exceed 400 per year as from 1997. Since
the number of applications for registration actually lodged at
the OHIM since the beginning of 1996 had already reached 28,000
at the end of May 1996, the Court must be prepared for the volume
of litigation relating to the Community trade mark to exceed even
these estimates.
The capacities of the Court of First Instance are already
barely sufficient to deal with the judicial business relating
to other fields of Community law, which is concentrated above
all on the application of the competition rules, on State aids,
on measures to protect trade and on anti-dumping, on the various
Community structural funds and on disputes between the Communities
and their servants. There can be no doubt that, unless appropriate
measures are taken to ensure its proper functioning, the Court
will no longer be in a position to carry out the task entrusted
to it if the forecast concerning Community trade-mark litigation
proves to be correct and if the number of cases brought in fact
doubles in the near future.
In the event of a constant and substantial increase in judicial
business, an increase in the number of Judges of the Court and,
depending on circumstances, the creation of new, specialised Chambers
could become inevitable. However, such measures would not be without
drawbacks. They should be regarded as a last resort, to be contemplated
only after exhausting all the possibilities of improving the functioning
of the Court in its present composition and of increasing the
number of cases which could be dealt with by the present number
of Judges.
The Court of First Instance has already broached this problem
in its "Contribution for the purposes of the 1996 Intergovernmental
Conference". Among the measures envisaged, other than an
increase in the number of Judges, mention was made in particular
of recourse to a single Judge and of the appointment of Assistant
Rapporteurs. The present draft amendments to Council Decision
88/591/ECSC, EEC, Euratom of 24 October 1988 are concerned with
the first of those two measures. They are supplemented by draft
amendments to the Rules of Procedure of the Court of First Instance.
2. A proposal designed to introduce the possibility for the
Court of First Instance to give decisions in cases when constituted
by a single Judge belongs to the context of a general trend which
may be observed in the legal systems of the Member States. The
majority of national courts are, like the Community Court, faced
with the problem of increasing judicial business. In the national
legal systems recourse is increasingly being had, with a view
to resolving this problem, to the single Judge. This recourse
to a single Judge is particularly frequent, and indeed sometimes
systematic, at first instance in courts of civil jurisdiction,
courts which, moreover, in many cases have jurisdiction in respect
of matters which, in the Community system, fall within the jurisdiction
of the Court of First Instance, such as the non-contractual liability
of the administration or, in certain cases also, litigation relating
to the law on trade marks. In recent years recourse to a single
Judge has also been making headway at First Instance in administrative
courts properly so-called. In certain legal systems in which there
is no distinction between civil and administrative courts litigation
of an administrative-law nature in any event comes at first instance
before a single Judge sitting alone.
The advantages to be derived from recourse to a single Judge
are easy to establish. By reducing the number of Judges called
upon to sit in a case, two other Judges are released from attending
the hearing and taking part in the deliberations. They can therefore
devote the time thus saved to other cases.
3. Where the single Judge has been introduced into the national
legal systems his action has often been limited at first to simple
cases or cases of minor importance. For example, ceilings have
been fixed for the value involved in disputes in civil matters.
When the single Judge is introduced into the Community court system
it will of course also be necessary to have recourse to such mechanisms
for limiting his jurisdiction.
In the Community field it is important to ensure that the
range of jurisdiction of the single Judge is so delimited that
several Judges from various national legal systems will be present
when the Community Court is called upon to decide new and important
questions, to develop Community law and to lay foundations which
will be of general significance for the future interpretation
of the applicable rules. On the other hand, the presence of several
Judges is not indispensable when it comes to hearing particular
cases of limited importance and deciding them by reference to
an established line of case-law. Recourse to a single Judge will
therefore be possible in particular in areas where there is substantial
litigation and a highly developed case-law and in repetitive cases.
In that respect mention might be made, for example, of an
not inconsiderable number of cases concerning the Community civil
service which have to do with the legality or the belated drawing-up
of a staff report, or the conduct of a competition, reimbursement
of sickness expenses or recovery of undue payments. Such matters
are often confined to the individual case and do not raise any
question of law which is new and important from the general point
of view. The same is true as regards certain repetitive cases,
as in the field of non-contractual liability. The presence of
three Judges is then disproportionate. It pointlessly encumbers
and slows down the administration of justice without offering
any disadvantages for the parties. Similarly, once a sufficiently
clear and consistent case-law has been developed in the field
of the Community trade mark, certain cases in this field could
also be heard by a single Judge. On the other hand, litigation
of an economic nature concerning the application of the competition
rules, State aids or measures to protect trade is clearly not
suitable for being brought before a single Judge.
4. It is proposed, along the lines of what is at present
provided, in Article 2(4) of Council Decision 88/591/ECSC, EEC,
Euratom, as regards allocation of jurisdiction between Chambers
of three Judges, Chambers of five Judges and the Court sitting
in plenary session, to define in detail in the Rules of Procedure
the manner in which matters may come before a single Judge and
the circumstances in which he may be called upon to give a decision.
The principle according to which the Court of First Instance normally
sits in Chambers composed of three or five Judges also remains
unchanged. Like the reference of a case to the Court sitting in
plenary session, reference of a case to a single Judge is only
optional and is confined to situations determined in the Rules
of Procedure. The proposed amendment to Article 2(4) therefore
does not follow the model of national legal systems in which all
cases at first instance are as a rule decided by a single Judge.
As regards the question of determining which cases can be
brought before a single Judge, examination of the national legal
system shows that two different methods are used. Sometimes cases
are assigned, as soon as they are brought, directly to a single
Judge on the basis of general criteria such as the matter concerned
and the nature of or the value involved in the dispute; sometimes,
on the other hand, all cases are at first assigned to a Chamber
and may then be delegated to a single Judge by an ad hoc
decision of the Chamber taken in the light of the circumstances
of the case in point and on the basis of criteria such as the
legal and factual difficulty and importance of the case. It is
the second method which is at the basis of the draft amendments
to the Rules of Procedure of the Court of First Instance submitted
to the Council for approval. This solution is consistent with
the logic of Articles 14 and 51 of the Rules of Procedure as regards
the reference of cases to the Court sitting in plenary session
or to a Chamber composed of a different number of Judges. It preserves
as far as possible the principle of collegiality and offers the
best guarantee that, whatever may be the field of Community law
concerned, all cases whose importance so justifies or which raise
difficult or novel questions will be dealt with in the presence
of Judges coming from at least three different national legal
systems.
Other methods are, of course, possible, for example the automatic
assignment of certain cases to a single Judge, subject to the
referral by him of such a case to the Chamber, or the limitation
of the possibility of delegation to a single Judge to certain
specific fields, such limitation taking the form of a positive
or negative list. Similarly, various formulas could be envisaged
for the role to be conferred on the parties as regards recourse
to a single Judge.
The introduction of the single Judge will constitute an important
innovation for the Community Judicial system. A gradual approach
and a trial period should therefore not be excluded. In this regard,
the proposed text of Article 2(4) ensures that there will be sufficient
flexibility since it does not itself lay down these arrangements
but leaves them to the Rules of Procedure, which could change
in the light of experience.
The enclosed draft Council Decision amending Article 2(4)
of Decision 88/591/ECSC, EEC, Euratom, based on Article 160a of
the EC Treaty, Article 32d of the ECSC Treaty and Article 140a
of the Euratom Treaty, has been drafted on the basis of the foregoing
considerations. Its purpose is to make Article 2(4) read as follows:
4. The Court of First Instance shall sit in Chambers of three
or five Judges. The composition of the Chambers and the assignment
of cases to them shall be governed by the Rules of Procedure.
In certain cases governed by the Rules of Procedure the Court
of First Instance may sit in plenary session or be constituted
by a single Judge.
This text be supplemented by an amendment to the Rules of
Procedure of the Court of First Instance specifying the means
by which matters may come before a single Judge and the guarantees
of the rights of the parties which will be necessary in this connection.
DRAFT DECISION
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 168a thereof;
Having regard to the Treaty establishing the European
Coal and Steel Community, and in particular Article 32d thereof;
Having regard to the Treaty establishing the European
Atomic Energy Community, and in particular Article 140a thereof;
Having regard to the request by the Court of Justice;
Having regard to the opinion of the Commission;
Having regard to the opinion of the European Parliament.
Whereas, since the creation of the Court of First Instance
its workload has considerably increased and there will be a considerable
increase in that workload as a result of litigation relating to
intellectual property rights, and in particular of the application
of Council Regulation No. 40/94 of 20 December 1993 on the Community
trade mark (OJ L 11 of 14 January 1994, page 1);
Whereas, to enable the Court of First Instance to cope
with that increased workload, it is necessary, before contemplating
any increase in the number of the Members of the Court of First
Instance, to exhaust all the possibilities of improving the working
efficiency of the Court of First Instance as composed at present;
Whereas experience gained in various national legal systems
of the Member States shows that, in a number of cases, neither
the nature of the legal or factual questions raised, nor the importance
of the case nor other special circumstances justify a case being
heard at first instance by a bench of judges and that, by conferring
on a single judge jurisdiction to give decisions in certain cases,
the number of cases heard by a court may be considerably increased;
Whereas, similarly, neither the legal or factual difficulty
of certain cases coming before the Court of First Instance, nor
their importance nor any special circumstances justify those cases
being heard by three Judges;
Whereas it is necessary to amend Council Decision 88/591/ECSC,
EEC, Euratom of 24 October 1988 establishing a Court of First
Instance, as amended by Decisions 93/350/Euratom, ECSC, EEC and
94/149/ECSC, EC, in order to provide, in Article 2(4) of that
Decision, that, in certain cases, the Court of First Instance
may be constituted by a single Judge;
decides:
Article 1
In Article 2(4) of Decision 88/591/ECSC, EEC, Euratom,
there shall be added at the end of the second sentence the words
"or be constituted by a single Judge".
Article 2
This decision shall enter into force on the fifteenth
day from its publication in the Official Journal of the European
Communities.
DRAFT AMENDMENTS TO THE RULES OF PROCEDURE OF THE COURT
OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES TO ENABLE IT TO
GIVE DECISIONS IN CASES WHEN CONSTITUTED BY A SINGLE JUDGE
It is proposed to amend Article 2(4) of Council Decision
88/591/ECSC, EEC, Euratom to the effect that henceforth, in certain
cases governed by the Rules of Procedure, the Court of First Instance
may be constituted by a single Judge. For the reasons set out
in more detail in the request for amendment of that provision,
use should be made of this possibility when the above Decision
so permits. The present amendments to the Rules of Procedure of
the Court of First Instance lays down the necessary rules for
that purpose.
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES:
Having regard to Article 168a of the Treaty establishing
the European Community;
Having regard to Article 32d of the Treaty establishing
the European Coal and Steel Community;
Having regard to Article 140a of the Treaty establishing
the European Atomic Energy Community;
Having regard to the Protocol on the Statute of the Court
of Justice of the European Community;
Having regard to the Protocol on the Statute of the Court
of Justice of the European Coal and Steel Community;
Having regard to the Statute on the Court of Justice
of the European Atomic Energy Community;
Having regard to Council Decision 88/591/ECSC, EEC, Euratom
of 24 October 1988 establishing a Court of First Instance of the
European Communities (OJ L 319 of 25 November 1988, page 1), as
amended by Council Decision 93/350/Euratom, ECSC, EEC, of 8 June
1993 (OJ L 144 of 16 June 1993, page 21), 94/149/ECSC, EC of 7
March 1994 (OJ L 66 of 10 March 1994, page 29), and to the Act
of Accession of Austria, Finland and Sweden;
Whereas Article 2(4) of Council Decision 88/591/ECSC,
EEC, Euratom of 24 October 1988, as amended by Council Decision,
provides that in certain cases governed by the Rules of Procedure
the Court of First Instance may be constituted by a single Judge;
Whereas it is necessary use of this possibility and to
determine in the Rules of Procedure of the Court of First Instance
the circumstances in which a single Judge may be called upon to
give a decision in a case and the detailed rules in accordance
with which a case may be heard by a single Judge.
HAS ADOPTED THE FOLLOWING AMENDMENTS TO ITS RULES OF PROCEDURE:
Article 1
The Rules of Procedure of the Court of First Instance of
the European Communities, adopted on 2 May 1991 (OJ L 136 of 30
May 1991, page 1), amended on 15 September 1994 (OJ L 249 of 24
September 1994, page 17), 17 February 1995 (OJ L 44 of 28 February
1995, page 64) and are amended as follows:
1. In Article 11(1) there shall be added a third subparagraph
worded as follows:
"Cases may be heard by a single Judge where they are
delegated to him under the conditions specified in Articles 14
and 51 or assigned to him pursuant to Article 124, Article 127(1)
or Article 129(2).
In Article 11(2) the following sentence shall be added: "In
cases delegated or assigned to a single Judge the term `Court
of First Instance' in these Rules shall designate that Judge."
[New text of Article 11
1. Cases before the Court of First Instance shall be
heard by Chambers composed in accordance with Article 10.
Cases may be heard by the Court of First Instance
sitting in plenary session under the conditions laid down in Articles
14, 51, 106, 118, 124, 127 and 129.
Cases may be heard by a single Judge where they are
delegated to him under the conditions specified in Articles 14
and 15 or assigned to him pursuant to Article 124, Article 127(1)
or Article 129(2).
2. In cases coming before a Chamber, the term "Court
of First Instance" in these Rules shall designate that Chamber.
In cases delegated or assigned to a single Judge the term "Court
of First Instance" in these Rules shall designate that Judge.]
Explanatory note
1. The amendment of Article 11(1) maintains the principle
that, by virtue of the first subparagraph, cases before the Court
of First Instance are normally heard by a Chamber. The Court sitting
in plenary session and the single Judge constitute options and
cases may be come before them only where provision is expressly
made for this.
Cases do not as a rule come before the single Judge by direct
assignment once the application is lodged but by delegation under
the conditions specified in Articles 14 and 51. This procedure,
which is in conformity with that which already applies for a case
to come before the Court sitting in plenary session and for the
reference of cases by a Chamber to another Chamber composed of
a different number of Judges, gives the maximum degree of flexibility
and makes it possible to ensure that each case is heard by the
bench most suitable for it. The only exceptions to this rule concerns
the special cases of third-party proceedings (Article 124), revision
of judgments (Article 127(1)) and requests for interpretation
(Article 129(1)) where the previous judgment of the Court was
delivered by a single Judge.
2. As a result of the fact that cases before the Court of
First Instance may henceforth be heard by a single Judge, the
definition of the term "Court of First Instance", which
has hitherto had to cover both the Court sitting in plenary session
and the Chambers, will also have include the single Judge. "Court
of First Instance" therefore designates, in the Rules of
Procedure, the bench (Court sitting in plenary session, Chamber
composed of three or five Judges; single Judge) called upon to
sit by virtue of the provisions applicable to the case in point.
It follows that where the Rules of Procedure confer jurisdiction
on the Court without specifying the bench which is to give the
decision, as is the case, for example, as regards the fixing of
the amount of recoverable costs under Article 92(1) of the Rules
of Procedure, such jurisdiction will henceforth be vested in the
single Judge where the case itself was delegated or assigned to
him or her.
2. The first paragraph of Article 14 shall become paragraph
(1) of that Article. There shall be added to Article 14 a paragraph
(2) worded as follows:
"Where neither the questions of law or fact raised
by a case assigned to a Chamber composed of three Judges, nor
the importance of that case nor any other special circumstance
justify its being heard by three Judges, the case may be delegated
to the Judge-Rapporteur in order that he may give a decision as
a single Judge. He may refer the case to the Chamber if he considers
that these conditions are no longer satisfied.
Delegation to a single Judge shall not be possible in
cases relating to the application
(a) of the rules on competition and on control of
concentrations,
(b) of the rules concerning measure aid granted by
States,
(c) of the rules concerning measures to protect trade."
The second paragraph of the former Article 14 shall become
paragraph (3) of that Article; in that paragraph the words "Any
decision to refer a case" shall be replaced by the words
"the decisions referred to in paragraphs (1) and (2) of this
Article".
[New text of Article 14
1. Whenever the legal difficulty or the importance
of the case or special circumstances so justify, a case may be
referred to the Court of First Instance sitting in plenary session
or to a Chamber composed of a different number of Judges.
2. Where neither the questions of law or fact raised
by a case assigned to a Chamber composed of three Judges, nor
the importance of that case nor any other special circumstance
justify its being heard by three Judges, the case may be delegated
to the Judge-Rapporteur in order that he may give a decision as
a single Judge. He may refer the case to the Chamber if he considers
that these conditions are no longer satisfied.
Delegation to a single Judge shall not be possible
in cases relating to the application;
(a) of the rules on competition and on control
of concentrations,
(b) of the rules concerning aid granted by States,
(c) of the rules concerning measures to protect
trade.
3. The decisions referred to in paragraphs (1) and
(2) of this Article shall be taken under the conditions laid down
in Article 51.]
Explanatory note
1. The new second paragraph of Article 14 defines the criteria
governing delegation of a case to a single Judge where the procedure
is governed by Article 51.
First, delegation of a case to a single Judge is possible
only in cases assigned to a Chamber composed of three Judges.
The criteria governing the allocation of cases between Chambers,
fixed pursuant to Article 12 of the Rules of Procedure and published
in the Official Journal, are established by the Court, as regards
allocation between Chambers of five and three Judges respectively,
on the basis of the difficulty and importance of the matters concerned.
The effect of this rule is therefore to preclude delegation to
a single Judge of cases which are assigned, when the application
has been lodged, to Chambers of five Judges.
Second, delegation to a single Judge is possible only where
neither the questions of law or fact raised, nor the importance
of the case nor any special circumstance justify its being heard
by three Judges. These are substantive criteria similar to those
already used in the first paragraph for reference to the Court
sitting in plenary session and to Chambers composed of a different
number of Judges. These criteria mean, in the context of delegation
to a single Judge, that only simple cases and cases of minor importance
can be heard by a single Judge. Delegation is therefore effected
case by case on the basis of an assessment of the questions to
be decided in the case in point.
Third, in the case of litigation in the fields of competition
and control of concentrations, State aids and protection of trade,
delegation to a single Judge is expressly excluded.
It is also specified that it is the Judge-Rapporteur designated,
in accordance with Article 13(2), once the application is lodged,
who will sit as a single Judge. It is therefore not open to the
Chamber to entrust the decision in the case to one of the two
other Judges of the Chamber.
2. In certain cases it may become evident, after delegation
to a single Judge, that there are circumstances which would have
justified retaining the case before the Chamber, for example because
more difficult questions of law or fact emerged at the hearing.
In such a situation it must be possible for the single Judge to
refer the case to the Chamber. Express provision should be made
for this since the wording of the first paragraph, according to
which "a case may be referred—to a Chamber composed
of a different number of Judges", would not unequivocally
cover the situation of a reference of a case by a single Judge
to a Chamber.
3. The former second paragraph of Article 14 is converted
into paragraph (3) and amended to show that it covers all situations
in which cases are referred or delegated.
3a. There shall be added to Article 16 a new second subparagraph
worded as follows:
"In cases assigned or delegated to a single Judge
the powers of the President shall be exercised by that Judge."
[New text of Article 16
In cases coming before a Chamber the powers of the
President shall be exercised by the President of the Chamber.
In cases assigned or delegated to a single Judge the
powers of the President shall be exercised by that Judge.]
Explanatory note
Some provisions of the Rules of Procedure provide for powers
of the "President". These, unlike the powers of the
"President of the Court of First Instance", are, where
their exercise is called for, exercised in pursuance of Article
16 by the President of the Chamber before which the case comes.
Where a case is delegated or assigned to a single Judge it
is of course for that Judge to exercise these functions. The result
of that provision is that, once a case has been assigned or delegated
to a single Judge, all the powers of the "President"
belong to him or her. It follows, for example, that the single
Judge is called upon, under Article 106(2), to replace the President
of the Court, where the latter is absent or prevented from attending,
for the purpose of adjudicating on applications for interim relief
if the main proceeding have previously been assigned to him or
her by the Chamber. The situation will be the same, by virtue
of the amended version of Article 94(2) at present before the
Council for approval, as regards applications for legal aid, in
so far as these refer to a case previously delegated or assigned
to the single Judge.
It is necessary to speak of cases "assigned" to
a single Judge in order to deal with the special situations covered
by Articles 124, 127 and 129 in which a case is, exceptionally,
brought before the single Judge by direct assignment.
4. There shall be added to Article 32 a paragraph (5) worded
as follows:
"If the single Judge to whom the case has been delegated
or assigned is absent or prevented from attending, the President
of the Court of First Instance shall designate another Judge to
replace that Judge."
Explanatory note
Article 32(1) to (4) governs the consequences of a Judge's
being absent or prevented from attending. Paragraph (3) provides
that if in any Chamber the quorum has not been achieved the President
of the Court of First Instance is to designate another Judge to
complete the Chamber.
The new paragraph (5) transposes this rule to the situation
where the single Judge is absent or prevented from attending.
It is then for the President of the Court to designate another
Judge to replace the single Judge so that the case can be heard.
5. In Article 51(1) the words "in Article 14" shall
be replaced by the words "in Article 14(1)"; there shall
be added to Article 51(1) a second subparagraph worded as follows:
"The decision to delegate a case to a single Judge
under the conditions specified in Article 14(2) shall be taken,
on a proposal by the Judge-Rapporteur, by the Chamber composed
of three Judges before which the case is pending."
There shall be added to Article 51(2) a second sentence worded
as follows: "A Member State or an institution of the European
Communities which is a party to the proceedings may object to
the case being heard by a single Judge."
[New text of Article 51
1. In the cases specified in the first subparagraph
of Article 14(1) the Chamber hearing the case may, either on its
own initiative or at the request of one of the parties, propose
to the Court of First Instance sitting in plenary session that
the case be referred to the Court of First Instance sitting in
plenary session or to a Chamber composed of a different number
of Judges. The Court of First Instance sitting in plenary session
shall, after hearing the parties and the Advocate General, decide
whether or not to refer a case.
The decision to delegate a case to a single Judge
under the conditions specified in Article 14(2) shall be taken,
on a proposal by the Judge-Rapporteur, by the Chamber composed
of three Judges before which the case is pending.
2. The case shall be maintained before or referred
to a Chamber composed of five judges where a Member State or an
institution of the European Communities which is a party to the
proceedings so requests. A Member State or an institution of the
European Communities which is a party to the proceedings may object
to the case being heard by a single Judge.]
Explanatory note
The first subparagraph of Article 51(1) governs the procedure
under which a case is referred to the Court sitting in plenary
session or to a Chamber composed of a different number of Judges,
pursuant to Article 14. It provides for the parties to be heard,
a proposal by the Chamber and a decision by the Court sitting
in plenary session. This procedure, designed primarily for the
referral of cases to the Court sitting in plenary session, cannot,
without amendment, be transposed to the procedure for delegating
a case to a single Judge.
Since the cases here in point are relatively simple and not
of great importance, a decision by the Court sitting in plenary
session would appear to be disproportionate and would involve
pointlessly prolonging the procedure. It is sufficient to provide
that the decision is to be taken, on a proposal by the Judge-Rapporteur,
by the Chamber of three Judges before which the case is pending.
It is that Chamber which is best placed to appraise the questions
of law and fact raised by the case before it and also the importance
and all the circumstances of the case.
No provision should be made for a specific hearing of the
parties to take place before this decision of the Chamber. It
is necessary to avoid a situation in which the parties would be
called upon to state their views on the Judge who will hear and
determine their case, since it would be contrary to the rule against
the establishment of ad hoc courts for particular cases
("principe du juge légal") to accept that the
parties may object on personal grounds to delegation to a single
Judge. The absence of any hearing of the parties reflects, moreover,
the fact that, as the Court of Justice confirmed in its order
in Case C-173/95 P Hogan v Court of Justice [1995] ECR
I-4905, paragraph 15, decisions such as those concerning the referral
of a case to another bench are measures of organisation of procedure,
so that they are not amenable to review by the Court of Justice
in the context of an appeal. The lack of any specific hearing
of the parties does not, however, deprive them of all possibility
of expressing their views on the criteria referred to in Article
14(2). They will, or course, be able to state in their pleadings
their views on the questions of law or fact and on the importance
of the case or on any special circumstances surrounding it. However,
where such considerations are put forward in the pleadings, and
particularly in the application, at a time where it is still not
known who will be the Judge-Rapporteur, they do not give rise
to the same reservations with respect to observance of the rule
against the establishment of ad hoc courts, referred to
above.
In contrast, and a fortiori, it is consistent with
the logic of Article 51(2) to allow a Member State or an institution
of the European Communities to object to a case being heard by
a single Judge, since these privileged parties, on whom the third
paragraph of Article 165 of the EC Treaty confers the right, before
the Court of Justice, to ask that Court to decide a case in plenary
session, could even ask for a decision by a Chamber composed of
five Judges.
It is not specified at what stage of the procedure the decision
to delegate a case to a single Judge is to be taken. Since this
decision must be taken in awareness of the importance and of the
legal and factual difficulties of the case (see Article 14), it
must be taken at a stage of the proceedings at which the questions
raised by the case have been clearly identified. As a rule, that
stage will therefore be the one at which the preliminary report
referred to in Article 52(1) is submitted. It is always possible,
however, that in certain cases the stage in point may be a different
one. This might, for example, be the situation in a case which
has to be delegated to a single Judge after an objection of inadmissibility
within the meaning of Article 114 of the Rules of Procedure or,
again, where a Chamber has delivered an interlocutory judgment
on the merits of an action for damages, finding that liability
has been incurred, the case being then delegated to a single Judge
for determination of the amount of the damage.
It is not necessary to provide for a special procedure for
the reference of a case by a single Judge to the Chamber composed
of three Judges where that Judge considers the conditions for
delegation are not satisfied. It follows from the second sentence
of the first subparagraph of Article 14(2) that that decision
may, at any stage of the procedure, be taken by the single Judge
him—or herself without other prior formalities.
6. There shall be inserted in Article 118 the following new
paragraph (3):
"Where the Court of Justice sets aside a judgment
delivered or an order made by a single Judge, the President of
the Court of First Instance shall assign the case to a Chamber
composed of three Judges."
Paragraph (3) shall become paragraph (4); the words "paragraphs
(1) and (2)" shall be replaced by the words "paragraphs
(1) to (3)".
[New text of Article 118
1. Where the Court of Justice sets aside a judgment
or an order of a Chamber, the President of the Court of First
Instance may assign the case to another Chamber composed of the
same number of Judges.
2. Where the Court of Justice sets aside a judgment
delivered or an order made by the Court of First Instance sitting
in plenary session, the case shall be assigned to that Court as
so constituted.
3. Where the Court of Justice sets aside a judgment
delivered or an order made by a single Judge, the President of
the Court of First Instance shall assign the case to a Chamber
composed of three Judges.
4. In the cases provided for in paragraphs (1) to (3)
of this Article, Articles 13(2), 14 and 51 shall apply.]
Explanatory note
Where, on appeal, the Court of Justice sets aside a judgment
and refers the case back to the Court of First Instance in accordance
with the first paragraph of Article 54 of the (EC) Statute of
the Court of Justice, the case is assigned, pursuant to Article
118(1) and (2) of the Rules of Procedure, to the same bench, namely
the Court of First Instance sitting in plenary session or a Chamber
composed of the same number of Judges. Where a judgment delivered
by a Chamber is set aside, a reference back to the same Chamber
is the rule, but the President of the Court of First Instance
has the right to refer the case to another Chamber composed of
the same number of Judges. In practice, he uses that right where,
following an intervening change in the composition of the Chambers,
the Chamber which delivered the judgment no longer exists as constituted
at the time when it did so.
In the case of judgments delivered by a single Judge, consideration
might be given to adapting that rule to the effect that the single
Judge who delivered the judgment will be called upon to draw the
appropriate conclusions from the judgment of the Court of Justice
given on appeal. It is, however, unusual for the determination
of the conclusions to be drawn from a judgment on appeal to give
rise to delicate questions of law. It is therefore more desirable
to give preference to the principle of collegiality by assigning
the case first to a Chamber of three Judges. By virtue of Article
118(4), that assignment does not preclude a later delegation to
a single Judge or even a reference to a Chamber composed of five
Judges pursuant to the general provisions of Articles 14 and 51.
Assignment to the Chamber of three Judges to which the Judge
who delivered the judgment belongs will be the rule. But, since
this is not specified in the text of the provision, the President
of the Court of First Instance may also, as is the case, by virtue
of paragraph (1), when a case is referred following an appeal
against a judgment delivered by a Chamber, assign the case to
another Chamber. He will use this possibility where he considers
that, in view of the circumstances of the case, it is preferable
that the Judge who delivered the judgment set aside should no
longer take part in the hearing of the case.
7. There shall be added to Article 124 the following second
sentence "If the judgment has been delivered by a single
Judge, the application initiating third-party proceedings shall
be assigned to that Judge."
[New text of Article 124
The application initiating third-party proceedings
shall be assigned to the Chamber which delivered the judgment
which is the subject of the application; if the Court of First
Instance sitting in plenary session delivered the judgment, the
application shall be assigned to it. If the judgment has been
delivered by a single Judge, the application initiating third-party
proceedings shall be assigned to that Judge.]
Explanatory note
By virtue of Article 124, an application initiating third-party
proceedings is always assigned to the bench which delivered the
judgment or made the order which is the subject of the application.
This principle must be maintained with regard to judgments delivered
or orders made by a single Judge and it must be provided that,
in that case, the President of the Court is to assign the case
directly to the Judge who gave the decision in the case.
This does not prejudge any application of Article 14 and
51 by the single Judge where he considers that legal or factual
difficulties or the importance of the decision on the application
initiating third-party proceedings require a decision by three
Judges.
It is not necessary to lay down any special provisions for
the situation where the Judge concerned has left office. Article
32(5) in any event makes it possible to designate another Judge
to replace him.
8. There shall be added to Article 127(1) the following sentence:
"If the judgment has been delivered by a single Judge, the
application for revision shall be assigned to that Judge."
[New text of Article 127(1)
The application for revision shall be assigned to
the Chamber which delivered the judgment which is the subject
of the application: if the Court of First Instance sitting in
plenary session delivered the judgment, the application shall
be assigned to it. If the judgment has been delivered by a single
Judge, the application for revision shall be assigned to that
Judge.]
Explanatory note
As in the case of applications initiating third-party proceedings,
applications for revision must be assigned to the Judge who delivered
the judgment or made the order which is the subject of the application.
For the rest, reference may be made to the explanatory note to
Article 124.
9. There shall be added to Article 129(2) a second sentence
worded as follows: "If the judgment has been delivered by
a single Judge, the application for interpretation shall be assigned
to that Judge."
[New text of Article 129(2)
The application for interpretation shall be assigned
to the Chamber which delivered the judgment which is the subject
of the application; if the Court of First Instance sitting in
plenary session delivered the judgment, the application shall
be assigned to it. If the judgment has been delivered by a single
Judge, the application for interpretation shall be assigned to
that Judge.]
Explanatory note
In the case of an application for interpretation, the Judge
who delivered the judgement or made the order which is the subject
of the application is of course best placed to give a decision
on that application. It must therefore be provided that the President
of the Court is to assign the case directly to that Judge. For
the rest, reference may be made to the explanatory note to Article
124.
Article 2
These amendments to the Rules of Procedure, which
are authentic in the languages mentioned in Article 35(1), shall
be published in the Official Journal of the European Communities.
They shall enter into force on the first day of the second month
from the date of their publication.
Alternative draft following the meeting of the ad
hoc working party Court of Justice of 21 January 1998
Article 14
1. Whenever the legal difficulty or the importance of the
case or special circumstances so justify, a case may be referred
to the Court of First Instance sitting in plenary session or to
a Chamber composed of a different number of Judges.
Any decision to refer a case shall be taken under the conditions
laid down in Article 51.
2. The following cases assigned to a Chamber composed of
three Judges may be heard and determined by the Judge-Rapporteur
sitting as a single Judge where, owing to the lack of difficulty
of the questions of law or fact raised, of importance of those
cases and of other special circumstances, they are suitable for
being so heard and determined and have been delegated under the
conditions laid down in Article 51:
(a) cases brought pursuant to Articles 179 and 181 of
the EC Treaty, Article 42 of the ECSC Treaty and Articles 152
and 153 of the EAEC Treaty;
(b) cases brought pursuant to the fourth paragraph of
Article 173, the third paragraph of Article 175 and Article 178
of the EC Treaty, to the second paragraphs of Article 33, Article
35 and the first and second paragraph of Article 40 of the ECSC
Treaty and to the fourth paragraph of Article 146, the third paragraph
of Article 148 and Article 151 of the EAEC Treaty that do not
raise questions not clarified by established case-law or that
form part of a series of cases in which the same relief is sought
and of which one has already been finally decided.
Delegation to a single Judge shall not be possible:
(a) in cases which raise issues as to the legality of
an act of general application;
(b) in cases concerning the implementation of the rules
— on competition and on control of concentrations,
— relating to aid granted by States,
— relating to measures to protect trade.
The single Judge shall refer the case back to the Chamber
where he considers that the conditions justifying its delegation
are no longer satisfied.
Article 51
1. In the situations specified in Article 14(1) the Chamber
hearing the case may, either on its own initiative or at the request
of one of the parties, propose to the Court of First Instance
sitting in plenary session that the case be referred to it or
to a Chamber composed of a different number of Judges. The Court
of First Instance sitting in plenary session shall, after the
hearing the parties and the Advocate General, decide whether or
not to refer the case.
The case shall be maintained before or referred to a Chamber
composed of five Judges where a Member State or an institution
of the European Communities which is a party to the proceedings
so requests.
2. The decision to delegate a case to a single Judge in the
situations specified in Article 14(2) shall be taken, after the
parties have been heard, by the Chamber composed of three Judges
before which the case is pending.
The case shall be maintained before or referred to a Chamber
composed of three Judges where a Member State or an institution
of the European Communities which is a party to the proceedings
objects to its being heard by a single Judge.
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