Considerations on COM(2006)346-1 - Of the EC - Adaptation of the provisions of Title IV of the Treaty establishing the EC relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection

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dossier COM(2006)346-1 - Of the EC - Adaptation of the provisions of Title IV of the Treaty establishing the EC relating to the jurisdiction of the ...
document COM(2006)346 EN
date June 28, 2006
 
1. By virtue of Article 68 i of the Treaty, Article 234 of the Treaty is applicable to Title IV of Part Three of the Treaty under the circumstances and conditions specified in that provision. Under Article 68 i, the Court of Justice in any event has no jurisdiction to rule on any measure or decision taken pursuant to Article 62 i relating to the maintenance of law and order and the safeguarding of internal security. In the same way, the third subparagraph of Article 2 i of the Protocol integrating the Schengen acquis into the framework of the European Union excludes the jurisdiction of the Court of Justice to rule on measures or decisions relating to the maintenance of law and order and the safeguarding of internal security in the context of the Schengen acquis. Under Article 68(3) of the Treaty, the Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this title or of acts of the Community institutions based on it. The ruling given by the Court of Justice in response to such a request must not apply to judgments of courts or tribunals of the Member States which have become res judicata .

2. Under the second indent of Article 67 i of the Treaty, the Council, acting unanimously after consulting the European Parliament, is to take a decision, after a five-year transitional period after the entry into force of the Amsterdam Treaty, with a view to adapting the provisions relating to the powers of the Court of Justice.

3. That adaptation should be made by aligning the special provisions existing in the fields covered by Title IV on the standard rules of the Treaty. The special provisions should therefore cease to apply and be replaced by application of the general rules of the Treaty, and in particular Article 234.

4. In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,

HAS DECIDED AS FOLLOWS:

Sole Article

1. With effect from [1 January 2007], Article 234 of the Treaty shall apply to any request made to the Court of Justice by a national court to rule on a question concerning the interpretation of Title IV of Part Three of the Treaty or on the validity and interpretation of acts of the Community institutions on the basis of that Title, including requests made before [1 January 2007] on which the Court of Justice has not yet ruled at that date.

2. With effect from [1 January 2007], the second sentence of the third subparagraph of Article 2 i of the Protocol integrating the Schengen acquis into the framework of the European Union shall cease to apply in matters to which Community law applies.

3. With effect from [1 January 2007], Article 68 of the Treaty shall cease to apply.

Done at Brussels, […]

For the Council The President
[1983] ECR 1339, para 23; Case 222/84 Johnston [1986] ECR 1651, para 18; Case C-50/00 P Unión de pequeños agricultores [2002] ECR I-6677, paras 38–40.
“The Commission would wish to recall that Article 67 i foresees a decision of the Council not only providing for the areas which should be governed by codecision but also adapting the provisions relating to the powers of the Court of Justice. The passage to codecision for a majority of the domains of Title IV as presented in this present decision contributes in no small measure to increasing the democratic legitimacy of instruments adopted under this title and the Commission can welcome the decision to that extent. That being so, it is unacceptable that the decision does not provide for any adaptation of the competences of the Court, thus perpetuating a situation where access to the Court of Justice remains limited. The Commission is absolutely convinced that, in this area which so closely touches on the rights of individuals, an increased access to justice is equally essential to enhance legitimacy.” The European Parliament took the same position in the Bourlanges Report adopted on 16 December 2004.

[3] “The Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this title or of acts of the institutions of the Community based on this title...”.

[4] “... the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62 i relating to the maintenance of law and order and the safeguarding of internal security.”
“The future of the judicial system of the European Union” of 2000, pp. 22 to 23 where, while noting the exemption made in Article 68 of the EC Treaty, restated the general principle, to stress that “it seems necessary for all national courts and tribunals to retain the right to refer questions to the Court of Justice” and that “the uniform application of Community law frequently depends on the answer to a question of interpretation raised before a national court not having to await the outcome of appeal proceedings but being given by the Court of Justice at the outset, so that the case-law can become established at an early stage in the Member States of the Union”.
[proposal for a Parliament and Council Regulation on the law applicable to contractual obligations (Rome I) - COM(2005) 650].
[1987] ECR 4199.
[1991] ECR I-415; C-465/93 Atlanta [1995] ECR I-3761. It seems that the fundamental principles emerging from Foto-Frost , Zuckerfabrik and Atlanta should also apply to Title IV. Admittedly, there are those who argue that there should be an exception and that in this area, exceptionally, national courts should be given the power to disapply Community acts that they consider contrary to the Treaty, in order to avoid the problems of judicial protection mentioned in this communication. But this would seriously compromise the autonomy and uniformity of Community law.
“adapted” in parallel with it.
“rule on” national measures or decisions, and such measures are not “taken pursuant to Article 62(1)”.
[2002] ECR I-10981.
96–99 and 160–165. The European Court concluded that the implementation of obligations resulting from secondary legislation enjoys a “presumption of conformity” with the Convention.
“ Handelskwekerij Bier v Mines de Potasse d’Alsace ” (Case 21/76), “ De Bloos v Bouyer” (Case 14/76), “ Tessili ” (Case 12/76), “ Denilauler ” (Case 125/79), “ Mund & Fester v Hatrex Internationaal Transport ” (Case C-398/92), “ Reichert ” (Case C-261/90) and “ Group Josi ” (Case C-412/98) are typical cases, the latter having clarified the applicability of the convention to applicants domiciled in third countries. Owuzu-Jackson (Case C-281/02) is another, being a leading case on the scope of the Brussels Convention.
Court’s press release 14/06 of 13 February 2006, “Statistics concerning judicial activity in 2005 – consolidation and continuation of the progress recorded in 2004”.