PURPOSE: to allow the introduction, in certain areas, of an urgent preliminary ruling procedure derogating from certain provisions of the Statute of the Court of Justice.

LEGISLATIVE ACT: Council Decision 2008/79/EC, Euratom, amending the Protocol on the Statute of the Court of Justice.

CONTENT: the aim of the Decision is to amend the Protocol on the Statute of the Court of Justice, in order to allow derogations from certain provisions of the Protocol on the Statute of the Court of Justice with regard to the procedure governing urgent references for a preliminary ruling concerning the area of freedom, security and justice. For the sake of good order, the provision authorising such derogations also refers to the expedited and accelerated procedures laid down in the Rules of Procedure of the Court of Justice.

ENTRY INTO FORCE: 01/02/2008

Decision 2008/79
OJ L 024 29.01.2008, p. 0042

Results of vote in Parliament

The European Parliament adopted a report drawn up by Diana WALLIS (ALDE, UK) and approved the draft Council decision amending the Protocol on the Statute of the Court of Justice with regard to the treatment of questions referred for a preliminary ruling concerning the area of freedom, security and justice.

T6-0553/2007

A6-0451/2007

A6-0451/2007

COMMISSION OPINION on the request to amend the Statute of the Court of Justice, presented by the Court under the second paragraph of Article 245 of the EC Treaty, with a view to allowing the introduction, in certain areas, of an urgent preliminary ruling procedure derogating from certain provisions of the Statute.

To recall, in July 2007 the European Court of Justice sent two requests to the Commission and the Council. The first concerns an insertion into the Court’s Statute for a new Article 23a, which reads as follows:

"The Rules of Procedure may provide for an expedited or accelerated procedure and, for references for a preliminary ruling in specified areas, an urgent procedure, derogating from the provisions of Articles 20 and 23 of this Statute."

At the same time, the Court also requested that an accelerated procedure be adopted concerning preliminary rulings relating to Title VI of the TEU or Title IV Part Three of the TEU (area of freedom, security and justice).

The Commission welcomes both initiatives. The introduction of a new procedure is essential to safeguarding effective judicial protection and to guaranteeing a uniform interpretation of EU law within the time limits laid down in this field. The Commission concurs with the view that the Court must be in a position to respond speedily to questions referred for a preliminary ruling in the course of urgent national judicial proceedings.

Further, the Commission acknowledges that urgent requests of this kind are more likely to arise in future given that the area of liberty, security and justice is a dynamic process. Examples include asylum applications; expulsion decisions issued under immigration law; cases relating to parental responsibility; the enforcement of European arrest warrants; and cases involving the detention of a suspect.

The Commission’s Opinion states that the new urgent preliminary ruling procedure must include the following elements:

it must be quick in order to ensure the effective judicial protection of those who seek it; it must be flexible to allow for differing national time limits; it must comply with the adversarial principle; it must allow the Court to obtain information through the participation of the Commission, the Member States (in which the case originated); Parliament and the Council in cases involving their legal acts; it must allow for the intervention and contribution of other Member States; and it must not have the effect of delaying other cases pending before the Court.

The procedures proposed by the Council appears to have struck the right balance between all of these requirements and for that reason the Commission hopes it can be adopted as soon as possible and without significant change.

Given that the proposed procedure necessarily derogates from several Statute provisions, the Commission recommends that a provision authorising these derogations must be inserted into the Statue.

Regarding the wording of Article 23a the Commission would like to make one observation of a legal nature namely a more concise wording:

"The Rules of Procedure may provide for an expedited or accelerated procedure and, for references for a preliminary ruling concerning the area of freedom, security and justice, an urgent procedure, derogating from the provisions of Articles 20 and 23 of this Statute."

Based on the above analysis the Commission delivers a favourable opinion, subject to the change in the preceding paragraph.

SEC(2007)1540
EUR-Lex

The Committee on Legal Affairs adopted the report by Diana WALLIS (ALDE, UK) without amendment - under the consultation procedure - on the draft Council decision amending the Protocol on the Statute of the Court of Justice with regard to the treatment of questions referred for a preliminary ruling concerning the area of freedom, security and justice.

In the report’s explanatory memorandum, the rapporteur has however expressed some concerns:

1) the proposed urgent procedure will not include any written and reported submissions from the Advocate General, although he or she will still advise the Chamber orally in the course of its deliberations. The rapporteur believes that such a measure could, on the contrary, be of great benefit to the referring court, as well as other national courts by helping them to clarify Community law, thus potentially reducing the need for further references.

2) it is important for the Court to have sufficient discretion to decide for itself which cases will be dealt with under the urgent procedure. The Court, having virtually no control over its incoming workflow, needs a degree of flexibility and autonomy in order to deal with fluctuations in its caseload.

3) the Court's autonomy to solve issues concerning its own procedure is curtailed. Whilst understanding that Member States wish to preserve their right to participate effectively in cases before the Court, a way has to be found for the Court to be able to adapt more swiftly and independently to change in the future.

4) the rapporteur considers that the moment is now ripe to start considering the organisational structure and composition of the Court (here understood in the widest sense, including the Court of First Instance and the Staff Tribunal) in the longer term.

PE396.454

PURPOSE: to introduce, in specified areas, an urgent preliminary ruling procedure which derogates from certain provisions of the Statute of the Court of Justice.

PROPOSED ACT: Council Decision.

BACKGROUND: the urgent procedure proposed for references for a preliminary ruling in the areas covered by Title VI of the EU Treaty (police and judicial cooperation in criminal matters) and Title IV of Part Three of the EC Treaty (visas, asylum, immigration and certain aspects of conflict of laws) derogates in a number of respects from the provisions of the Statute.

The written procedure is limited to some of the players referred to in Article 23 of the Statute, and the period prescribed for the lodging of their written observations is not two months, as laid down in that Article, but is fixed by the Court. For the others, the procedure is limited to the oral part, whereas both Article 20 and Article 23 of the Statute provide for a written part. The oral part does not include any formal submissions from the Advocate General, whereas Article 20 of the Statute provides that the oral part of the procedure is to include submissions, except where the Court decides otherwise because the case raises no new point of law.

It appears necessary to incorporate a provision in the Statute authorising these derogations. It may also be appropriate to include in such a provision a reference to the expedited and accelerated procedures, which, as set out in the Rules of Procedure for direct actions (Article 62a) and references for a preliminary ruling (Article 104a) respectively, may already appear to derogate from Articles 20 and 23 of the Statute.

CONTENT: Mr Vassilios SKOURIS, President of the Court of Justice, request that the Council amend the Protocol on the Statute of the Court of Justice with a view to allowing provisions to be made to allow derogations from certain provisions of the Protocol on the Statute of the Court of Justice with regard to the procedure governing urgent references for a preliminary ruling in specified areas, and it is appropriate, for the sake of good order, that the provision authorising such derogations should also refer to the expedited and accelerated procedures laid down in the Rules of Procedure of the Court of Justice.

11824/2007