dr. Agne Limante
MA candidate in EU Law, King’s College London; PhD in EU law, Vilnius University; Post-Graduate Diploma in EU Law, King’s College London
On 1 November 2012 the New Rules of Procedure of the European Union Court of Justice[i] (“Rules”) will enter into force, introducing both, material and structural changes to the work of the Court. Below, a try is given to take a closer look at the changes. For ease of reference, the structure of analysis follows the new structure of the Rules.
Reasons for changes
According to the preamble of the Rules and the Press release of the Court, in recasting its Rules, the Court seeks primarily to adapt to the changes in its caseload. The former Rules of Procedure, the structure of which has remained fundamentally unchanged since their original adoption in 1953, reflected a preponderance of direct actions. However, the judicial reality revealed it is references for a preliminary ruling that nowadays form the main part of cases brought before the Court[ii].
A second reason relates to the Court’s intention to dispose of the cases within a reasonable period of time[iii]. The new Rules introduce a number of measures that should encourage cases to be dealt with swiftly and efficiently.
Furthermore, the Rules should clarify existing rules and practices and make it easier to use them. A clearer distinction is drawn between the rules that apply to all types of action and those that are specific to each type (references for a preliminary ruling, direct actions and appeals).
Finally, recasting of the Rules simplifies the existing rules, both on a substantive and formal aspect, either by repealing certain rules that are outdated or not applied, or by revising the procedure for dealing with certain cases.
Title I. Organisation of the Court
This Title has not introduced material changes and the main rules remain the same. There were some changes in relation to composition of the Grand Chamber and creation of the function of the Vice-President of the Court (Articles 8, 10 and 27), however, they just reflect recent amendments of the Statute of the Court[iv].
The Rules to some extend simplified the rules on the registry (Article18-22) and brought within a single chapter (Articles 36-42) the rules on languages.
Title II. Common procedural provisions
This is a new Title and it covers all stages of the procedure before the Court, starting from introduction of a case before the Court and until the adoption of Court’s final decision.
One of the new measures include the possibility of the Court to adopt a decision with a view to limiting the length of written pleadings or observations lodged before it. Such decision shall be published in the Official Journal (Article 58).
The new rules also contain several significant innovations in relation to the oral part of the procedure dedicating to it a special chapter (Articles 76-85). If the Court considers on reading the written pleadings or observations lodged by the parties that it has sufficient information, it will, as a rule, no longer be obliged to hold a hearing (saving time). Where a hearing is organised, the Court is given right to invite the parties to concentrate in their oral pleadings on one or more specific issues. Moreover, the Court may organise joint hearings for two or more cases due to their similarity.
The Title also lays down more specific rules on the measures of organization of procedure that can be prescribed by the Court, Judge-Rapporteur and the Advocate General (Article 61-62) as well as sets new rules on the content, signature and service of the orders of the Court (Articles 89-91).
It is interesting to note, that the new Rules kept an article on extension of procedural time limits on account of distance (Article 51, providing that the procedural time-limits shall be extended on account of distance by a single period of 10 days). Though the Court was eager to remove such provision, claiming that nowadays the distance within the EU loses its significance and procedural time limits should not take the distance into account, the Member States were of different opinion strongly supporting such extension.
Title III. References for a preliminary ruling
In relation to preliminary ruling proceedings a separate title was introduced recognising the significance of such type of cases.
The rules of procedure now include a provision setting out the minimum essential content of any request for a preliminary ruling (Article 94; previously contained in Information note on references from national courts for a preliminary ruling[v]) and a rule on anonymity (Article 95), which should assist national courts and tribunals in the formulation of references.
New provision simplifies the procedure leading to the adoption of reasoned order, particularly where the answer to the question referred for a preliminary ruling admits of no reasonable doubt (Article 99). In such cases the Court may at any time, on a proposal from the Judge – Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.
Furthermore, the Rules provide for the possibility for the President of the Court to submit a reference for a preliminary ruling to an expedited procedure on his own motion, when the nature of the case requires that it be dealt with within a short time (Article 105). Expedited procedure until now was only possible at the request of the referring court or tribunal.
There also were some amendments to the urgent preliminary ruling procedure, related to assigning of the case which connected with a pending case to a Judge-Rapporteur (Article 108), and participation in a procedure of a Member State other than that from which the reference is made (Article 109).
In addition, Article 97 clarifies the concept of “party to the main proceedings”, while Articles 115-118 clarifies and simplifies the rules on legal aid.
Title IV. Direct actions
The Title on direct actions mainly targets regulating infringement proceedings against Member States. However, it also applies to the other types of direct actions.
There are several changes and novelties in this area. Firstly, the new Rules from one to two months increased the time limit for lodging the defence (Article 124). Secondly, it granted the President of the Court with a right to specify the matters to which the reply or the rejoinder should relate (Article 126), as well as with a right in exceptional cases to decide on his own motion that a case is to be determined pursuant to an expedited procedure (Article 133). Moreover, as regarding disputes concerning the costs, the Rules provide for assigning of such disputes to a chamber of three or, if the Judge-Rapporteur is not a member of a Chamber of three judges, five judges (Article 145).
The Rules also simplified the provisions relating to the intervention of Member States and European Union institutions (Article 131), as well as clarified the rules on requests and applications relating to judgments and orders (Article 153-159).
Title V. Appeals against decisions of the General Court
In relation to appeals, the new Rules contain a number of new provisions seeking to clarify lodging of appeals and proceeding with such cases
The Rules draw a clearer distinction between the appeal and cross-appeals lodged in response to an initial appeal, and clarify the rules for cross-appeals (Article 176-178). Cross-appeals will now always have to be introduced by a separate document, which is expected to facilitate their subsequent handling by the Court. Furthermore, the Rules clarify that a cross-appeal shall be deemed to be devoid of purpose in case the appellant discontinues his appeal or an appeal is declared manifestly inadmissible due to listed grounds (Article 183):
Article 182, again, seeking to reinforce the efficiency of the Court, provides for a possibility to declare the appeal or cross-appeal is manifestly well founded. This relates to the situations where the Court has already ruled on one or more questions of law identical to those raised by the pleas in law of the appeal or cross-appeal and considers the appeal or cross-appeal to be manifestly well founded.
Additionally, the Rules clarify the conditions on submission of a reply or a rejoinder in appeals (Article 175) and cross-appeals (Article 180), and, as in other titles, rules on legal aid (Article 184-189).
Title VI. Review of decisions of the General Court
With the view to simplify the current review procedure, the Rules provide for the designation, for one year, of a Reviewing Chamber that will consist of a Chamber of five Judges responsible for review cases (Article 191). The proposal to review a decision of the General Court may be made by the First Advocate General (Article 192).
It is worth noting, that the Reviewing Chamber will decide both, on the proposal made by First Advocate General, as well as will rule on the substance of the case after the decision to review (Article 195).
Title VII. Opinions
Just two changes in respect of the requests for opinions under Article 218(11) TFEU (whether the envisaged agreement is compatible with the provisions of the Treaties and to whether the European Union or any institution of the European Union has the power to enter into certain agreement) should be noted here. Firstly, according to Article 197, one, instead of eight, Advocates General, assigned by the First Advocate General, will be taking part in proceedings. Secondly, opinions will be delivered not in closed session, but in open court (Article 200).
Title VIII. Particular forms of procedure
As regarding this last title one would note that all the particular forms of procedure that we previously regulated in separate titles, are now brought under single heading. This should serve for the ease of reference and help to simplify the Rules. The title also inserts a new provision, under the Article 206 – requests under Article 269 TFEU.
To what extend the new Rules will assist the Court to deal with case load and clarify existing rules and practices, shall be seen in the near future as new statistics on Court’s practice will be available. Present, as states the Press release of the Court, the Court nevertheless remains convinced that they offer the best means of enabling the Court to continue to fulfil its task of ensuring that the law is observed in the interpretation and application of the Treaties within a reasonable period of time.
In any case, as for clarification of rules and practice, we have to admit that the structure and organization of the new Rules is much more clearer and easier to use than its predecessor’s. The names were given to articles, provisions are grouped under umbrella headings, the importance of preliminary ruling procedure in the Court’s practice is highlighted by regulating it in separate title.
As regards the dealing with case load, however, the change of Rules of Procedure might not have any material impact. The procedural changes intended for less time consuming dealing with cases that were presented by the Rules are often just a codification of practices that the Court used and before revision of Rules. One might have noted, that the CJEU constantly calls for an increase of judges in the General Court, hoping that more people could handle work quicker and more effective. Thus, the structural, not only procedural changes are probably inevitable in the future – but let’s see what the time brings.
[i] The Rules of Procedureof the Court of Justice were adopted on 25 September 2012 and published in the Official Journal of the European Union on 29 September 2012 (OL L 265/1).
[ii] In 2011, references for a preliminary ruling accounted for more than 60% of the Court’s caseload.
[iii] The average time taken to deal, for example, with references for a preliminary ruling was 16.4 months in 2011.
[iv] Regulation (EU, Euratom) No 741/2012 of the European Parliament and of the Council of 11 August 2012 amending the Protocol on the Statute of the Court of Justice of the European Union and Annex I thereto. OL L 228.
[v] OJ 2009/C 297/01.