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The Court of Justice in the Twenty-First Century: Challenges Ahead for the Judicial System?

Abstract

This paper looks ahead and seeks to identify future challenges to the judicial system of the European Union. It takes as its starting point that the key to the evolution of EU law has unquestionably been the system of references by national courts to the Court of Justice for preliminary rulings. It is desirable to maintain the principle that all courts and tribunals of the Member States should retain the power to refer. Difficulties are likely to arise in the future, partly from the sheer number of references, but also because of the new areas of law brought within the jurisdiction of the Court of Justice by the Lisbon Treaty. The paper considers several possible reforms, rejecting some suggestions but advancing others, such as the “green light” system, which may deserve further consideration, especially since it may become desirable for the Court to exercise some self-restraint in ruling on references from national courts.

Keywords

  • Member State
  • National Court
  • Judicial System
  • Advocate General
  • Lisbon Treaty

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Advocate General at the Court of justice of the European Communities from October 1988 to January 2006. Professor University of London.

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Notes

  1. 1.

    Ionesco, Rhinoceros 1959.

  2. 2.

    On a note of terminology: by “Court” or “Court of Justice”, despite the Lisbon Treaty re-formulation, I refer primarily (as is obviously appropriate here) to the Court which is celebrating its 60th anniversary. And I have preferred “judicial system” rather than “judicial architecture”. (In any event, I do not discuss the more grandiose “architectural” skyscrapers which some have suggested; my remarks are more down-to-earth.).

  3. 3.

    Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, Article 8. Provision for the Council to fine Member States in this field was first made in Article 126(11) of the TFEU.

  4. 4.

    Article 252 of the TFEU provides (as did Article 222 EC) that, should the Court of Justice so request, the Council, acting unanimously, may increase the number of Advocates General. See Declaration on Article 252 of the TFEU regarding the number of Advocates General in the Court of Justice, introduced at the request of Poland, according to which, if the Court requests that the number of Advocates General be increased by three, the Council will agree to that increase, and in that event Poland will have a permanent Advocate General as is already the case for Germany, France, Italy, Spain and the United Kingdom. There would thus be six “permanent” Advocates General (for the larger Member States) and five “rotating” posts for the smaller Member States.

  5. 5.

    The Workload of the Court of Justice of the European Union: House of Lords. European Union Committee, 14th report of session 2010–2011.

  6. 6.

    Since this text was completed, the Council has approved changes to the Rules, and the recast Rules of Procedure [2012] have been adopted.

  7. 7.

    It appears that the Advocates General have recently informally agreed among themselves that Opinions will not exceed 40 pages. That seems a satisfactory outcome.

  8. 8.

    Case C-36/02 Omega v Bonn [2004] I-ECR 9609. See also Case C-208/09 Sayn-Wittgenstein which in addition refers to respect for national identity.

  9. 9.

    It is of interest that the Court of Justice has recently introduced in its Rules of Procedure, and precisely in the Area of Freedom, Security and Justice (although only in the context of an exceptional procedure) a requirement for the national court to indicate the answer it proposes to the questions it refers: see Article 104(b) of the Rules of Procedure. The provision is not there intended to introduce the green light system: the Court will give its own ruling. Nevertheless the national court’s proposal may well simplify the procedure, and may also simplify the Court’s task. Moreover, experience with this new approach may prove useful in assessing the prospects of introducing the green light system. More generally, the Court’s note for the information of national courts invites national courts to include, in their references, their own view of the answers to the questions referred, but in practice this is relatively rarely done.

  10. 10.

    See for example Lorna Woods, Consistency in the chambers of the European Court of Justice: A case study on the free movement of goods, Civil Justice Quarterly 2012, p. 340.

  11. 11.

    [Article 61(2) of the new [2012] Rules of Procedure should prove helpful on this point; it provides: “Where a hearing is organised, the Court shall, in so far as possible, invite the participants in that hearing to concentrate in their oral pleadings on one or more specified issues.”].

  12. 12.

    See Declaration no. 38 on Article 252 TFEU regarding the number of Advocates General in the Court of Justice, note 4 above.

  13. 13.

    Interview, Belgenland 1930.

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Correspondence to Francis G. Jacobs .

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Jacobs, .G. (2013). The Court of Justice in the Twenty-First Century: Challenges Ahead for the Judicial System?. In: The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law - La Cour de Justice et la Construction de l'Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-897-2_4

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