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The Amsterdam Treaty and the Court of Justice
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Danish Institute of International Affairs
February 1998
Introduction
When the European Economic Community and the European Atomic Energy Community were established in 1958, the institutional system of these new communities was very different from that of the older Coal and Steel Community. While, in the latter, the quasi-legislative and administrative powers were concentrated in the hands of the so-called "High Authority" (now the European Commission), the legislative power in the new communities was conferred on the Council of Ministers and the administration of the rules was, in general, left to the authorities of the Member States. It was thus for good reasons that the word "supranational", which had been used in the Coal and Steel Treaty, did not reappear in the two new treaties. Powerful supranational institutions had lost their attraction with the defeat in the French National Assembly of the Treaty on the European Defence Community.
In all three communities, the "Assembly" (now the European Parliament) was predominantly a consultative institution.
The only supranational institution, which saw its power - or rather its jurisdiction - increased, was the Court of Justice. As the rules to be adopted in the new communities - especially in the Economic Community - were to be applied by the national authorities and therefore also by the national courts, it was important to safeguard the uniform interpretation by giving these courts the possibility to put questions to the Court of Justice, not only - as in the Coal and Steel Community - on the validity of Community acts, but also on the interpretation of all Community rules.
The possibility to refer such preliminary questions to the Court of Justice not only safeguarded the uniform interpretation of Community law. It also provided a backdoor to the Court of Justice for citizens and private undertakings in the Community. They had no standing to bring a direct action before the Court of Justice against a Member State and they could only bring an action for annulment of a Community act, if this act contained a decision of direct and individual concern to them. But in cases pending before national courts, they could now question the compatibility with Community law of a national rule or decision and propose to the national court to refer a preliminary question on the interpretation of the relevant Community law to the Court of Justice. Just as - even under the Coal and Steel Community - they could question the validity of a Community act which a national authority had applied to them and ask the national court to refer a preliminary question on the validity of this act to the Court of Justice.
Private litigants were not slow to knock on this backdoor and national courts not slow to open it. This dialogue between national courts and the Court of Justice became the main safeguard of the rights which Community law conferred on citizens and undertakings. Already in the sixties and the beginning of the seventies, the Court of Justice handed down the preliminary rulings on direct effect of certain Community rules, on the supremacy of these rules in relation to national legislation and on their autonomy in relation to national constitutions which laid the foundations for all later judgments on the relationship between Community law and national law.
These landmark-decisions did not at the time arouse political opposition in the Member States. In part, this was probably due to the facts that the "empty chair policy" of the French Government and the ensuing so-called "Luxembourg Compromise" to a large extent had paralyzed the work in the Council of Ministers and that the powers of the European Parliament were too weak to present a safeguard of the rights of the individual. Apparently, the governments of the Member States were content with the dynamic character of the case law of the Court, although critical voices began to be heard in the French National Assembly.
The institutional system of checks and balances in the European Communities has not been fundamentally changed since 1958. But the paralysis of the work in the Council of Ministers has been overcome, the areas in which Community acts may be adopted by a qualified majority has been greatly enlarged and the Parliament, now directly elected, has gained considerable influence on the Community legislation. At the same time, some of the preliminary rulings of the Court of Justice have drawn consequences of the early landmark-decisions, which have caused legal, economic and political difficulties in some of the Member States. This, in its turn, has provoked criticism from the governments of these Member States of what is sometimes called the "judicial activism" of the Court of Justice. In particular, they have advanced proposals aimed at partly closing the back door to the Court for individual litigants.
As the Amsterdam Treaty proposes changes in the jurisdiction of the Court, it is interesting to see whether such criticism is reflected in the amendments proposed. This is the main purpose of this essay.
Earlier Amendments
For many years the rules of the Community Treaties 1 on the organization, procedure and jurisdiction of the Court of Justice were left practically untouched. Until the Single European Act, 2 the only amendments adopted by the Member States concerned the number of Judges and Advocates-General and were pure consequences of the accession of new Member States. An amendment to Article 165, third paragraph, of the EEC-Treaty and the corresponding provisions of the two other Treaties which opened the possibility for the Court to assign references for a preliminary ruling to a chamber, was made by Council Decision of 26 November 1974. 3
The Single European Act introduced Article 168a in the EEC-Treaty and corresponding articles in the two other Treaties empowering the Council to attach a Court of First Instance to the Institution. 4
Also the Maastricht Treaty 5 contained some amendments requested by the Court itself and intended to improve the efficiency of this institution. Once again Article 165, third paragraph, of the EC-Treaty 6 and the corresponding articles of the two other Community Treaties were amended, this time in order to permit assignment to a chamber of all kinds of cases unless a Member State or a Community institution, being a party to the proceedings, requests that the case be heard in plenary session. Article 168a and corresponding articles were likewise amended in order to empower the Council to extend the jurisdiction of the Court of First Instance, thus creating a better balance between the workloads of the two courts. This time the provisions on the jurisdiction of the Institution had to be amended as a consequence of the introduction of the co-decision procedure. At the same time the Member States, by amendments to the relevant Treaty provisions, confirmed the rulings of the Court on the standing of the European Parliament to sue and to be sued. The standing of the European Central Bank was regulated after the same pattern. The respect of the new rules on the Economic and Monetary Union are in principle ensured by the normal judicial means with the sole exception of Article 104c(10) which replaces the judicial control under Articles 169-170 by the political control procedures concerning government deficits in paragraphs 1-9 of the same article.
The Maastricht Treaty made one substantial extension of the jurisdiction of the Court of Justice. By an amendment to Article 171, it introduced the possibility of imposing penalty payments on Member States failing to take the necessary measures to comply with a judgment. But the jurisdiction of the Institution was not extended to the two new "pillars" 7 (The common foreign and security policy and the Cooperation in the fields of justice and home affairs); both based on the principle of intergovernmental cooperation. Only Article K.3(2)(c) provides that Member States, in conventions drawn up under the third pillar, may stipulate that the Court shall have jurisdiction to interpret the provisions of such conventions and to rule on any disputes regarding their application.
The Intergovernmental Conference leading up to the adoption of the Maastricht Treaty was probably the first during which the case law of the Court of Justice formed a topic of discussion. In relation to the general rules of the new Treaty, the result of this discussion was certainly positive. As already mentioned, the case law on the procedural standing of the European Parliament was included in the rules on the jurisdiction. Furthermore, Article F(2) of the Maastricht Treaty was modeled on the case law concerning the protection of fundamental rights, although - rather illogically - the judicial Institution was not given jurisdiction in relation to this article. But, clearly, criticism had also been voiced during the discussion. This can be seen from two protocols to the Treaty, both drawn up as - rather unfortunate - reactions to specific rulings. 8
The 1996/97 Intergovernmental Conference
In the period leading up to the Conference and during the Conference itself, numerous ideas concerning the judicial Institution of the European Union were advanced - more or less officially - by some governments and some of the institutions. However, I shall limit myself to the major points of two official documents:
Although most of the ideas put forward in the two documents have left no visible traces in the final text of the Amsterdam Treaty, 10 they indicate problems felt by the authors which may reappear at later conferences and require solutions to be found at that time.
The Report of the Court of Justice
Apart from presenting the general views of the Court on the tasks and functioning of the judicial system within the European Union, the Report underlined some problems, made a few proposals and - in a very discreet manner - commented on some of the ideas advanced by other participants in the public debate on the Court.
As to the composition of the Court, and in view of the coming enlargement of the Union, the Report found that two factors must be balanced: On the one hand the existence of an "invisible boundary between a collegiate court and a deliberative assembly", on the other the fact that "the presence of members from all the national legal systems on the Court is ... conducive to harmonious development of Community case law" and that "the presence of a judge from each Member State enhances the legitimacy of the Court". 11 The Report did not try to predict the result of this balancing test and it is permitted to believe that in this respect there have been differences of opinion within the Court, as there certainly are between the Member States.
The final text of the Amsterdam Treaty only refers to this problem in the general provision of Article 2 of the Protocol on the institutions with the prospect of enlargement of the European Union which provides for the convocation, at least one year before the membership of the Union exceeds twenty, of a conference in order to carry out a comprehensive review of the provisions on the composition and functioning of the institutions.
In the Report, the Court commented on a proposal from the European Parliament to amend the rules on the appointment of Judges and Advocates-General. 12 According to this proposal, the appointment should be decided by the Council, acting unanimously and after consulting the Parliament. Following the pattern known from national constitutional courts, such a modification might, in the view of the Parliament, be combined with the introduction of a non-renewable term of office which might be longer than the present six-year period. In its Report, the Court found that the present procedure and the practice generally followed in renewing the terms of office of its members have satisfactorily ensured the independence of the Court and the continuity of its case law. The Court added that it "would not, however, object to a reform which would involve an extension of the term of office with a concomitant condition that the appointment be non-renewable". Such a reform "would provide an even firmer basis for the independence of its members and would strengthen the continuity of its case law". In the view of the Court, it would also be an advantage for the continuous functioning of the Court that such a system - at least in the long run - would avoid the present simultaneous replacement of members every third year. Let me add as a personal note that it might also prepare the way for the introduction of dissenting and concurring opinions. As to the procedure, The Court considered that "a reform involving a hearing of each nominee by a parliamentary committee would be unacceptable". In fact, experiences from the appointment procedure to the Court of Auditors have shown how difficult it is to restrict a parliamentary hearing to a pure examination of professional qualifications and answering other questions may easily put the independence of the prospective nominee in jeopardy.
The final text of the Amsterdam Treaty does not contain any amendment to the rules on the appointment of Judges and Advocates-General, but the question is sure to reappear at future conferences.
Concerning the functioning of the judicial system in the Communities, various ideas had been voiced during the public debate prior to the Conference.
One idea was to confer a certain power on the Council to override rulings from the Community Courts. According to the case law of the European Court of Human Rights such a system would have resulted in a situation where the judicial authorities of the Communities no longer could be considered as independent courts or tribunals in the sense of Article 6 of the Human Right's Convention. 13 It is therefore difficult to disagree with the Court of Justice when, in its Report, it stated that:
"Any decision affecting the structure of the judicial system must ensure that the courts remain independent and their judgments binding. Were that not to be the case, the very foundation of the Community legal order would be undermined". 14
Fortunately, no such proposal was tabled during the Conference, but - as we shall see - one of the proposals in the UK-Memorandum contains traces of the same idea.
At least one of the governments had thought of proposing the creation of a separate Constitutional Court, the members of which should be appointed in a way different from the members of the existing Community Courts. As it would be impossible to make a clear distinction between the jurisdiction of such a new court and a parallel jurisdiction of the present Court of Justice, the Constitutional Court would have to hear appeals from the Court of Justice on points which it considered to be of a constitutional character. The following statement in the Report from the Court of Justice must be seen as a comment on such ideas:
"... the need to ensure uniform interpretation and application of Community law... presupposes the existence of a single judicial body, such as the Court of Justice... That requirement is essential in any case which is constitutional in character or which otherwise raises a question of importance for the development of the law". 15
As we shall see shortly, the U.K. government avoided this problem in its proposal to introduce an appeal procedure within the Court of Justice itself.
As to the jurisdiction of the Community Courts, an idea voiced by at least one of the governments was to abolish the possibility for national courts and tribunals of first instance to request preliminary rulings from the Court of Justice. The reason presented was the desirability to lighten the workload of the Court, but, no doubt, it has been a contributory factor that a number of preliminary rulings on questions put by national courts of first instance had interpreted Community rules, in particular on social rights of migrant workers, in a way which caused considerable public expenses. To the extent that this is the real reason, the idea is, however, misconceived. Such national jurisdictions would still have to apply Community law - if need be by setting aside a national rule or decision; 16 only they would be deprived of the possibility to seek the guidance of the Court of Justice as to the proper interpretation of the Community law to be applied. Were also the right to refer questions on the validity of Community acts abolished, all national courts of first instance would simply have to apply any Community act having direct effect, even if they nourished grave doubts as to its validity. 17 The following passage in the Report from the Court of Justice clearly contains a reference to this idea:
"To limit access to the Court would have the effect of jeopardizing the uniform application and interpretation of Community law throughout the Union and could deprive individuals of effective judicial protection and undermine the unity of the case law." 18
Fortunately, the Treaty of Amsterdam does not amend the general rules of the Community Treaties on preliminary rulings. But, with the extension of the Court's jurisdiction to matters at present covered by the third pillar, the new Treaty makes the problem reappear.
While in general the Court seemed satisfied with the present rules on its jurisdiction, the Report stressed the necessity to review Article L in the Maastricht Treaty concerning its jurisdiction - or rather lack of jurisdiction - in relation to the two new pillars. 19 The Court drew the attention of the Conference to "the legal problems which may arise in the long, or even the short, term". In particular, the Court considered it "obvious that judicial protection of individuals affected by the activities of the Union, especially in the context of cooperation in the fields of justice and home affairs, must be guaranteed and structured in such a way as to ensure consistent interpretation and application both of Community law and of the provisions adopted within the framework of such cooperation". The Court also mentioned the problems concerning delimitation of powers between the Union and the Member States and between the institutions of the Union, as well as the necessity of ensuring a uniform implementation of the decisions taken.
The Amsterdam Treaty does in fact contain rules conferring jurisdiction on the Court in relation to the third pillar - although certainly not to the extent desired by the Court.
The UK-Memorandum on the European Court of Justice
In the Memorandum, presented to the Conference by the Conservative Government, the United Kingdom proposed a number of amendments:
The United Kingdom proposed three amendments to the Treaty in order to limit the financial consequences of certain judgments interpreting Community provisions in an unexpected way, mentioning as examples the Defrenne II, 20 the Francovich 21 and the Emmott 22 judgments. It was proposed to introduce an article on the liability of Member States to pay compensation in respect of breaches of Community law, explicitly limiting this liability to the conditions laid down in the most recent case law of the Court (Brasserie du pécheur 23 and Dillenkofer 24 ), but at the same time excluding the liability under Community law to pay compensation in relation to any loss occurring more than three years before the date on which legal proceedings were begun. 25 It was also proposed to introduce an article providing that national rules relating to the time limits in which proceedings may be commenced should apply to corresponding proceedings brought in national courts based on rights derived from the Treaty - on the conditions generally imposed by the case law of the Court on the application of national procedural rules to such actions (Rewe 26 and later judgments). 27 This proposal constitutes a reaction to the Emmott-judgment 28 which, however, was based on the very special circumstances of this case. Finally, it was proposed to introduce an article explicitly conferring on the Court power to exclude retroactive effect of a judgment interpreting a Community provision. 29 Compared with the existing case law of the Court, the proposed article added the taking into account of serious consequences for the public finances of any Member State and the possible reliance of a Member State on the conduct of a Community institution or, in the case of persons, reliance on the conduct of a Member State.
None of these proposals were retained by the Conference and the legal development in these areas will still be left to the case law of the Court, which, however, may well take note of the concerns underlying the proposals. Maybe, this has even been their real purpose.
The proposed article on an internal appeal procedure provided that all cases brought before the Court of Justice should be decided by a chamber subject to appeal to the Plenary. The Court should also sit in plenary session to hear appeals from decisions of the Court of First Instance and requests for an opinion pursuant to Article 228(6) of the EC-Treaty. The detailed rules were contained in proposed new articles for the Statutes of the Court. With a few exceptions they were modeled on the existing rules on appeals from decisions of the Court of First Instance, but a system of leave to appeal was added. 30
To the extent that the proposal was meant to remedy the situation that two chambers reach different views on analogous matters - which seems to be the primary concern of the United Kingdom - the introduction of a two-tier system, even if combined with the requirement of a leave to appeal, is certainly a very complicated and time-consuming solution to a problem which all supreme courts with several chambers have to deal with. As more and more cases are assigned to chambers, it becomes a growing responsibility for the Court itself to take the necessary precautions in order to avoid conflicting judgments and the Court can draw on considerable national experiences in this respect.
A look at the advantages mentioned by the United Kingdom in its motivation for the proposal indicates that a further important purpose was the possibility to obtain the review of rulings "which could have a disproportionate impact on individuals and Member States, removing the immediate need for the Member States to adopt corrective legislation or to take actions such as the Barber Protocol" (one of the two protocols to the Maastricht Treaty intended to limit the possible consequences of a specific judgment). However, the Barber-judgment was a preliminary ruling and the concern indicated by the United Kingdom would in particular apply to such rulings. In its Report to the Conference, the Court rightly stated that a two-tier system is unsuited to preliminary references, not only because of the further delays, but also because there are no parties to the case in the normal sense. The new rules for the Statute proposed by the United Kingdom did not solve this difficulty, as the right to request leave to appeal, apart from Member States and Community institutions, was conferred to "any party which has been unsuccessful, in whole or in part, in its submissions" and to "interveners at first instance", notions which have no sense in preliminary cases.
Thus more than one reason spoke against these proposals which were not accepted by the Conference.
The proposed new article on amendment of legislation was meant to be used where an act of the Council is interpreted by the Court of Justice in a way which "does not accord with the Council's legislative policy". The Council should then amend the act to give effect to that policy. The procedures prescribed by the Treaty in relation to the act should be followed with the sole exception that the monopoly of initiative of the Commission was replaced by a right to be consulted before the amendment was adopted. 31 It seems to follow from the wording of the proposed article that both the field of application of the article and the content of the amendment should be left to the discretion of the Council, as long as the amendment could be seen as a reaction to a judgment interpreting the act.
In the relations between, on the one side, the Council and, on the other, the Commission and the Court, such an article would clearly have represented a major change of the constitutional system of checks and balances in the Communities and was not accepted by the Conference.
Another apparently innocent proposal with far-reaching consequences was the proposed Protocol on the application by the Court of the principle of subsidiarity. The proposed protocol began with a fairly obvious statement: "In the exercise of its jurisdiction, the Court of Justice shall always have regard to the principle of subsidiarity". Although the principle of subsidiarity is first and foremost a political principle governing the legislative process and the implementation of Community acts, the place it has been given in the Maastricht Treaty clearly has made it into a general legal principle to which the Court must have regard. But the text of the proposed protocol continued:
"In particular, it shall be presumed that, in the absence of a clear contrary intention, the Community legislator intends to conserve the freedom of the Member States as far as possible. Accordingly, when faced with more than one possible interpretation of provisions of Community law, the Court shall, unless there is a clear contrary intention, prefer the interpretation which least constrains the freedom of the Member States." 32
Had this proposal been accepted, the principle of subsidiarity would have been transformed into the principle of restrictive interpretation, the presumption in favor of the sovereignty of Contracting Parties which for so long haunted international law, but which found no place in the Vienna Convention on the Law of Treaties 33 and which can no longer be considered a general principle of international law. Now to introduce this principle in Community law would have been a retrograde step of prime importance. Fortunately, the proposal was not accepted by the Conference. The last point in the Protocol on the Application of the Principles of Subsidiarity and Proportionality, annexed to the EC-Treaty by the Amsterdam Treaty, simply states that "Compliance with the principle of subsidiarity shall be reviewed in accordance with the rules laid down by the Treaty".
The proposal to amend the Statutes of the Court of Justice in order to introduce an expedited procedure for preliminary references 34 were not adopted either - probably for more practical reasons. The Court is very conscious of the necessity to reduce the delays in this area of its jurisdiction and continuously considers possible measures that may have such an effect. No doubt the Court will take note of the ideas presented by the United Kingdom. Such amendments of the Statutes can be adopted by the Council at the request of the Court pursuant to Article 188(2) of the EC-Treaty and the corresponding articles of the two other Community Treaties.
So, finally, the Conference did not act on any of the proposals in the UK-Memorandum. At least in part this was due not only to the position of other Member States, but also to the change of government in the United Kingdom before the end of the Conference. No doubt the new Labour Government disagreed with many of the proposals. However, they should not simply be dismissed as having lost all importance. They were expressions of the misgivings of a Member State's government in relation to the Court's case law in certain areas. In part these misgivings were shared by some of the other governments and they are reflected in the extremely cautious approach of the Amsterdam Treaty to the extension of the Court's jurisdiction into what remains of the third pillar. This is why I have dealt with them at some length.
The Amsterdam Treaty
The agenda of the Intergovernmental Conference was set in March 1996 by the European Council in Turin. The Court was placed on this agenda in particular in relation to the third pillar and by far the most important amendments concerning the Court to be found in the Amsterdam Treaty are those extending its jurisdiction to matters until now covered by the third pillar.
The Treaty was signed on the second of October 1997. If ratified by all Member States, it will probably enter into force the first of January 1999. Thus, we are still faced with a Draft Treaty.
In the following, the amendments concerning the Court will be examined under the following sub-headings:
Jurisdiction in relation to immigration and asylum policies
Already the Maastricht Treaty introduced provisions in the EC-Treaty (Articles 100c and d) on the adoption of a common list of third countries whose nationals must be in possession of visas when crossing the external borders and on the adoption of a uniform format for visas. Further provisions in this area are left to the intergovernmental cooperation under the third pillar - supplemented by the Schengen Agreement that has only been signed by 13 of the 15 Member States. The Amsterdam Treaty transfers the whole area to the EC-Treaty as a new separate Title IIIa (Articles 73i-73q) which also confers power on the Council to adopt measures in the field of judicial cooperation in civil matters and appropriate measures to encourage and strengthen administrative cooperation in the area. In principle this amendment should submit the area to the normal jurisdiction of the Court under this Treaty, but the new Article 73p contains two limitations. The obligation to request preliminary rulings under Article 177 is maintained for courts and tribunals against whose decisions there is no judicial remedy under national law, but the faculty for other courts and tribunals to do the same is abolished. Paragraph (2) of the article further contains the general provision that the Court shall have no jurisdiction to rule on any measure or decision taken pursuant to Article 73j(1) relating to the maintenance of law and order and the safeguarding of internal security. The provision thus referred to concerns measures with a view to ensuring the absence of any controls on persons when crossing internal borders.
In return for the limitation imposed on references under Article 177, the Treaty offers a new type of reference "in the interest of the law". According to Article 73p(3) the Council, the Commission or a Member State may request a ruling on a question of interpretation of the new Title or of acts of the institutions based on this Title. Such rulings shall not apply to judgments of national courts or tribunals, which have become res judicata.
That this area is sensitive was shown already when Article 100c was introduced in the EC-Treaty by the Treaty of Maastricht. Article 100c(5) states that "This Article shall be without prejudice to the exercise of the responsibilities incumbent upon the Member States with regard to the maintenance of law and order and the safeguarding of internal security". The new Article 73p(2) in fact only transposes the same idea to a situation where such measures may be taken at the Community level.
The limitation imposed on the application by national courts of preliminary references pursuant to Article 177 is more serious. National courts of first instance will have to apply Community law in this area without being able to obtain clarification from the Court of Justice as to its correct interpretation and they will have to apply acts adopted by the Community institutions, even if they consider the validity of such acts to be doubtful. This will result in legal uncertainty and in practice considerably reduce the role as safeguard of individual rights under Community law which preliminary references play in other areas.
Besides, the criterion is not well suited, when it is used to bar access to the Court of Justice. In small claims litigation, courts of first instance may at the same time be the last instance. In such cases the applicant may create an opportunity for the court to refer a preliminary question to the Court of Justice by limiting his or her claim. Ironically enough, the very important ruling in the Costa/E.N.E.L. case, 35 based on a reference from the Giudice Conciliatore in Milan in a case concerning l.925 Italian lires, would still be possible.
If the reason for the limitation were a fear that the Court might be flooded by references from lower national courts, a much better solution would be to introduce a simplified procedure for such references. The provisions of the Statutes and the Rules of Procedure are well suited for the solution of complicated legal problems of general importance. In relation to everyday problems they are already today too cumbersome. It is certainly better to simplify the dialogue between national courts and the Court of Justice than to cut it off altogether.
Fortunately, under Article 73o(2) the Council is empowered to adapt the provisions relating to the powers of the Court after the transitional period of five years. It is to be hoped that a better solution has been found in the meantime.
Jurisdiction in relation to police and judicial cooperation in criminal matters
In the Amsterdam Treaty, Title VI of the Maastricht Treaty is replaced by a new Title with the heading "Provisions on police and judicial cooperation in criminal matters" and containing the remaining part of the third pillar. The most difficult problem relating to the Court that the Conference was asked to solve concerned the extension of judicial control to these provisions. In fact, the Conference did not succeed in resolving the divergent views of the Member States on this point.
In relation to the question of preliminary rulings, the Amsterdam Treaty offers the Member States a panoply of options supplemented by two declarations.
In principle Article K.7(1) introduces a system similar to that of Article 177 of the EC-Treaty, but it only applies to a Member State which accepts this jurisdiction by a declaration at the time of its signing of the Treaty of Amsterdam or any time thereafter. The declaration shall specify whether requests for a preliminary ruling may be made by any of the courts or tribunals of the Member State or only by those against whose decisions there is no remedy under national law. In a general declaration on Article K.7, the Conference notes that Member States, when making the declarations referred to in the Article, may reserve the right to make provisions in their national law requiring the latter courts or tribunals to refer the matters to the Court of Justice.
But even in a Member State which, by a declaration and by its own rules, has opted for a system as near as possible to that of Article 177 of the EC-Treaty, other obstacles remain. The preliminary rulings may concern the validity and interpretation of framework decisions and of decisions, the interpretation of conventions established under the Title and the validity and interpretation of measures implementing them, but not the interpretation of the Treaty provisions themselves. And, according to Article K. 6(2)(b) and (c), both framework decisions and decisions shall not entail direct effect and, thus, can not be directly invoked before a national court. Finally, Article K.7(5) denies the Court any jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement agencies of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. On the other hand, a declaration on Article K.2 states that action in the field of police cooperation under that article, including activities of Europol, shall be subject to appropriate judicial review by the competent national authorities in accordance with rules applicable in each Member State.
It can safely be said that these rules are very far from those that the Court of Justice must have had in mind when, in its Report, it criticized the lack of judicial protection of individuals affected by the activities of the Union within the third pillar. Clearly the rules pay more attention to the interests of the Member States than to those of the individual. It remains to be seen whether they are able to function in practice. It depends not only on the Member States, but also on the attitude of their courts which may well respect rulings based on references from courts in other Member States, although they themselves are barred from requesting such rulings, and which may use Community acts without direct effect as decisive elements of interpretation in relation to national implementing measures. However, one of the advantages of the system provided for in Article 177 is its relative simplicity. The complexity of the new system may in itself become an impediment to its application.
Article K.7(6) introduces an action for annulment in relation to framework decisions and decisions. The rules are similar to those of Article 173 of the EC-Treaty, but actions may be brought only by a Member State or the Commission.
Finally, Article K.7(7) provides that the Court shall have jurisdiction to rule on any disputes between Member States regarding the interpretation or the application of acts adopted under Article K.6(2). This expression must include common positions, framework decisions, decisions, conventions and acts implementing conventions. However, such disputes must first be referred to the Council, which has six months within which to obtain a political settlement.
Moreover, the Court shall have jurisdiction to rule on any disputes between Member States and the Commission regarding the interpretation or the application of conventions. Here, the Conference has introduced two new actions to which there are no precedents in the EC-Treaty.
The Schengen Protocol
The purpose of this Protocol is to integrate the Schengen agreements and the decisions taken under these agreements (the so-called "Schengen acquis") into the framework of the European Union. Between the Contracting Parties to the agreements, the Schengen acquis covers both matters under the remaining third pillar and matters which the Amsterdam Treaty transfers to the EC-Treaty. Thus, the Schengen acquis has to be "split in two". Article 2(1) of the Schengen Protocol empowers the Council to determine, in conformity with the relevant provisions of the Treaties, the legal basis for each of the provisions or decisions that constitute the acquis. As long as this has not been done, the Schengen acquis shall be regarded as acts based on the new Title VI of the Amsterdam Treaty.
With regard to the provisions and decisions constituting the acquis, the Court shall - in accordance with the determination made by the Council - exercise its powers under the relevant applicable provisions of the Treaties. But, once again, it is stressed that the Court shall have no jurisdiction on measures or decisions relating to the maintenance of law and order and the safeguarding of internal security.
In relation to the jurisdiction of the Court, these rules seem to be logical consequences of the new system and not to raise any distinct problem.
Flexibility
During the public debate preceding the Conference, the notion of "flexibility" was often used - by some as a means to "opt out" of parts of the Treaty obligations, by others as a way to establish a closer cooperation between some of the Member States only, but nevertheless using the institutions, procedures and mechanisms of the Treaties. Apart from the specific rule in Article J.13(1) on abstentions of Member States under the second pillar, the Amsterdam Treaty only introduces provisions concerning the latter of these possibilities and submits such closer cooperation to very strict conditions. To this end a new Title VIa with the heading "Provisions on closer cooperation" and consisting of Articles K.15 to K.17 has been inserted in the Maastricht Treaty. These provisions are supplemented by a new Article 5a in the EC-Treaty and by Article K.12 in Title VI on police and judicial cooperation in criminal matters, both Articles containing further provisions for closer cooperation within the area of the EC-Treaty and the said Title respectively.
The provisions concerning the jurisdiction of the Court - Article 5a(4) and Article K.12(4) - are relatively simple. In relation to closer cooperation within the area of the European Community, the rules of jurisdiction in the EC-Treaty apply. In relation to closer cooperation concerning police and judicial cooperation in criminal matters, Article K.7 applies. However, the procedures and decisions concerning the establishment of or accession to closer cooperation are, in any event, judicially controlled in accordance with the rules of the EC-Treaty.
Fundamental Rights
It must call for general approval that the Conference, in an amendment to Article L of the Maastricht Treaty, has proposed explicitly to extend the Court's jurisdiction, with regard to actions of the institutions, to Article F(2) concerning the respect for fundamental rights. As this article is one of the common provisions of the Treaty on European Union, the extension also concerns actions within the remaining third pillar to the extent that the Court has jurisdiction pursuant to Articles K.7 and K.12. However, the amount of obstacles that these articles put in the individual's way to the Court may make the extension rather illusory.
The proposed Article F(l) states that "the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States". A new Article F.1 empowers the Council to take action in case of a serious and persistent breach by a Member State of the principles mentioned in Article F(1), but no jurisdiction is given to the Court with regard to such action.
However, according to the proposed new Article 236 of the EC-Treaty and similar articles in the two other Community Treaties, a decision to suspend voting rights of a Member State pursuant to Article F.1(2) will suspend these voting rights also with regard to these Treaties. Moreover, the Council may decide to suspend certain other rights deriving from the application of the Community Treaties to the State in question. The jurisdiction of the Court in relation to these Articles has not been excluded by the revised Article L. Thus, in relation to actions taken under Article F.1, the Court is competent as far as the action has effects within the Communities, but not with regard to the effects in other areas of the Union. This problem seems to have escaped the attention of the Conference.
Other Amendments
Proposed amendments to Article 173, third paragraph, of the EC-Treaty and to the corresponding articles of the two of the Community Treaties, confer standing to sue on the Court of Auditors under the same conditions as those applicable to the European Parliament and the European Central Bank.
A new Article 7d introduces a curious provision in the EC-Treaty, requiring the Community and the Member States to take care that services of general economic interest operate on the basis of principles and conditions which enable them to fulfil their missions. The Article itself provides that this must be done "without prejudice to Articles 77, 90 and 92". Nevertheless, it has been found necessary to annex a Declaration, according to which the Article shall be implemented "with full respect for the jurisprudence of the Court of Justice, inter alia as regards the principles of equality of treatment, quality and continuity of such services". Both the Article and the Declaration reflects the ongoing confrontation between liberalist States and States where public services used to be synonymous with public undertakings. It seems doubtful what impact, if any, such an amendment will have on the case law of the Community Courts.
General assessment of the Amsterdam Treaty's amendments to the rules on the Court of Justice
It is gratifying to see that none of the many ideas, intended to limit access to the Court or to restrict the Court's powers, which had been voiced in the public debate or proposed officially, passed the Conference. However, it is disquieting that the faculty for national courts of first instance to request preliminary rulings is excluded within the new Title IIIa of the EC-Treaty. Fortunately the Council is empowered to adapt the provisions relating to the powers of the Court in this area when experiences have been gained during the transitional period of five years. The problem is of great importance for the effective protection of the rights of the individual persons affected by the provisions in this Title. For practical and economic reasons the decision of a court of first instance will, to them, often mean the final decision.
It is important that the establishment of a closer cooperation between some Member States does not permit them to escape from the rules of jurisdiction applicable in the area in question and that decisions on establishment of and accession to such closer cooperation are subject to the rules of jurisdiction of the EC-Treaty.
The extension of the Court's jurisdiction to areas outside the Community Treaties is certainly an achievement and it is important that this amendment also applies to conventions, where the question until now has created great difficulties. However, the mere complexity of the provisions and the many limitations of access to the Court greatly reduce its practical importance. On the other hand, the system is sufficiently flexible to permit the Member States and their courts to remedy some of the deficiencies.
All in all and seen in the perspective of a gradual development of the judicial system of the Union, the rules of the Draft Treaty concerning the jurisdiction of the Community Courts appear to constitute an acceptable result of considerable efforts on the part of the Conference.
But the fact, that the wish of some Member States to partly close the backdoor access to the Court of Justice for private litigants has been reflected in some of the amendments in a way which limits the judicial protection of individual rights, constitutes a warning for the future.
Notes
*: This essay is based on a paper delivered at a conference at Fordham Law School, New York, 26 February 1998. Back.
Note 1: Treaty establishing the European Economic Community (in the following called the EEC-Treaty) and Treaty establishing the European Atomic Energy Community, both signed in Rome 25 March 1957 and entered into force 1 January 1958, as well as Treaty establishing the European Coal and Steel Community, signed in Paris 18 April 1951 and entered into force 25 July 1952. Back.
Note 2: Signed 17 and 28 February 1986 and entered into force 1 July 1987. Back.
Note 3: Official Journal of the European Communities, No. L 318, 28 November 1974. Back.
Note 4: When both courts are concerned, I shall in the following refer to "the (judicial) Institution" or simply to "the (Community) Courts". When only the Court of Justice is concerned, I shall often use the term "the Court" in singular. Back.
Note 5: Treaty on European Union signed in Maastricht 7 February 1992 and entered into force 1 November 1993. This Treaty contains a number of new Articles partly of a general character (Title I and Title VII), partly introducing the two so-called "new pillars" (Title V "Provisions on a common foreign and security policy" and Title VI "Provisions on cooperation in the fields of justice and home affairs"). Titles II-IV contain amendments to the three Community Treaties, now considered to form the "first pillar". To distinguish the new rules in Titles I and V-VII from the Community Treaties, their articles are indicated by letters instead of numbers. Back.
Note 6: One amendment to the EEC-Treaty removed the word "Economic". Therefore, this Treaty as amended by the Maastricht Treaty is in the following called the EC-Treaty. Back.
Note 7: Article L of the Maastricht Treaty. Back.
Note 8: Protocol (No. 2) concerning Article 119 of the Treaty establishing the European Community and Protocol (No. 17) annexed to the Treaty on European Union and to the Treaties establishing the European Communities, nicknamed "the Barber-Protocol" and "the Grogan-Protocol" respectively — after the judgments having motivated the protocols. The Barber-judgment stated that occupational pension schemes were covered by Article 119 on equal pay for men and women and the Grogan-judgment qualified abortion, prohibited by the Irish Constitution, as "services" under Community law. Back.
Note 9: See weekly bulletin on the activities of the Court and the Court of First Instance No. 15/95. Also the Court of First Instance made a contribution which, however, is of less interest to the topic of this paper. Back.
Note 10: Draft Treaty amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts, signed in Amsterdam 2 October 1997. Back.
Note 11: Point 16 of the Report. Back.
Note 12: Point 17 of the Report. Back.
Note 13: Judgment of 18 April 1994, Van de Hurk, case 9/1993/404/482, published as A 288. The case concerned a Dutch administrative tribunal the decisions of which could, in principle, be set aside by the Dutch government. Back.
Note 14: Point 4 of the Report. Back.
Note 15: Point 5 of the Report. Back.
Note 16: See, for example, case 106/77, Simmenthal, [1978] ECR 629, on the exclusive jurisdiction of the Italian Constitutional Court to review the validity of Italian statues. Back.
Note 17: See, for example, case 314/85, Foto-Frost, [1987] ECR 4199, in which the Court stated that a national court can not declare a Community act invalid. Back.
Note 18: Point 11 of the Report. Back.
Note 19: Point 4 of the Report. Back.
Note 20: Case 43/75, [1976] ECR 455, where the Court acknowledged the direct effect of Article 119 of the EC-Treaty on equal pay for men and women. Back.
Note 21: Joined cases C-6/90 and C-9/90, [1991] ECR I-5357, on the liability of Member States failing to implement a directive. Back.
Note 22: Case C-208/90, [1991] ECR I-4269, on the applicability of national procedural time limits. Back.
Note 23: Joined cases C-46/93 and C-48/93, [1996] ECR I-1029, on the liability of Member States for other infringements of Community law that the failure to implement directives. Back.
Note 24: Joined cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94, [1996] ECR I-4845, on the general conditions of the liability of Member States. Back.
Note 25: Annex A to the Memorandum. Back.
Note 26: Case 33/76, [1976] ECR 1989, in which the Court stated that actions intended to protect rights which Community law confers on citizens can not be treated under conditions that are less favorable than those relating to similar actions of a domestic nature or which make it impossible in practice to exercise these rights. Back.
Note 27: Annex B to the Memorandum. Back.
Note 29: Annex C to the Memorandum. Back.
Note 30: Annex D to the Memorandum. Back.
Note 31: Annex F and annex G to the Memorandum. Back.
Note 32: Annex H to the Memorandum. Back.
Note 33: Convention on the Law of Treaties, signed in Vienna 23 May 1969. Back.
Note 34: Annex E to the Memorandum. Back.
Note 35: Case 6/64, [1964] ECR 1141. Back.
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