PAPERS FROM THE COLLOQUIUM ON THE JUDICIAL ARCHITECTURE OF THE EUROPEAN UNION 15 NOVEMBER 2004 CONTENT Address by the President of the Court of Justice .................................................................................... 3 Topic 1 : “The role of the Court of Justice, Court of First Instance and specialised tribunals in the long- term” ........................................................................................................................................................ 9 Prof Koen Lenaerts .......................................................................................................................... 10 Michel Petite..................................................................................................................................... 17 Ingolf Pernice ................................................................................................................................... 20 James Flynn, QC.............................................................................................................................. 26 Topic 2 : “What do the national judges and parties in the national courts require of the European Courts in order to enforce Community law effectively, and where are these needs not being met?”... 29 Leif Sevón......................................................................................................................................... 30 The Hon Ms. Justice Mary Finlay Geoghegan................................................................................. 33 Berend Jan Drijber ........................................................................................................................... 35 Address by the President of the Court of First Instance........................................................................ 37 Topic 3 : “What do the parties to direct actions require of the Community Courts, and where are these needs not being met?”........................................................................................................................... 42 Anthony Arnull .................................................................................................................................. 43 Georg Berrisch ................................................................................................................................. 49 Alexander von Mühlendahl............................................................................................................... 54 Nicholas Forwood............................................................................................................................. 57 Topic 4 : “Practical and political constraints on the functioning of the Courts”...................................... 59 Giorgio Maganza .............................................................................................................................. 60 General Paper ....................................................................................................................................... 61 Francis Jacobs ................................................................................................................................. 62 Participants List ..................................................................................................................................... 70 Colloquium on the Judicial Architecture of the European Union 15 November 2004 - 2 - ADDRESS BY THE PRESIDENT OF THE COURT OF JUSTICE Vassilios SKOURIS THE EUROPEAN COURT OF JUSTICE AFTER ENLARGEMENT: Current trends and future challenges A) INTRODUCTION First of all, I would like to thank the Council of the Bars and Law Societies of the European Union for their kind invitation to participate in this colloquium and deliver an address before such a distinguished audience. We are here today to discuss the future of the judicial architecture of the European Union, a subject which is of particular interest after the recent enlargement and in view of the future entry into force of the European Constitution signed last week in Rome. My intervention today simply being an opening address, I do not wish to enter into details. Therefore, I opted for a more general presentation of the Court’s current state of affairs as regards its internal organisation and working methods, in order to provide a reference point for our discussions. As some of you may already know, during the last 18 months, the European Court of Justice has undergone a number of very significant changes and has been preparing to face some of the greatest challenges in its 52-year history. These changes came mainly as a result of three events: first, the entry into force of the Treaty of Nice and the amendments it introduced to the Statute of the Court, second, the enlargement of the European Union and, third, the decision, by the Court itself, to adopt certain measures that would improve the efficiency of its working methods. Hence, I considered it useful to devote the main part of my presentation to these developments in order to point out the context in which the Court is facing the reality of an enlarged Europe and the perspective of the entry into force of the European Constitution. B) THE INNOVATIONS INTRODUCED BY THE TREATY OF NICE Allow me to start with the Treaty of Nice, which entered into force on the 1st of February 2003. The Treaty of Nice was characterised by three key innovations with regard to the organisation and internal functioning of the Court. The first one was the introduction of the Grand Chamber. Comprised of 13 judges [(the President of the Court, the 3 Presidents of the Chambers of 5 judges and 9 other judges (by rotation)] the Grand Chamber is now essentially the formation that hears the cases that are considered most important. Following the enlargement, the Full Court, now composed of up to 25 judges, will most probably sit on rare occasions, although that still remains to be seen. In that respect, one has to take into account that the Court has been developing its case-law for approximately 52 years. Consequently, legal issues likely to justify a formation of 25 judges will not be occurring very frequently. The second major innovation introduced by the Nice Treaty was the election of the Presidents of the Chambers of 5 judges for 3 years. In addition, the Presidents of the Chambers of 5 judges necessarily sit, along with the President of the Court, on all the cases brought before the Grand Chamber and on all the cases pending before their respective Chambers. The period of time for which they are elected and the number of cases they sit on confer on the Presidents of these Chambers a very important institutional role within the Court, especially with regard to the coherence and uniformity of the case- law. The third innovation of the Treaty of Nice I would like to discuss today concerns the role of the Advocate General. As you probably know, although the Treaty of Nice maintained the principle “one judge per Member State”, it did not provide for an increase in the number of Advocates General. Therefore, notwithstanding the enlargement of the European Union, there are still only 8 Advocates General serving at the Court. Taking into account that the recent enlargement will eventually lead to a surge of incoming cases, there was a risk of considerable procedural delays due to a potential dramatic increase of the Advocates’ General workload. For that reason, the Treaty of Nice introduced for the first time the possibility for the Court to render judgments without an opinion from the Advocate General on cases where no new points of law are raised. If one also considers the well-established practice of responding to certain requests for a preliminary ruling by way of a simple order (and therefore without an opinion by the Advocate General), one cannot help but notice an important change in the institutional role of the Advocate general. Regardless of how these possibilities will be applied in practice, one can safely predict that Advocates General will be presenting opinions on less cases and, consequently, will concentrate on the more important cases brought before the Court. C) THE ENLARGEMENT OF THE EUROPEAN UNION: preparatory measures related to the linguistic aspects The Treaty of Nice amendments concerning the Court were of course introduced in view of the enlargement of the European Union. However, it was clear to us from the outset that these innovations would not be sufficient in order to deal with all the consequences of the enlargement. Therefore, the different divisions of the Court started preparing for it as early as 2 years before the 1st of May 2004. Presenting to you all the measures taken by the Court in view of the enlargement would certainly be superfluous for the purposes of our discussion. Hence, I will focus on the linguistic aspects which I believe are of particular importance. Pursuant to the enlargement, it is now possible to bring proceedings before the Court in 20 languages. All judgments and opinions of Advocates General must be translated in all 20 languages. It is apparent that managing this multilingualism is not a simple task especially since it entails the risk of procedural delays. The Court has devoted considerable thought to this problem and it has taken a number of measures destined to limit delays due to translation. To be more precise: ¾ Lawyer-linguists from the Court’s translation service have started taking intensive language courses in the 9 new languages