Monday, October 25, 2010

The Court of Justice of the European Union (ECJ): The Court of Justice and the General Court plus the Specialized Panels: Getting the Names Right after the Lisbon Treaty

By virtue of the Treaty of Lisbon, the Court of Justice of the European Communities recently changed its name to Court of Justice of the European Union (EU).

Remarkably, as of the last time we looked (22 October 2010), the official EU pages for "the Court" have not been properly edited to reflect all the changes required by the Treaty of Lisbon, which amended the treaties comprising the constitutional framework of the EU. The official EU page currently writes:
"Following the entry into force of a new EU treaty, the content of this page is under revision."
That new treaty, the Treaty of Lisbon, now serves as the constitutional basis of the European Union and its institutions:
"The Constitution changes the name of the Court of Justice. In the future, the term "Court of Justice of the European Union" will officially designate the two levels of jurisdiction taken together. The supreme body is now called the "Court of Justice" while the Court of First Instance of the European Communities is renamed "General Court". Article I-29 states that the Court of Justice of the European Union includes "the European Court of Justice, the General Court and specialised courts"."
As written at the Wikipedia on the European Court of Justice:
"Following the entrance into force of the Treaty of Lisbon on 1 December 2009, the ECJ's official name was changed from the "Court of Justice of the European Communities" to the "Court of Justice" although in English it is still most common to refer to the Court as the European Court of Justice. The Court of First Instance was renamed as the "General Court", and the term "Court of Justice of the European Union" will officially designate the two courts, as along with its specialised tribunals, taken together."
Regarding the General Court (European Union), the Wikipedia writes:
"The General Court (EGC) is a jurisdictional instance of the Court of Justice of the European Union. From its inception on 1 January 1989 to 30 November 2009, it was known as the Court of First Instance (CFI).

The General Court hears disputes (such as disputes brought by those refused a trademark by OHIM, the EU Trade Mark and designs registry). Appeals are sent to the European Court of Justice. The General Court is an independent Court attached to the European Court of Justice.

The creation of the General Court instituted a judicial system based on two levels of jurisdiction: all cases heard at first instance by the General Court may be subject to a right of appeal to the Court of Justice on points of law only....

The General Court (previously known as "the Court of First Instance") is composed of 27 judges, at least one from each Member State, plus a registrar. The Judges are appointed for a renewable term of six years by common accord of the governments of the Member States.

The Members of the General Court elect their President and the Presidents of the Chambers of five Judges from among their number for a renewable period of three years.

There are no permanent Advocates General attached to the General Court (unlike the European Court of Justice which has 8 Advocates General). However, the task of an Advocate General may be performed in a limited number of cases by a Judge nominated to do so. In practice this has been done only very occasionally."
See in this general regard Struan Robertson at OUT-LAW.COM in How often does the ECJ follow Advocates General? Or should that be CJEU?

As to the special panels of the Court, the Wikipedia writes concerning the specialized tribunal, the European Union Civil Service Tribunal:
"The European Union Civil Service Tribunal is a specialised tribunal within the Court of Justice of the European Union. It was established on 2 December 2005.

The Treaty of Nice provides for the creation of judicial panels in certain specific areas. This provision is later amended and codified in Article 257 (‘specialised courts’) of the Treaty on the Functioning of the European Union by the Treaty of Lisbon:[1]
"The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish specialised courts attached to the General Court to hear and determine at first instance certain classes of action or proceeding brought in specific areas. The European Parliament and the Council shall act by means of regulations either on a proposal from the Commission after consultation of the Court of Justice or at the request of the Court of Justice after consultation of the Commission. [...]"
The Council of the European Union on 2 November 2004, adopted on that basis a decision establishing the European Union Civil Service Tribunal.[2] The new specialised court, composed of seven judges, is called upon to adjudicate in disputes between the European Union and its civil service, a jurisdiction until 2005 was exercised by the General Court. Its decisions will be subject to appeal on questions of law only to the General Court and, in exceptional cases, to review by the European Court of Justice.
We reproduce the following text from the EU website on the Treaty of Lisbon:
"The Treaty of Lisbon amends the EU's two core treaties, the Treaty on European Union and the Treaty establishing the European Community. The latter is renamed the Treaty on the Functioning of the European Union. In addition, several Protocols and Declarations are attached to the Treaty.
As written at Consilium - Treaty of Lisbon:
"The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was signed in the Portuguese capital on 13 December 2007 by the representatives of the twenty-seven Member States. It entered into force on 1 December 2009, after being ratified by all the Member States.

The Treaty on European Union includes a provision for the amendment of the Treaties. Article 48 says that any Member State, the European Parliament or the Commission can submit proposals for the amendment of the Treaties to the Council. The Council forwards any such proposals to the European Council, and the national Parliaments are notified. If the European Council agrees to examine the proposed amendments, its President convenes a Convention composed of representatives of the national Parliaments, the Heads of State or Government of the Member States, the European Parliament and the Commission. The Convention examines the proposals for amendment and adopts by consensus a recommendation to an Intergovernmental Conference (IGC), which is convened by the President of the Council. Alternatively and subject to the consent of the European Parliament, the European Council can also decide by a simple majority not to convene a Convention if a Convention is not justified by the extent of the proposed amendments, in which case it is the European Council itself that defines the terms of reference of an IGC, which is then convened by the President of the Council. In any case, an IGC composed of all the Member States is convened (whether preceded by a Convention or not) and any amendment to the Treaties must be ratified by all the Member States in accordance with their own constitutional requirements.

The Lisbon Treaty is the latest of the Treaties which, to date, have amended the Treaties on the basis of which the Communities and the European Union were founded, such as the Single European Act (1986), the Treaty on European Union (Maastricht Treaty) (1992), the Amsterdam Treaty (1997) and the Treaty of Nice (2001)."

Saturday, October 09, 2010

A Europe United by Golf Faces a Host of Political Problems Pointing to a Lack of European Integration

Europe! Europe! Europe! is Roger Cohen's provocative op-ed at the New York Times on European integration in the European Union -- or -- what does golf have that the politics of European integration otherwise lacks?

Hat tip to CaryGEE.

Friday, October 08, 2010

European Union Fair Trial Rights: EU Justice Ministers Approve a Law to Guarantee Translation and Interpretation Rights in Criminal Proceedings in All EU Courts

Several egregious miscarriages of justice have occurred in the past in the European Union (EU) because criminally accused persons have been criminally tried without knowing the language of the accusing EU Member State. A landmark precedential development on fair trial rights in criminal proceedings in the EU is thus in the make to solve this problem.

Viviane Reding, Vice-President of the European Commission, at her EU website on the topic of Justice, Fundamental Rights and Citizenship, writes that the European Union Justice Ministers have approved an EU law which ensures translation and interpretation rights in criminal proceedings in ALL European Union courts, and this includes RECEIVING LEGAL ADVICE:
"EU justice ministers approved a law today that ensures translation and interpretation rights in criminal proceedings, following backing from the European Parliament earlier this year. The law guarantees the right of suspects to obtain interpretation in their own language throughout criminal proceedings in all courts in the EU, including when receiving legal advice. 'This is an important step towards better and stronger justice in Europe,' said Vice-President Viviane Reding, calling on lawmakers to accelerate their work on the Commission’s second measure, the letter of rights, which was proposed in July."
See also Catherine Heard and Daniel Mansell at EUobserver in [Comment] EU starting to wake up to lacking defence rights who discuss the background of issues leading to this law, starting with:
"How do 27 countries, all with their own distinct legal systems, juggle the competing demands of combating cross-border crime while safeguarding the free movement and other fundamental rights of those on their territory? This is the question the EU has been attempting to answer for the last ten years."
See the respective Press Release Fair trial rights: EU Justice Ministers approve law ensuring translation and interpretation rights in criminal proceedings which is abstracted as follows:
"European Union Justice Ministers approved a law that ensures translation and interpretation rights in criminal proceedings. The European Commission and the European Parliament backed the law earlier this year (IP/10/746). It is the first ever EU measure setting common minimum standards for the rights of the defence in criminal matters. The law guarantees the right of suspects to obtain interpretation throughout criminal proceedings, including when receiving legal advice, in their own language in all courts in the EU. This is a long overdue first measure to ensure a fair trial for everyone throughout the entire EU. The law is the first of a series of fair trial measures to set common EU standards in criminal cases. EU Member States now have three years to put the measure into their national laws."
See the Justice and Home Affairs Council Memo Justice and Home Affairs Council: 7-8 October 2010 in Luxembourg which contained inter alia the following text in discussing how and what needs to be done to ensure fair trial rights in the EU:
"1. Ensuring fair trial rights in the EU

Procedural safeguards represent a top priority in the justice area for the next five years. Minimum standards for the rights of defendants in criminal proceedings are indispensable to promote real mutual trust between citizens and the judicial authorities of different Member States, without which mutual recognition may never work properly.

What is expected at this Council? The right to interpretation and translation is expected to enter into force less than a year after first being proposed. The European Parliament backed the Directive in June. (IP/10/746)

The Council is expected to formally adopt legislation to help people exercise their fair trial rights anywhere in the EU when they cannot understand the language of the case.

Commission position: The Commission welcomes the adoption of the Directive, the first step in a series of measures to set common EU standards in criminal cases. The law guarantees the right of suspects to be informed about evidence used and receive legal advice in their own language in criminal proceedings in all courts in the EU. The Commission is keen to ensure that common minimum standards exist in all EU Member States for defendants. These standards should be fully compliant with the Charter of Fundamental Rights and the European Convention on Human Rights.

Meanwhile, the Commission will present its proposal for the right to information in criminal proceedings, which was proposed in July (IP/10/989). The proposal, if adopted by the European Parliament and EU Ministers of Justice, will help to avoid miscarriages of justice and reduce the number of appeals. Authorities prosecuting the case will have to ensure that suspects are given information about their rights. When someone is arrested, they will be given this information in writing – in a Letter of Rights – drafted in simple, everyday language. It will be provided to the suspect upon arrest in all cases, whether he asks for it or not, and translated if necessary.

Background: The Commission has been committed to common EU standards in relation to criminal proceedings for many years and has been working on EU legislation with a step-by-step approach. These measures will allow the Commission to develop a truly common and ambitious EU framework on the level of protection and fair trial rights."

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