The European Union’s court system, profoundly reformed by Nice Treaty, will again be subject to some changes under the Lisbon Treaty, which comes into effect on 1 December. The main difference will be to the Court of Justice’s remit ⁽¹⁾.

STRUCTURE

The Lisbon Treaty clarifies the terminology that should be applied to each court: the institution comprising the Court of Justice (which will no longer be called the Court of Justice of the European Communities), the tribunal (which replaces the term ‘tribunal of first instance’) and the specialised tribunals (a name that takes the place of ‘judicial chambers’) will now take the name ‘Court of Justice of the Union’. The specialised tribunals are henceforth created according to ordinary legislative procedure (which is to say by joint decision by qualified majority) and no longer by unanimity as before. The treaty also provides for a consultative committee to be put in place made up of seven qualified people, which would give opinions on the designation of judges and advocates-general for the Court of Justice and the tribunal, which in turn would continue to be designated by common agreement by the member states’ governments. Following a request by Poland, which would like to have a permanent advocate-general similarly to the other five ‘big’ member states, the number of these positions will rise from eight to eleven. The other advocates-general will be designated according to a fair rotation through the ‘small’ countries.

COMPETENCES

With the end of the ‘pillar’ structure, the powers of the Court of Justice are extended to European Union law, at least the treaties do not make provisions otherwise. That means that it will have the power of common law in areas such as visas, asylum, immigration and other policies linked to the movement of people. It will also be able to bring matters before all national courts and no longer only before high courts. It will also from now on be able to declare measures in the public order in terms of cross-border controls. It will also gain a general preliminary power in the area of justice and home affairs and all jurisdictions can refer cases to the Court of Justice. The transitional provisions, however, only allow for this to apply five years after the Lisbon Treaty comes into force.

In terms of the Common Foreign and Security Policy (CFSP), its powers remain limited. The court can only make judgements on appeals concerning the legality of decisions that sanction restrictive measures adopted by the Council against natural or legal persons (such as measures to freeze assets) and those about the control and limitation of the Union’s powers and the CFSP, whose coming into effect must not affect the Union or its institutions’ ability to exercise their exclusive and shared powers.

Recognising the legal limitations to the Charter of Fundamental Rights (with the exception of the United Kingdom, Poland and next the Czech Republic), the court’s powers on fundamental human rights and liberties were increased.

The Court of Justice will now be able to rule on the legality of the European Council’s actions, under the Lisbon Treaty, as a separate and whole institution, if a member state identifies a clear risk of a serious violation of certain values (respect for human dignity, human rights, etc). The institution also has it within its powers to make judgements on appeals from the Court of Auditors, the European Central Bank, the Committee of the Regions, which safeguard their prerogatives, as well as on acts by the organs and the organisations of the Union that are intended to have a legal effect.

The court will also hear appeals for failures to respect the principle of subsidiarity from national parliaments (via the intermediary of their government) or the Committee of the Regions, within the limitation of the acts upon which consultation is required.

The Lisbon Treaty accelerates the mechanism for pecuniary penalties (flat or variable fines) in the event of non-compliance with a judgement establishing a failure to fulfil obligations. It also enables the Court of Justice, if the Commission requests it, to act against a state from the first stage at which they fail to meet these obligations to carry out measures and transpose directives into national law.

The access of individuals (natural and legal persons) to the Court of Justice is made more flexible: they can bring an appeal against a regulatory act if they are directly affected by it and if it does not entail implementing measures. This means individuals will no longer have to show that they are individually concerned by the act in question.

A provision is introduced by the treaty referring to the urgent preliminary procedure, in which the Court of Justice must act with the minimum of delay if a question referred for a preliminary ruling is raised in a case pending before any court or tribunal of a member state with regard to a person in custody.

Finally, at the end of the five-year period, the Commission will be able to bring to the court actions for failure to meet obligations in relation to measures concerning police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Lisbon Treaty.

With the end of the ‘pillar’ structure, the powers of the Court of Justice are extended to European Union law, at least the treaties do not make provisions otherwise
⁽¹⁾ The Lisbon Treaty is available at europa.eu/lisbon_treaty/full_text/index_en.htm