THE
FUNCTIONING
OF
THE
COURT
OF
FIRST
INSTANCE
18. The CFI consists
of 15 Judges appointed by the Member States for renewable terms
of six years. Under the Treaties, each Judge must "possess
the ability required for appointment to judicial office".[6]
The Treaties do not say anything about the nationality of the
Judges, but in practice there is one Judge from each Member State.
The Judges elect a President from among their number for a term
of three years with responsibility for directing the judicial
business and the administration of the CFI. Every Judge is assisted
by two Law Clerks (commonly known as référendaires
or legal secretaries), qualified lawyers who provide help with
research and drafting. In each case, one of the Judges will be
designated to act as Rapporteur, with responsibility for preparing
the case. Once the written pleadings have been lodged, the JudgeRapporteur
presents a report to the other Judges containing recommendations
as to the future management of the case. He will draft the Report
for the Hearing, which summarises the facts and the arguments
of the parties, and the judgment itself. Unlike the Court of Justice,
the CFI is not assisted by Advocates General on a permanent basis.
However, each Judge (with the exception of the President) may
be called upon to perform the function of Advocate General in
difficult or complex cases. In practice, this is rarely done.
19. Like the Court of
Justice, the CFI delivers a single collegiate judgment signed
by the Judges who took part in the deliberations. There are no
dissenting judgments. Although the Rules of Procedure of the CFI
sometimes provide for certain steps to be taken by a Judge (normally
the President) acting alone, the steps in question nearly always
constitute measures of internal organisation, such as the designation
of the JudgeRapporteur or an Advocate General. There are,
however, some situations in which the President is permitted to
take decisions involving a limited substantive appraisal of the
merits. Examples are applications for interim measures and applications
to intervene made by prospective interveners who are not Member
States or Community institutions.[7]
It may also be noted that the task of undertaking certain procedural
steps[8]
may be assigned to the JudgeRapporteur.
20. The CFI is permitted
to sit in plenary session where "the legal difficulty or
the importance of the case or special circumstances so justify".[9]
In such circumstances, the CFI must be assisted by an Advocate
General. The possibility of dealing with a case in plenary session
is used by the CFI relatively rarely. In practice, it normally
sits in Chambers of three or five Judges. There are currently
five Chambers of three Judges and five Chambers of five Judges
(known as chambres élargies or Chambers with extended
composition), the membership of which overlaps. The CFI enjoys
considerable flexibility in determining the basis on which cases
are allocated among its Chambers. The present position is that
cases concerning State aid and trade protection measures are assigned
to Chambers of five Judges, while all other cases are assigned
to Chambers of three Judges.[10]
21. A party is not permitted
to ask for a change in the composition of the CFI or of any of
its Chambers on the grounds of either the nationality of a Judge
or the absence of a Judge of the nationality of that party. However,
a case may be referred to a Chamber composed of a different number
of Judges whenever the legal difficulty or importance of the case
or special circumstances so justify. These conditions are the
same as those applicable to reference of a case to the CFI sitting
in plenary session. A case must be maintained before, or referred
to, a Chamber of five Judges where a Member State or a Community
institution which is a party to the proceedings so requests.[11]
That rule echoes the third paragraph of Article 165 of the EC
Treaty, which requires the Court of Justice to sit in plenary
session "when a Member State or a Community institution that
is a party to the proceedings so requests".
22. The language of
proceedings before the CFI is chosen by the applicant from a list
of twelve procedural languages set out in the Rules of Procedure.
The language of the case must be used in the parties' written
and oral pleadings and in supporting documents. It is the text
of the judgment drawn up in that language which is authentic.
However, a Member State is entitled when intervening to use its
official language and the use of a procedural language other than
the language of the case may be authorised in certain circumstances.
As a matter of practice, the CFI generally uses French as its
internal working language. This means that, whatever the language
of the case, pleadings will normally be translated into French.
Moreover, it is in that language that the draft of the judgment
will usually be produced.
23. Like the Court of
Justice, the CFI is permanently in session. Its judicial vacations
run from 18 December to 10 January, from the Sunday before Easter
to the second Sunday after Easter, and from 15 July to 15 September.[12]
During vacations, the functions of President are exercised either
by the President himself or by a President of Chamber or another
Judge. In cases of urgency, the President has the power to convene
the Judges during vacations.
THE
SINGLE
JUDGE
PROPOSAL
24. In February 1997,
the Court of Justice submitted to the Council a draft decision
to enable the CFI to give decisions when constituted by a single
Judge. The Treaties require the Council to consult the European
Parliament and the Commission before giving effect to the Court's
draft. The Council must act unanimously. In order to allow sufficient
flexibility, the Court envisaged that the detailed arrangements
for assigning cases to a single Judge would be left to the Rules
of Procedure of the CFI. The Court's draft decision was therefore
accompanied by a series of proposed amendments to the Rules of
Procedure drawn up by the CFI with the agreement of the Court.
Under the Treaties, these require the unanimous approval of the
Council in order to take effect, but the Council does not need
to consult any of the other institutions.
25. The proposal has
undergone some significant changes since it was originally submitted
to the Council. Under the latest version brought to the attention
of the Committee, all cases would continue to be assigned to a
Chamber. However, a Chamber composed of three Judges would be
empowered to delegate certain cases assigned to it to a single
Judge where, "owing to the lack of difficulty of the questions
of law or fact raised, of [the] importance of those cases and
of other special circumstances, they are suitable for being so
heard and determined ...". In addition, annulment actions,
actions for failure to act and actions for damages could only
be delegated to a single Judge where they either (a) "do
not raise questions not clarified by established caselaw",
or (b) "form part of a series of cases in which the same
relief is sought and of which one has already been finally decided".
The decision whether or not to delegate would be taken on a casebycase
basis by the Chamber concerned following receipt of a proposal
from the JudgeRapporteur. A Member State or a Community
institution which was a party to the proceedings would have the
right to prevent delegation to a single Judge. Other parties would
merely have the right to be heard on the matter.
26. Where a decision
to delegate was taken, only the JudgeRapporteur would be
eligible to sit as a single Judge. He would exercise the powers
which would have belonged to the President of the Chamber had
the case been maintained before three Judges. These might include
deciding applications for interim relief. If the case subsequently
turned out to be more difficult than originally thought, the single
Judge would be permitted to refer the case back to the Chamber.
Delegation to a single Judge would be expressly ruled out in cases
raising the legality of an act of general application and cases
concerning the rules on competition, mergers, aid granted by States
and measures to protect trade.
2
See Decision 88/591, adopted under Art. 168a of the EC Treaty,
Art. 32d of the ECSC Treaty and Art. 140a of the Euratom Treaty.
The corrected text of the decision is published at OJ 1989 C 215/1. Back
3
See our 1987 Report, para 88. Back
4
See Reg 4064/89 on the control of concentrations between undertakings,
OJ 1989 L 395/1 (as amended). Back
5
Regulation 40/94, OJ 1994 L 11/1. See also Regulation 2100/94
on Community plant variety rights, OJ 1994 L 227/1. Back
6
By contrast, the members of the Court of Justice must be chosen
from persons who "possess the qualifications required for
appointment to the highest judicial offices in their respective
countries or who are jurisconsults of recognized competence".
(Art. 167 of EC Treaty, Art. 32b of the ECSC Treaty and Art.
139 of the Euratom Treaty) Back
7
And who must furnish a statement of the circumstances establishing
their right to do so. Member States and institutions enjoy an
automatic right to intervene in cases before both the CFI and
the Court of Justice. Back
8
See Arts. 6467 of the Rules of Procedure of the CFI. Back
9
Rules of Procedure, Art. 14. Back
10
See OJ 1997 C 271/14, where the order in which cases are assigned
to particular Chambers is also set out. Back
11
The term "party" in this context is taken to include
interveners. Back
12
Art. 34, Rules of Procedure of the CFI. The CFI also observes
official holidays in Luxembourg, where it has its seat. Back
