The Court of Justice in the Draft Constitution
| Published date | 01 June 2004 |
| Author | René Barents |
| DOI | 10.1177/1023263X0401100202 |
| Date | 01 June 2004 |
| Subject Matter | Article |
René Barents*
11 MJ 2 (2004) 121
The Court of Justice in the Draft Constitution
Summary
This article provides an overview of the provisions concerning the Court of
Justice1 and the Court of First Instance2 in the draft Treaty establishing a
Constitution for Europe.3 This overview compares these provisions with those of
the negotiations in the framework of the European Convention and the ‘travaux
préparatoires’ of the Constitution. The documents of the Convention referred to
in the footnotes can be consulted at the Convention’s website.5
§ 1. The Court of Justice in the European Convention
A. THE WORKING GROUPS
During the ‘listening phase’ of the Convention (February-July 2002), the plenary
debates were mainly concentrated on the various issues set out in the Laeken
Declaration on the Future of the European Union of the European Council of 14-15
December 2001.6 To provide background to these debates, the Praesidum of the
Convention established a number of working groups. In four of these working groups
several aspects of the jurisdiction of the Court of Justice under the future Constitution
were examined. One of the questions treated by Working Group I, on the principle of
* Head of unit, Research and Documentation, Court of Justice EC; Professor of European Law,
University of Maastricht. The opinions expressed in this article are strictly personal.
1. In order to avoid confusion, in this article ‘Court of Justice’ refers to the institution, ‘CJ’ to the Court
of Justice as a judicial body and ‘CFI’ to the Court of First Instance.
2. Articles I-28, III-209, III-227(12), III-258 to III-289 and IV-3.
3. [2003] O.J. C169.
4. Consolidated version in [2002] O.J. C325/1.
5. .
6. Annex 1. um/documents/offtext/doc15201_eng.htm>.
The Court of Justice in the Draft Constitution
122 11 MJ 2 (2004)
subsidiarity, was whether the Court of Justice should be declared competent to hear
actions brought by the Committee of the Regions, national parliaments and regional
authorities for alleged violations of the subsidiarity principle by the Union’s legislative
institutions.7 In Working Group II, on the incorporation of the Charter of Fundamental
Rights into the Constitution, the conditions for the admissibility of actions for
annulment brought by individual persons (Article 230, 4th paragraph EC) were
examined.8 Working Group III, on the legal personality of the Union, made some
recommendations with respect to the control by the Court of Justice of international
agreements concluded by the Union.9 The jurisdiction of the Court of Justice with
respect to matters falling under the present provisions on the area of freedom, security
and justice, was discussed by Working Group X.10 These issues will be dealt with
below.
B. THE FIRST DEBATES OF THE CONVENTION ON THE COURT OF JUSTICE
During the plenary debates of the Convention on the institutional structure of the Union,
little attention was paid to the judicial system of the Union in general and to the
composition, powers and jurisdiction of the Court of Justice in particular. This is hardly
surprising. The general pattern of intergovernmental conferences on the revision of the
European Treaties is that negotiations on institutional issues are mainly concentrated on
the composition and powers of the policy making institutions. It is well known that
during the conferences leading to the Single European Act, the Treaty of Maastricht and
the Treaty of Amsterdam, the issues relating to the judicial system of the EC and the
Union were largely treated ‘en marge’.
The first specific reference to the Court of Justice in the ‘travaux préparatoires’ of the
Convention can be found in the ‘skeleton’ of the future treaty, which the Praesidium
presented on 28 October 2002,11 in which it was announced that an article of the future
Constitution (now Part I) would relate to the basic provisions on the composition and
jurisdiction of the Court of Justice. During the preliminary debates of the Convention of
5 and 6 December 2002 and 20 and 21 January 2003 on the institutional structure of the
Union, only a few members made some observations on the Court of Justice,12 in spite
Æ
7. Final Report of WG I: CONV 286/02 (23 September 2003).
8. Final Report of WG II: CONV 354/02 (22 October 2002).
9. Final Report of WG III: CONV 305/02 (1 October 2002).
10. Final report of WG X: CONV 426/02 (2 December 2002).
11. CONV 369/02. See also the draft constitutions presented by Duff (CONV 234/02 of 3 September
2002); Badinter (CONV 317/02 of 30 September 2002); Brok (CONV 325/1/02 REV of 6 October
2002); Paciotti (CONV 335/02 of 10 October 2002); Hain (CONV 345/1/02 REV 1 of 18 October
2002) and Borrell (CONV 394/02 of 12 November 2002) as well as the so-called ‘Pénélopé’ document
of the President of the Commission and two of its members (Feasibility Study – Contribution to a
preliminary draft – Constitution of the European Union – Working document ).
12. See the verbatim reports of the plenary sessions of the Convention of 20-21 January 2003, n° 1.109
(Hain, UK), n° 1.033 (Lord MacLennen of Rogart, UK), n° 1.050 (Hübner, PL), n° 1.054 (Attalididis,
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