Luxembourg, 10/05/2002 (Agence Europe) - In its "Jégo-Quéré" ruling, the Court of First Instance facilitated access by individuals and by companies to European justice (see EUROPE of 6/7e May, p.16), by taking on board part of the conclusions of the Advocate General Francis Jacobs in a case involving the "Union of Pequeños Agricultores" currently before the European Court of Justice. On 21 March, Francis Jacobs had broken with the official argument of a Court that is "close to citizens", which, he said, was not tenable. Pressure from the judicial world - lawyers, national courts and academics - was too strong to continue to deny citizens the right to challenge before justice the acts of the European Commission and Council that they consider illegal. Instead of adhering to the very strict criteria of the Court, Francis Jacobs proposed a more flexible solution. The Court is deliberating on this case. Its ruling is not expected before the autumn.
The Court of First Instance, however, did not wait. Taking the Court by surprise, the Court of First Instance took the defence of European citizens with an eye to the European Convention and a need to assert itself before all else, an initiative to "force the hand of the Court of Justice". The only solution left to a Court of First Instance overloaded with work but which, since its creation in 1989, aspires to recognition denied to it by the Court of Justice. It was in such terms that jurists and circles close to Community jurisdiction made an on-the-spot analysis, trying to understand. All acknowledge the fact that, whatever, the debate on the role and the competences of the Court of First Instance has taken a psychological turn.
It is necessary to go back to the conclusion reached by Francis Jacobs, on 26 April, in the "Union de Pequeños Agricultores" affair, in which Spanish producers challenged a ruling by the Council on olive oil. The time has come to change the Court's case law, explained Advocate General Francis Jacobs. This British Advocate General, who has held his post since 1998 -apparently through personal choice as it confers a certain freedom of spirit upon him- enjoys an excellent reputation at the Court and in European legal circles.
Content of Francis Jacobs' conclusions
Most individuals and companies do not have the practical possibility to challenge the legality of Council or Commission decisions. The Court maintains very strict case law so that only individuals (or companies) that can prove they are in a very specific and identifiable situation may challenge a general regulation of the Community institutions. A difficult condition to fulfil with this anomaly: the more people injured by action taken by the Community institutions, the less chance they have of being able to challenge the matter before the European Court of First Instance.
The case law is complex and unstable and there is increasing discrepancy with the liberal developments of Member States and with the development of human rights. "The Court's fundamental assumption" that an individual is completely protected raised "serious objections". Citizens are, on the contrary, victims of denial of justice in cases where it is difficult or impossible to prove that they are "individually concerned" and when they cannot go before a national court either because the Member State in question has not taken measures to apply the European regulation, and that there is therefore nothing to be attacked before the national courts. (As is the case where the Spanish farmers cannot attack non-existent implementation measures in Spain). National courts do not like denial of justice and could raise resistance.
Francis Jacobs sweeps away any objections that could be made: - the Court's case law has existed for a long while (Ed.: this year, the Court is celebrating its 50th anniversary). Response: this is not a reason for changing it; - the Community legislative process could suffer as a result. Response: it is sufficiently "robust" to stand being controlled by European jurisdictions at the request of a citizen. - The European Court of First Instance will be drowned under the weight of business. Wrong. This was not so in France or England, which ensured that practically all those who are affected by an administrative measure may challenge that measure before a court; - Citizens would place a legislation that the Council was hard put to adopt in danger. Response: in no legal system can reasons of efficiency justify denial of justice. Francis Jacobs concluded: the time has come for a change. There is no need to change the rules of the Treaty. He went on to propose a new definition of what could be an individual or company concerned "individually" by a Community measure: an applicant is individually concerned by a Community measure where the measure has, or is liable to have, a substantial adverse effect on his interests.
The Court generally takes several months to deliberate on a case. Its ruling is not expected before the autumn.
Dramatic turn of events, the CFI takes Court by surprise
On 3 May, whereas nobody at the Court was aware, the CFI organised a public hearing.. It was not scheduled on the Court's agenda and came on a Friday, a day usually without hearings. As soon as the ruling was passed down, the CFI made it public in a press release. It said is wanted "increased protection of the rights of citizens and companies", and broadened the conditions of access for individuals to the Community judge. Observers are unanimous in considering that the CFI was placing itself in a position of defender of the individual against the Court of Justice, regarded as "retrogade" and which, with strict criteria placing itself out of line and did not take account of the Convention on Human Rights and the European Charter of Fundamental Rights.
Jego-Quere ruling
The Jego-Quere case concerned a French ship-owner who disputed the European regulation over gill nets. The European Commission based itself on the case law of the Court of Justice. It called for the ship-owner's appeal to be deemed inadmissible. According to the Court's case law, it consequently claimed that the company Jego-Quere was not individually concerned by the regulation, as the general ban on the use of nets whose mesh is below a certain size applies to all fishermen in the Celtic Sea.
The CFI began by agreeing, as "on the basis of criteria so far enshrined in Community case law", it cannot be otherwise. It then took up the conclusions of Advocate General Jacobs to say that the situation was untenable: the Court's case law, it continued, denies the ship-owner's fundamental rights to have access to justice, as the legislation on gill nets provides for no execution measure by France, that Jego-Quere is disputing before a French court. Whence a denial of justice. Whence a violation of the Charter of Fundamental Rights of Nice and the European Convention on Human Rights. Whence the obligation of the CFI to rule differently. The first chamber, widened to five judges, of the CFI, presided over by Bo Versterdorf, consequently judged that the ship-owner's appeal was admissible as the regulation "certainly and currently affects his legal situation by limiting these rights or imposing obligations".
This case has already led to many comments. The CFI used a "totally unusual" procedure that consists in using the conclusions of an Advocate General of the Court of Justice in a case on which the Court of Justice has not yet ruled. The definition provided by the CFI is too broad. A general regulation necessarily limits rights and imposes obligations on people that it is aimed at. The CFI presented itself as defender of the citizen. The Court's ruling in the "Bequenos Agricultores" case and possibly the Commission's power to annul the Jego-Quere ruling should take account of this. Remains to be seen if the Court of Justice will, as did its Advocate General, consider that the time has come to broaden its case law, and if so, to what extent.
It is worthy of note that some experts felt the Court of First Instance did not have any other solution than that of making its voice heard at a time when the European Convention is manoeuvring to the full. It apparently took advantage of the conclusions of Francis Jacobs to recall that it does have powers which it plans to keep, and that it has an urgent need for judges and for additional staff.
In the Jégo-Quéré case, the judge-rapporteur was the new French judge, former Registrar at the Court, Hubert Légal. In this enlarged Chamber there is also Nicholas Forwood, former lawyer member of the European Bar Council, who, before joining the Court of First Instance, and therefore still in his capacity as lawyer, had already spoken very badly of the Court's current case law (see EUROPE of 23 November 1999 and 15 February 2001).