A COMPARISON BETWEEN THE EUROPEAN COURT OF JUSTICE
AND THE COURT OF FIRST INSTANCE

Jean-Jacques KRESS
European Patent Attorney

GENERAL ASPECTS

The European Court of Justice is the judicial institution of the European Communities. Its essential task is to ensure that the legal Acts and laws produced by the Communities are respected, understood and uniformly applied in all the Member States. It also allows the validity of community Acts, provisions, decisions and measures to be challenged.

The European Court of Justice, which resides in Luxembourg, is comprised of two main bodies, the Court of Justice of the European Communities (in short CJ) and the Court of First Instance of the European Communities (in short CFI). The CFI is an independent Court attached to the CJ and constitutes with the latter a two levelled judicial system. Several specialised judicial panels attached to the CFI and handling cases in specific areas are foreseen. One of them has already been established, namely the European Union Civil Service Tribunal.

The CJ was established in 1952 as the European Coal and Steel Community Court and became the Court of Justice of the European Communities in 1957. The CFI was established in 1989, particularly in order to assist the CJ with its workload.

The Treaty establishing the European Community, the Treaty establishing the European Atomic Energy Community, the Treaty of Amsterdam and the Treaty of Nice are the fundamental establishing Treaties of both Courts. Attached to these Treaties is the Protocol on the Statute of the Court of Justice (for both CJ and CFI).

In general, the provisions of the Treaties relating to the CJ do also apply to the CFI, unless the Statute provides otherwise.

Each of the CJ and of the CFI has its own Rules of Procedure, which they establish and amend themselves, although upon approval of the Council.

The Rules of Procedure of both Courts are widely similar, even for large parts literally identical, except for provisions resulting from the specific organisation of each Court or related to specific actions or procedures reserved to one of the two Courts.

This procedural similarity is not surprising, as the general outlines of procedure for both Courts are laid down by the same Articles of the Statute.


RESPECTIVE COMPOSITIONS / ORGANISATIONS OF THE COURTS

Both Courts consist each of 25 Judges, whose appointments, terms of Office and immunities are identical, their requirements being similar, however less strict for the CFI.

In addition to the bench, the CJ also includes a standing judiciary composed of 8 Advocates-General whose status, appointment, requirements and term of Office are the same as for the judges. The Advocates-General assist the judges and one of them delivers in each case an impartial, independent and reasoned statement of the legal aspects of the case at the end of the oral procedure. Generally, a case is assigned to an Advocate-General as soon as a Judge-Rapporteur has been designated.

Unlike the CJ, the CFI has no permanent Advocate-General assigned to it and so, when necessary, one of the Judges of the Chamber in charge of the case will act as Advocate-General. This Judge will then not take part in the deliberation of the case.

Furthermore, Article 13 of the Statute of the CJ makes provision for Assistants-Rapporteurs to be appointed who will participate in preparatory inquiries and assist the Judge acting as a Rapporteur. No similar dispositions are laid down for the CFI.

Both Courts usually sit in Chambers of three or five Judges, each headed by an elected President.

Under given circumstances (request of a Member State or Community Institution) or in complex or important cases, the Courts may sit in a Grand Chamber (consisting of 13 Judges) or even exceptionally as a full Court (for exhaustively listed cases).

Within the CFI, cases of limited importance assigned to a Chamber of three Judges may be delegated to a single Judge, usually the Judge-Rapporteur of said Chamber (Articles 11 and 14 of the Rules of Procedure of the CFI).

The "three trunk" organisation of the CJ (6 Chambers of Judges / the Registrar, the registry and the administrative units and departments / the Advocates-General) and the "two trunk" organisation of the CFI (5 Chambers of Judges / the Registrar, the registry and the various departments of the Court) are led by a respective President, elected by the Judges among themselves for a three year term. The President directs the judicial business and the administration of his Court. He also presides the Grand Chamber and at plenary sittings and deliberations.

Both Courts appoint their own Registrar, but for its administrative requirements, the CFI mostly relies on the services and units of the CJ.


RESPECTIVE JURISDICTIONS OF THE COURTS

Due to the different natures of tasks they have to perform, the CJ and the CFI could be called "polymorphic" and "multifunctional" Courts. Indeed, depending on the nature of the case they hear, they can both perform as administrative courts, constitutional courts, international courts or appeal jurisdictions.

Mainly, three different types of actions can be brought before these Courts, namely direct actions, references for preliminary rulings and appeals.

Even though they perform together as a two level judicial system, each of the CJ and the CFI can constitute for a given case either the first (and sometimes also the sole) instance or the appeal instance.

The CJ and the CFI can both hear, at first instance level, actions for annulment and actions for inactivity. Nevertheless, such cases brought by private parties (physical or legal persons) are handled by the CFI, whereas the CJ has reserved jurisdiction for such cases brought by a Member State or an Institution. Recently, certain jurisdiction in this area has been transferred from the CJ to the CFI (Decision 2004/407/EC).

At first instance level, the CFI also experiences actions for damages (by private parties), actions based on an arbitration clause (within a contract concluded by or on behalf of the Community) and preliminary rulings in specific areas stipulated in the Statute (for example in patent law).

On the other hand, the CJ also deals at first instance level with infringement proceedings against a Member State, disputes between Member States concerning application of the Treaty and preliminary rulings.

As an appeal instance, the CFI hears appeals against decisions of the Boards of Appeal of the OHIM and the CPVO and appeals against decisions of the specialised judicial panels attached to the Court, such as the already existing European Union Civil Service Tribunal or the planed Community Patent Court and Community Trademark Court.

The CJ, as second or last instance, deals with appeals on points of law against decisions of the CFI in cases brought by private parties. Exceptionally, the CJ also hears appeals against decisions of the CFI in matters of preliminary rulings and of actions against decisions of a judicial panel (for which the CFI acts as an appeal instance).

In addition to the "appeal" link between the CFI and the CJ, interactions between the two Courts can result from a mistake in filing an application or a document, from a lack of jurisdiction (wrong instance) or from a connexity link between two cases (stay of proceedings).


PROCEDURES BEFORE THE TWO COURTS

As already indicated at the beginning, the Rules of procedure of the CJ and of the CFI are, in many areas, similar and even literally identical.

This is in particular the case for the general working rules of both Courts, the general language regime, the rights and obligations of agents, advisers and lawyers, the written and oral procedure, the measures of inquiry, the summoning and examination of witnesses and experts (but before CFI the oath taking is more flexible), judgments, costs, legal aid, discontinuance, service, time-limits, interim measures, preliminary issues, intervention, judgment by default, third party proceedings and interpretation of judgments.

The main differences between the rules of procedure of the two Courts result either from the differences in composition of the two Courts, the specific jurisdictions assigned to each of the Courts in particular areas, the difference of instance of the Courts for a given case or the special procedures reserved to only one of the Courts.

Concerning the evolution of the practical working of the Courts, one can notice a common concern and will to improve efficiency and to reduce the length of the proceedings.

To that purpose, the CJ may use various instruments to expedite the treatment of certain cases, such as the possibility of giving judgment without an opinion of the Advocate-General (no new point of law involved), the simplified procedure, the expedited procedure, the increase of cases heard by Chambers of three judges and the increase of reasoned orders issued in preliminary ruling cases.

The rules of procedure of the CFI also provide for expedited procedures (Article 76a), in particular in connection with specific measures of organisation of procedure (Article 64).

Therefore, the already swift procedure before these two Courts should in the future become even swifter (in particular in comparison with national court procedures in certain Member States).