General Court of the European Union (GC)
by Jörg Pirrung
Just like the European Court of Justice (ECJ) the General Court of the European Union (GC), the former Court of First Instance of the European Communities (CFI), shall ensure, within the limits of its jurisdiction, that the law is observed in the interpretation and application of the EU Treaty and of the Euratom Treaty as well as of the secondary laws of the EU (Art 19(1) EU (former Art 220(1) EC), Art 136(1) EAEC). Without prejudice to Art 51 of the Statute of the ECJ, the GC is the general court of first instance of the European Union (EU). In principle, it has jurisdiction to hear and determine claims seeking annulment and claims of inaction made against the institutions of the EU, ie the European Parliament, the Council (Council and the European Council), the European Commission, the Court of Auditors and the European Central Bank, as well as actions for damages on grounds of extra-contractual liability of the EU and disputes based on arbitration clauses (Art 256(1) TFEU/225(1) EC, Art 140(a) EAEC, the parallel provisions of which will not be mentioned in the subsequent text). Thus the GC is an administrative as well as a civil court. All its decisions are subject to appeal to the ECJ, limited to points of law. Attached to the GC is a Civil Service Tribunal which has jurisdiction to decide all disputes between the institutions of the EU and their officials or other staff. Its decisions can be appealed to the GC when a violation of EU law is alleged.
The GC was founded as the CFI by Council Decision 88/591/ECCS, EEC, EAEC of 24 October 1988 (OJ L319/1 of 25 November 1988) on the basis of an authorization in the Single European Act. It began its work in 1989. The function of the court was, on the one hand, to unburden the ECJ in respect of actions such as cartel proceedings where the factual situation can only be established after very intensive, complex and time-consuming determinations and, on the other hand, staff cases which did not have sufficient weight to justify their permanent treatment by the highest court of the Union. As the time passed, more and more subject matters were transferred from the ECJ to the GC/CFI, eg antidumping and merger proceedings, state aid and European trademark disputes. The most important litigations to be dealt with by the GC at first instance are competition cases, where sums of hundreds of millions of euros are often in dispute. Up to now, the possibility established in principle by Art 256(3) TFEU/225(3) EC of giving the GC, in specific areas, jurisdiction to hear and determine questions referred for preliminary ruling under Art 267 TFEU/234 EC has not been given any substantial consideration, though transfer of preliminary proceedings from the ECJ to the GC has been proposed repeatedly, especially in the context of judicial cooperation in civil matters. As the GC has since 2007 also functioned as an appeal jurisdiction for Civil Service Tribunal decisions, its old name was no longer correct. The Lisbon Treaty provides for the necessary change to ‘General Court’. As with the ECJ, the extension of the EU in 2004/2007 by 12 new Member States was a great challenge for the GC. Nowadays the number of cases introduced to the GC each year has led to an overloading similar to the one the ECJ faced in 1989.
The GC comprises at least one judge per Member State (Art 254 TFEU/224(1) EC). Since 2007 it has been composed of 27 judges. In contrast to the ECJ, the GC has no additional Advocates General but can designate one of its judges to act as Advocate General for a specific procedure (Art 2(2), 17-19 Rules of Procedure of the General Court). The judges must be persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office. Before fulfilling their function with the GC/CFI, most judges were high ministerial officials, politicians, judges, university professors, barristers or advocates. They are appointed by common accord of the governments of the Member States for a term of six years with partial replacement every three years. They may be reappointed, even repeatedly. On average, the duration of their function with the GC is slightly more than eight years.
The organization of the GC is regulated by the Protocol on the Statute of the ECJ and the Rules of Procedure established by the GC in agreement with the ECJ and with the approval of the Council, acting by a qualified majority (Art 254(5) TFEU/224(5) EC). The judges elect, in plenary session, the president of the GC from among their number for a term of three years; re-election is possible. Presidents of the CFI in the past have been: José Luis Da Cruz Vilaça, Portugal (1989–95), Antonio Saggio, Italy (1995–98) and Bo Vesterdorf, Denmark (1998–2007). Since September 2007 Marc Jaeger, Luxembourg, has been president of the CFI/GC. The judges also elect the registrar of the GC, responsible for the administration of the court, for a renewable mandate of six years.
According to Art 50 of the Statute of the ECJ the GC normally sits in chambers of three judges; in more important cases in chambers of five. In cases of extreme importance or with substantial legal problems the GC can sit as a grand chamber with 13 and, exceptionally, as a full court with 27 judges. In cases without difficulties a single judge can decide. All 27 judges elect the presidents of the chambers from among their number. Presidents of the extended five judge chambers serve for a term of three years with only one re-election being possible. For the periods from 2007 to 2010 and from 2010 to 2013, the GC has elected eight judges to simultaneously act as presidents of the five and three judge chambers. In principle, six chambers (actually seven, as for one Member State a judge has not yet been confirmed) comprise a presiding judge and two assisting judges with two assisting judges of a neighbouring chamber being added when an extended panel of five judges is necessary. The other two chambers—actually only one, in general—comprise four judges, namely a presiding judge and three assisting judges who sit with the presiding judge in rotating configurations of two.
The grand chamber is composed of the president of the GC, the presidents of the eight chambers and the four assisting judges of the extended chamber which would have heard the case if it had to be decided by five judges. The chamber deciding on appeals is composed by the president of the GC and four (or, nowadays, in some cases two) presidents of chambers in turn designated in advance. The president of the GC assigns the incoming cases in the order of their registration to the chambers sitting with three judges according to a system of rotation determined by the subject matter of the case. Appeals against decisions of the Civil Service Tribunal are assigned to the appeal chamber. The presidents of the chambers propose to the president of the GC which judge is to be judge-rapporteur in each case. The chambers or the president of the GC can propose to the full court to assign a case to an extended chamber, the grand chamber or the full court. By unanimous order of a chamber comprising three judges, less important cases without legal difficulties can in certain matters be transferred to the judge-rapporteur to decide as a single judge.
The GC’s procedure is regulated by Arts 263 ff TFEU/230 ff EC, the Statute of the ECJ and the Rules of Procedure of the GC. The most important proceedings before the GC are introduced by actions for annulment according to Art 263 TFEU/230 EC, which ask the court to declare an act of one of the institutions to be void. Only the European Parliament, the Council (Council and the European Council), the European Commission, the European Central Bank and lower ranking EU institutions like Europol can be defendants. The action has to be lodged within two months after publication or notification of the challenged act and can only be based on violation of EU law, lack of competence, infringement of an essential procedural requirement or misuse of powers. While such an action must be brought before the ECJ if raised by one EU institution against another or by a Member State against any EU institution other than the Commission (Art 51 of the Statute), the GC has jurisdiction for actions of Member States against the Commission, and, exceptionally, against the Council in anti-dumping cases. Under analogous requirements any natural or legal person, including public legal persons beneath the level of the Member States, may institute proceedings against an act addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to that person. On 15 July 1963, the requirement of direct and individual concern was interpreted by the ECJ (ECJ Case 25/62 – Plaumann v Commission  ECR 95, 107) in the following way: an act not addressed to persons is of individual concern to them if it ‘affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed’. Attempts by Advocate General Jacobs (Opinion of 21 March 2002 in Case C-50/00 P – Union de Pequeños Agricultures v Council  ECR I-6677) and by the extended first chamber of the CFI in its judgment of 3 May 2002 (Case T-177/01 – Jégo-Quéré v Commission  ECR II-2365) to interpret this condition in a less restrictive way were without immediate success. In its judgment in ECJ Case C-50/00 P – Union de Pequeños Agricultures v Council  ECR I-6677 the ECJ has, de lege lata, confirmed the condition of individual concern as interpreted earlier by the ECJ and required that any eventual change be introduced by the Union legislature in order to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection. Thus any amelioration in this context had to wait until the Lisbon Treaty, which provided for this change, came into force.
In EU law there is no general action aiming at a (pure) declaration nor is there an action to fulfil an obligation. The action on failure to act according to Art 265 TFEU/232 EC can only result in an obligation of the institution to make a decision in the first instance, but cannot oblige it to make a specific decision. So it is of limited practical importance, and the defending institution often deprives such an action of its subject by taking, in the course of the proceedings, the decision it had failed to take before. Subsequently, the typical consequence is an action for annulment of the new decision. For actions seeking damages for breach of contract the GC has jurisdiction pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union (Art 272 TFEU/238 EC); for actions on grounds of non-contractual liability the GC has jurisdiction pursuant to Arts 268, 340 TFEU/235, 288 EC.
In Union trade mark cases the action is directed against a decision of one of the appeal chambers of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) in Alicante. The actions correspond largely to appeals, but they are dealt with according to the general rules on actions for annulment.
As regards the procedure whereby private parties have to be represented or assisted by a lawyer authorized to practice before a court of a Member State, both the Instructions to the registrar of the GC and the GC Practice Directions to parties have to be complied with. The claimant chooses the language of the case which must be one of the official languages of the EU. This language shall be used in the written and oral pleadings of the parties as well as in the minutes and decisions of the GC. If the language of the case is not French, the registrar arranges for the translation of pleadings into this language as the working language of the GC and takes the necessary steps to ensure simultaneous interpretation during the oral hearings. The judge-rapporteur presents, with the assistance of three référendaires as collaborators, his preliminary report to the chamber when the written procedure consisting of application, defence and, normally (with the exception of trade mark proceedings), reply and rejoinder has been completed. This internal report contains a complete description of the factual and legal situation of the case and proposals as to its further treatment, eg recommendations on preparatory steps or questions to the parties. In addition, the judge-rapporteur prepares a report for the hearing.
The hearing consists of oral pleadings of the representatives of the parties and an often very intensive discussion of the case on the basis of questions from the judge-rapporteur and the other judges. An oral procedure is not necessary where the GC clearly has no jurisdiction or where the action is manifestly inadmissible or manifestly lacking any foundation in law (Art 111 of the Rules of Procedure). In such cases, as well as, in principle, when deciding on a request of the defendant to reject the claim as inadmissible, the GC decides by an order. After an oral hearing, the judges who have heard the case discuss the judgment on the basis of a draft decision which has to be presented by the judge-rapporteur in the court’s working language of French. The decision can be taken by majority. The wording of the judgment will then be reviewed by lecteurs d’arrêts, ie référendaires assigned to the president who, normally, are native speakers of French. The final version approved by the chamber will then be translated into the language of the proceedings if this is not French. Only the dispositive part of the judgment will be pronounced in open hearing. The full text of the decision, including its translation into other official languages, can be found on the same day on the internet. In principle, all judgments of the full court, the grand chamber and the extended chambers will be published in all EU languages in the ECR, other decisions only when there are specific reasons.
There are special rules for, inter alia, interim measures (before the president of the GC), Arts 278, 279 TFEU/242, 243 EC, legal aid and, exceptionally, review procedures on revision and interpretation of judgments. In the first years, appeals against decisions of the Civil Service Tribunal rarely proved successful; in 2009, by contrast, 10 decisions of the Civil Service Tribunal were set aside totally or partially, as opposed to 21 cases where the appeal was dismissed.
4. Important decisions of the CFI/GC
In one of its few decisions as a full court, the (then-titled) CFI dealt with the system of group exemptions in Union competition law in its very first years (Case T-41/89 – Tetra Pak v Commission  ECR II-309). In British Airways and Others and British Midland Airways v Commission (Cases T-371/94, T-394/94  ECR II-2412) the CFI, based on the challenge of competing undertakings, annulled for insufficient reasoning (alone) a decision of the Commission which had declared French state aid in favour of Air France compatible with the Common Market. Taking up nearly 1,200 pages in the ECR, the longest judgment of the CFI, Cimenteries CBR and Others v Commission (ECJ Cases T-25/95 and Others  ECR II-508), concerns 41 joined proceedings dealing with cartels on grey and white cement. The judgment fully annulled the decision of the Commission imposing fines on nine undertakings because their participation in the cartel had not been proved. As regards the other undertakings, the partial annulment concerned only certain periods of time such that in these cases the fines were reduced. The ECJ affirmed this judgment almost completely, with the sole exception of a relatively insignificant diminution of the fine in one case (Case C-204/00 P – Aalborg Portland v Commission  ECR I-403). In three decisions in 2002 (Cases T-342/99 – Airtours v Commission  ECR II-2585, T-310/01 – Schneider Electric/Commission  ECR II-4071, T-5/02 – Tetra Laval v Commission  ECR II-4381, confirmed by the grand chamber of the ECJ, Case C-12/03 P – Commission v Tetra Laval  ECR I-987, 1047), the CFI annulled decisions of the Commission in merger cases as they did not meet the legal standard required, namely that the modified mergers would give rise to significant anti-competitive effects. As a consequence, the Commission has changed its procedures. In case T-228/02 (Organisation des Modjahedines du peuple d’Iran v Council  ECR II-4674) the CFI, for the first time, annulled a decision concerning the freezing of funds in the combat against terrorism, concluding that the claimant’s rights of defence were violated. The judgment of the grand chamber of the CFI in the case Microsoft v Commission (T-201/04  ECR II-3601) gained considerable public interest. Therein, the CFI confirmed a nearly €500 million fine against Microsoft because of the abuse of a dominant position; the decision of the Commission was annulled only insofar as it concerned the appointment of an independent monitoring trustee.
5. Civil Service Tribunal
Since the EU Civil Service Tribunal started operating at the end of 2005, the CFI/GC has had to deal with new cases concerning civil service matters of the EU institutions only as an appeal jurisdiction. The new tribunal is composed of seven judges chosen by the Council according to a special procedure which differs from the appointment of ECJ and GC judges, who are proposed by their Member States. The judges’ mandate is, principally, for six years. Although after three years a first partial renewal would have been possible, in fact the mandates of the judges who were subject to replacement were renewed. During the initial stages of its work the tribunal applied by analogy the Rules of Procedure of the CFI; since 1 November 2007 its own rules have been in force.
6. Tendencies for reform
For many years, the GC has been overloaded. The creation of the Civil Service Tribunal did not lead to a noticeable amelioration of the situation. The GC, in spite of the substantial augmentation of its members in 2004, could not increase the number of its decisions in a comparable proportion and accordingly reduce its backlog. This is the reason why, for several years, there have been initiatives to create a specialized European trade mark court or a specific competition court. If a European competition court were to be established, the GC would be deprived of an essential part of its main functions and thus fundamentally change its character as the general European court. At present it is difficult to know whether the European Commission will revisit its earlier projects for the creation of a specialized trade mark or intellectual property court. Therefore, the GC can only try once more to ameliorate its working methods by an acceleration of the proceedings and by issuing shorter judgments, and simultaneously hope that initiatives to increase the number of its judges will in the end be successful.
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