¹ To produce an undistorted picture, the statistics used in this paragraph have been adjusted to exclude instances where large numbers of similar actions are brought (e.g. the series of “milk quota” cases). Such cases are not therefore counted in these figures.

² The term “Court of Justice” is ambiguous as it is sometimes used to describe the higher of the two Community courts, the Court of Justice of the European Communities, and at other times to refer to the Community institution which comprises both that court and the CFI. For the purposes of the present article, the abbreviation “ECJ” will be used when referring to the higher Community court with the fuller expression being reserved for the Court of Justice as a Community institution.

³ Contribution by the Court of Justice and the Court of First Instance to the Intergovernmental Conference, of February 2000, (http://www.curia.eu.int/en/txts/intergov/cig.pdf).

⁴ Report by the Working Party on the Future of the European Communities’ Court System, dated January 2000 (http://www.europa.eu.int/en/comm/sj/due_en.pdf).

⁵ See, for example, the submissions of the Council of the Bars and Law Societies of the EU (CCBE) (http://www.ccbe.org).

⁶ IGC 2000: Proceedings on amendments to be made to the Treaties with regard to the Court of Justice and the Court of First Instance—Presidency report, second stage of the Group’s proceedings, (http://www.consilium.eu.int/cigdocs/en/04747en.pdf).

⁷ By a Council Decision 88/591 establishing a Court of First Instance of the European Communities, OJ 1989 C 215/1. The CFI began work in October 1989.

⁸ In 2000, 33% of CFI cases were decided by chambers of 5 judges, 63% by chambers of 3 judges and 4% by single judges. None was decided by the plenary formation in the course of that year which, though it was used in certain important cases in the early years of the CFI (e.g. Case T-24/90 Automec v. Commission [1992] ECR II-2223) has effectively fallen into disuse in more recent years.

⁹ In 1995 some 35% of ECJ final judgments or orders were delivered either by the full court or by the “petit plenum”. By 2000 this figure had fallen to just over 18%. The contemplated transfer to the CFI of most direct actions, and possibly some of the less complex preliminary ruling cases, would presumably cause this percentage to rise again, since the ECJ’s remaining case load would tend to comprise “more difficult” cases.

¹⁰ Below n 16.

¹¹ New Art. 225a (4) EC.

¹² At Nice, the delegation from the Grand Duchy of Luxembourg made a unilateral statement undertaking that, if and when the Boards of Appeal of OHIM become judicial panels, Luxembourg would not exercise its right—which it has under Art. 3 of the Decision of 8 April 1965 of the representatives of the Governments of the Member States on the provisional location of certain institutions and departments of the Communities (JO 1967 152/18)—to insist that all “judicial or quasi-judicial bodies” of the Communities, including those “yet to be set up”, be located in Luxembourg. It therefore appears possible that, following the anticipated change in their status, the Boards of Appeal will be “attached” to the CFI for administrative purposes, but will remain physically based at their current location in Alicante. It is not clear how workable this arrangement will prove to be in practice.

¹³ Art. 225 EC (ex Art. 168a).

¹⁴ At present, the workings of the Court of Justice are governed by three separate Statutes, one for each of the European Communities (ECSC, EC and EURATOM) each of which differs in certain respects from the others. It was agreed at Nice that a new unified ECJ Statute should be adopted and that it should be applicable to all cases whether they relate to matters concerning the EC or EURATOM or, to the extent that the Community courts have jurisdiction, “third pillar” areas of EU competence in judicial and home affairs. The ECSC Statute will, of course, become obsolete with the expiry of the ECSC Treaty on 23 July 2002.

¹⁵ See for example Case T-288/97 Regione Autonoma Friuli-Venezia Giulia v. Commission [1999] ECR 11-1871.

¹⁶ One area where such a transfer of jurisdiction to the CFI would be particularly welcome is the field of State aids. Naturally, a decision refusing to permit the grant of such an aid affects the interests both of the Member State which intended to pay the aid and the undertaking which was to benefit from it. It is therefore logical that where both the Member State con cerned and the intended beneficiary bring actions for annulment both cases should be heard together, yet the former must currently bring its action before the ECJ whereas the latter must apply to the CFI. It is possible for the CFI to transfer its case to the ECJ in such circumstances (see Art. 47 of the Statute of the Court of Justice of the EC), but that option is only exercised very rarely since the essential aim of the CFI’s creation was to reduce the ECJ’s workload. In practice the ECJ will normally suspend its case until the CFI has ruled in its parallel case, in which proceedings of course the Member State may advance its arguments as an ¡ntervener. If however that does not produce a satisfactory result, the Member State can pursue its direct action which will normally then be heard together with any subsequent appeal from the CFI’s judgment. However, this arrangement gives rise to a potential conflict of judicial decision since, while the ECJ is bound by the CFI’s findings of fact in the context of the appeal, it is obliged to make its own assessment—possibly of the same facts—in the action brought by the Member State. Conversely, if the CFI stays its proceedings while the ECJ proceeds with its case, the applicant in the CFI has no right to intervene in the ECJ proceedings. Both situations are clearly unsatisfactory, and would be resolved if the CFI were empowered to hear Member States’ actions in such cases.

¹⁷ The proposals and comments thereon are usefully brought together in the Thirteenth Report of the House of Lords Select Committee on European Union, 1998–1999 session, “Enlarging the Jurisdiction of the Court of First Instance” of 22 July 1999.

¹⁸ The Working Party report to the IGC accepted that the title “Court of First Instance” would be a misnomer, under the Nice Treaty proposals, but was unable to come up with an appropriate suggestion for an alternative.

¹⁹ The French text refers to one judge “par Etat membre”, which suggests that, at least for mally, the link is no more than numerical.

²⁰ See, for example, Automec v. Commission, above n 8.

²¹ By contrast, Art. 16 of the draft ECJ Statute prescribes the form which the new Grand Chamber will take at the ECJ where it will comprise eleven judges including the President of the ECJ and the elected Presidents of the five-judge Chambers. The Grand Chamber at the CFI may well not follow that pattern, not least because it is felt to be undesirable, particularly in a court where the majority of cases will continue to be heard by smaller chambers, if no five-judge chamber is ever able to sit at the same time as the Grand Chamber.

²² In broad terms, roughly 30% of CFI judgments and orders tend to be appealed to the ECJ and of those only some 15–20% (16% of appeals decided in 2000) are successful in whole or part. Thus, some 95% of CFI judgments and orders are final in that they are either not challenged on appeal, or upheld in full in the event of an appeal.