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Rules of Procedure in the International Court and the European Court
Richard Plende1
Full text available: PDF format *
I. Introduction
We have it on good authority2 that the Rules of Procedure of the Court of Justice of the European Coal and Steel Community,3 which have matured into those of the Court of Justice of the European Communities,4 had their origin in the Rules of Procedure of the International Court of Justice.5 Indeed, the most casual reading of the two sets of the rules confirms that this is the case, even though both have been amended since the rules of the International Court were first used as a model for the European Court.6
The three Statutes of the European Court7 also bear such resemblance to the Statute of the International Court8 that it is fair to deduce that the former were based in large part on the latter. But the textual similarity of the Statutes is less pronounced than that of the rules, for three reasons. Firstly, many of the matters which, in the case of the International Court of Justice, are addressed in the Statute, are, in the case of the European Court, addressed in the founding treaties9 or Rules of Procedure. In particular, the provisions governing the International Court's competence and sources of law, which form Part II of its Statute, have no counterpart in the Statutes of the European Court, whose jurisdiction and sources of law are set out in the treaties, to the extent that they are specified in a legislative text. Secondly, the provisions in the International Court's statute dealing with advisory opinions10 are not matched in corresponding provisions of the statute of the European Court, which has no true advisory jurisdiction. Thirdly, in order to accommodate the Court of First Instance,11 the Member States of the European Communities have amended the Statute of the European Court, thereby causing them to depart from the pattern established for the International Court.
The common genesis of the Rules of Procedure of the two Courts invites their comparison; and with the reservation expressed in the previous paragraph, the same is true of the two Courts' Statutes. Such a comparison may shed light on the meaning of disputed or ambiguous provisions in those rules or statutes. For where a rule applicable to two Courts is identically phrased, the construction placed upon it by one Court must merit serious consideration by the other, notwithstanding the latter's protestation of its distinctive function.12 Moreover, differences in the phraseology of the corresponding rules applicable to two Courts are of the greatest interest for the scholar, since they are apt to reveal the essential characteristics of those institutions. They are also of value for those concerned with the reform of the jurisdiction of either Court, since lessons may be drawn from practical experience.
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1 Associate Professor, University of Paris II.
2 A. van Houtte, former Registrar of the Court of Justice of the
European Communities, `La Cour de Justice des Communautés
européennes', [1963] Cah. dr. eur. 3, 5.
4 OJ (1982) C 39/1. The Court of Justice of the European Communities
is referred to hereafter as `the European Court'.
5 6 May 1946, [1946-51] ICJ Ybk. 235.
6 The ICJ Rules of Procedure were first amended on 10 May 1972: 11
ILM (1972) 899. They were re-amended on 14 April 1978: 17 ILM (1978) 1286. See
J.G. Starke, The New Rules of Court of the International Court of
Justice (1973); G. Guyomar, Commentaire du règlement de la cour
international de justice (1973); S. Rosenne, Procedure in the
International Court: A Commentary on the 1978 Rules of the International Court
of Justice, (1983). The Rules of Procedure of the Court of Justice of the
European Coal and Steel Community (supra note 2) were replaced by those
of the Court of Justice of the European Communities of 3 March 1959, as amended
by the Decision of the European Court of 11 November 1959 (OJ (1960) 17). These
were replaced by the Rules of Procedure of 26 November 1974, OJ (1974) L 350/1
(corrigendum OJ (1975) L 102/24) which were amended on 12 September 1979 (OJ
(1979) L 238/1) and 27 May 1981 (OJ (1981) L 199/1) and republished in
consolidated form in OJ (1982) C 39/1. They were further amended 8 May 1987 (OJ
(1987) L 165/1). Supplementary Rules dated 26 November 1974 (OJ (1974) L
350/29) were amended on 16 September 1981 (OJ (1981) L 282/1) and published in
consolidated form (OJ (1981) C 39/1) before further amendment on 8 May 1987 (OJ
(1987) L 165/4). See L. Brinkhorst and G. Wittenberg, The Rules of Procedure
of the Court (1962); C. van Reepingen and P. Orianne, La
procédure devant la Cour de justice des Communautés
européennes (1961).
7 Statute of the Court of Justice of the European Coal and Steel
Community, 18 April 1951,1 EYB 435 (hereafter referred to as `the ECSC
Statute'); Statute of the Court of Justice of the European Atomic Energy
Community, 17 April 1957, 5 EYB 561 (hereafter referred to as `the Euratom
Statute'); Statute of the Court of Justice of the European Economic Community,
17 April 1957, 5 EYB 427 (hereafter referred to as the `EEC
Statute').
8 26 June 1945, UKTS 67 (1946); JORF 13 January 1946.
9 Treaty establishing the European Coal and Steel Community, 18 April
1951, 261 UNTS 140,1 EY.13. 358 (hereafter referred to as `the ECSC Treaty');
Treaty establishing the European Atomic Energy Community, 25 March 1957, 298
UNTS 167, 5 EYB 454 (hereafter referred to as `the Euratom Treaty') Treaty
establishing the European Economic Community, 25 March 1957, 298 UNTS 11, 4 EYB
412 (hereafter referred to as `the EEC Treaty').
10 Articles 65-68. See Lachs, `Some Reflections on the Contribution
of the International Court of Justice to the Development of International Law',
10 Syr.J.Int.L. and Comm. (1983) 239, 246-262.
11 For the establishment of the Court of First Instance, see Article
32(d) of the ECSC Treaty, Article 140A of the Euratom Treaty, and Article 168A
of the EEC Treaty, added by the Single European Act, 17 February and 28
February 1986, UKTS 47 (1988), Articles 4, 26 and 11 respectively. See Millett,
`The New European Court of First Instance', 38 ICLQ (1989)
811.
12 For the European Court's expression of the distinctive character
of Community law, when compared with international law, see Case 6/64,
Costa v. Enel [1964] ECR 585, 594. See further Plender, `The
European Court as an International Tribunal', 42 Camb.L.J. (1983) 279.
For procedure in the European Court generally, see D. Lasok, The European
Court of Justice: Practice and Procedure (1984) and J. Usher, European
Court Practice (1983).
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