Benelux Court of Justice

Benelux Court of Justice in Europe

Introduction

After the creation of the intergovernmental economic union of the three Benelux countries, the BCJ was founded in 1974, having its seat in Brussels. Currently, the BCJ is responsible for delivering rulings in judicial matters concerning officials working for the Benelux union, and giving pre-judicial decisions on matters relating to Benelux laws (including the Benelux Convention on IP, or BCIP).

The Treaty of 31 March 1965 on the establishment and the status of a Benelux Court of Justice entered into force on 1 January 1974.

The Court is an international court whose primary or essential role is to promote uniformity in the application of legal rules that are common to the Benelux countries in a variety of areas such as the right to intellectual property (trademarks and service , drawings and models), insurance against civil liability in respect of motor vehicles, penalty payments, visas, the recovery of tax claims, and the protection of birds and equal tax treatment.

Benelux links

Formally, the Court is not an institution of the Benelux Economic Union, the Constitutive Treaty, signed February 3, 1958, entered into force on 1 November 1960. The institutional links between the Court and the Economic Union are no less numerous. Thus, the permanent seat of the Court is the place where is set to the General Secretariat of the Economic Union and members and Registrars of the Court are appointed by the Committee of Ministers of the Economic Union.

There is also a temporal relationship between the two institutions as the Treaty on the Court will end at the same time as on the Economic Union.

The Benelux Court of Justice is composed of judges of the supreme courts of the judiciary of the three Benelux countries.

Role

Although the BCJ’s role is similar to that of the Court of Justice of the EU, it is not as extensive. The number of rulings/decisions given by the BCJ averages about five a year.

According to Prof.S.TOMAS, PhD, “the Benelux Court of Justice has with no doubt the most minimal space in its judgments for the parties to a litigation. For instance, in judgment Salvatore Sileci, A 2010/4, it just mentions that Mr Sileci filed 3 procedural documents. If you are clever enough you can try to deduce the positions of the parties from the preliminary questions of the Belgian Court of Cassation.”

Composition of the Benelux Court of Justice

At a minimum, the Court has nine judges, six deputy judges and three attorneys general or eighteen members, divided equally between the three nationalities. Members of the Benelux Court judges are appointed from belonging to the Court of Cassation of Belgium, the Hoge Raad der Nederlanden and the Superior Court of Justice in Luxembourg. They continue to perform their duties
National and are normally part of the Benelux Court as long as they are effective function in their countries.

Here are some details on the various functions within the Court:

  1.  Judges (judges): The General Assembly, which brings together, with voting, all members of the Court shall elect from among the nine justices, a president, a first vice president and second vice president, each of a different nationality.
  2. Alternate judges (judges): Their number varies from three to five per country.
  3. Advocates General (Prosecutors): In each case brought before the Court, an attorney general or deputy attorney general wrote a detailed and reasoned opinion, called “conclusions” on the points of law raised. In a preliminary ruling, the member of the Prosecutor’s Office to make conclusions is preferably one that belongs to the country whence the case. The General Assembly shall, from among the attorneys, a Director of Public Prosecutions, who holds the title of first General Counsel.
  4. Alternate Advocates General (Prosecutors): Each attorney general, a deputy of the same nationality may be appointed. (1)
  5. Clerks: The Treaty provides three clerks, one chief clerk.

The Registry, which is the only permanent member of the Court provides the Secretariat. To this end, it has a general mission of assistance to members of the Court and he was given specific responsibilities in the conduct of proceedings.

Two Notions

With regard to its judicial duties, the Benelux Court of Justice has jurisdiction to interpret, at the request of national courts (first term) of the three Benelux countries, the common legal rules in these countries (second term).

A. National courts

The Benelux Court may deal with requests for interpretation relating to common legal rules by national courts of all three Benelux countries, whatever their level (Justices of the Peace Courts, Courts of Appeal, Supreme Courts) or within their jurisdiction (referred to, administrative matters).

Conditions referred to the Court, however strict, since Article 6 of the Treaty of 31 March 1965 requires that the question of interpretation arises in the proceedings and that the solution of this problem is necessary for the court National to give judgment. So there must be, in the course of a trial, need to seize the Benelux Court, the national court only remaining master to appreciate this need to refer the matter to the international court.

Some national courts have not only the right, but the obligation to the Court Benelux: those whose decisions are not subject to judicial remedy under national law, that is to say those in national proceedings in power the last judicial word and, thereby effectively guide the national jurisprudence.

All national courts, even those that are required in principle to enter the Benelux Court, however, are forbidden to approach it if the issue is not likely to raise a reasonable doubt or that the case must put a character of particular urgency.

Finally, national courts may also decide not to visit the Benelux Court if they adopt a previously given by Coura this opportunity to another issue an advisory opinion or solution.

B. The common legal rules

What are the rules for the interpretation which the Court has jurisdiction Benelux? The answer is both simple (in theory) and complicated (in practice):

  • simple, because there is no common legal rules under the Treaty of 31 March 1965 if they have been a designation as such in an agreement signed by the three Benelux states and entered into force between them (2) or a decision of the Committee of Ministers of the Benelux Economic Unión;
  • complicated because a Protocol entered into force in 1982, the quality of common legal rules has been assigned to the future acts of the Committee of Ministers and certain ministerial working groups, which will amend, supplement, or replace a number important decisions and recommendations designated as common legal rules in the same Protocol.

Thus, when it receives a preliminary ruling, the Court should always ensure that the text it is called upon to interpret has been a designation under common law rule by Governments. In addition, they have the ability to modulate the jurisdiction of the Court by restricting to only advisory functions (3) or solely jurisdictional powers.

Legal rules

The Benelux Court of Justice has jurisdiction to interpret the legal rules that are common to the three countries.

List of common legal rules

See the entry List of common legal rules of the Benelux Court of Justice.

New Tasks

In the article “Modernising the Benelux Court of Justice” (2014), Michiel Rijsdijk explains that to “increase the role of the BCJ, but mainly to modernise it (as the institution has entered its 40th year of existence), the Benelux countries have chosen to allocate new tasks and responsibilities to the court. These involve mainly the possibility for applicants for trademarks to appeal to the court in matters relating to their trademarks and the rulings in this respect of the Benelux Office for Intellectual Property (BOIP).

Under the current system, the application for a Benelux trademark is centralised and regulated by the BOIP. Although it is recommended to use a trademark attorney, an online application for a trademark can be easily filed, which if successful will grant the applicant a trademark for a period of ten years. With more than 22,000 trademark applications a year in the Benelux countries, the BOIP handles a substantial number of applications.

If an application is unsuccessful, meaning that the BOIP disagrees with the applicant on the admissibility of the application, the applicant has three courts to appeal to: the Hague, Brussels or Luxembourg. These legal proceedings can be time-consuming and costly, like any other. This has also led to three different interpretations of the BOIP’s decisions, depending on where the applicant appealed.”

Procedure: Preliminary Proceedings

The course of the procedure can be described according to formal criteria – there then see a written part (parts depot) and an oral phase (argument) – or as actors in the process.

Are distinguished in this case three steps:

1. The national court:

It is for the national court decided to submit to the Court the difficulty of interpreting it encounters. It makes the application within a document (order, judgment or decree) that the Registry of the court notify the Registry of the Court Benelux.

The Treaty of 31 March 1965 expressly provides that the application sets out the facts of the case in which the problem arose. In this way, the Benelux Court is fully informed of the concrete to the dispute context.

2. The parties before the national court:

The parties have the right to file with the court within a period fixed by the Court, a statement of their arguments in favor of this or that solution points of law involved. At the same time, the justice ministers of the three Benelux countries may notify the Court in writing on an issue paper.

Each party and the Ministers of Justice can ask then enter a response.

Only parties and ministers of justice who filed piècesécrites are allowed to ask the Court to make an oral presentation at a public hearing.

3. The Benelux Court:

  • The prosecution:  The attorney general or deputy general counsel in charge of the case makes conclusions, that is to say, he sent a reasoned opinion to the judges and exposes the legal solution he proposes. This review is communicated to the parties still have a period of one month to respond with a written note.
  • The Working Group: A working group is appointed comprising three members (one per country), including a judge rapporteur (usually the judge who has the nationality of the case) to prepare a draft stop. This text is discussed in the working group and the result of this work is embodied in a draft judgment.
  • The Council Chamber: The draft judgment is deliberate in private of nine members (three per country).
  • The hearing of delivery: The president or a judge who has participated in the deliberations pronounce judgment in open court in the presence of a member of the prosecution and a clerk.
  • Transmission of the judgment of the Court: The clerk shall forward a copy of the judgment to the court which asked the interpretation, the parties and the ministers of justice.

International proceedings before the Court and Benelux ends and the proceedings before the national court may take its course.

Notes

  1. It should be noted again that the election of President and Vice-Presidents and the appointment of the Director of Public Prosecutions take place every three years in the General Assembly rotates among nationalities.
  2. Some acts, such as the Convention relating to a Uniform Law on the penalty, provide the quality of common legal rule will vest upon the entry into force between two States only. In this case, the commonality remains temporarily limited to these two states.
  3. As to the Treaty on Extradition and Mutual Assistance in Criminal Matters of 27 June 1962.

See Also

List of common legal rules of the Benelux Court of Justice
Benelux
General Secretariat of the Benelux Economic Union
Benelux Interparliamentary Consultative Council
Benelux Office for Intellectual Property

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