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11 SEPTEMBER 2016. - An Act to amend the Protocol to Amend the Treaty of 31 March 1965 relating to the institution and status of a Benelux Court of Justice, made in Luxembourg on 15 October 2012 (1)(2)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. The Protocol amending the Treaty of 31 March 1965 relating to the institution and status of a Benelux Court of Justice, made in Luxembourg on 15 October 2012, will come out its full and full effect.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, September 11, 2016.
PHILIPPE
By the King:
Minister of Foreign Affairs,
D. REYNDERS
Minister of Justice,
K. GEENS
Seal of the State Seal:
Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives (www.lachambre.be):
Documents: 54-1904/1
Full report : /
(2) Effective date: 01/12/2016

Protocol Amending the Treaty of 31 March 1965 on the Institution and Status of a Benelux Court of Justice
The Kingdom of Belgium,
The Grand Duchy of Luxembourg,
The Kingdom of the Netherlands,
Referring to the Treaty on the Institution and Status of a Benelux Court of Justice, signed in Brussels on 31 March 1965, as amended by the Protocol of 10 June 1981 and the Protocol of 23 November 1984;
Referring to the Treaty for the Revision of the Treaty establishing the Benelux Economic Union signed on 3 February 1958, signed at The Hague on 17 June 2008;
Referring to point 4 of Recommendation 733/2 of the Benelux Inter-Parliamentary Council of 18 June 2005 on the revision of the Treaty of 31 March 1965 on the institution and status of a Benelux Court of Justice, which proposes to assign to the Benelux Court of Justice the jurisdiction to act as an appeal and cassation judge for the decisions of the Benelux Intellectual Property Organization;
Referring to the Response to this Recommendation of the Committee of Ministers of the Benelux Economic Union of 20 November 2008, which expresses its support for item 4 of the Recommendation;
Noting that the Benelux Court of Justice exercises its competence as part of its mission to promote consistency in the application of the legal rules common to the Benelux countries;
Noting that under the Treaty, the Benelux Court of Justice is competent to deal with issues of interpretation of legal rules, to provide advisory opinions to the governments of the Benelux countries and to hear relevant legal remedies;
Noting that, in accordance with Article 350 of the Treaty on the Functioning of the European Union, the provisions of the Treaty do not constitute an obstacle to the existence and achievement of a regional union between Belgium, Luxembourg and the Netherlands, since the objectives of this union are not achieved in accordance with the said Treaties;
Considering that it is useful, through an amendment to the Treaty, to give the Court of Justice Benelux a general opportunity, in accordance with its above-mentioned mission, to exercise jurisdiction over legal rules provided that they are designated for this purpose in conventions between the Benelux countries;
To that end, agree to conclude a Protocol amending the Treaty, which reads as follows:
Article I
Article 1^er the Treaty is replaced by the following provision:
Article 1^er
1. A Benelux Court of Justice, referred to as the Court, is established.
2. The Court is responsible for promoting consistency in the application of legal rules that are common to the Benelux countries. In order to carry out this mission, the Court shall:
(a) powers to hear questions of interpretation of legal rules;
(b) jurisdictional responsibilities;
(c) advisory powers.
3. The powers referred to in paragraph 2, subparagraph (a) and (c), are exercised in respect of the legal rules that are designated either by a convention or by a decision of the Committee of Ministers of the Benelux Union.
4. The jurisdiction referred to in paragraph 2, subparagraph (b), is exercised in specific areas designated for that purpose in a convention. The Benelux countries collect the Court's opinion on these conventions.
5. Pursuant to and in compliance with the Additional Protocols to this Treaty, the Court is also empowered to hear legal remedies for the legal protection of persons serving the Benelux Union, the Benelux Intellectual Property Organization or a Benelux Common Service.
6. The decision of the Committee of Ministers referred to in paragraph 3 may exclude the application of Chapter III, Section A, and/or Chapter III, Section C, of this Treaty.
7. The Committee of Ministers may, also by decision, exclude from the application of this Treaty or chapter III, section A, and/or chapter III, section C, of it, provisions designated by it as common legal rules.
8. The decisions referred to in paragraphs 6 and 7 shall be taken after the advice of the Benelux Consulting Inter-Parliamentary Council. They are published, before the date of their entry into force, in each of the three States in the forms envisaged for the publication of treaties. "
Article II
Article 2 of the Treaty is replaced by the following provision:
"Article 2
1. The permanent seat of the Court is in Luxembourg where it holds a hearing.
2. The Court may also hold a hearing in another place in one of the three countries.
3. The Court is assisted by a registry. Subject to the provisions of Article 3bis, paragraph 2, of this Treaty, the Registry Officers shall accumulate their functions with staff members of the General Secretariat Benelux and, as such, shall be assigned to the headquarters of the General Secretariat Benelux. "
Article III
In Article 3 of the Treaty, the following amendments are made:
1. Paragraph 1^er is replaced by the following provision:
"1. The Court is composed of:
(a) at least nine advisers based on Article 3, paragraph 2, including the President, the First Vice-President, and the Second Vice-President, and at least nine alternate advisers. The advisers and alternate advisers are appointed from the headquarters of the Hoge Raad der Nederlanden and from the seat of the Court of Cassation of Belgium. For Luxembourg, they may be appointed from the seat of the Superior Court of Justice and the Administrative Court.
(b) at least six judges and at least six alternate judges on the basis of Article 3, paragraph 2, appointed from the Gerechtshoven members of the Netherlands, the Belgian Courts of Appeal and the Luxembourg Court of Appeal.
The Prosecutor's Office is composed of three general lawyers, including a first general lawyer, Chief of the Prosecutor's Office, and alternate general lawyers. They are appointed among the magistrates of the Prosecutors near the courts referred to in Article 3, paragraph 1, under (a)."
2. In paragraph 2, the first sentence, the words "Judges, six alternate judges and general lawyers" are replaced by the words "Counsels, alternate advisers, judges, alternate judges, general lawyers and alternate general lawyers".
In the second sentence of this paragraph, the words "advices and" are inserted between the words "de" and "judges".
In the last sentence, the words "Nevertheless," and "Luxembourg" are deleted. The words "the magistrates" are replaced by the words "The magistrates".
3. In paragraph 3, first sentence, the words "In case" are replaced by the word "If".
In paragraph 3, second sentence, after the word "If", the words "an adviser, an alternate adviser or".
4. In paragraph 5, first sentence, the words "in the Benelux Court" are replaced by the words "of the Court and the First Chamber".
In paragraph 5, second sentence, the word "judge" is replaced by the word "advise".
5. Paragraph 6 becomes paragraph 8. Paragraphs 6 and 7, as follows:
"6. The judges elect the President, the first and the second Vice-President of the Second Chamber for a three-year period of rotation according to nationality. The election of the Speaker of this Chamber shall take place immediately after the election of the President of the Court.
Any three-year term commenced but interrupted must be completed by a judge of the same nationality.
7. The Presidency of the Third Chamber shall be exercised in accordance with the Additional Protocols referred to in Article 1, paragraph 5."
6. In paragraph 8 the word "Benelux" is deleted.
Article IV
Article 3bis of the Treaty is replaced by the following provision:
Article 3bis
1. The Court is assisted by a clerk and possibly one or more deputy clerks. The Clerk must be a doctor of law, a "meester in de rechten" (Netherlands), a law graduate (Belgium), a degree recognized as equivalent (Luxembourg) or a master of law obtained in a master's degree in law from a university, a higher education institution or another institution of the same level of education, designated in accordance with the regulations With respect to Assistant Clerks, another university degree can be accepted.
1bis. An alternate Clerk may perform the functions of the Clerk or Deputy Clerks. He is engaged among the clerks of the courts referred to in Article 3, paragraph 1, sub (a), and appointed by the President of the Court on the proposal of the Chief Prosecutor with the agreement of the court for which the individual works and where he continues to exercise his or her office.
2. The Clerk and Deputy Clerks are appointed by the Committee of Ministers in accordance with the President of the Court and the Chief of the Prosecutor; They are chosen preferably from the staff of the General Secretariat of the Benelux Union.
In the latter case, they shall serve as clerk or deputy clerk with their functions in the General Secretariat in accordance with the regulations referred to in the seventh paragraph of this rule. Their appointment as clerk or deputy clerk requires the agreement of the Secretary-General.
3. From the time when the number of cases to be dealt with by the Court makes it impossible to accumulate the functions of clerk or deputy clerk with their functions in the General Secretariat, a Registry will be established at the seat of the Court in Luxembourg.
The Benelux Council will consider, once a year, from a report prepared by the Court, the evolution of the number of cases handled by the Court, to decide on the time of the opening of the office in Luxembourg.
4. The Clerk and Deputy Clerks are discharged from their duties by the Committee of Ministers on the proposal of the Chief of the Prosecutor in the interest of the service. The Deputy Clerks are discharged from their duties by the President on the proposal of the Chief of the Prosecutor in the interest of the service. The Chief of the Prosecutor shall communicate to the Clerk, Deputy Clerk or Deputy Clerk concerned his intention to make such a proposal. The Chief of the Prosecutor shall not proceed with the formulation of this proposal before hearing the clerk, deputy clerk or alternate clerk. The Clerk, the Deputy Clerk respectively, shall have a period of two months from the date of receipt to him of the decision of the Committee of Ministers or the President to appeal to the First Chamber of the Court, as referred to in Article 4quinquies, paragraph 1 (a). The Court ruled in full jurisdiction.
5. If the General Assembly finds that the functions of the Clerk or of one or more Deputy Clerks may not or may not be exercised at the same time as other or other functions, the President shall inform the Committee of Ministers. If the General Assembly reconciles itself, it shall take such measures as it considers necessary to remedy this situation.
6. The Clerk, Deputy Clerks and Alternate Clerks, Translation Service members annexed to the Registry and Registry staff are subject to the disciplinary power of the Court. The General Assembly shall determine the rules of discipline and submit it to the Committee of Ministers for approval.
7. For those of those persons who are members of the staff of the General Secretariat, the Committee of Ministers, on the proposal of the General Assembly, and the Secretary-General heard, shall determine the respective authority of the Court and the Secretary-General."
Article V
In Article 4 of the Treaty, the following amendments are made:
1. In paragraph 3, the words "Clerks" are replaced by the words "The Clerk and Deputy Clerks".
2. In paragraph 5, the first sentence, the words "as well as alternate clerks" are added after the word "Parquet".
In paragraph 5, the third sentence, the words "of the Chief Clerk and the other two Clerks" are replaced by the words "of the Clerk, Deputy Clerks".
In the last sentence, "article 14" is replaced by "article 13".
Article VI
In Article 4bis of the Treaty, the words "Cour de Justice Benelux" are replaced by the word "Cour" and the words "to this effect" are deleted.
Article VII
In Article 4ter, paragraph 1, of the Treaty, the words "Cour de Justice Benelux" are replaced by the word "Cour".
Article VIII
In Article 4quater of the Treaty, the following amendments are made:
1. Paragraph 1 is added between the words "The" and "judges":
"counsel, alternate advisers,." In the same sentence, the words "the clerks" are replaced by the words "the clerk, deputy clerks and alternate clerks".
2. A paragraph 1bis is added, which reads as follows:
"1bis. The First Chamber may waive the immunity of counsellors, alternate counsels, judges, alternate judges, general lawyers, alternate attorneys and the clerk. The President of the Court may lift the immunity of Deputy Registrars and alternate Clerks. "
3. In paragraph 2, the words "the magistrates belonging to the supreme national jurisdiction" are replaced by the words "a person who, in accordance with this Treaty, performs a comparable function in the country of judgment".
Article IX
It is added as a result of Article 4quater of the Treaty a 4quinquies article, which reads as follows:
Article 4
1. The Court consists of:
(a) a First Chamber, in which advisers and alternate advisers referred to in Article 3, paragraph 1, sub (a);
(b) a Second Chamber, possibly composed of sections, in which the judges and alternate judges referred to in Article 3, paragraph 1, sub (b);
(c) a Third Chamber in which counsellors, alternate counsellors, judges and alternate judges referred to in Article 3, paragraph 1, sub (a) and (b).
2. Without prejudice to the provisions of the Additional Protocols referred to in Article 1, paragraph 5, the Rules of Procedure set out the terms and conditions for the composition of the Chambers. "
Article X
Article 5 of the Treaty is replaced by the following provision:
Article 5
1. In principle, the First Chamber has nine advisers, three from each country. However, it may, in the cases provided for in its Rules of Procedure, serve three advisers, one from each country, or five advisers. In the cases referred to in Chapter III, Section A, the General Counsel preferably belongs to the country where the case is pending on the merits.
1bis. The Second Chamber sits on three judges, one from each country.
1ter. The Third Chamber sits on three members of the Third Chamber, one from each country.
2. In addition, an internal regulation determines the composition of the seat, the precedences, leave, tasks and mode of operation of the general assembly, the intervention of the Prosecutor's Office, the method of voting, the establishment of the role, the fixation of the hearings and the operation of the office.
3. (a) Recuss or may be challenged by the members of the Court and the Prosecutor's Office who, at any level, would have competed as members of a national jurisdiction in a decision in the matter before the Court. Not to be regarded as such, the decision by which the national jurisdiction has limited itself to suspending its decision in accordance with the provisions of Article 6 of this Treaty.
(b) Recuss or may be challenged in a case as referred to in section 9ter, the judges and members of the Prosecutor's Office who would have contributed to a decision in a case as referred to in section 9bis.
4. In the cases referred to in chapter III, section A, the Minister of Justice of each of the three countries corresponds directly with the Prosecutor ' s Office at the Court. It may, by this way, transmit to the Court a statement containing its way of viewing a matter in dispute, to be sent a copy to the Ministers of Justice of the other two countries. Members of the Prosecutor's Office are not required to defend the opinion expressed by the Minister.
5. General lawyers begged each other to any country they belong. In the event that all licensees are unable to do so, the Court shall designate one of its members or alternate members to perform its functions on an interim basis. "
Article XI
1. In the Treaty, the title of CHAPTER III, "judicial powers" is replaced by the title "Competition".
2. A subtitle entitled "A. Questions of interpretation of legal rules" is added before Article 6 of the Treaty.
Article XII
In Article 6 of the Treaty, the following amendments are made:
1. Paragraph 1^er is replaced by the following:
"In the cases specified below, the First Chamber referred to in Article 4quinquies has questions of interpretation of the legal rules referred to in Article 1, which arise in the context of disputes pending before the courts of one of the three countries, sitting in the territory of Europe. "
2. In paragraph 2, the words "designated under Article 1" are replaced by the words "see Article 1". The word "Benelux" is deleted.
3. In paragraph 3, the word "Benelux" is deleted.
4. In paragraph 4, the last sentence, the words "previously given by the Benelux Court" are replaced by the words "decision or opinion previously given by the Court".
5. In paragraph 5 the word "Benelux" is deleted twice.
6. In paragraph 6 the word "Benelux" is deleted.
Article XIII
In Article 7 of the Treaty, the following amendments are made:
1. In paragraph 1, the word "greffier" is replaced twice by the word "greffe".
2. In paragraph 2, the word "Benelux" is deleted.
3. In paragraph 3, the word "Benelux" is deleted.
Article XIV
In Article 8 of the Treaty, the word "Benelux" is deleted.
Article XV
In Article 9 of the Treaty, the following amendments are made:
1. In paragraph 1, the word "Benelux" is deleted.
2. In paragraph 2, the word "Benelux" is deleted.
Article XVI
After Article 9 of the Treaty, a section entitled "B. Jurisdictional Attributes" is added, which includes articles 9bis, 9ter and 9quater, as follows:
Article 9bis
The Second Chamber referred to in Article 4quinquies, paragraph 1 (b), shall exercise full jurisdiction to hear cases that have been designated for that purpose under Article 1, paragraph 4.
Article 9ter
1. Decisions referred to in section 9bis may be limited to legal matters, filed with the First Chamber referred to in section 4quinquies, paragraph 1 (a).
2. The limits of this appeal and its consequences are set out in the Rules of Procedure.
3. This appeal has a suspensive effect.
Article 9quater
The Third Chamber referred to in Article 4quinquies, paragraph 1 (c), shall have recourse referred to in Article 1 (5)."
Article XVII
After Article 9quater of the Treaty, the title "CHAPITRE IV Consultative Attributions" is replaced by the title "C. Consultative Attributions".
Article XVIII
In Article 10 of the Treaty, the following amendments are made:
1. In paragraph 1, the words "the Benelux Court" are replaced by the words "the First Chamber" and the words "designated under Article 1" are replaced by the words "headed in Article 1".
2. In paragraph 2, first sentence, after the words "their observations to", the words "the Court" are replaced by the words "the First Chamber". In the second sentence, the words "This" are replaced by the words "The First Chamber".
3. In paragraph 3, the words "or arbitral" are deleted. The words "the Court" are replaced by the words "the First Chamber." and the subsequent text is deleted.
4. In paragraph 4, the words "the Court" are replaced by the words "the First Chamber".
Rule XIX
CHAPTER V of the Treaty on Arbitral College is repealed. The numbering of the remaining chapters and articles is adapted accordingly.
Rule XX
CHAPTER VI of the Treaty, entitled "Procedure and costs of justice", becomes CHAPTER IV.
Article XXI
Article 12 of the Treaty becomes Article 11, to which the following amendments are made:
1. In paragraph 1 of the Dutch version, the word "Beneluxhof" is replaced by the word "Hof".
2. Subparagraph 3(b) is added as follows:
"3bis. The proceedings referred to in sections 9bis and 9ter are initiated by the filing of an application introductive of proceedings at the Court's Registry. The Rules of Procedure of the Court and the Rules of Procedure set out the terms of these procedures. "
3. In paragraph 4, the words "by the President" are replaced by the words "in the case, by the President of the First or Second Chamber".
"Subparagraph 4(b) is added as follows:
"4bis. A convention referred to in Article 1, paragraph 4, may provide that an institution that has made a decision pending before the Second Chamber may file comments after the prior consultation of the Benelux countries. The institution will not make any observations if the major interests of one of the Benelux countries oppose it."
4. Paragraphs 5 to 8 are replaced by the following:
"5. A plea before the Court shall be allowed:
(a) any lawyer registered at the bar of a Member State of the European Union;
(b) any person authorized under an agreement referred to in Article 1(4);
(c) any person authorized as an agent by the Court in each case.
Without prejudice to the disciplinary law applicable in this case, such persons appearing before the Court shall enjoy the rights and guarantees necessary for the independent exercise of their functions, under the conditions determined by the Rules of Procedure. In accordance with the conditions set out in the Rules, the Court shall have, in their regard, powers normally recognized in the matter to the judges.
5bis. The Court shall have generally recognized powers in the matter to the judges and may impose monetary penalties in accordance with the provisions of the Rules of Procedure.
The execution of the decisions of the Court imposing a monetary penalty is governed by the rules of civil procedure in force in the State in which it takes place. The enforceable formula is applied, without any other control than that of verifying the authenticity of the title, by the national authority, that the Government of each of the Benelux countries will designate for this purpose and that it will inform the Court and the Secretary-General.
6. The proceedings of the Court are secret. Decisions are motivated; they shall bear the name of the counsellors or judges who have taken it and shall be pronounced in public hearing. Decisions are not subject to appeal, without prejudice to the application of section 9ter.
7. The languages used by and before the Court are generally Dutch and French. The proceedings, pleadings and decision shall take place in the language used for the proceedings before the court where the case is pending in the substance or language used in the application filed under Article 9bis. Proceedings must always be accompanied by a translation in the other language.
The Court may grant exemptions to this rule with respect to pleadings. If oral debates take place, a pleading note must be filed immediately following these debates.
Where the application for interpretation or the application filed under Article 9bis is in the German language, the Court orders that the procedure and the decision be in French or in Dutch. The arguments may take place in one of these three languages.
When the request is filed against a decision rendered in a language other than Dutch, French or German, the request must be filed in French or Dutch. The Court may authorize arguments in the language in which the decision under appeal was made.
8. A translation service is annexed to the Court Registry. He delivers all the above-mentioned translations free of charge."
Article XXII
Article 13 of the Treaty becomes Article 12, to which the following amendments are made:
1. In paragraph 1, the words "In jurisdictional matters, the Court" are replaced by the words "When the Court decides under its jurisdiction referred to in Article 1^erParagraph 2, subparagraph (a), it.
2. Subparagraph 2(b) is added as follows:
"2bis. When the Court determines under its jurisdiction under section 1, paragraph 2, sub (b), it fixes the amount of the fee and condemns the party that succumbs the fee. The fees include, inter alia, the fees of the boards within the limits established by the Rules of Procedure. The Court may also apportion the costs.
Institutions that file comments under Article 11, paragraph 4bis, bear their own costs."
3. In paragraph 3, the word "Benelux" is deleted.
Article XXIII
CHAPTER VII of the Treaty, entitled `'Financial Focus'', becomes Chapter V.
Article XXIV
Article 14 of the Treaty becomes Article 13, in which the words "are worn" are replaced by the words "form a separate post" and the word "economic" is deleted.
Article XXV
CHAPTER VIII of the Treaty, entitled ‘Latest Provisions’, becomes CHAPTER VI.
Article XXVI
Article 15 of the Treaty becomes Article 14, which reads as follows:
"Article 14
1. With respect to the Kingdom of the Netherlands, this Treaty will apply only to the European part of the Netherlands.
2. The Government of the Kingdom of the Netherlands may extend the application of this Treaty to Aruba, Curaçao, Sint Maarten and the Caribbean part of the Netherlands by a declaration to this effect to address to the General Secretariat of the Benelux Union. "
Article XXVII
Article 16 of the Treaty becomes Article 15.
Article XXVIII
1. This Protocol shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of the Benelux Union, who shall inform the other High Contracting Parties of the receipt of instruments of ratification.
2. The Protocol will enter into force on the first day of the third month following the date of deposit of the third instrument of ratification. The Secretary-General shall communicate to the High Contracting Parties the date of entry into force of this Protocol.
In faith, the Plenipotentiaries signed this Protocol and put it on their seal.
Done in Luxembourg on 15 October 2012, in three copies, in the French language in Dutch, both texts being equally authentic.