Steve Peers
The Court of Justice has recently
proposed that the EU should double the number of judges on the General Court,
and abolish the EU’s Civil Service Tribunal. Why did the Court propose such a
dramatic change to the EU judicial system? And is it a good idea?
Background
The development of the EU
judicial system has been dominated by a steady increase in the volume of litigation,
leading to disputes over how best to manage this workload. Traditionally, the
solution has been to increase the number of EU courts. So the Single European
Act, in force 1987, amended the Treaties to give the EU the power to establish
a Court of First Instance (later renamed the ‘General Court’ by the Treaty of Lisbon)
to assist the Court of Justice with its tasks. This power was used to create
that Court in 1989; both Courts have always had one judge per Member State.
As the case load of the Court of
Justice continued to increase, more and more of that Court’s jurisdiction was
transferred to the Court of First Instance, so ultimately that Court had jurisdiction
for almost all actions brought against the EU’s institutions, agencies and
other bodies. As an exception, the Court of Justice still has jurisdiction over
such cases if they are particularly ‘constitutional’ in nature, namely actions
brought by the EU’s institutions against each other, and challenges by Member
States to the EU institutions’ essentially legislative acts. The Court of
Justice hears appeals from the judgment of the Court of First Instance (now the
General Court), and retains full jurisdiction over the other types of EU law
proceedings, mainly references from national courts for a preliminary ruling
and infringement actions against Member States for breach of EU law.
Yet over time, this transfer of
jurisdiction to the Court of First Instance overburdened that Court in turn. So
the Treaty of Nice, in force 2003, gave the EU power to create a lower tier of
EU courts, called ‘judicial panels’ (renamed ‘specialised courts’ by the Treaty
of Lisbon). Only one such specialised court has been created: the EU Civil Service Tribunal, which began its work in 2005. It has seven judges.
But as the EU built more courts,
more litigants came. By 2011, the CJEU was again trying to find a way to cope
with the increasing volume of litigation. This time, instead of suggesting the creation
of a new Court, it proposed that 12 more judges be appointed to the
General Court. At the same time, it also proposed other amendments to the Court’s
statute, as well as the creation of a class of temporary judges to
assist the Civil Service Tribunal.
Member States in the Council, as
well as the European Parliament (the ordinary legislative procedure applies to
such changes), adopted the proposal on temporary judges for the Tribunal,
as well as most of the other proposed changes to the CJEU Statute. But
they did not adopt the increase in the number of judges on the General Court. While they agreed with
the increase in principle, they could not agree how to share the extra judges
among Member States, or how to rotate the appointments between them.
While these discussions dragged
on without any conclusion, the backlog of cases at the General Court has
continued to rise. And from this autumn, the situation at the Civil Service
Tribunal has begun to worsen as well, with the Council unable to fill two
vacant slots due to the same arguments about the principle of rotation.
So the Court of Justice has made
a new proposal: to double the number of judges in the General Court to two/Member
State, while abolishing the Civil Service Tribunal. This would take place in
three stages: 12 new judges in the near future, transfer of the seven Tribunal
judges in 2016, and appointment of the remaining nine judges from 2019. It
remains to be seen whether the European Parliament and the Council will accept
this proposal.
Comments
Undoubtedly, some remedy is
necessary to deal with the ever-increasing workload of the General Court. The
EU has an obligation under Article 47 of the Charter of Fundamental Rights to
deal with cases within a reasonable time. While the new judges will cost money,
failing to appoint them will cost money too: as the Court’s proposal points
out, there are now cases pending seeking damages because the EU judicial system
has failed to uphold the obligations imposed by Article 47.
There are two options available to
this end (without a Treaty amendment): the creation of more specialised courts,
or the addition of more judges to the General Court. (It should be noted that
the planned ‘Unified Patent Court’ is not
a specialised court, but a form of shared national court; for more details, see
last week’s blog post on the developing EU patent system).
The EU’s judges disagree among
themselves which of these two options is best. It was an open secret, at the time
of the 2011 proposal, that the General Court judges wanted to create more
specialist courts, but the Court of Justice’s preference for appointing more General
Court judges prevailed. In the 2014 proposal, there is no longer an attempt to
hide this disagreement: it’s openly acknowledged that the Court of Justice and
Civil Service Tribunal favour the proposal, while the General Court does not.
Why this difference of opinion? One
reason is that EU judges look forward to dealing with civil service cases about
as much as a cat looks forward to a bath. The judges at the General Court
thought they had got rid of these cases forever (except for appeals from the
judgments of the Civil Service Tribunal). Indeed, there’s a rumour that on the
day that Tribunal was created, every shop in Luxembourg ran out of champagne. But
now, to the horror of its judges, these cases seem set to return to the General
Court.
On the other hand, the judges of
the Civil Service Tribunal, after years of dockets consisting entirely of
feuding functionnaires, can look
forward to ruling also on bolshy Belarussians and money-grubbing monopolists in
the near future. Of course, by the time that the General Court consists of
twice as many judges as the Court of Justice, the former will outnumber the latter - although the Court of Justice, not the General Court (or the CJEU as a whole), which has the power to make proposals to amend the rules. (So does the European Commission).
Viewed objectively, which of
these solutions is best? The Court’s proposals make a number of good arguments for increasing the number of General Court judges. First of all, there is a good case that the creation
of specialist courts is less flexible, since litigation can increase in areas
not within their jurisdiction (such as foreign policy sanctions, in recent
years). Also, the creation of such courts does not necessarily solve the
workload problem, since the cases most suitable for such courts (like trademark
disputes) are often easy to deal with, and about a third of such cases will be
appealed to the General Court anyway. Moreover, it makes sense to keep such
disputes closer to the Court of Justice (via means of appeals from General
Court decisions), since that Court has to deal with similar cases in this context
of references from national courts on the EU’s trademark Directive, and on the
relationship between intellectual property law and EU free movement and
competition law.
Furthermore, it takes longer to
set up a new specialist court than to appoint more judges to the General Court.
While it is possible in theory to deal with the ‘national representation’ issue by
ensuring that there is one more judge per Member State across the General Court
and a number of specialised courts, the Court of Justice is right to believe
that it will be difficult to operate such a system in practice. The Council’s
recent illegal refusal to appoint judges to the Civil Service Tribunal has shown that it values pork-barrel politics more than the rule of
law.
Finally, the most recent proposal
will have the singular advantage of simplifying the EU judicial system,
eliminating an entire tier of courts as well as the complex rules applying to
screening whether the Court of Justice ought to review a judgment of the
General Court on an appeal from a specialist court. This would make the EU’s
judicial system easier to understand for the general public – and in
particular, for the beleaguered students of EU law.
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