Daniel Sarmiento, Professor of EU Law at the University Complutense de
Madrid*
The reform of the General Court (doubling to two judges per Member
State in three stages by 2019, with the parallel abolition of the seven-judge Civil Service Tribunal) is a reality
now. The Council and the European Parliament have green-lighted a reform (taking effect from Christmas Day) that is destined to become a landmark in the history of the EU’s judiciary. For
good or for worse, the new General Court, the product of a constitutional
reform under the cover of a reform of the Court’s Statute, is here to stay.
(For the background to the change, see comments by Steve Peers here).
There are many critics of the reform, including some Member States. The
supporters seemed to be for a time a silent minority, but they have
successfully convinced the sceptics and the European Parliament finally gave
way to the many objections being brought by MEPs, academics
and even some members of the General Court. (For criticism of the
change, see Laurent Pech and Alberto Alemanno here and here; on
the difficult negotiations, see Steve Peers here). As for me,
I raised some objections as to the principles underlying this reform. In a
previous post I argued that a transformation of the EU’s judiciary like
the one we are about to see required a Treaty reform. However, my
objection was (and is) not based on the legality of
the reform, but on the means and procedures used, which, I believe, do not
reflect the importance of the measures being taken.
But the reform is now part of our lives and we should start learning how
to cope with it, as lawyers, as academics, as judges or as civil servants. The
Court of Justice of the European Union will undergo a momentous change, so the
quicker we get used to it, the better.
The change will start, of course, at the General Court itself. Fifty-six
judges are a lot of people, and they will certainly not be your average Joe.
Fifty-six highly competent lawyers, chosen through a very complex and demanding
procedure, both political and technical, from which not everybody comes alive
or in one piece. Fifty-six judges with their armies of référendaires,
outnumbering by far the référendaires of the Court of Justice, thus becoming
the most numerous professional community (together with jurist-linguists)
inside the Institution. And despite the huge overall number, it is possible that
the power, presence and authority of each individual judge will diminish. In a
56-judge jurisdiction, individual voice is a rarity. Authority and power will
depend on the ability of each judge to act efficiently, not necessarily on
their intellectual prestige. In very big houses, housekeepers,
not charming armchair thinkers, reign supreme.
Specialised chambers at the General Court will become a reality,
too. There are already plans to have a chamber for staff-cases, but soon it
will be inevitable for specialised trademark chambers to appear too. The
haunting myth of a specialised competition chamber will probably be postponed,
but if staff and trademark specialised chambers become a success, then the door
will be open for further experiments. IP lawyers will be happy to hear this,
but only if the appointment process works correctly. If judges end up taking
turns in order to have a say at both the “fun” chambers and the “boring”
chambers, rotations will be lethal for coherence and expertise. If référendaires
end up attached to specialised chambers (and not to judges) in order to ensure
a certain stability in the case law, judges might end up questioning who is
running the place. But if specialised chambers are not an option, who will
trust a jurisdiction with, say, fifteen three-judge chambers, to ensure the
coherence of the law?
A 56-judge General Court might finally push the Court into giving away
its jurisdiction in preliminary references procedures in some specific areas,
as provided by Article 256.3 TFEU (the new rules require a report on this issue
in two years’ time). It could make sense to have a specialised Community
trademark chamber also hearing references of interpretation concerning
Directive 2008/95, on the approximation of laws of the Member States
relating to trade marks. And why not VAT references? The Court of Justice is
still bombarded with VAT references from national courts that can perfectly be
handled by the General Court. The review procedure would not be dead after all,
and it could be revived in order to guarantee a certain degree of supervision
over the General Court’s preliminary rulings. The inertia and dynamics of an
enlarged General Court might be too powerful to stop, and we could
soon find ourselves with specialised chambers at the General
Court hearing preliminary references. I have no objection to that,
but we should be aware of the forces that are being awakened by the
current reform.
On a different note, the new General Court will have (or it certainly should have)
the tools and staff to rule swiftly on a very high number of cases every year.
This means that the appeals on points of law will skyrocket in the years to
come. The Court of Justice has taken measures to face this challenge, and in
the recent years there is a clear tendency to make good use of Article 181 of
the Rules of Procedure. This provision allows the Court of Justice to strike
out an appeal by way of a reasoned order if it is manifestly inadmissible or
unfounded. I have a feeling that this procedure will become the standard
practice when the Court of Justice handles appeals against decisions of the
General court, and its use will probably develop into a sophisticated type of
discretionary remedy. The Court of Justice will not be able to process the
amount of appeals being brought by unhappy parties against decisions of the General
Court, and therefore its practice will become more and more
principled-oriented. Appeals will not become a remedy for parties, but a sort
of individually-brought review procedure with the purpose of guaranteeing the
unity and coherence of EU Law. In an overburdened appellate court,
appeals will not be a remedy to ensure the effective legal
protection of individual litigants. Once again, I have no objection to this
model (in fact, it exists in many Member States), but we should all be
aware of its impact. Decisions of the General Court will need to be carefully
made, because the parties will hardly have another shot before the Court of
Justice.
This brings me to another related point: the need of external control of
EU courts. If direct actions end up being dealt in a single-instance
jurisdiction, with appeals left only for principled cases carefully chosen by
the Court of Justice, it will be essential for the EU to accede to the
European Convention of Human Rights. Private parties will not tolerate a judicial
system in which crucial decisions for their lives, welfare or property, are
solved by a sole jurisdiction against whom there is only a
discretionary appeal. Strasbourg scrutiny will become crucial if the EU wants
to prove that its judiciary is, as it self-proclaims itself, “a complete system
of legal remedies and procedures”. However, the resistance of the Court of
Justice to accept the conditions of accession to the ECHR will not help when,
in the near future, its appeals become more and more principled, and the
judgments of the General Court more and more crucial for litigants. In an
ironic twist of fate, the reform of the General Court which was pushed so hard by
the former President of the Court, Vassilios Skouris, might end
up becoming the Union’s fast-speed train towards accession to the ECHR,
which Skouris was so concerned about.
Lastly, this reform will also force a revision of the Court of Justice
of the European Union as an Institution. So far, it has been clear that
the Institution and its President were one thing, and the Court of Justice, the
General Court, the Civil Service Court and their respective Presidents quite a
different one. The tensions between the Court of Justice and the General Court
during the negotiations of the last reform have brought to the day of light the
need to clear up who is in charge. A 56-judge General Court will be a very
powerful player if it ever decides to act in unison. The President of the
Institution, not of the Court of Justice, could have a tough time trying to find
its own voice in such a crowded house. His colleagues at the Court of
Justice are the ones who have elected him (and to whom he is accountable
every three years), but he is the President of an Institution that
also represents the 56 judges at the General Court. I can imagine the
current President, a natural consensus-builder, managing successfully to
represent both jurisdictions before other Institutions. However, future
Presidents might not have the same abilities as the current one. If
institutional malaise is to be avoided in future years, serious consideration
should be given to the Court’s role as an Institution.
The reform of the General Court is the first step in the
transformation of the EU’s judiciary. It will unleash the forces of
change, whether we like it or not. But if those forces are wisely
managed, it could be the Institution’s chance to become the judicial
hegemon that many wish the Court to become. Wisdom and care, in very high
doses, will be needed more than ever in the years to come.
*This
post previously appeared on the Despite our Differences blog
Barnard
& Peers: chapter 10
Photo
credit: G. Fessy, CJEU
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