The reform of the General Court: unleashing the forces of change

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

“Don’t mention the extra judges!” When CJEU reform turns into farce

Steve Peers

The classic British comedy Fawlty Towers derived its humour from the doomed attempts of the ill-tempered hotel owner Basil Fawlty to control the uncontrollable situations that developed around him, often taking out his frustrations on his waiter, Manuel. No one would seriously suggest emulating Basil Fawlty’s management style. But nevertheless, the debate over the reform of the Court of Justice is increasingly resembling a Fawlty Towers episode.

Let’s review. After several previous failed attempts at reforming the EU judicial system, the Court of Justice suggested that the lower EU court (the General Court) should have double the number of judges – two per Member State, instead of one. The EU’s civil service tribunal (with seven judges) would close down, merged into the General Court. The senior Court of Justice would retain one judge per Member State. For the background, further details and arguments in favour, see my earlier blog post.

This proposal was opposed by many staff in the General Court. So four General Court judges appeared before the European Parliament to object to this plan (let’s call them, collectively, ‘Manuel’). For discussion of Manuel’s counter-arguments, see the recent blog post by Professors Pech and Alemanno; and for Manuel's written argument itself, see here.

Very recently the proposal was formally adopted by the Council. But it still has to be agreed with the European Parliament (EP), and some Members of the European Parliament (MEPs) appear to have great misgivings, fuelled by the dissenting judges. Cue an angry response by the CJEU’s President Skouris (let’s call him ‘Basil’). As documented by Duncan Robinson in the Financial Times, he complained that the EP was willing to listen to the rebels, and threatened retaliation against the dissenting judge. Manuel might soon get whacked by that frying pan.  

With the greatest respect, there are profound problems with Skouris’ approach. First and foremost, his response has become the story (it’s also been covered elsewhere). This diverts attention from the pros and cons of the argument for CJEU reform. I’m not criticising the journalists – it’s their job to report on his response, and he should have anticipated the effect it would have. Also, now that his response has become the story, it gives the impression that the proposal is a greedy grab for money by the judges. In fact. as I pointed out in my earlier post, the CJEU had previously suggested fewer extra judges. It only asked for doubling the number in despair, when it became clear that Member States could not agree on a more modest number, due to national egotism.

Secondly, Skouris’ angry letters give the impression that the CJEU is an authoritarian institution. Certainly, any ordinary employer would not take kindly to public criticism of its policy by its staff. For instance, if (entirely hypothetically) I had objections to the management of the University of Essex, I would not air them in a public forum. But the CJEU is a public body, in a political system whose legitimacy is clearly fragile. These attempts to silence dissent surely damage the Court’s authority more than the dissent itself would. Anyway, they gave that dissent far more publicity than it would otherwise have had (the well-known 'Streisand effect').

Thirdly, by attacking the dissenters instead of countering their arguments, it gives the impression that there is no good argument in favour of the Court’s proposals, since the brave truth-tellers are being silenced. And in tactical terms, it’s particularly hard to see how attacking the very MEPs whom Skouris needs to convince to support his proposals will win them round.

This problem isn’t limited to Skouris alone. After publishing the arguments of Pech and Alemanno, this blog received an anonymous comment which mixed snide personal comments about one of those authors with a reasonable counter-argument against their critique (I don’t know whether or not the commenter is linked to the Court). I didn’t publish that comment at the time because of the nasty personal comments. After some thought, I have decided to extract the more reasonable part of those comments and present them here, so that we can move back to debating the merits.

“[redacted] 1) The four arguments in favour of the reform (as summarised by Steve Peers) are dismissed as not empirically substantiated. But if something is self-evident why do we need empirical data (and which ones by the way?). Do we need empirical data to show us that a two-tier judicial system is SIMPLER than a three-tier system with obscure procedures such as the exceptional review procedure? Do we need empirical data to show us that it is wiser to have preliminary references and appeals in the jurisdiction of the same court? Do we need more empirical data to prove that the nomination of judges to a specialised tribunal is more complex than the one for the GC [General Court]?

 
2) The claim of a top down approach is not substantiated. Certainly the press and some GC insiders may have claimed that. [personal comment redacted]

a) the internal debate over the GC reform started in 2009 

b) at the initiative of the GC

c) was debated by a bilateral committee (CJ and GC) for almost two years

d) The President and Vice-President of the CJ went repeatedly to the GC's plenary to discuss this matter

e) That the caseload of the GC increased by 48 % between the GC's first proposal (2011) and the amended 2014 proposal.

[redacted] 

3) It is wrong to claim that IP cases represent 30% of the GC's workload. It is 30 % of the GC's CASELOAD. There is a huge difference between caseload and workload. One competition or State aid case is equivalent to 10 or 20 trademark cases...

4) The arguments about quality clearly imply that judges and référendaires at the GC are not up to the task. This raised some questions though which are left unanswered:

a) How is that substantiated? How have you assessed the lack of competence that you allege exists? 
b) Why is the quality of judges and référendaires a problem only at the GC? Nomination and référendaire hiring practices are identical at the CJ and the GC...

c) How on earth can we be talking about an EPSO competition for référendaires? Aren't you aware of EPSO's inefficiencies? [redacted]

5) Some of the article's recommendations have a lot of merit. However, they require a lot of time (or even Treaty change) to be implemented. The GC's backlog is here now!!! In order to bring the pending cases to a reasonable level of 800 the GC must produce 100 more judgments than the incoming cases per year FOR 6-7 years in a row. It has never managed to do so in the last 15 years notwithstanding the fact that its judges and staff (according to my information) are working at their limits. So...we have to ask ourselves...is there another viable solution apart from the one proposed by the CJUE?” 

The way forward

In many Fawlty Towers episodes, there’s a point where Basil’s long-suffering wife mollifies the people offended by his conduct. Let me assume that role here (just call me ‘Sybil’). Otherwise I fear that the process of reform might soon come to an abrupt halt – and we will all have to witness the judicial equivalent of Basil Fawlty whacking a broken-down car with a tree.

'Manuel’s' key claim, ie the counter-argument against 'Basil’s' argument for doubling the number of judges, is that 80% of the General Court’s backlog has now been eliminated. This is not substantiated by any statistics, and it’s not clear what they define as a 'backlog'. I wonder if the EP pressed the dissenting judges on this point, or simply lauded them as the Edward Snowdens of Luxembourg. Certainly it’s clear that a very large number of cases are still being lodged at the General Court. And even if that Court is catching up with its case load, there’s an argument that more judges might be able to reduce decision-making times further still.

The Pech and Alemanno argument for more specialised courts might be fine in theory, but it’s clearly not feasible in the real world. This approach has been tried and failed: Member States have paralysed the Civil Service Tribunal by not appointing fresh judges to it, due to a spat about rotation of judges between Member States. That’s petty and surely illegal – but it’s an unavoidable fact. There’s no point hoping that national egos will go away; they won’t.

But there is much to the Pech and Alemanno argument (made also by lawyers practicing before the Court, such as Tom de la Mare) that more effective management of cases could address a lot of the Court’s problems.

So I suggest a compromise. The EP should agree to the Court’s proposal – with a sunset clause. Let’s appoint one set of extra judges for each Member State. In principle, they will serve one term only. (They could stay on to replace the other judge from that Member State, if he or she leaves). A couple of years before the first term of the first batch of extra judges expires, there could be a full impact assessment of whether there still need to be extra judges. This would also consider whether the Court has taken other effective steps to manage its workload (which should be a condition of getting the extra judges), and measure whether they have proven to be as effective as some claim that they could be.

Conclusion

“Don’t mention the extra judges!” (I did once, but I think I got away with it). More seriously, I get the distinct impression that the argument about the Court is being affected by a lot of personality politics. I’m not a current or former insider in the Court or the Parliament (or anywhere else), so I have no ego in this race. But I urge  everyone involved to  leave their egos at the door, and I believe that a reasonable compromise between the different opinions – the validity of which has been obscured by the overreaction to some of them – is possible along the lines I suggest.

Barnard & Peers: chapter 10

Reform of the EU’s Court System: Why a more accountable – not a larger – Court is the way forward

Alberto Alemanno, Jean Monnet Professor of EU Law & Risk Regulation, HEC Paris

Laurent Pech, Jean Monnet Professor of EU Public Law, Middlesex University London

1. The context

Recent media coverage of the EU Court of Justice suggests that the period of ‘benign neglect by the powers that be and the mass media’ – once described by Professor Eric Stein – may well be truly over once and for all. The most unexpected aspect of this rather unique level of media attention is that it does not directly concern any particular judicial ruling by a Court, which, since it decided its first case in 1954, has issued more than 28,000 judgments and orders. Instead, the Court of Justice (CJ) and its President, Mr Vassilios Skouris, have been subject to unprecedented media scrutiny following intense internal infighting about a contentious proposal which officially aims to ‘reinforce the efficiency of justice at EU level’ by doubling the number of judges working at the General Court (GC).

Before offering a review of the CJ’s diagnosis and critically assessing the solutions defended by its President, it may be worth briefly recalling that the GC – initially known as the EU’s Court of First Instance – was set up in 1989 to help the CJ cope with its increasing workload. To help in turn the GC cope with a similar issue, the first EU specialised ‘judicial panel’ was set up in 2005: Known as the EU Civil Service Tribunal (CST), the jurisdiction is exclusively limited to disputes between the EU and its civil servants and consists of 7 judges. By contrast, both the CJ and the GC currently consist of 28 judges, with one judge from each Member State. The CJ is however also assisted by nine Advocates-General.

2. The Court of Justice’s diagnosis

The casus belli, which has prompted the current debate about the EU’s judicial architecture, is the increase in the number of new cases brought before the GC (from 398 in 2000 to 912 in 2014); the stock of cases currently awaiting to be decided (1,423 in 2014 and expected to rise to 1,600 in 2015); and finally, the increasing number of actions for damages brought against the EU due to the excessive length of proceedings before the GC on the basis of Article 47 of the EU Charter, which guarantees a right to have cases heard within a reasonable time.

While increasing workload is not in itself a new phenomenon – and has indeed been a recurrent problem for both the CJ and the GC – the latter’s growing workload has been seen as particularly worrying. Indeed, in addition to a rapid increase in the number of cases before it, the GC’s productivity has decreased despite an increase in the number of both judges (due to the Union’s enlargement) and their legal assistants known as référendaires (see however here for a recent update from four GC judges where it is submitted that 80% of the GC’s backlog has now in fact been liquidated and that in the first four months of 2015, the number of completed cases exceeded the number of new cases filed).

In parallel to these distressing trends, the situation has begun to worsen as well with respect to the CST due to the rather childish inability of the Member States to fill two vacant slots since September 2014 – out of a total of seven as previously noted – following persistent disagreement about how the principle of rotation should be implemented.

3. The Court of Justice’s latest solution

In 2011, the CJ initially refused to consider the creation of new specialised courts – a solution which at the time was favoured by the GC itself – and suggested instead the appointment of 12 extra judges at the GC. However, following persistent disagreements between the Member States on how to rotate the appointments between themselves, this preliminary solution was removed from a package of reforms to the Statute of the Court of Justice.

This led the President of the CJ to suggest last October the progressive doubling of the number of GC judges (from 28 to 56). However, to mitigate the economic burden engendered by the proposed doubling, the abolition of the CST was also suggested – with its seven judges expected to move to the GC – and a gradual implementation of the reforms, with an initial increase of 12 judges in 2015; a further increase of 7 in 2016 following the dissolution of the CST and the transfer of its case-load to the General Court; and finally, a last set of 9 additional judges to be appointed in 2019. The proposed abolition of the CST was something of a surprise as most observers consider it a success story and indeed, it has been presented as such by President Skouris himself on the occasion of its 5th Anniversary.

Be that as it may, the CJ’s proposal would therefore ‘only’ result in the net creation of 21 extra judges, at an alleged net cost of €13.875m per year, assuming that there are 7 judges working at the CST in 2016. While this amount does not appear to take into account the €168m for the construction of a new tower, an expense which is however justified by the need to ‘repatriate’ staff who have been working in prefabricated buildings since 1999, the economic cost of the CJ’s proposal may be viewed as relatively modest. One may for instance compare this estimated cost to the total amount of damages currently claimed against the EU on the basis of Article 47 of the EU Charter, i.e., €26.8 million. The economic importance of the cases heard by the GC is also such that the cost of the CJ’s proposal is not a significant argument one may raise against it. We argue however that the solution put forward by the President of the CJ (and recently endorsed by the Council) is not adequate both from a structural and sustainability point of view.

4. Critical Assessment

As nicely summed up by our colleague Steve Peers, supporters of the CJ’s solution have relied on the following arguments to support the proposal to progressively double the number of GC judges:

1.      It would be a more flexible solution than the creation of specialised courts to the extent that litigation may increase in areas not initially foreseen and that cases most suitable for specialised courts tend to be repetitive and easy to deal with;

2.      Keeping such cases closer to the CJ would also make sense considering that the CJ may have to deal with similar cases via national references for a preliminary ruling;

3.      The appointment of new judges to the GC could be done swiftly and would also avoid any pork-barrel politics should the specialised courts not consist of a judge per Member State (as has been the case with the CST);

4.      Finally, the CJ’s solution would have the singular advantage of simplifying the EU judicial system.

These are sound arguments but unfortunately none of them are, in our view, empirically substantiated. The lack of any proper prospective impact assessment of the CJ’s proposal is, in this respect, particularly regrettable. Similarly, one may deplore the top-down, not to say authoritarian, approach adopted by the President of the Court, which suggests a deliberate attempt to avoid any meaningful discussion of reasonable alternative proposals, such as the establishment of specialised courts with jurisdiction to hear and determine direct actions in a specific area. The CJ’s proposal also marks a shift away from the principle of specialisation – endorsed by the Masters of the Treaties and set to materialise into the creation of subsequent specialised chambers, such as in trademark litigation (representing around 1/3 of the GC’s workload) – towards a generalist jurisdiction made up of two judges per each Member State.

As for the argument raised against the principle of specialisation – to avoid creating a court with a ‘rigid’ jurisdiction that might not be justified in the light of future workload – well, the same argument could actually be invoked against the creation of a ‘super-GC’ whose future caseload is unlikely to double in the near future. This is especially true given the limited access to justice in direct actions currently granted by the Treaty as interpreted by the CJ. More critically, we submit that the doubling of GC judges is an unnecessary distraction from less visible and arguably more decisive issues such as case management and productivity per personnel unit. Those challenges, if tackled properly, would most likely bring long-lasting benefits to the institution without entailing a radical restructuring of the EU’s judicial system.

We therefore propose to step back from what has become a largely emotive and not always evidence-based debate in order to gauge whether an alternative diagnosis and set of reforms should not be in order.

5. Thinking outside the dock

Although the dominant narrative accompanying this debate highlights the existence of a dramatic backload, there is a broader issue facing the ability of the GC to effectively deliver justice today.

We submit that the real difficulties encountered by the GC lie in the broader set of challenges faced by such a unique transnational and multilingual court whose jurisdiction has been growing in parallel to the transfer of competences to it since it was first established in 1989. It is important to realise that while the GC acts as an administrative court, invested with fact-finding tasks, the CJ largely operates as a constitutional court. These two courts, to oversimplify slightly, not only have jurisdiction over different kinds of cases but also hear actions originating from different actors. If the privileged client of the CJ is a national judge – largely embedded into its domestic reality – those of the GC are predominantly private business operators. Logically, therefore, the instruction of the cases should follow different operational guidelines and linguistic regime. Yet they largely don’t and this is so despite the reform of the rules of procedure.

Let us illustrate why this assimilation of the two courts when it comes to their judicial organisation may explain several of the many challenges faced today by the GC.

In both courts, the instruction of a case is led by a Judge rapporteur (JR) nominated by the relevant President according to unknown criteria (even though specialisation would seem to be taken into account at times). He/she is expected, once the written procedure is terminated, to draft a preparatory, internal document (rapport préalable). While the preparation of this working document by the JR requires on average two weeks at the CJ, it generally takes a minimum of 12 weeks at the GC (this is just an average: a trademark case might take significantly less and a competition law case significantly more). This is largely due to the fact that while the rapport préalable constitutes a few pages at the CJ, it generally consists of a fully-fledged document at the GC, which largely anticipates the draft judgment.

This difference itself reflects two different approaches: Unlike the CJ, where collegiality manifests itself on a weekly basis, allowing all Court members to exchange on the new cases that have reached maturity, the current operation of the GC shifts more responsibility to the chambers and in particular to the JR. In the absence of an Advocate General, the JR at the GC and his/her référendaire find themselves largely insulated from the rest of the Court and this for a significantly longer period of time. This situation – which is further exacerbated by the higher number of chambers – may mean a waste of precious time should the other members of the Chamber disagree with the approach developed by the JR in full autonomy over the previous months. A preliminary document stating the orientation of the chamber, to be agreed upon before the Judge Rapporteur and his/her legal assistant start working on the initial draft could be a promising area of reform. And this is only one of several areas where creative and low costs measures could be adopted to address some of today’s concerns regarding the GC’s workload. Other instances of reforms – which have largely remained taboo but would entail great savings – include a review of language arrangements (e.g. English could be used as a default procedural language in all competition or even ‘economic’ cases); a court fee to discourage vexatious or frivolous litigation; new rules on the allocation of legal costs for the losing applicant; a questioning of the automatic right of appeal, which would filter out, thus discourage, further and usually unsuccessful additional litigation initiated by wealthy parties, etc.

With respect to the judges themselves, we would wish to see the President of both the CJ and GC Courts as much concerned about quality than he is about quantity. Today, due to the concern generated by the backlog of cases before both the GC and the CJ, the metric of success of a judge has become the number of cases closed by each judge every year. Yet this ranking-based approach, which heavily relies on (internal) naming-and-shaming tools to induce judges to be more productive, has failed to deliver on its promises. This has largely to do, in our opinion, with the current external lack of transparency – and as a result, accountability – regarding inter alia the productivity of the members of the Court. This is not to say that the number of closed cases should be the alpha and omega of the Court’s judicial policy. Indeed, we would advise a broader discussion of judges’ accountability during their terms with the view of identifying quantitative as well as qualitative performance benchmarks for judges and their cabinets to satisfy on a year-on-year basis.

More emphasis on the productivity of the members but measured in a less crude way may also produce positive effects on the selection of new members. In this context, it would be a good idea to ‘europeanise’ – de jure condito – the judicial selection process further. All Member States should be mandated to publish a public call, then to put forward a list of at least three candidates for each judicial position, selected on the basis of a number of additional obligations regarding gender balance, management skills and professional background of the applicants. A preferred candidate should then be indicated by the judicial panel provided for by Article 255 TFEU, which would take into due account the specific needs, in terms of specialisation, of the Court. A reform of this nature could help diversifying judicial selection while at the same time preventing any national epistemic communities, be it academia, the national judiciary or politics – from monopolising judicial recruitment at EU level. The term of the EU judges’ mandate is another area ripe for reform and we would personally favour a single, non-renewable term of nine years, with a prohibition on any transfer of judges from the GC to the CJ during a judge’s term to avoid disruptions.

Closely linked to the issue discussed above is another sensitive one: the recruitment and supervision of support staff. With a view to improving both quality and productivity, we would prioritise a review of the feudal rules that currently govern the recruitment and management of référendaires, i.e. the EU judges’ legal secretaries. In a few words, we would favour the organisation of a regular civil service exam for the whole CJEU to guarantee a common core of knowledge in a number of areas; the adoption of updated and uniform entry requirements (e.g. candidates should be qualified to practice law or have taught law full time at university level for a minimum number of years); and the creation of a pool of qualified candidates (or two pools with a junior and a senior stream) from which judges could select their teams of legal secretaries who will be automatically appointed and retained for the duration of the relevant judge’s term as long as clear and pre-defined performance targets are met. To promote best practices, compulsory and regular attendance at management (for judges) and legal drafting (for legal secretaries) courses could be required. To favour stability and move away from the current medieval arrangements, the legal assistants should no longer be contractually linked to a particular judge but to the Court. It would also be a good idea to introduce on the one hand, some basic elements of modern employment law such as the EU rules that prohibit discrimination, and on the other hand, internal whistleblowing rules as suggested by the European Ombudsman in January 2014. Finally, to help EU judges and their cabinets deal with unusually complex and/or time-consuming cases, an additional, centralised pool of highly qualified legal secretaries in sub-specialised areas of EU Law (e.g. EU taxation law) could be set up and its members be ‘seconded’ on a case-by-case basis to relevant cabinets. A similar experience gained by the GC in its early days has been – according to many – very positive.

6. Looking beyond the workload challenge

Contrary to the dominant narrative, we argued above that the real challenge facing the Court today is more qualitative than quantitative in nature. We would therefore tend to agree with the view defended by a number of EU judges that the proposal to double the number of GC judges is ‘yesterday’s solution for yesterday’s problem’. Rather than exclusively focusing on the GC and its allegedly excessive backlog of cases, we would welcome a broader reflection in the context of a more evidence-based and inclusive framework. The urgent question today is how to ensure that the CJEU will remain an authoritative institution delivering readable, prompt and cogent rulings in a unique multicultural, multilingual and multi-legal context.

As is often the case in life, what makes the difference is the human factor. The CJEU is no exception. The solution to many of its challenges depends more on its understanding of human nature than the law. One may hope that the CJ’s new President will prove more willing to embrace a subtler understanding of the many dynamics operating within a judicial body and more proactive than reactive when it comes to judicial reform. In our view, a better system of incentives, a wiser use of psychological insights (e.g. peer-pressure), and most fundamentally, a more open court, promise more than the proposed mechanical addition of more judges. Reforms of this nature would render the Court more accountable to the outside world and enhance, as a result, its legitimacy and authority at what is a very difficult juncture for the European project.

Barnard & Peers: chapter 10

Building the EU Judicial System: Politicians 1, (Judicial) Architects 0

 

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.

 

Barnard & Peers: chapter 10