Friday 3 July 2015

“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.

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 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.


“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


  1. (...) Then, something has to be said about the so-called "quality" of judges and référendaires. Thinking that 28 (or 21) additional judges will solve the problem may seem obvious for an outsider but not if you know how the GC (and the Court in general) actually works. To be blunt: judges don't write judgments, judges supervise their law clerks and decide, and that's it. So what is on the table now - increasing the number of judges and possibly decreasing the number of référendaires per cabinet in the future - does not take account of this basic fact : the GC's productivity is not linked to the number of judges, but to the number and quality of its support staff. There are urgent needs as well in many services such as translation, and services such as lecteurs d'arrêts and correctrices. Is the proposed reform dealing with that? Apparently not, on the contrary, because the Court worringly promised (welcomed by Germany) that "appropriate measures will be taken to limit administrative expenditures of the GC at every stage of the reform" in order to minimise its costs... This would lead to the almost certain result that a GC with double the number of judges and about the same number of support staff would probably not be any better in reducing the GC's (already diminishing) backlog. Of course, it would help the Court to solve its own problems and to "simplify" the judicial architecture of the EU. The proposal of having more judges sitting in extended chambers (of 5 or more judges) to deal with the same cases is probably not going in the right direction either but is simply a way to justify their nomination by allocating the existing caseload among more judges that the GC actually needs...

    Of course the question then is, "yes but is there any alternative viable proposal" ? If MS cannot agree on a merit based system for the nomination of judges, without any nationalty requirement, well let's not give them the chance to nominate even more of their little friends. How many judges are former politicians or closely linked to the political ruling class? There is a clear conflict of interest in this whole system of nomination, which is why, of course, the Council is fully endorsing the Court's proposal, as if it were its own. So the GC doesn't need extra judges, what they need is extra staff, and to continue on the path of a better managed and more efficient GC. That is the real way forward, not the mexican army that is currently being proposed. This will not solve anyhting, except the Court's wish to "simplify the judicial architecture of the EU".
    Last but not least: this author is talking about an ego race, but what would be the interest of those judges at the GC who are being offered to have more colleagues (twice as more) to help them out dealing with the same workload. One should be crazy to oppose a reform allowing him/her to work less, with more chances of being re-nominated as there will be more jobs to fill? So maybe it's not only a question of ego.

    1. Fair point about the motives of the General Court judges who objected in public, but it still seems to me that at least some of the people in this debate are influenced by personality conflicts, and the egotism of Member States is being displayed in plain sight. It's possible to genuinely believe in something and simultaneously be involved in a personality conflict too. The quality of judges ought to have been improved by the panels set up to judge that quality - if it's true (as reports have suggested) that some potential judges have been rejected by that panel. And in a way the Council did author the Court's proposal (not literally, of course), since it rejected alternative proposals by the Court. I do think it's unfair to criticise the Court for wanting to double the number of judges when its clear preference was for a more modest increase.

  2. A few points need to be clarified:

    1) I know from 100% reliable sources that the Court NEVER proposed the reduction of the number of support staff in the judges chambers. The compromise/cost-cutting proposal of the Court was to make an internal redeployment of staff in order to cover the staff positions of the last nine judges scheduled to arrive in 2019. "Internal redeployment" refers to the Institution and NOT to the GC alone.
    2) I am told that there are several judges of the GC that support the reform. They are a minority but not a minority of one or two. The Court unanimously supports the reform and so does the CST. Are they mad? Are they all out to satisfy an ego trip?
    3) It is true that MS failed to agree on who would appoint 12 judges and that proposing 28 makes things easier. However, we must not forget that since 2011 the GC's incoming cases increased by 48 % and that (since the legislative procedure can be complicated) any reform proposal must give solutions for one or two decades ahead.
    4) On a more general note, when proposing a reform one must have a clear objective. It is in my vew erroneous to believe that the purpose of this reform is to simply reduce or absorb the backlog of the GC. The objective is to render justice in a more efficient manner in the long-term. And, in this perspective, I ask: is there any other way that could reduce the procedural delays by half at the GC? Ideally, and all practicioners agree, trademark cases should be completed in 12 months tops and competition and state-aid cases within 20-24 months. Can this happen without 56 judges and in the context of an ever increasing caseload?

    1. Just to clarify: I am not suggesting that the proposal to double the judges is a n ego trip. What I'm suggesting is that the overreaction to criticism of the proposal shows signs of egotism and personality conflicts, which don't help the public image or legitimacy of the court.

    2. On the 4th point mentioned above, with all due respect, the real question is: is it possible to complete a heavy competition law case within 24 months (from the date the appeal is lodged I guess) when 1) it takes already between 6-12 months before the written procedure is closed, with all procedural delays that may be caused by interventions or issues of confidentiality, and with all the parties' submissions needing to be transated in French 2) aside the well-known rapport préalable, which is the most time-consuming taks for the judge rapporteur, the General Court still produces a report for the hearing (containing a summary of the parties' arguments) that has to be translated and sent to the parties at least 3 weeks before the hearing, 3) once a draft judgment is ready, it still has to go to the lecteurs d'arrêts (minimum two months in average in such a case) and formal correction (1 extra month at least) and, 4) last but not least, the judgment has to be retranslated in the language of procedure (generally English), which can take again up to 5-6 months in certain heavy cases, never less than 2 months). So with all this parametres, it is almost impossible to close a heavy case in less than 2 years from the day it has been lodged, whether you work with 28, 56 or even 112 judges, simply beacause the judges are only one of the elements in this long time-consuming process!