Tuesday 15 December 2015

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

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