EU Judge Dehousse’s Farewell Address to the CJEU

Introduction by Professors Alemanno & Pech

Readers of this blog will find below the English translation of Judge Franklin Dehousse’s farewell address, which he had hoped to give on the occasion of his departure from the EU General Court last month having served on its bench since 7 October 2003.

In an apparent break with tradition, no public ceremony was organised for the departing EU judges, and an internal meeting was arranged instead (see this article published in Le Jeudi on 22 September 2016). While regrettable, this is perhaps not surprising. Indeed, Judge Dehousse has been among one of the most outspoken critics of the controversial reform of the EU’s court system, which is now encapsulated in Regulation 2015/2422 and Regulation 2016/1192 (and which we have ourselves critically analysed here and here).

Dehousse’s assessment and alternative recommendations are comprehensively set out in three meticulously researched papers, which he published during the course of his judicial term:

- The Reform of the EU Courts. The Need of a Management Approach, Egmont Paper 53, 2011, December 2011;

- The Reform of the EU Courts (II). Abandoning the Management Approach by Doubling the General Court, Egmont Paper 83, March 2016

- The Reform of the EU Courts (III). The Brilliant Alternative Approach of the European Court of Human Rights, Egmont Paper 86, September 2016

Readers may also find of interest his paper dedicated to the Unified Court on Patents, published in 2013 (Egmont Paper 60), which explores inter alia the impact of the creation of a new European patent court on the EU’s court system.

The address below, which Judge Dehousse kindly authorised us to publish on this blog, contains many valuable insights into the internal workings of the EU courts and, at times, the testing relationship between its (then) three constitutive judicial entities, particularly with respect to the controversial doubling in size of the General Court, and the recent dissolution of the Civil Service Tribunal. His address also offers some sound advice on how any structural reform of the EU’s court system ought to be conducted in the future. Last but not least, the address explains how the CJEU should seek to better manage and conduct itself, failing which its authority may be fatally undermined, with potential negative consequences on the legitimacy of the EU as a whole. As such, this farewell address undeniably deserves, in our view, to be made easily accessible to EU scholars and interested readers. It is our pleasure to share it with you via this blog.

Alberto Alemanno, Professor of Law, Jean Monnet Chair of EU Law and Risk Regulation at HEC Paris and Global Professor of Law, New York University School of Law (Twitter: @alemannoEU)

Laurent Pech, Professor of Law, Jean Monnet Chair of EU Public Law and Head of the Law and Politics Department at Middlesex University London (Twitter: @ProfPech)

Judge Dehousse’s Farewell Address to the Court of Justice of the European Union

Ladies and gentlemen,

Dear colleagues, 

To me, any holder of public office must always present a report at the end of her or his function. This seems all the more necessary than those years were sometimes fraught with conflict. It must be acknowledged honestly in an Institution whose mission is to ensure the transparency of all other Institutions.

When I arrived here 13 years ago, this office was my seventh profession and my fourth European Institution, after the Parliament, the Commission, and the Council. European affairs had been at the centre of my multiple activities, whether in the public or private sector, at the national or international level, in legal circles or in the media. I thus arrived with much curiosity and enthusiasm. To give away the plot at once, my curiosity has been steadily increasing over the years though, in many respects, my enthusiasm has been declining.

During the first three years, I built a good team, which is absolutely essential here. I learned what I ignored. And we eliminated a huge backlog: a stock of more than 100 cases initially. After that, I wondered how I could still help the Institution. Thanks to my previous experience, I could obviously assist other cabinets with backlog, which was done. After that, according to Adam Smith and Ricardo, I searched for my comparative advantage. Management, ICT, inter-institutional relations, and strategy seemed to be rather rare talents here. I thus invested in these domains.  

On one hand, my initiatives focused on the management of the General Court, then in big trouble. For me, having followed many corporate restructurings, this required first a better evaluation of the production of the cabinets, and its production units. Moreover, before asking for any additional means, it seemed essential for the credibility of the Institution to show that it had exhausted all internal sources of productivity. To this end, I harassed the authorities to establish the first serious statistics on the backlog and its causes. This included concepts such as the infamous “PPPU” (the “productivity per personnel unit”), or the threatening “delays columns” (adding all delays for all cases) (for more comments on this, see my first report TEPSA / Egmont in 2011). Originally, all this was not popular at all. Often after long and painful discussions, these measures were nevertheless taken, to the honour of my colleagues. In my humble opinion, they played a vital role in the elimination of the backlog since 2011 - and without any additional resources. 

On the other hand, my initiatives focused on the management of the Institution. There, almost immediately, the problems started. Quickly the local leaders saw my initiatives as interferences, and even usurpations. Without commenting on all the episodes of this long saga, four at least deserve a brief comment.

First, in 2007, just before the signing of the Treaty of Lisbon, some of us learned that the President of the Court had sent a letter to Council in order to ask for a series of changes, presented as essentially formal, in the new Lisbon Treaty. After reading, these changes on the contrary appeared quite essential. Basically, they aimed for a large substitution of the Court to the Institution in various provisions.

Everyone, of course, has personal sensitivities. Mine were certainly accentuated by my previous experiences in treaty revisions. For me, everything in this episode was shocking. These were not mere formal changes, but essential amendments. They did not result from any official position taken by the Court of Justice. They had no detailed motivation. There had been absolutely no official information within the Institution, to the public or to the Member States, though they remain the guardians of the treaties. And, finally, these provisions were not improving the adaptability of the Treaties. On the contrary, they would have imposed more treaty revisions in the future. This largely destroyed my trust in the Institution’s management.

Secondly, information technologies (IT) became another conflict zone. From the beginning, this Institution had seemed to suffer from a strong problem in this area. Like many other institutions I have known, it had decided IT development in silos, uncoordinated from one another. However, unlike many others, it had never corrected this defect. For years, I tried to convince the people in charge in the IT committee of the need for a more global system of management. Though some understood that, it was impossible. A senior collaborator of the Court’s President constantly imposed his personal vision, in defiance of all others. Consequently, the Institution went on implementing simultaneously different and uncoordinated strategies. For example, three different internal communication systems were developed, without any study of possible synergies between them. Later, three different reference systems were simultaneously used for the jurisprudence.

In the name of hierarchy, this nonsense was maintained for many years. The Institution had not even a general plan of its IT systems until 2010! The “leaders” needed a half IT-crash to begin to see the need of one. Though the present managers try now to improve the situation, the legacy costs are extremely heavy, and the system is hardly optimal. As all experimented users know, even the research in jurisprudence encounters substantial problems.

With some administration officials, we have tried to stop this drift. Finally, after many debates, in 2010, the IT committee imposed a comprehensive analysis of the existing system before any new spending. Alas, the cabinet of the Court’s President had simply the minutes of the committee modified, despite the formal opposition of the Court’s registrar. This was my second shock. The next decisions were simply moved to a clandestine meeting. Meanwhile, the IT committee was still defining its own strategy, until finally, the IT committee was simply abolished.

This saga still leaves me startled. The suppression of the committee because simplistic instructions from above are debated reflects a very limited sense of debate. To do this while IT becomes absolutely central for all activity reflects a great managerial myopia. Finally, the episode shows the sometimes surreal character of an Institution where judges have apparently time to think about the choice of works of art, but not of IT solutions.

Third came in 2011 the legislative proposal to create new judges to the Tribunal. Let’s make a long story short. From the beginning, my first objective was to defend, as required by the Treaties, an open and transparent process. However, the process degenerated. The transmission of various General Court’s positions to Parliament and Council was blocked. There was absolutely no impact assessment or consultation process. As the press revealed, an unauthorized negotiation took place with one government only, and without the knowledge of the 27 other Member States. Questionable pieces of information were sent to Parliament and Council in an unsigned document, undated and unnumbered. (One suspects that if these pieces were so trustworthy one would have found someone to sign them in an Institution of 2,000 people.) Other secret letters in the Institution’s name popped up in the press. To these problems one must still add a highly questionable ethical procedure opened against one of my colleagues who had provided accurate judicial statistics at the EP rapporteur’s request. All this leading to a manifestly disproportionate doubling of the General Court, against its own repeated analyses from 2010 to 2014.

Again, this saga still leaves me speechless. Although I have seen in my career dozens of legislative procedures, that I had never seen. These events have convinced me to publish accurate and documented reports, to avoid their repetition in the future. (See the two reports TEPSA / Egmont 2016).

Fourth came the curious accelerated creation of high administrative positions in the terminal phase of one President’s cabinet. Apart from other considerations, creating very quickly such a position, under the exclusive impulse of the Court’s President, to manage a service of four people, without any general analysis of the services’ organization, nor any written position from the Court’s registrar (who is also responsible for all outlays), and based on vague projects (of which almost none were implemented thereafter) seemed to me strongly below the standards of good administration.

Many other topics could be mentioned, such as the specialization of the General Court, or the assignment of cases within it, both imposed by external interventions (something incredible for a judge); or the ability of the Courts’ Presidents to take fundamental decisions for the external representation without any preliminary debate with members; the distribution of resources between the registries; the questionable nature of an external activity; the use of drivers; the rights of trade unions to inform the personnel about the legislative proposal; or the right of citizens to have access to administrative documents, etc.

In this context, I fully understand that one can legitimately ask the question: why devote so much importance, effort and energy to these administrative and legislative issues, often overlooked?

My answer is simple. Each time, it was impossible to do otherwise. I've thought very often about it, trust me, and the same conclusion always came back. Such episodes do not correspond, in any case for me, to the role and values assigned to that Institution by the Treaties. A judge does not have the sole mission to care about principles in her or his judgments; s/he must also worry about them in their own institution. This is the meaning of the texts. Basically, this Institution is a collegiate one. Also, when the Courts’ Presidents have powers (which no one disputes), they are required to use them respecting a series of established principles by their own jurisprudence: (1) good administration, (2) transparency, (3) motivation, (4) compliance with judicial independence, and (5) accountability to the colleagues who elect them. This must be said here very clearly: according to the existing texts, this Institution is based on the principle of checks and balances, cherished by Montesquieu, and not the Keizer Prinzip, so loved by Wilhelm II.

In addition, this also results from the spirit of the texts. Indeed, in this Institution, if the judges, who are the most independent and privileged, do not control the management, then who will? Finally, this is also the price of our credibility as members of this Institution, especially in a great period of doubt. Each time, I thus first sought compromises to defend these principles. They were always refused in the name of the principle of hierarchy, constantly invoked here, though it is both incorrect legally and inefficient in terms of management. Reluctantly, I have had to defend these principles otherwise.

My growing disillusionment explains the drafting of many memos on various topics in the Institution. They were elaborated with three goals: (1) to inform my colleagues and the personnel (essential in my Institution’s vision) about important and unexplained developments; (2) to impose as much as possible collective decisions, involving the responsibility of all judges; and (3) to leave behind me, and there appears my love of university and history, a description as detailed and documented as possible of the Institution’s management. I have wanted to do this not only for my court, but also for future analysts, and ultimately for European citizens, who are now rightly tired of the opacity of their Institutions. These documents form now, as you can see, two strong green books, amiably bound by a bunch of friendly colleagues.

Some locals have sometimes spoken of all this with disdain. We’ll see. We can note that, slowly, some local practices change. The judges whose collaborators are candidates for an appointment are now excluded from the selection process, even when they are presidents. This is surely an improvement. The simplification of the IT system is now an official objective. Article 52 of the Statute that requires an agreement between the Presidents of the two Courts about the administration has been suddenly rediscovered. An incredible appeal brought by the Court of Justice in front of itself to protect its financial interests has been withdrawn. There is in this Institution for the first time after 60 years a formal, detailed report, approved by the General Court, which covers the shortcomings and possible reforms of its governance. A reflection is slowly open on the weaknesses of the system of access to administrative documents. These changes prove already that with an open mind, we can easily do better.

And I leave this place with a smile at the thought that, as my memoranda cover essentially legislative and administrative issues, they are essentially accessible to citizens. As a lawyer, I wanted to build a complete file that illustrates in many ways the fundamental need to reform, for the first time since 1952, the governance of this institution during the next revision of the EU treaties. When you have a limited influence on the present, you can always at least prepare the future.

This was particularly necessary since the citizens’ access to the Institution’s legislative and administrative documents not related to judicial proceedings encounters serious difficulties. Article 15 TFEU guarantees that access, with exceptions of course, to citizens who request it. However, the Institution has at times resorted to secret documents in key areas (such as the revision of the Treaties and the Statute). It has even distributed on one occasion at least a key document secret, unsigned, and not listed. (Additionally, most members had no idea about these documents, and they discovered them only thereafter in other institutions or in the press.) In such circumstances, it is in fact impossible to ensure the proper application of Article 15 TFEU. Furthermore, one can occasionally question the qualification of "judicial affairs" given to certain documents in the courts’ minutes. (The definition of the Rules of procedure, for example, do not correspond to a judicial proceeding, but to a regulatory function.) In this context, I have sent, as a member of the Institution, 13 requests for information to the Institution’s leaders during the last months, with answers still to come. I hope they will also stimulate improvements.

Finally, before leaving, I must make a mea culpa. Over time, disappointment made me occasionally acerbic. To give only one example, one evening after a disappointing visit where we had heard once again lessons from the direction about how to think about our own reform, I dropped to many friends: “the genius of the Carpathians now seems to have found his genius of the carpets”. With exasperation, formulas easily come to me. On the one hand, in retrospect, I regret them. On the other, they constitute the inevitable consequence of the permanent rejection of any discussion. I can but ask for forgiveness. You must see there the reflection of the bitter stubbornness of a lawyer who had always defended a high ideal of this Institution in his multiple past roles, and who never accepted to abandon it once arrived here.

Ladies and gentlemen, dear colleagues, fortunately, my stay in this Institution was not monopolised by these conflicts. Besides these dark episodes, there were also luminous ones, especially at the judicial level.

However, I shan’t speak much about these activities. In this too, I have always defended a collective vision. In this framework, one must try to listen to various opinions, and find the necessary compromises. Ironically, I was even reproached, occasionally, for being too flexible. With this modest approach, I have been happy to contribute to the jurisprudence of this Institution, which I have always defended with conviction during the whole period.

In the early years, I was also pleased to discover a General Court (then CFI) which, at the time, was making important and appreciated contributions to European law, that were seriously debated inside and outside. A court which, at the time, enjoyed an extremely strong external representation, as strong as the Court of Justice’s. A General Court which, at the time, was not afraid of taking clear institutional positions and especially was not afraid to defend them whenever necessary.

The passage of time has allowed us, me and others, to measure even better the debt we had for this to Bo Vesterdorf, the President at the time, and beyond, to Jose Luis da Cruz Vilaca, the founding President. These men had great ambitions for their Court. They represented it brilliantly outside thanks to many high-level conferences and publications. And finally, they shared complete integrity with their colleagues. I wanted to tell them today my great friendship and respect.

My team has produced very good judicial results, both quantitative (many closed cases) and qualitative (very few contests thereafter). Nevertheless, I have been mainly an orchestra director. These very good results were possible only thanks to the contribution of many people.

First, the members of my cabinet, without which very little would have been possible. They know my esteem, and even my great friendship for them. But this is not the place to expand on this.

Second, the personnel of the other cabinets. I have forged with them many relationships of sympathy and even trust. They have sometimes discreetly encouraged me. I have been touched by this support, especially in difficult times. Whenever necessary, I tried to defend the qualified persons (but not necessarily the others), to provide them with the required IT tools, and to put an end to the long uncertainty over their future in which they are maintained.

Third, the registry personnel. It comprehends general highly qualified persons, well led by two successive, and very talented, registrars. The registry’s personnel rendered many services to us. On my side, I always defended its staff needs, its IT needs (this provoked occasionally some kind of administrative Vietnam), its role as a full actor in procedural decisions, and finally its need for serious judges’ attention. This is an essential synergy, still too little analyzed.

Fourth, the Institution’s administrative services. They also comprise in general highly qualified persons, and they do not always work in easy conditions. We must have the courage to recognize that too often here the administrative personnel are first considered as an adjustment factor for the judges’ comfort. Let us remember the very symbolic story of my colleague and friend Irena Wiszniewska on the day of her arrival when someone told her, “you are a judge, so you can do anything”. Furthermore, local leaders pay much attention here to the high appointments (they make too many of them, and too often eugenic). However, they are less interested in the living conditions of the rest of the machine. Whenever necessary, I have tried to fight this tendency too, though this was far from being popular.

Fifth and last, I must acknowledge my great debt to my colleagues of the General Court. Dear colleagues, all these years, you have been drowned in memoranda and interventions on multiple issues (often administrative and legislative, but not exclusively). This transparent and participatory management did not correspond at all to the local genre. In fact, it was its complete opposite. Yet you have quickly tolerated this and even very often supported its administrative and legislative conclusions.

One of us said to me one day, and I suspect it reflects a prevailing sentiment, “You are a necessary evil”. To be honest, this is not the formula that I should have preferred. Nevertheless, on the whole, it is better to be seen as a necessary evil than as a decorative invertebrate.

Today, I leave this place with satisfaction. Our court benefits from strong results, accurate statistics, a productive observatory, a position on the future of the EU judicial system, another one on the future of the Institution’s governance, detailed analyses on the imperatives of intelligent legislative reform, a new streamlined organization, many IT advances, greater transparency in the allocation of cases, better awareness of the limits of external activities, and a detailed strategy for the registry in a new court. Future observers will have all necessary documents to determine where most of these changes came from. In any case, this would not have been possible without your individual and collective involvement.

Unlike many, it is our plenary deliberations that I shall miss the most. Although they were often long and sometimes difficult, they taught me immensely, and I cannot thank you enough for that. I tried to prepare them systematically. In fact, one of my great corridor neighbours accused me ritually of spending too much time in the office of my colleagues. To that I always replied, “I’m not like you, I do not hate my colleagues, and I even love them”. And that’s true. Beyond the individual characteristics of your personalities, you represent the diversity of Europe, which has always been one of the great charms of my life.

At this hour, I would like to express one hope. During the past year, the management of this Institution has seen some improvements. However, problems remain. Above all, the Institution’s governance system remains out-dated, obscure, and devoid of sufficient controls. So I hope that others will continue to take initiatives in these multiple domains.

My grandfather, Fernand Dehousse, who provided my education, taught me a great lesson. He was in another era the first rapporteur of the first European Parliament on the first draft European Constitution. During the war, due to his previous writings, the Nazis forbade him from all professional activities. For four long years, he remained home, starved and wrote numerous tracts and documents (some of them advocating the integration of Europe). He always told me, “an idea never dies so long as it finds one defender”. Today, I’d like to convey the same lesson.

There are many beautiful ideas in our European Treaties, even if this is less understood today. One of the most beautiful is precisely our Institution. However, the European Treaties have not created the Court; they have created the Court of Justice. The Court is not, contrary to a popular local illusion, a value in itself. It is only the instrument of a value - justice. Judges are not above the law, or next to the law. They are, more modestly, its first servant. This must always be remembered, especially in a place when an official says on arrival, “you are a judge, you can do anything”.

Especially, when judges hold exorbitant powers - as here – their legitimacy exists only if they impose on themselves the same constraints that they impose on others. Nothing is worse than a judge who ends up taking him(her)self for justice, except the same, when exercising administrative and legislative powers. Indeed, then, whatever his/her title and technical capabilities, such a judge becomes a subversion of the separation of powers.

Consequently, I hope that in the future, whenever necessary, some of you will go on defending my fundamental concern during this whole period. According to the European Treaties, it is judges who are the servants of justice, and not justice which is the servant of judges - and even less of some judges - and even less of a single judge, whoever s/he is.

With that, ladies and gentlemen, dear colleagues, it remains to wish good luck to everyone in this Institution, whatever their role, in work that remains essential, especially now, for the future of our European continent.

For your humble servant, it is now the time to say goodbye and express my gratitude to those who supported me (let's be honest, in all meanings of the word), but above all those who assisted me in many ways, encouraged me and upheld my multiple initiatives to build together a better institution. Frankly, this has not always been an experience which inspired enthusiasm. However, thanks to you, it has always been, and this is essential, a humanly pleasant one. Therefore, very sincerely, my deepest thanks to all of you.

Franklin Dehousse (19 September 2016)

Barnard & Peers: chapter 10

Photo credit: http://blog.mslgroup.com/eu-us-personal-data-transfer-after-the-european-court-ruling/

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

Where do we stand on the reform of the EU’s Court System? On a reform as short-sighted as the attempts to force through its adoption

Alberto Alemanno, Jean Monnet Professor of EU Law, HEC Paris

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

1. Background

To ‘reinforce the efficiency of justice at EU level’, the Court of Justice of the EU suggested in 2011 the appointment of 12 extra judges at its lower instance court, the General Court (GC), before eventually requesting a total of 9 new judges in 2013. However, following persistent disagreements between the Member States on how to rotate the appointments between themselves, this request was removed from a package of reforms to the Statute of the CJEU aimed at tackling the growing workload. The Court of Justice eventually proposed in October 2014 to double the number of judges working at the GC, from 28 (one for Member State) to 56 (two per Member State). To reduce the economic burden, which would ensue from the proposed reform, it also recommended abolishing the Civil Service Tribunal (CST) and ‘upgrading’ its 7 judges to the General Court. For more on the background, see here.

In a previous post, we questioned both the diagnosis and the solutions proposed by the CJEU. We offered the view that the ‘real challenge facing the Court today is more qualitative than quantitative in nature’ and called for ‘a broader reflection in the context of a more evidence-based and inclusive framework.’

In a follow-up post, our colleague Steve Peers argued that the lack of a proper discussion on the merits of the reform and attempts to silence critics would most likely damage the Court’s authority. He further suggested a compromise solution which would consist of the EP agreeing to the Court’s proposal with a sunset clause, according to which the new extra GC judges would serve one term only at the end of which a full impact assessment of whether the need for extra judges is required.

To pre-empt any suspicion of potential conflicts of interest in an EU ‘ecosystem’ which is not characterised by watertight bulkheads between the legislative and judicial branches, we would now be tempted to propose the adoption of an additional clause. In other words, the actors involved in the adoption of the Court’s proposal, who would be eligible to be among the new judges (e.g. MEPs, European Parliament and Council officials), would commit not to take up those positions.

No actor involved in the ongoing legislative process has however shown visible interest in discussing clauses of this nature. Indeed, for all intent and purposes, the Court’s proposal to double the number of GC judges and abolish the CST has secured the quasi-unanimous support of the Council, with only the UK voting against it on the grounds that the new proposal is not a proportionate way to deal with the GC’s backlog (Belgium and the Netherlands also abstained). Interestingly, the UK Minister for Europe stated last March that ‘[o]ther Member States also expressed doubts that this was the best way to address this problem, or that all these judges are actually needed. Nevertheless, after four years of negotiations, many Member States and the EU institutions have concluded that this is the least bad proposal on the table, and that it will break the deadlock and improve the capacity of the General Court.’

Be that as it may, the Council’s position, which was formally adopted on 23 June, unreservedly accepts the CJEU’s diagnosis and solutions, and is now currently examined by the European Parliament.

In this post, we outline the serious concerns recently voiced by the European Parliament’s Rapporteur, Mr Antonio Marinho e Pinto, before outlining our own concerns with respect to how the debate (or lack thereof) is being conducted at the European Parliament.

2. The Rapporteur’s Case Against the CJEU’s Proposal

In the explanatory statement, which follows the text of the draft European Parliament legislative resolution on the Council position at first reading, the Rapporteur makes clear his strong opposition to the proposal to double the number of GC judges and offers a number of solid arguments in support of this view. These arguments are summarised below.

The Rapporteur first expresses doubts about why 28 new judges and the abolition of the CST are suddenly required when the Court of Justice itself suggested in 2013 that 9 new GC judges were sufficient to address the steady increase in the number of cases before the GC over the years.

Secondly, the CJEU’s proposal is presented as showing ‘deep contempt for European taxpayers’ money’ and amounting to a frivolous increase in spending at a time of widespread austerity and a general commitment by EU institutions to reduce employee numbers by around 5 %.

Thirdly, the proposal defended by the CJEU would undermine the prestige of the CJEU itself by suggesting that we should appoint judges in the same way that EU commissioners are appointed. It is further suggested that the priority should instead be to reform the appointment system of EU judges with the view of appointing them for a longer but single term of nine years (as opposed to a renewable term of 6-year) and ensuring more equal gender representation on the bench.

Fourthly, the report argues that the amended request by the CJEU to amend its Statute via a simple letter addressed to the Italian Presidency of the Council was put forward in October 2014 is in breach of relevant procedural rules. Notwithstanding the doubtful appropriateness of presenting an amended proposal via a mere letter, the report stresses that a new legislative procedure ought to have been initiated as what is being now discussed (the appointment of 28 new judges and the abolition of an existing EU court) is of a significantly different nature.

Fifthly, the lack of any impact assessment, which never materialised despite the CJEU’s previous commitment to undertake one, combined with the lack of consultation of relevant institutions (for instance, the European Commission’s opinion was prepared when the proposal was to increase the number of GC judges by 12), suggests that this reform has been rushed through with no attention being paid to ensuring both internal and external transparency and due regard to relevant procedural obligations.

Sixthly, the EU Treaties provide for the creation of specialist courts and therefore rather than abolishing the CST - in the absence of any legal basis for doing so - the possibility of creating new specialist courts, in particular for trademarks and patents, should be explored. Judicial reform should not in any event be devised on the basis of the Council’s inability to make judicial appointments and ‘force reality to adapt to [the Council’s] ossified ways of working.’

Seventhly, the issue of compensation for possible delays with GC decisions is dismissed as ‘pure smoke and mirrors’, as the Strasbourg Court itself ‘takes the view that the right to compensation for delays in justice arises only when there is a delay of more than five years’, which is far from being the situation at the GC.

Last but not least, it is submitted that ‘the figures provided by the CJEU on the outstanding GC cases and the average duration of these cases are contradicted by the figures provided by the President and by the GC judges during their hearing before the Legal Affairs Committee in Strasbourg, at the invitation of the rapporteur.’ (This issue alone should call in our view closer scrutiny and a genuine public debate on the proposed reform).

3. The Rapporteur’s Proposal 

In the light of the reasons set out above, the rapporteur suggests to reject the CJEU’s proposal and to consider instead the adoption of an alternative reform package, which would consist of the following elements:

-          The appointment of more staff at the Registry and in the translation services;

-          The appointment of 19 more legal secretaries (référendaires);

-          The appointment of up to 12 new judges at the GC but only ‘if the Court of Justice furnishes detailed evidence showing it to be objectively necessary in the light of the trend in the caseload for the General Court in 2015’;

-          The setting up of a committee of experts to analyse the advantages and disadvantages of creating a new court specialising in trademarks, patents and intellectual property.

-          The establishment by Parliament and the Council of a joint committee of experts to analyse the overall workings of the CJEU and make suggestions to improve its functioning and legitimacy by looking for instance into the recruitment of judges through open tender from amongst law professors of repute and judges from the high courts of each Member State; the appointment of each judge for a single term of nine years only; new rules to guarantee gender parity in the recruitment of judges;

-          The monitoring of the EU courts by the European Committee for the Efficiency of Justice (CEPEJ) on the same terms as the courts of the Member States of the Council of Europe.

4.  Procedural concerns

Rather than explaining why the diagnosis and set of solutions suggested above seem to us a more promising avenue than the solutions put forward by the CJEU and supported by the Council, we shall use this post to express a number of concerns with respect to how the ongoing legislative procedure is conducted.

First of all, we regret the lack of any rigorous and open data collection on the root causes justifying this reform as well as the absence of any prospective analysis of its impact (see e.g. here and here).

Secondly, we observe that the CJEU appears to be engaged in a subtle yet unorthodox lobbying process (as recently reported in the press here). This raises a number of questions with respect to the Court’s understanding of the principle of institutional balance and that of loyal cooperation. It would appear more appropriate for the Court – the guardian of the EU legal order – to confine its joint advocacy to the public domain rather than seeking to be directly involved in the legislative process via informal ‘quadrilogue’ meetings. Thus, one would expect the Court to systematically inform the public when its members visit other EU institutions to discuss pending legislative matters and, to say the least, report on the outcome of any such discussions.

But is not only the Court’s behaviour that raises concerns. The European Parliament’s action also calls for attention. In particular its JURI committee responsible for the dossier owes the public an explanation for a number of procedural glitches that have characterised the parliamentary discussion of the reform, including those listed below:  

-          Why was Pinto’s report presented on 15 September to the JURI Committee by an MEP belonging not only to another political group but also coming from Luxembourg, the very country which hosts the CJEU and stands to benefit most from any additional resources granted to it?

-          Was the now temporary appointment of the MEP from Luxembourg as Rapporteur the outcome of a foiled attempt to dismiss Pinto in violation of the Parliament’s procedural rules and conventions as reported here?

-          What is the explanation for the absence of any translation of the Explanatory Report (originally written in Portuguese) on the day Pinto’s draft recommendation and suggested amendments were to be debated on September 15?

-          Why is the documentation and correspondence (i.e. ‘Annexes’) mentioned at the very end of the Explanatory Report still not available?

The absence of any translated version of the Annexes is particularly prejudicial to a well-informed parliamentary debate. The MEPs – whose amendments are expected by 23 September – are deprived of the opportunity to consult a GC document, which, according to the rapporteur might question the need for the proposed reform by offering facts and figures contradicting those presented by the CJEU.

When analysed together, the sum of these elements suggests a pattern of procedural irregularities whose only aim seems to be the speedy adoption of the reform. More troublingly, it may also be construed as a joint advocacy strategy designed to systematically eliminate any opportunity for a public, well informed and evidence-based debate.

When it comes to a reform carrying constitutional implications and having at its centre the operation of the ‘supreme court of the land’, one might expect more attention to be paid not only to the merits but also to the forms.   

5. Conclusions

The proposal, which is now being examined by the European Parliament, bears little resemblance to the 2011 proposal on the basis of which the current legislative process was initiated. This calls into serious question not only the procedural legality but also the legitimacy of the whole reform process.  

We are not surprised to see strong institutional and individual support for the Court’s proposal within the EU’s legal epistemic community.  Don’t we – lawyers – all have more to win than to lose from the multiplication of top judicial posts?

Be that as it may, we suspect that should this reform go through (as it appears likely), damaging evidence might yet come to light and the authority and legitimacy of relevant EU institutions will be further undermined at a time where they have little to spare.  

This is why the strategy that has accompanied and will eventually secure the adoption of such reform may be said to be as short-sighted as the reform itself.

Barnard & Peers: chapter 10

Photo credit: Britannica.com

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