EU Committee: Court of Justice of the European Union

Lord Anderson of Swansea Excerpts

Monday 17th October 2011 Lords Chamber

[Lord Anderson of Swansea]

My Lords, I adopt all the calls that have been made for clarity on the part of the Government in response to this report and to the problems of the Court of Justice. I was not a member of the relevant committee at the time of this report so I can praise the work of the committee in producing it, and I can praise the work of the chairman and indeed the clarity of the speech he made today.

It is clear that everyone agrees that European courts, both the Luxembourg courts—the Court of Justice and particularly the General Court—and the Strasbourg court, the European Court of Human Rights, are overloaded. I need not go into the position of the Strasbourg court, but there are 160,000 cases pending and the numbers are increasing annually at a rate of 12.5 per cent. There is of course now a linkage between the Luxembourg court and the Strasbourg court, with the EU becoming a party to the European Convention on Human Rights, and there is therefore a danger of possible further delays.

The Government may be reluctant to call the position of the Court of Justice a crisis, but there is clearly a major problem of delays, as the CBI pointed out, which are relevant to our business, and therefore something has to change. Even if the intellectual property cases were shunted into a separate court, that would still leave a backlog of 1,000 cases before the General Court, where much of the work is of course consideration of fact. That is roughly two years’ work if one sees that perhaps 500 cases are concluded in a year.

What, then, to do? The editorial in the most recent edition of the Common Market Law Review, which again is a tribute to the committee’s work, stated as follows:

“It would seem that by now, all the possible options for reform and their respective pros and cons have been on the table several times … a big leap seems inescapable. It is only a matter of time”.

The Government thus far seem to want to avoid a big leap. Their proposed changes range from: reducing the supply of cases; changes to the rules of procedure—and the Government state that there is little prospect of member states agreeing to a degree of autonomy of the Court in respect of its own procedures; broader, better case management; more new specialist courts; and the appointment of more judges.

Clearly there is a need to look at procedures; the editorial states that essentially the procedures of the court reflect the Court’s role as an administrative court carrying out judicial review in respect of the activities of member states, when increasingly now the emphasis has changed to references from member states for preliminary rulings.

The Government appear to oppose limits on pleadings to cut down more prolix advocates, and the Court’s potential powers to dispense with oral hearings. As one of our colleagues said earlier, we know what the Government are against; we do not know what the Government are for. The Government are surely not just outside observers but should be active participants in these debates.

There must surely be some scope, despite what the committee says, for a reduction in translation. French is of course the working language, for understandable reasons of history, but increasingly the new member states have English as their main working language. Alas, there is clearly a veto possible for the French Government, so we cannot see much change there.

Changes in the structure of the Court have helped in the past. In 2005 the Civil Service Tribunal was established, and the committee calls it a success story. Some 30 years or so ago I was writing the section on the European courts in The Solicitors’ Diary, and it was clear at that time that there was too much able judge power on cases that were relatively trivial, save for the individuals concerned, and that would have gone to employment tribunals in the UK. That was 30 years ago. It took all that time to set up this specialist court, which perhaps does not augur well for changes to come about in a timely fashion.

The case against further specialist tribunals and in favour of an increase in the number of judges is set out persuasively in the letter of the president of the Court to the president of the Council: that there are risks in relation to consistency, the flexibility of judge power, the speed of implementation and so on. The letter states that an increase in the number of judges in the General Court is,

“essential … to reduce within a short time the volume of cases pending before the court and the duration of proceedings”.

If it is true that it could be solved in only a short time, one must ask why the large increase from 27 to 39 should be permanent, and what the prospects are of a reduction in the future if the case load were to warrant it.

There is clearly now a conflict between the views of a number of member states and the president of the Court. This is a matter of judgment in respect of both the costs and the efficient running of the courts. There is probably no prospect now of an outside independent expert being asked to report on the comparative costs, as this would only lead to further delay.

However, I end where a number of colleagues have ended. It is uncertain where Her Majesty’s Government stand, so perhaps the Minister will clarify for us on which side the Government stand. Are the Government leaning towards more specialist tribunals, with all the problems set out by the president, or do they now accept the case for an increase in the number of judges in the General Court?

[Lord Bowness]

My Lords, I must apologise to the House that in asking my question I failed to draw attention to my declared interests as a practising solicitor, and I thank the noble Lord, Lord Liddle, for allowing me now so to do.