EU Committee: Court of Justice of the European Union

Lord Bowness Excerpts

Monday 17th October 2011 Lords Chamber

Asked By

[Lord Bowness]

To ask Her Majesty's Government what is their response to the report of the European Union Committee on The Workload of the Court of Justice of the European Union (14th Report, HL Paper 128).

[Lord Bowness]

My Lords, I have pleasure in presenting the report of the European Union Committee, which forms the subject of the Question I put to the Government in this short debate. The committee has received the Government’s formal response and welcomes the opportunity to press them on points raised in the report in the light of recent developments. I am grateful to the Members of the Justice and Institutions Sub-Committee, our Clerk, advisers and witnesses, who gave both oral and written evidence.

We embarked on our inquiry, first, because of the extension of the jurisdiction of the Court of Justice into the area of freedom, justice and security as a result of the Lisbon treaty, and the potential work that that may create. Secondly, there is the potential impact of the expansion of the European Union from 15 to 27 member states, and the Court's published analysis of its workload, which shows an average time of more than 33 months for a competition case before the General Court.

For the record, since all noble Lords participating in the debate are aware of the position, I will make it clear that the Court of Justice of the European Union comprises three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Any reference that I make in this debate to the Court of Justice refers to the first and highest court, not the Court of Justice of the European Union. For the benefit of too many media commentators, none of them has anything to do with the European Court of Human Rights in Strasbourg.

Our evidence was drawn from professional bodies, a former advocate-general, representatives of the Commission and the Attorney-General. Discussions were held in Luxembourg at the Court with the three United Kingdom judges serving within the three courts of the Court of Justice of the European Union and with the president of the General Court.

May I make two general comments which relate to the Court of Justice of the European Union as a whole before turning to the separate courts? First, the Union is based on the rule of law and respect for human rights. The Court of Justice is a vital institution for the proper functioning of the Union. For example, while some question some aspects of European Union policy, without the Court we have nothing to buttress the operation of the single market, which is so much more complicated than a trade deal and is essential for our interests.

Secondly, the amount of money is quite small. Of a 2011 European Union budget of €126,527 million, the cost of the Court is just over a quarter of 1 per cent. It is often assumed that the need for translation is the cause of cost and delay. This was not our conclusion. Of course translation has its cost, but not everything is automatically translated into the 23 official languages. Everything is translated into French, which is the working language of the Court. This is the case for historical reasons and some have suggested that an additional language be added, but to add another would only add cost.

In the Court of Justice, which deals with preliminary references on points of European law referred from national courts, the reference is sent out to all member states in their language for their observations. The judgment in each case is also translated, which is not unreasonable given that the judgment is of universal application to the Union and everyone in all member states should be able to read it in their own language. Contrary again to much popular belief, using other languages is not a luxury, as not everyone everywhere speaks English or, for that matter, French or German. In the case of the General Court and the Civil Service Tribunal, the language regime is much more restricted and may only be the language of the Court and the parties, and only judgments of particular interest are the subject of translation into all official languages.

Turning to the individual courts, we looked first at the Court of Justice, which may be described as the supreme court of the European Union. The majority of its workload relates to preliminary references to which I have already referred. The number of judges is laid down in the treaty—one per member state—and they are assisted by advocates-general, who give the Court a written opinion which is not binding. The number of advocates-general may be increased by unanimity without treaty change and we recommend that this be done to assist the Court in increasing the speed at which cases are dealt with. We believe that the Court of Justice faces a crisis in its workload following the expansion of membership and the expansion of its jurisdiction into freedom, justice and security.

The Court of Justice has had a good record in managing its workload in the past, but in this it was helped by an automatic increase in the number of judges following enlargement but that predated the expansion of jurisdiction and the work now flowing from enlargement. The General Court, however, is where we believe that the problem lies. The General Court deals with almost all the cases brought against the institutions and agencies of the European Union. These are often complex, involving both written and oral evidence. We found that the General Court has significant problems in managing its current and likely future workload.

We proposed a number of solutions. We accepted that there may be a case for better case management but we were of the opinion that that would not solve the essential problem. We also gave consideration to the creation of additional specialist chambers similar to the model of the Civil Service Tribunal, but we rejected this as a long-term solution. The Civil Service Tribunal is a special case dealing with internal European Union staff matters. Its significance is quite different from that of the Court of Justice and the General Court. It has been a success and we found no reason to recommend any changes. But in our opinion it is not the right model to follow for the General Court. We agree with the Luxembourg judges that more specialist tribunals would diminish the character of the Court as a general court combining a mixed expertise. Those judges appointed to the tribunals would have reduced or few opportunities to sit in the General Court and, similarly, the judges of the General Court would have few opportunities to sit in the tribunals.

Additional judges can be appointed to the General Court without treaty change, and this in our opinion is the answer to the problem. Without specifying a particular number, we suggested an increase of a third. The Government in their written response do not seem convinced that the problem is as serious as we believe and certainly do not warm to the idea of more judges other than in a specialist tribunal.

Since we reported, matters have moved on and the committee currently holds under scrutiny three proposals for reform of the Court of Justice of the EU. The first is a proposal from the Court: to create within its number a vice-president; to amend the rules relating to the composition of the grand chamber; to abolish the rule requiring the reading of the judge rapporteur’s report at the oral hearing; and to increase the General Court judges from 27 to 39. There is a second proposal for the revision of the Court of Justice rules of procedure to take account of changes of workload. Thirdly, there is a draft regulation to allow the appointment of temporary judges drawn from the ranks of retired judges to assist the Civil Service Tribunal, which seems to us to be eminently sensible and an economic way of dealing with the short-term problem. We have welcomed all these but the Government seem to lack some enthusiasm, save for the revision of the rules of procedure.

While we have the original response to our report, in the light of recent developments will the Government please give active and urgent consideration to increasing the number of judges in the General Court? If not, what is their alternative solution, bearing in mind that even specialist tribunals, which we do not favour, will cost money? Will the Government also consider the recommendation in our report that, before approving legislation, an assessment of the possible impact of such legislation on the Court of Justice of the European Union should be undertaken?

Lastly, will the Government also take account of the observations of Sir Konrad Schiemann which is referred to in Appendix 4 of the report, in which he said:

“The Court had to interpret legislation which had been designed by politicians whose political priority was the achievement of a formula, if necessary at the expense of a clear formula. Where the original legislation was imprecise, the Court was required to intervene. This was often the case with Directives, but could also be seen in the Treaties themselves”.

As so often when governments look to others to solve the problems, this could be an example of where the Council could assist by remembering that, in many instances, the legislative proposals before them are indeed just that, draft legislation, and should be approved on the basis not just that there is political agreement but that they represent legal certainty.

--- Later in debate ---

[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.