PROPOSED INCREASE IN THE NUMBER OF JUDGES
IN THE COURT OF FIRST INSTANCE
(a)
(20182)
8198/99
—
|
Report of the Court of Justice and the Court of First Instance on the new intellectual property cases with regard to the Community trade mark.
|
(b)
(20586)
9614/99
|
Draft Council Decision amending Decision 88/591/ECSC, EEC, Euratom establishing a Court of First Instance of the European Communities.
|
| Legal base:
| (a) — |
| (b) Article 225 EC, Article 32d ECSC, Article 140a Euratom; for procedure, see paragraph 2.5 below
|
| |
| Forwarded to the Council:
| (b) 14 June 1999 |
| Deposited in Parliament:
| (b) 20 August 1999 |
| Department:
| Foreign and Commonwealth Office
|
| Basis of consideration:
| Minister's letter of 20 August 1999 and EM of 2 November 1999
|
| Previous Committee Report:
| (a) HC 34-xxvi (1998-99), paragraph 1 (14 July 1999)
(b) None
|
| To be discussed in Council:
| (b) No date set |
| Committee's assessment:
| Legally and politically important
|
| Committee's decision:
| (a) Cleared
(b) Not cleared; further information requested
|
Document (a)
2.1 On 14 July 1999, we considered a communication
from the European Court of Justice (the ECJ) and the Court of
First Instance (the CFI), which contained proposals specifically
related to the effect on the functioning and resources of the
CFI of new Community trademark cases appealing decisions of the
Boards of Appeal of the Office for Harmonisation in the Internal
Market (trademarks and designs).
2.2 We recognised that the increased jurisdiction
of the CFI entailed increased resources, if it was to continue
to function effectively, and shared the Government's belief that
an effective and efficient Court was vital to the functioning
of the EU.
2.3 We questioned, however, whether the
current caseload statistics supported the CFI's forecast of 200
to 400 trademark actions per annum and, with respect to a key
element of the Communication, the proposed appointment of six
additional judges, asked the then Minister of State at the Foreign
and Commonwealth Office (Joyce Quin) to explain further and justify
the Government's policy on the system of appointment of those
judges which appears to be based exclusively on individual nomination
by specified Member States without taking merit into account.
Document (b)
2.4 The ECJ has now submitted to the Council
a draft Decision amending the Decision establishing a Court of
First Instance of the European Communities[22].
It would increase the number of judges from 15 to 21.
2.5 Article 225 EC provides that judges
of the CFI shall be appointed by common accord of the Governments
of the Member States for a term of six years.
The Government's view
2.6 Our questions on the Court's report,
document (a), were answered in a letter dated 20 August 1999 from
the then Minister of State at the Foreign and Commonwealth Office
(Mr Hoon). On the projected volume of appeals, the Minister informed
us:
"Your Committee may
welcome, as background information to this decision, further statistical
information on the number of appeals before the Boards of Appeals,
and cases subsequently brought before the CFI. The number of trademark
appeals currently before the CFI is 8 (1 case has already been
decided by the CFI). The number of cases currently before the
Alicante Boards of Appeal is 676, of which 425 were lodged this
year. The turnover of appeals by the Boards of Appeal has so far
been quite slow: in 1998 there were 77 decisions and 68 in 1999
up to 31 May. The turnover rate can, however, be expected to increase,
with the prospect of further appeals to the CFI. The Court's expectation
that there will be no fewer than 100 cases appealed to the CFI
next year, with 200-400 appeals in subsequent years as the judicial
process in Alicante comes up to full speed, seems reasonable.
The above figures are based upon the most recent information available
to us."
2.7 In his EM of 2 November 1999 on the
draft Decision, document (b), the Minister of State at the Foreign
and Commonwealth Office (Mr Vaz) comments:
"The Government supports
the principle behind the Court's proposal for the appointment
of the 6 additional judges. The Government is very keen to secure
one of the additional positions in the CFI for a British judge.
We will press for political agreement that the UK will always
nominate one of the additional judges, using the precedent created
by the nomination of the Advocates General in the ECJ.
"The Government is aware of the additional and
as yet unquantified costs that will arise from the increase in
the number of judges of the CFI. The Government will continue
to press the Court to ensure value for money on any additional
resources provided from the Community budget for the provision
of the additional judges. At the same time it will encourage the
Court to continue its efforts to use its existing resources in
an efficient manner."
2.8 On the system of appointment of additional
judges, Mr Hoon explained:
"The Government believes
that the most appropriate mechanism for the appointment of the
additional judges is through the nomination of suitable candidates
by Member States, with the final decision being taken by the common
accord of the Member States in accordance with Article 225(3)
of the EC Treaty.
"The House of Commons European Scrutiny Committee
has suggested that a separate judicial appointments board be established
to oversee the appointment of the additional judges. This suggestion
is interesting, and one which we shall consider further. However
it would take time to set up such a system, and it would require
Treaty amendment and funding from the Community budget. The Government
would not wish consideration of such a system by the Member States
to delay the appointment of the additional judges to the CFI covered
by the draft decision under consideration."[23]
Conclusions
2.9 The volume of trademark cases is
clearly not increasing as fast as originally predicted, because
of delays in handling cases in the Office. On its current performance,
a prediction of 100 cases appealed to the CFI next year is over-pessimistic
and it will clearly take several years to build up to the estimated
total of 200-400 appeals per annum. Nonetheless, the pressures
on the CFI can only increase and it is sensible to begin now the
procedures for providing additional judicial resources to meet
them.
2.10 On the nationality of the additional
judges, the Minister does not give any reason for supposing that
other Member States will agree with the UK proposal that it will
always nominate one. Is it because the United Kingdom, as a large
Member State, is entitled to a second judge? Or is it because
relevant expertise is to be found in the legal professions of
the United Kingdom? Nor does the Minister explain how it can be
ensured that the appointment mechanism favoured by the Government
(nomination of suitable candidates by individual Member States,
decided upon by common accord) will produce judges of the right
calibre, given that some at least of the additional judges ought
to have extensive intellectual property experience. Is he prepared
to withhold his consent to an unsuitable nomination from another
Member State?
2.11 We invite the Minister to explain
further his views on the system of appointment of additional judges
and in the meantime do not clear document (b). Document (a) has
been overtaken, and we now clear it.
22 Council Decision 88/591/ECSC, EEC, Euratom, OJ No.
L 11, 14.1.94, p.1. Back
23 A
copy of the draft decision was attached to the Minister's letter
of 20 August. Back
|
