PROPOSED INCREASE IN THE NUMBER OF JUDGES
IN THE COURT OF FIRST INSTANCE
(20586)
9614/99
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Draft Council Decision amending Decision 88/591/ECSC, EEC,
Euratom establishing a Court of First Instance of the European
Communities.
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| Legal base: |
Article 225 EC, Article 32d ECSC, Article 140a Euratom
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| Department: |
Foreign and Commonwealth Office
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| Basis of consideration:
| Minister's letter of 31 January 2000
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| Previous Committee Report:
| HC 23-i (1999-2000), paragraph 2 (24 November 1999)
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| To be discussed in Council:
| No date set |
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Cleared |
Background
17.1 We have already twice reported[40]
on proposals to create two additional chambers of three judges
at the Court of First Instance (CFI) to alleviate the burdens
on it expected to result from its jurisdiction to determine appeals
from decisions of the Boards of Appeal of the Office for Harmonisation
in the Internal Market (trademarks and designs).
17.2 It has become evident that the volume
of trademark cases is not increasing as fast as originally predicted.
On the basis of the reply from the then Minister of State at the
Foreign and Commonwealth Office (Mr Hoon) to a question on the
volume of this litigation which we put to him when we first considered
the matter, we concluded that it would clearly take several years
to build up to the estimated total of 200-400 appeals per annum
but, nonetheless, it would be sensible to begin immediately the
procedures for providing additional judicial resources to handle
them.
17.3 At the same time we asked the Minister
to explain further his reasons for supposing that other Member
States would agree that the UK should always nominate one of the
additional judges and how it could be ensured that his favoured
system of appointment (nomination of a suitable candidate by individual
Member States, decided upon by common accord) would produce judges
of the right calibre.
The Minister's letter
17.4 The Minister for Europe (Mr Vaz) has
now answered our question in a letter. He states:
"The Committee has asked
whether the United Kingdom, as a large Member State, is automatically
entitled to appoint a second judge, and whether the Government's
intention to ensure a second UK judge is always nominated to the
CFI is because the relevant expertise (i.e. in Community Trademark
Law) can be found amongst the UK legal professions.
"The Committee has also asked for my comments
on whether the current appointment mechanism (nomination of suitable
candidates by individual Member States decided upon by common
accord) produces judges of the right calibre. It also asked whether
this system could ensure that at least some of the additional
judges have extensive intellectual property experience? Finally
the Committee asked whether I would be prepared to withhold my
consent to an unsuitable nomination from another Member State.
"At present neither the UK nor any other Member
State has the automatic right to nominate a second judge to the
CFI. The nationalities of the additional judges will only be considered
once agreement has been reached that the increase in numbers is
justified. Our primary reason for trying to secure agreement that
the UK will always be able to nominate a second judge to the CFI
is to ensure a continuing strong UK judicial presence in the CFI.
The second is that the level of expertise in intellectual property
law found in the UK is something we should encourage the EU to
draw upon. Our case is supported by the precedent that the UK
and the other large Member States nominate an Advocate-General
to the ECJ.
"Based on the quality of current members of
the Court it would appear that Member States are conscious of
the need to abide by the requirements laid down in Article 223
of the EC Treaty and the need to ensure that the best available
judges are put forward for membership. However, if the situation
ever arose where the UK did have strong and reasonable objections
to a nominee from another Member State then I would be
able to oppose the nomination."
Conclusion
17.5 The Minister has not paid his usual
close attention to our question; we are well aware that neither
the UK nor any other Member State has any automatic right to
nominate a second judge to the CFI. We sought to probe whether
the Minister based his case for a permanent, additional,
UK judge on the UK's status as a large Member State or on some
other ground. Although the Minister mentions the level of expertise
in intellectual property law found in the UK, his reference to
the precedent of the UK and other large Member States' nomination
of an Advocate-General to the ECJ suggests that his case does
rest essentially on that ground.
17.6 On the second point we note that
the quality of current members of the CFI satisfies the Minister
that the best available judges are put forward for membership,
and that he would be prepared to oppose an unsuitable nomination
of a candidate of another Member State.
17.7 We note that, in its recent Supplementary
contribution to the IGC on reform of the Community courts, the
Commission has raised the subject of the method for appointing
judges; and we are minded to return to this subject when we consider
that document. On that basis we now clear this document.
40 See (20182) 8198/99: HC 34-xxvi (1998-99), paragraph
1 (14 July 1999); and (20586) 9614/99: HC 23-i (1999-2000), paragraph
2 (24 November 1999). Back
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