Examination of Witness (Questions 126
- 139)
WEDNESDAY 8 DECEMBER 1999
JUDGE P J G KAPTEYN
Chairman
126. Judge Kapteyn, it is a pleasure for us
to have this opportunity to take evidence from you as part of
our inquiry into the IGC and to talk about Treaty amendments relating
to the ECJ and the CFI. This is our last meeting of a two-day
visit and it has been very intense, but this is one that I have
particularly been looking forward to. I have been able in my time
as a member of the European Scrutiny Committee on three occasions
to visit the Court of Justice and we are due to come hopefully
next year to have another meeting; it is always a worthwhile visit,
talking to yourselves. I did particularly have a very good friendship
when I was with a delegation with COSAC with Gordon Slynn, who
was a judge—I do not know if you actually know him.
(Judge Kapteyn) Yes.
127. That was my first experience with a former
Judge of the European Court and he is now in the House of Lords
doing an excellent job, so it is nice to have this opportunity.
Could I ask you the first question which is that if each Member
State continues to be represented on the ECJ after enlargement,
there will be 25 or more judges. Do you see that as a problem
or do you see it as an opportunity? Should the full Court meet
in two formations, each perhaps specialising in different areas
of law?
(Judge Kapteyn) Well, thank you for this
meeting. I am happy to be here and may I apologise for my poor
English, but I will try to be as clear as possible. Let me first
of all say that I do not speak for all the members of the Court
when I give my comments, I have no official mandate, but I give
my personal view. On your first question, I think it is in the
first place a problem. I think in general with 15 members of the
Court, with 15 judges of the Court, you work as a team and you
know each other quite well, you meet each other permanently during
the week, and nearly all the days of the week I meet my colleagues,
15 of them, and we are just a team. Twenty-six will not be a team,
I think, and we mentioned it in the report that that will be a
problem. I think in general it is the kind of sociology of the
judiciary, that when it is too big, there will be difficulties
and it is not a team, et cetera. When I speak in our chambers
with the other 14 members, I have the idea that they listen to
my arguments and if the arguments are good, maybe they will accept
them. When I am in a chamber of 26, a court of 26, probably I
have to try to find other members helping me to present the work
as a coalition. That is one of the problems. Now, I think from
the organisational point of view, things could be solved, not
the sociological problem, I think, but you could think about all
kinds of organisational measures. I think the idea of having two
big chambers is not a very good idea because you have the experience
in Germany with two senates of the constitutional court and they
are often, or I do not think often, but it happens that if the
two senates are not in agreement, then I think especially in Europe
you can have a situation where for months or even for years national
judges do not know what the law is because there is some disagreement
between them. I think the best way will probably be to say that
we have like the Strasbourg Court, a nucleus, for instance, with
26 judges, we have a big chamber, a plenary of 15 or 16, I am
thinking, and a number of chambers and you have some rotation
of members of the big chamber of the quasi-plenary court.
128. Could the method of appointment of judges
and advocate-generals be improved so as to ensure a spectrum of
expertise and experience amongst the members of the Community
courts?
(Judge Kapteyn) I think in the first place, as the
system is actually now, it is a question of each Member State
separately having a good procedure. I am trying at this moment
in the Netherlands, because my mandate will be terminated in October,
so I am trying, and I am thinking I will succeed, to get a national
procedure with some transparency, with consultation within the
Supreme Court judges in the Netherlands in preparing the nomination
of a judge. There is another idea, but I do not know whether the
members will accept it, which is the idea that there is a committee,
a reflection committee now functioning in the Commission which
has asked a number of judges and one of the former judges to draft
certain proposals for the Commission and one of the proposals
is to establish a committee by the Member States together, a committee
of advice to scrutinise the nominations made by the Member States.
Ms Jones
129. Judge, I would now like to turn to the
volume of work of the Court. In the UK Government, we have received
figures which indicate that the volume of trademark cases which
are coming your way probably were not increasing as far as was
originally predicted. Do you think that the original predictions
of the burden of trademark cases in the Court of First Instance
were over-pessimistic and how serious is the caseload pressure
on the Community courts?
(Judge Kapteyn) I think it still stands, the problem.
The only problem now is that in the Alicante office, the trademark
office, there is a bad start because at this moment there are
14 pending cases, but that is only the beginning—and I could
get you the figures—but there are quite a lot of cases which
are pending before the boards of appeal of the Alicante office
and the only problem is that there is still disagreement about
the exact role of the chambers of the boards of appeal. Are they
quasi-judicial or are they quasi-administrative bodies? There
is a certain difference of opinion within the Alicante office
and they are still struggling with this problem, so they have
not made many decisions. The prognosis for 2000 is not right,
but I think it will be 2001 or 2002.
130. Just moving on a bit, do you think that
the burden of work which the Court has to consider could be lessened
if national courts decided to take on some cases to do with Community
law?
(Judge Kapteyn) I am in complete agreement with you,
yes. I think that in general national courts should be more keen
to decide themselves cases, especially lower courts should be
obliged to try and solve the cases themselves, which means that
they should have a better knowledge of Community work and I think
measures should be taken by Member States, for instance, to create
centres of information and documentation for judges where they
could just ask for materials, not for advice, but for materials.
It is a situation not only in the United Kingdom, but it is the
same situation in the Netherlands where I have come from that
I think that things should be done to get judges better informed
and lawyers in general better informed.
Ms Jones: Thank you. That is very helpful.
Mr Marshall
131. I understand some commentators have suggested
that it might be a good idea to establish regional European Courts
of Justice and I wondered if you think this has any merit and
would do anything to expedite cases before the courts?
(Judge Kapteyn) The Court considered such an idea
itself in its discussion paper, but within the courts it is generally
seen as not a very good idea. The fear is that you will fragment
the application of Community law and that you will get some regional
courts of great importance and some regional courts of less importance
and it is difficult to maintain the unity of interpretation and
application of Community law.
132. Moving on to the Court of First Instance.
There has been a lot of criticism of the Court of First Instance
because of the time it takes to deal with cases. Would it be true
to suggest that one of the reasons for this is because the Court
of First Instance has to act as the industrial tribunal for staff
cases for the various Community institutions? If that is true,
could not we establish a new institution, basically a European
Union industrial relations tribunal which could be responsible
for looking at such cases?
(Judge Kapteyn) I think the Court of First Instance
is overburdened with cases, such as staff cases and competition
cases, which are immense. There is no need at this moment for
there to be a specialised tribunal, but I think there is always
the possibility of creating specialised chambers. I am afraid
that specialised tribunals will cost a lot of money. There will
be a question mark over where the seats would be. That means that
there will be the need for a new library, there will be a need
for extra translation services, etcetera. I am more in favour
of creating, if necessary, special chambers, for instance, in
the tribunal because you could extend the tribunal with more members.
Mr Dobbin
133. Are there any other categories that you
would consider could be transferred to the specialist tribunal?
(Judge Kapteyn) In general it is the staff cases.
I am much more in favour in the long run of having a specialised
chamber, but if there was a specialised chamber it would be necessary
for staff cases, for intellectual property cases, if that is going
to develop. There may be later developments, but it is mostly
staff cases and property cases.
134. One of the factors we are told in delaying
judgments is the need to wait for an Advocate General's opinion.
Is that step now necessary except in cases which are complex or
raise new issues?
(Judge Kapteyn) My personal opinion is that I do not
think it will always be necessary and in simple cases and in appeal
cases from the tribunal in general there is no need for it. I
think it would be a good thing if the courts had the possibility
of deciding that in some cases there is no need. Property can
be dealt with on a case-by-case basis, but there is no need for
the opinion of the Advocate General. In general I am much in favour
of it because, for instance, in difficult cases, especially when
you have to ask preliminary questions in complex cases, it is
the first time that you have something on paper so that you have
something to bite on in the circumstances.
Mr Connarty
135. Do you agree with the submission that Article
225(1) of the Treaty should be amended so as to enable the Council
to transfer jurisdiction to hear preliminary references to the
Court of First Instance rather than direct them to the European
Court of Justice?
(Judge Kapteyn) My personal opinion is that I think
it would be a good thing to eliminate such an obstacle because
you never know in the future if such a transfer will be possible
or necessary. I am not in favour of transferring now competencies
in this field, but I think you should open the way and you should
not need a new Inter-Governmental Conference to change the Treaty
Articles.
136. Do you have a personal opinion about which
categories of reference the European Court of Justice would want
to continue to deal with itself?
(Judge Kapteyn) The best way to take that measure
forward would be to say the court could on a case-by-case basis
to refer cases to the tribunal, saying, "That's the kind
of cases that should be discussed by the tribunal". For instance,
you have the custom classification cases about pyjamas. They are
very important. Everybody is always laughing in the Court when
we have to deal with those cases, but for the Common Market's
sake I report on them. With pyjamas you pay less entering the
Common Market in the Netherlands than in England than you do in
the Netherlands.
137. Do you think that Member States generally
would agree that the European Court of Justice should have the
discretion to choose the judges or the judge who decides in any
particular case?
(Judge Kapteyn) There is the problem of the so-called
judge legalis, especially in Germany, probably after the
experience of the Second World War. They have the idea that you
should know exactly who will be the judge to deal with the case
you bring before the court. They told me that in the highest courts
there is not the same rule. There are two things. We are the highest
court so there is less of a problem from the German point of view,
and the second point is that the tribunal is part of the court,
it is joined to the court. It is not a separate court, it is part
of the institution. I hope that there will not be big objections
to it.
138. So on balance most Member States would
support the idea of doing it on a case by case basis?
(Judge Kapteyn) Yes. My feeling is that in general
Member States want to reserve the powers in preliminary rulings
that are reserved for the court.
139. If that was to be the final agreement in
the alteration, could you maybe explain the circumstances in which
the Court believes that appeals to the European Court of Justice
from the Court of First Instance could be subject to a leave procedure?
(Judge Kapteyn) I think that at this moment the point
of view in the Court, and that has influenced also the British
experience, is to say that when you have a situation where already
two judicial bodies, whether one judicial body is a quasi-judicial
body, have already looked at the case, then there is no need for
a full appeal to the Court, and then you should have leave to
appeal, the grounds of leave to appeal to the Court, but there
are others who are saying that you should leave it in general
to the Court.
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