Examination of Witness (Questions 140
- 159)
WEDNESDAY 8 DECEMBER 1999
JUDGE P J G KAPTEYN
Chairman
140. Will the Court produce a paper for the
IGC to focus Member States' minds on Treaty changes that it supports?
(Judge Kapteyn) The President has already officially
put forward three proposals. One is the question of the leave
to appeal, making a changing provision in the Treaty or the statute
of the Court giving the possibility that leave to appeal could
be introduced into such a system. The second one is the modification
of the rules of procedure of the Court which now have to be approved
by unanimity by the Council of Ministers, which means that because
those things are dealt with at a rather low official level, if
there is one young expert who is tempted to disagree with the
members of the Court on a certain change of the rules, then nothing
happens, the Court has a better system, especially when you have
26 members and you have unanimity. There are quite a number of
decisions taken by the Council of Ministers with qualified majority
which are more important than the question of the rules of procedure
of the Court, so we ask for more autonomy. The third point is
to ask on behalf of the Court to introduce the possibility of
changing the judicial protection of the staff members, introducing
a quasi-judicial body which in the first instance should be empowered
to try to conciliate staff cases and, if not, to make a decision
which would be appealed to the Court of First Instance and eventually
to have leave of appeal to the Court of Justice. Those are the
three things, but there are some suggestions that we should try
to do more and to prepare in the circumstances certain proposals
concerning the exact provisions which we want to be changed and
the Court is considering such possibilities. I am sorry to be
a bit long in my answers.
141. Not at all. I wonder if I could go back
to an earlier point I asked you about the number of judges after
enlargement. It seems to be that you have something in common
with the problems of the Commission, ie, that the Commission wants
this collegiate group, and I think what they have been saying
to us as well is that with higher numbers, it is more difficult
to have that collegiate relationship. Are you saying exactly the
same to us from your point of view as the Court of Justice?
(Judge Kapteyn) I think that is exactly the same,
although I think it is even worse in our case because in a certain
sense the Commission have a division of tasks where one is charged
with certain cases and one is charged with external relations,
et cetera, and we are not, so there is no field where you are
not always dependent on the opinions of your colleagues. On all
the matters, you always have to have a consensus with all of your
colleagues and I think the committee is more the lead way for
individual members to go.
142. I was in Bratislava a few weeks ago and
one of their problems in preparing for membership of the Union
is having an independent judiciary. Do you see the judicial systems
of those applicant countries coming in creating problems if their
systems are not exactly what we would consider? I am sure that
the Commission would be checking on that, but are you worried
that the judicial systems in some of those applicant countries
might not be suitable?
(Judge Kapteyn) I think I have to be very careful
in what I say, but I think in general if you look at the new Member
State candidates, the actual candidates, I think you should in
a certain sense say that probably thanks to the Commission, thanks
to all kinds of aids, of help, actions to help them which are
undertaken by numerous bodies, probably the systems will not be
so difficult, but it is a question of mentality, I think. Where
you have had 40, 50 or 60 years or even more years of a totalitarian
system, as someone told me, for example, where even in East Germany
after the reunification of Germany, in the beginning you had problems
with judges who had functioned in that system who were, even after
reunification, looking at a telephone to ask their ministries
how to decide, and that is a mentality problem which has to change
and I think a new generation of judges will, without question,
probably have another outlook. There is another problem which
is that I think if you have to establish the rule of law, a system
of the rule of law and enacting all kinds of legislation in the
field of Community law that Community law requires you to enact,
you are so busy in making laws that you are probably neglecting
applying them. There are so many new laws and judges are being
confronted with new laws, lawyers are being confronted with new
laws and if it is not yet part of their mentality and attitude
to apply them, I think that will be a problem, the application
of certain new Community laws in those States which are new.
Ms Jones
143. Can I just return to when I was asking
you for ways in which the burden of work of the Court could be
lessened by national courts considering cases of Community law.
There might be an issue here of consistency of judgments between
the courts in the Member States where, for example, to put it
crudely, you could ask perhaps a French judge sitting in a French
court to come to the same decision on an issue as, say, a Greek
judge. What are your views about this? If we go down this route,
do you see this as an issue, and we are asking just for your personal
thoughts on this?
(Judge Kapteyn) In the first place, it would be courageous
to say, I think, that the uniformity of the application and interpretation
within the Community is a fiction because in fact there are different
decisions of judges. You have in a certain sense not to accept
it, but this is a fact. The only thing I think which is important
is that every judge should always have, even a lower judge, the
possibility. There are two kinds of things nowadays that I think
a national judge could interpret himself, a lower judge, i.e.
what are the environment Directives and quite an enormous amount
of environment Directives. At the beginning they should apply.
The theory behind it is that lower judges in general should apply
Community law themselves, except if they know that a difficult
interpretation of Community law is pending in several national
courts. In that case he should refer to the European Court of
Justice, or if judges in several Member States are not of the
same opinion on the answer and that would be catastrophic for
the Community, then he should refer. He should be aware of the
importance of the question of the application of Community law
and if he thinks that is an important question then he should
refer, but there are quite a lot of problems that he could solve
himself.
144. I have just been given a note reminding
me that the Commission is proposing some degree of repatriation
of competition law. Do you have concerns about this? If you do
start to have national courts considering Community law and your
court gets concerned about consistency then you may have this
whole issue of the repatriation of Community law and it all comes
back to you, the burden of work and so on and so forth.
(Judge Kapteyn) I do not have an opinion on the political
issue of whether it is a good thing to repatriate part of the
application of Competition law to the national field, but from
the point of view of the institutional court I think is rather
a strange thing. What is going to happen is that we have a Court
of First Instance especially created to deal with appeals against
decisions of the Commission applying competition law and now you
are going to delegate the application to national judges. National
judges, who are in general not quite equipped to deal with very
difficult cases which also involve economic appreciation—speaking
for Dutch judges, I think some of them specialise in economic
courts but normal judges do not. What is going to happen is that
national courts are going to put preliminary questions to the
Court of Justice. We get a lot of competition cases which are
delegated to this circle and it comes back to us, which is a concern
for us, especially because our big problem is the development—
145. Yes, because you have added another loop
into what is already a congested system.
(Judge Kapteyn) What I regret is that the White Paper
of the Commission does not pay attention to this point. The Court
of First Instance is not mentioned in this context.
146. So soundings were not taken beforehand?
(Judge Kapteyn) That is right. There were a number
of officials who came to us and explained the White Paper, but
the White Paper was already written by then.
147. One of the things we have been looking
at to do with the IGC next year has been this proposed Charter
of Fundamental Rights. I know it is in the early stages and different
people have different views about the status of this, but if this
Charter gets produced, how do you feel about it being written
into a future Treaty, therefore making it legally binding, thereby
meaning that presumably it is the European Court of Justice that
would deal with people perhaps appealing to your Court if they
think their rights have not been met? What are your views about
the possibility of this becoming legally binding bearing in mind
that fact that we already have a Court of Human Rights?
(Judge Kapteyn) From a legal point of view—and
I will not speak about it from a psychological and political point
of view—such a binding Charter within the Community legal
order is not necessary because we already apply fundamental rights
inspired by the European Convention on Human Rights and by the
constitutional traditions of the Member States with regard to
all cases in which the institutions of the Community or Member
States implement directly Community law, which in a certain sense
makes easier the division of powers between the courts. We are
only dealing with cases falling within the sphere of application
of the Community Treaties and the Union Treaties now. There is
no need to do that. Certainly, if it was incorporated into the
Community Treaties then I think it would create confusion. Individuals
of the Member States will think there is also another court than
Strasbourg and maybe that court is acting faster and I think it
will create confusion. We will need a small bureau to check all
those claims coming in. I think that would be good. It would be
a totally different situation if you really said not only by implementing
the Union Treaty by Member States or by institutions could be
refused in the light of fundamental rights by the European Court
of Justice but all acts of Member States because then you create
a court which is in a certain sense a rival of Strasbourg and
I think that would be disastrous.
Chairman
148. It seems likely that there will be a need
to create a staff tribunal or a court specialising in intellectual
property. Given the difficulty of handling such issues in a heated
arena, such as an IGC, would it not be sensible to take these
issues out of the future IGCs by amending the Treaty to enable
the Council acting unanimously to help with the structure of the
Community Courts?
(Judge Kapteyn) I think it would be a sensible idea
not to apply this provision immediately but again with the idea
that it would be a good thing to take away all the obstacles in
the Treaty which will unduly hamper in the future any adaptation
of the judicial system because there are all kinds of possibilities.
You could say the creation of specialised Community Courts is
a matter for the Council. I think it is an important decision.
So you should say the Council with unanimity could establish first
rights in Europe and you could even ask for a Council decision
to be of a nature that has to be ratified by national parliaments,
which is a matter for the European Parliament. You could say that
a majority Council decision makes it possible to change something,
or a unanimous Council decision or even a unanimous Council decision
with ratification of the decisions of national parliaments. You
have various possibilities to make it easier to change it, otherwise
you have to wait for an Inter-Governmental Conference which does
not happen every year, luckily enough.
149. These sort of decisions, would you not
agree, should be made before further enlargement, and we should
nominate future changes?
(Judge Kapteyn) Yes, I think so.
150. The requirement to obtain unanimous Council
approval for amendments to the rules of procedure is obviously
cumbersome. What alternative would you propose?
(Judge Kapteyn) We were very courageous and said,
"Well, look at the European Court in Strasbourg; that has
autonomy and it is independent to change its rules. The International
Court of Justice is just the same, so why not give the same possibility
to the European Court?" If Member States are not willing
to give that possibility, and I think they are not willing to
give the possibility for it to work, then at least there should
be, for instance, a system where the Court proposes its rules
and if within four months, six months the Council is not vetoing
it with a qualified majority, then it should be considered for
approval by the Council, for instance.
Mr Connarty
151. Turning back to a topic we spoke about
earlier on, the handling of staff cases, in a number of the Member
States these cases are held by specialist judges who have a special
knowledge, and clearly there is a different type of knowledge
required for that than for competition cases. Do you think that
the same judges in one single court can be expected to handle
both or are there any thoughts that you need a specialist chamber
of the Court of First Instance to deal with staff cases with specialist
judges?
(Judge Kapteyn) I think, in principle, it could be
dealt with in special cases, but I know that there is in general
a reluctance, the judges are reluctant to specialise because they
say, "Well, that is so boring and you are so narrow in your
vision", so the Court of First Instance is at this moment
still considering saying that we should not have specialised judges,
but that we should have specialised chambers, so that is chambers
where there is a certain rotation and not a very quick rotation,
but a chamber for staff cases and once in three years the new
member comes in and the old member goes out to other cases, or
even he could be dealing with other cases too than staff cases,
but there is a certain specialisation in cases.
152. I notice that you have the idea of a specialised
secretariat for cases of intellectual property and setting up
two separate courts. Could there be an additional court with an
additional specialised secretariat support for staff cases?
(Judge Kapteyn) Well, the only thing is that it will
cost a lot of money and it is better to try to integrate it. I
think really that if intellectual property cases are going to
develop for sure, then probably you need within the court system
a unit to handle those cases because also on the administrative
level, especially intellectual property cases require a certain
administrative specialisation also.
153. But you are saying that staff cases would
just be integrated in the courts with a special chamber?
(Judge Kapteyn) Yes.
Mr Marshall
154. Could I just pursue this point about the
Court of First Instance acting as an industrial tribunal. We spoke
to someone prior to meeting you actually who made the point that
it is difficult to change custom and practice of working inside
the Commission because employees of the Commission are actually
covered by Community legislation, hence the need for the involvement
of the Court of First Instance. Now, I understand why these people
are given the protection of Community legislation; they are international
civil servants working for the European Community and not subject
to Belgian law or any other law. However, asking you to think
as a practical lawyer as opposed to a Judge of the European Court
of Justice, how can one ever modernise industrial practices, industrial
relations if it is subject to this legislative procedure with
all the delay that that implies in terms of bringing about change?
Would it not perhaps be better, as I suggested to you in my original
question, if we demystified a lot of this by taking it out of
the hands of the Court of First Instance and establishing industrial
tribunals which, whilst they would still be quasi-legal institutions,
would not be bogged down in the kind of custom and practices that
have developed in the Court of First Instance?
(Judge Kapteyn) Maybe I did not quite understand your
first question when you talked about industrial tribunals, but
I think the ideas, especially of the Court of First Instance,
are going in that direction, saying that it should be so, that
staff cases should be brought before a tribunal composed of independent
people, but the trade union staff should have some members and
other members should be in the administration and there should
be, for instance, qualified judges presiding in such a tribunal
and then they should first try to have a conciliation, try to
have agreement between the two parties and if that does not succeed,
they should decide the case in the first instance and only then
go to the tribunal, so there would be more flexibility in a certain
sense. Nowadays, so many cases are coming directly to the tribunal
and I had no experience of it in the Court of First Instance,
but sometimes in the Court you have the idea that it is a pity
that many of those cases do not go via such a quasi-judicial institution
before they are really judicialised in a certain sense.
Mr Dobbin
155. We have been told that it is quite difficult
for individuals to bring challenges against Community legislation
in the Court of First Instance because of the long-standing case
law of your own courts. Do you think that Article 230 should be
amended to make those individual challenges much easier?
(Judge Kapteyn) In theory, yes, I think it should
be less restrictive, but in practice I think you have to increase
the capacity of the court system before you introduce such a thing
otherwise people get justice, but it will be justice delayed which
may be justice denied. First, I think the capacity of the system
should be increased and if the capacity is increased then you
should think about—
Chairman
156. The Court has only partial jurisdiction
on justice and home affairs matters, for example immigration and
asylum. Will this pose problems in a uniform application of Community
law?
(Judge Kapteyn) I think it will pose problems for
the national systems. I will describe why there is restricted
access to the courts from the national courts. That was because
the Court did not have the capacity to deal with the many cases
that will arise in the future and the idea was you would restrict
it to the highest court, to the Court of Last Instance. What is
going to happen, I think, is that if the highest court and the
Court of Last Instance is asking certain notions like asylum,
the interpretation of certain important rules to our court, then
probably all the lower courts in that country or even in other
countries, knowing that that question is before us, will suspend
its procedures and wait for the decision of the court, which means
that, for instance, immigrants or asylum seekers are in a situation
where they will have to wait for the court to give them an answer
and also that people are going to appeal because the cases involving
foreigners always go on to the highest court and if they only
may go to Luxembourg via the Court of Last Resort they will go
on to the Court of Last Resort.
157. Coming back to applicant states. We have
mentioned general political problems of judges, but there are
certain areas of law, for example competition law, they will probably
have had no experience of. How can we help them? Does the ECJ
have any programme for helping the judges who will come in from
applicant countries?
(Judge Kapteyn) I think the Commission has some programmes
to help.
158. Can I thank you very much for this very
important part of information gathering on the problems that are
going to be faced in the Community over the next few years or
so. I am reminded by my legal adviser that, being a Scot, Scottish
lawyers after the Reformation went to the Netherlands to study
law. I suspect some of them would have been leaving rather hurriedly
at the time. Can I, on behalf of my colleagues, congratulate you
on your excellent English.
(Judge Kapteyn) Thank you very much.
159. I find when I speak to my Dutch colleagues
they usually speak better English than I do! I understand that
you have travelled from Luxembourg to attend this evidence session.
We really appreciate that. Can I just thank you very much again
and wish you well. You were telling us that the end of your mandate
is due. You mentioned our friend Lord Slynn. He retired some years
ago, but he has always found plenty more to do and I am sure you
will find plenty to do after your mandate ends. Thank you very
much.
(Judge Kapteyn) It was a great pleasure and an honour
to be questioned at such a high level.
Chairman: Thank you very much.
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