Select Committee on European Scrutiny Minutes of Evidence



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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