12 Advocates-General at the Court
of Justice of the EU
| (34724)
7013/13
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| Draft Council Decision increasing the number of Advocates-General of the Court of Justice of the European Union
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| Legal base | Article 252(1) TFEU; unanimity; —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 22 May
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| Previous Committee Report | HC 86-xxxvii (2012-13), chapter 3 (26 March 2013)
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| Discussion in Council | June 2013
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
12.1 On 25 January 2013, the President of the Court of Justice
of the European Union (ECJ) sent a request to the Council Presidency
for the appointment of three extra Advocates-General (AGs) to
the ECJ to ease the increasing workload of the existing eight.
12.2 Article 252 TFEU permits the Council unanimously
to do so, and in 2007 Declaration 38 annexed to the Lisbon Treaty
requested that the Council agree to an increase of three AGs should
the ECJ make such a proposal.
12.3 The five biggest Member States (Germany,
France, Italy, Spain and the UK) have a permanent AG. The remaining
three rotate in alphabetical order between the other 22 Member
States.
12.4 It is proposed that the next biggest Member
State, Poland, should have a permanent AG and the other two additional
AGs will be Danish and Czech in line with existing rotation. The
ECJ has stated its ambition that the permanent AG take up duties
by 1 July 2013, on the occasion of Croatia's accession, and the
other two by 7 October 2015, on the occasion of the partial replacement
of members of the Court.
12.5 The role of AGs is to provide a written
opinion on cases before the ECJ, in particular those which raise
a new point of law. In the ECJ's view, the current contingent
of AGs will be unable to deliver opinions within an acceptable
time limit for five reasons:
- a rise in the number of cases
brought before the ECJ due to enlargement from 2004-07; to new
jurisdiction conferred on the ECJ by the Lisbon Treaty; and to
a rise in the number of cases demanding urgent treatment;
- the prospect of a continuation of this trend
over the next few years due to Croatia's accession; the increasing
number of references for a preliminary ruling by new Member States;
the increasing number of appeals against decisions of the General
Court; the transition to full ECJ jurisdiction over police cooperation
and judicial cooperation in criminal matters; and new jurisdiction
in matters of economy and finance;
- the greater complexity of cases;
- changes to the ECJ's operating rules (e.g. two
additional Chambers) which have increased the pace of work; and
- an increase in AGs' workload beyond issuing opinions,
such as more complex reviews of judgments delivered by the General
Court and the prospect of AGs taking on an enhanced role in simplified
arrangements for the handling of cases on appeal.
12.6 The Government accepts the force of the
ECJ's arguments on the grounds that the proposals would increase
the capacity of the ECJ to process cases in a timely manner.
12.7 In our Report of 26 March we asked the Government
to confirm on whom the costs of the three additional AGs would
fall, concerned that it should not be on Member States; we asked
for this information to be received in time for the forthcoming
debate on the floor of the House to approve the Government's agreement
to this draft Council Decision, a statutory requirement by virtue
of section 10(1)(c) of the EU Act 2011.
Follow-up to the House of Lords 2011 Report
12.8 In follow-up to the House of Lords European
Union Committee's Report on The Workload of the Court of Justice
of the European Union[24]
in June 2011, written evidence was received in the course of this
year to the effect that:[25]
- a ratio of eight AGs to 27
judges is inadequate; the AGs' written opinions provide an important
role in maintaining the consistency of the case law of the ECJ;
with such a low ratio of AGs, there is an increasing tendency
to dispense with a written opinion (approximately 52% of cases)[26]
(evidence submitted by the Council of Bars and Law Societies of
Europe);
- the purpose of the written opinion is to assist
the judges deliberating on the case in question by providing an
objective, in-depth and judicial analysis of the issues in the
case, enabling the judgment to focus on one line of reasoning.
The extent to which a case requires an opinion depends on judicial
assessment more than the ratio between judges and AGs. It is,
as a consequence, difficult for an observer other than an ECJ
judge to assess whether an increase in the number of AGs is justified
(K.P.E. Lasock Q.C.);
- there is no point increasing the number of AGs
unless a high calibre of appointee can be assured. The so-called
"255 Committee" (after Article 255 TFEU) is capable
of ensuring a basic level of competence in appointees to the ECJ
and General Court; but that is not good enough in the case of
appointees to the post of AG (it is doubtful if it is good enough
more generally). The 255 committee is not suited to the identification
of the best candidate for the job (K.P.E. Lasock Q.C.);
- increasing the number of AGs may be a temporary
solution (by reference to the ECJ's judgement of what is requires)
but is unlikely to be a permanent one. The better solution is
that used in the General Court: all member of the ECJ are judges
but, in a given case, one may be tasked with the delivering an
AG's opinion (K.P.E. Lasock Q.C.);
- the opinion of the AGs, whilst inevitably of
varying quality, on the whole significantly improves the quality
of the judgements and shortens the time taken in agreeing a judgment.
In the majority of cases the ECJ does not have before it a legally
considered view of the questions at issue (unlike, say, the Court
of Appeal or Supreme Court , which consider the decisions of lower
courts). It is much easier to produce a good judgment if one tests
one's views against one or more judgments which have been given
by impartial judges tackling the same issues. The opinions of
the AGs serve that function (Sir Konrad Schiemann, until October
2012 the UK judge at the ECJ);
- in 2012 the workload of the AGs was such that
it would have been counterproductive to have allocated more cases
to them. "Indeed from time to time one suspected that the
quality of an opinion would have been better had the AG concerned
been working under less pressure. I am almost sure that the case
for increasing the number of AGs is still strong" (Sir Konrad
Schiemann);
- "[s]uch an increase is, in my personal view, even more
necessary now than it was when the Sub-Committee reported in 2011.
However, the unpalatable truth is that the increase cannot be
achieved in 'budget-neutral' terms. The Court of Justice —
like the other EU institutions — is already responding to
the present period of austerity by freezing or cutting posts so
as to achieve a 5% reduction in manpower. There is simply not
enough 'fat' to give the Court the additional resource of more
Advocates General by paring away 'spare' posts from elsewhere
in the institution. Adding three Advocates General plus their
cabinets (and there would clearly be no point in adding them but
giving them no support staff) will therefore require an appropriate
budgetary adjustment. It remains to be seen whether this will
be forthcoming." (Advocate-General Eleanor Sharpston).
The Minister's letter of 22 May
12.9 In response to the Committee's earlier Report
the Minister for Europe (Mr David Lidington) confirms that the
Government is satisfied that the additional cost of around €4
million a year can be met from within the existing budget of the
ECJ, an institution whose budget currently amounts to over €354
million for 2013. Not only has the ECJ under-spent in previous
years, but in the current economic climate, there is an imperative
for all of the EU's institutions to find ways to reduce their
administrative costs. He explains that the UK is not alone among
Member States in expecting the ECJ to absorb the cost of the additional
AGs. The Government has expressed its view openly in the Council
and the ECJ too is aware of our position. If necessary the UK
is prepared to submit a minute statement in Council setting out
its expectation that this increase is cost-neutral. The Minister
recognises that a minute statement in itself will not be enough
to guarantee cost-neutrality, but it will be a clear statement
of the UK's position.
12.10 In formal terms, the decision that will
be put before the Council in the coming months is whether to accept
three additional AGs or not. Assuming the Council agrees to this
proposal, the question of how the AGs are financed will be taken
in the context of separate discussions on the annual budgetary
framework scheduled to begin next year. He says:
"I can be clear that the UK Government, alongside
like-minded Member States, will press very firmly for this to
be met within the Court's existing budget and will do all we can
to ensure that additional Advocates-General do not result in additional
costs for the Court.
"I trust that this is enough to resolve the
immediate question as put in the Committee's 26 March report,
and would be happy to write further next year following those
discussions as to how this question has been resolved, if that
would be helpful, given the Committee's interest in this issue.
If the Committee has further concerns, I would be happy to address
them during the debate required under the EU Act 2011."
Conclusion
12.11 We thank the Minister for his letter.
12.12 The breadth of the Committee's standing
orders, which require it to consider the legal and/or political
importance of all EU documents on a weekly basis, constrain it
from being able to conduct in-depth inquiries other than on an
exceptional basis.
12.13 We therefore set out above a summary of
the evidence received by the House of Lords in its follow-up Report
on The Workload of the Court of Justice of the EU as background
for the forthcoming debate on the floor of the House to approve
the Government's decision to agree to the draft Council Decision
appointing three additional Advocates-Generals.
12.14 The Minister's letter confirms that the
Government is satisfied that the cost of the additional three
AGs of €4 million can be met from the ECJ's budget. We note
that the views of Advocate-General Sharpston flatly contradict
this,[27] so we ask the
Minister to explain in greater detail in the debate the basis
for his statement.
12.15 The Minister's letter is less definite
about whether, notwithstanding that it can afford it, the ECJ
will pay for the additional cost. We have never found a statement
entered by the UK in the Council's minutes to be particularly
persuasive on other EU institutions or Member States: more often
it is a face-saving exercise. Whilst we understand that the decision
on costs will not be taken until next year, we ask the Minister
to provide a more detailed assessment in the course of the debate
of the possibility of this additional cost not being met by the
ECJ. We will be interested to know which Member States support
the UK; and whether any do not. The Minister's statements are
not helped by the last line of the third paragraph of his letter,
which says, we assume in error, that "the UK Government [...]
will do all we can to ensure that additional Advocates-General
do not result in additional costs for the Court".[28]
12.16 We ask the Minister to explain in the course
of the debate whether the Government considers the manner of appointing
AGs to be suited to obtaining the best candidates and to give
his views on the calibre of the proposed three new appointees
should this be known.
12.17 We would be grateful for a further letter
from Minister reporting any developments on the allocation of
costs before the date for adoption by the Council. We will consider
this, and the views expressed during the debate, before deciding
whether to release the draft Council Decision from scrutiny.
12.18 In the meantime it remains under scrutiny.
24 HL Paper 128, 14th Report of Session 2010-11. Back
25
The House of Lords published its follow-up report on 29 April
2013 (HL Paper 163, 16th Report of Session 2012-13). The evidence
received was published online at www.parliament.uk/hleue. Back
26
Evidence provided by AG Sharpston in the course of the Lords inquiry
in 2011. Back
27
Para 12.8 above, final bullet point. Back
28
See para 12.8 above. Back
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