5 Rules of procedure of the General Court
| Committee's assessment
| Legally important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| Document details | Draft Rules of Procedure of the General Court
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| Legal base | Articles 254 TFEU; QMV except for language provisions which require unanimity
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| Department
Document numbers
| Foreign and Commonwealth Office
(35911), 7795/14, —
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Summary and Committee's conclusions
5.1 The General Court (previously known as the Court of First
Instance) was established in 1989 as the second tier court below
the Court of Justice itself. It now deals with a wide range of
cases:
· Direct
actions brought by Member States or individuals to seek the annulment
of EU actions, a declaration that the EU has unlawfully failed
to act, or damages;
· Actions
for annulment of the decisions of the Boards of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks and
Designs) (OHIM) and of the Community Plant Variety Office (CPVO);
· Appeals
against decisions of the Civil Service Tribunal; and
· Miscellaneous
minor and consequential matters including applications for interim
measures.
5.2 This Court is currently experiencing severe difficulties
in handling its caseload, exacerbated by the fact that the Council
has been unable to agree to a Court of Justice proposal to increase
its number of judges by 12.
5.3 As outlined in more detail in our Report of 14
May 2014, these draft Rules of Procedure are intended to (a) consolidate,
clarify, simplify and restructure the existing rules, (b) ensure
consistency with the redrafted rules of the Court of Justice,
(c) facilitate the more efficient operation of the Court, and
(d) deal with the handling of confidential information, particularly
confidential security sensitive material submitted to the Court
to justify restrictive measures, for which there is no current
procedure.
5.4 The Government has indicated its support for
the objectives of the draft, subject to further detailed analysis,
but indicated that the achievement of these objectives must be
balanced against the requirement that parties to cases before
the Court should be able to present their case fully. It also
expressed concern with the new provisions for the handling of
confidential information.
5.5 The Committee has already expressed the view
that the interests of justice are served by having Rules of Procedure
for the General Court which are transparent and facilitate its
efficient operation, both for the Court itself and the parties
to cases before it. It sought further information on the outcome
of the Government's own detailed legal analysis of the rules,
the views of stakeholders, and further details on the new rules
for handling confidential information found in Article 105 of
the draft.
5.6 The Minister (Mr David Lidington) now indicates
that Government lawyers have only identified concerns with Article
105. He also directs the Committee to the views of the Council
of Bars and Law Societies of Europe (CCBE) as the stakeholders
with whom the government has been engaged, but without any comment
on, or analysis of, the views they have put forward.[5]
5.7 He indicates that Article 105 broadly matches
the UK Closed Material Procedure, but without the use of the Special
Advocate. The Government has achieved some strengthening of this
Article to provide better protection for confidential material,
but this does not go far enough. It only allows for such information
to be withdrawn up to the time the Court has ruled as to how it
intends to handle the confidential material which it considers
relevant, whereas the Government is seeking the facility to withdraw
such information at any stage in the process. However the Minister
considers that the Court is unlikely to agree this and all other
Member States are of the same view.
5.8 The Minister indicates that "the Court is
now reflecting and will present in the coming days a further revision
of Article 105 for discussion in the Council".
5.9 We note that the analysis of these draft Rules
of Procedure by Government lawyers has not raised any issues other
than the inadequacy of the protection of confidential material
in Article 105.
5.10 The issues raised by the Council of Bars
and Law Societies of Europe do not, in our view, outweigh the
potential benefits of the draft Rules.
5.11 Article 105 of the draft Rules, as they currently
stand, give rise to the following issues:
· the
provision concerning confidential material provides less protection
for parties to proceedings than in domestic Closed Material Proceedings
because there is no equivalent to a Special Advocate; and
· the
Government does not consider that this provision would provide
sufficient protection for confidential material submitted to the
Court.
5.12 We await an update from the Minister in the
light of the further reflections of the Court and further discussions
in the Council.
Full details of
the document: Draft Rules of Procedure
of the General Court:
(35911), 7795/14, —.
The Minister's letter of 3 December 2014
5.13 The Minister apologises for the delay in providing
a response to the questions raised in the Committee's Report of
14 May 2014 and comments on the more technical aspects of the
draft Rules:
"The Commons Committee asked about consultation
with stakeholders and whether any of the Rules significantly inhibit
the presentation of cases. On the first point, we have engaged
extensively with the Council of Bars and Law Societies of Europe
and their comments of 16 July 2014 can be found on their website:
www.ccbe.eu.
"On whether the Rules will significantly
inhibit the presentation of cases, analysis by Government lawyers
has not identified any concerns except in relation to the new
Article 105 on which I set out our position below."
5.14 With regard to confidential material the Minister
provides the following response:
"The UK's Closed Material Procedure, as
defined in the Justice and Security Act 2013, allows a party to
proceedings to introduce confidential evidence which is not shown
to the other party because of the impact this would have on national
security. The evidence is, however, shown to a Special Advocate
who represents the interests of the other party, and it can then
be taken into account by the Court in reaching its decision. The
party introducing the confidential evidence can withdraw it at
any stage in proceedings — but with the understanding that
this is likely to weaken the party's case.
"Article 105 of the draft Rules of Procedure
envisages a broadly similar arrangement, but without the use of
a Special Advocate. However the Court's original draft raised
a number of concerns and, in the Government's view, gave inadequate
weight to the importance of protecting sensitive information.
The UK has argued consistently that absence of the necessary safeguards
will constrain our ability to use this mechanism to defend important
EU sanctions listings. We have secured improvements in the text
including language:
— making it clear that a Member State can
never be compelled to share confidential information
— extending the right of Member States
to withdraw confidential information
— imposing an obligation on the General
Court to avoid disclosing confidential information
"However, despite the strong arguments we
have presented based on our domestic practice, the Court is unlikely
to agree a right of withdrawal at any stage in the process and
all other Member States seem ready to accept this. We continue
to press our case, highlighting to EU partners the practical reasons
why this is important. The Court is now reflecting and will present
in the coming days a further revision of Article 105 for discussion
in Council."
The points raised by the CCBE
5.15 The CCBE supports the main purpose of the revision
of the Rules of procedure but raises certain issues on which we
comment as follows (our comments in italics):
· Limits
to the length of pleadings. Article 75 would permit the Court
to set a limit, but that can be overridden by the President of
the Court in cases involving particularly complex legal or factual
issues;
· More
active case management. This could mostly be achieved within
the existing rules. The specific change in the Rules advanced
by the CCBE is for case management meetings, to be held remotely;
· The
removal of delays caused by objections of inadmissibility;
· Simplifying
the language rules, in particular by allowing interveners to use
their normal language, by not requiring translations of annexes
unless requested by the Court or a party, and by permitting the
Court to use the most convenient working language;
· Removing
the rule that interveners must support the order sought by one
of the parties. This rule prevents the use of an amicus
curiae;
· Increase
transparency of the status of cases. This appears to be achievable
within the existing rules;
· A requirement
that late submissions are notified to the other parties in advance
of the hearing; and
· Making
available recordings of the hearing.
Previous Committee Reports
Fiftieth Report HC 83-xlv (2013-14), chapter 3 (14
May 2014); and see (32675), 8787/11: Forty-seventh Report HC
428-xlii (2010-12), chapter 12 (23 November 2011), Thirty-fourth
Report HC 428-xxx (2010-12), chapter 9 (22 June 2011).
5 http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_08102012_Comments1_1350029520.pdf. Back
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