Documents considered by the Committee on 18 March 2015 - European Scrutiny Contents

13 Increasing the number of judges at the General Court

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested
Document detailsResponse of the Court of Justice to the Presidency's invitation to present new proposals on increasing the number of Judges at the General Court
Legal base

Document numbers

Foreign and Commonwealth Office

(36554), 14448/1/14, —

Summary and Committee's conclusions

13.1 The question of how to tackle the increasing workload of the General Court and its significant backlog of cases, has been a vexed issue for the EU. The last attempt failed in 2012 when a proposal to increase the number of Judges of the General Court by 12, from 27 to 39, was removed from a package of reform to the Statute of the Court of Justice.[35] This was because the Member States could not agree on how to share the Judges between them or how to rotate the appointments between them.

13.2 The Statute of the Court of Justice can be amended on the basis of Article 281 TFEU on the request of either the Court itself or the Commission. Such amendments are to be agreed between the Council and the European Parliament by the ordinary legislative procedure. Such amendments of the Court's Statute are subject to the provision of section 10(1)(e) of the European Union Act 2011.[36] Section 10 states that a "Minister of the Crown may not vote in favour of or otherwise support [such] a decision… unless Parliamentary approval has been given in accordance with this section". Parliamentary approval is given in each House "if a Minister moves a motion that the House approves Her Majesty's Government's intention to support the adoption of a specified draft decision, and each House agrees to the motion without amendment.

13.3 The Court of Justice, in response to a request from the Greek Presidency to present new proposals on the procedures for increasing the number of General Court judges, presented the current document which was deposited with us on 5 December 2014. It envisages doubling the number of judges at the General Court to 56 in three stages, together with abolishing the Civil Service Tribunal, in order to address its significant backlog of cases. It also provides for a selection mechanism for those additional judges. This would involve amending the Statute of the Court of Justice. However, as the Government was expecting a revised proposal to be circulated, it has not yet submitted an Explanatory Memorandum. In any event, the current document, as such, does not represent a formal legislative proposal: this has yet to be published. However, the Minister for Europe (Mr David Lidington) now writes at length with an update on the current state of play of informal negotiations in Council on the proposal and the Government's view of it. Given the importance of any legislative proposal and the need for transparency in relation to developments on this document of considerable legal and political importance, we consider that a Report to the House is now warranted, albeit in the absence of an Explanatory Memorandum.

13.4 We thank the Minister for his detailed letter. Given the importance of this matter we request that a comprehensive and detailed Explanatory Memorandum is submitted promptly on the formal legislative proposal to amend the Court's Statute when that is published.

13.5 Our chief cause for concern, is the tardiness of this Government update on this document of such self-evident legal and political importance. It is clear that, as matters lie, the UK is isolated in its opposition not only to the proposed mechanism for selecting the additional General Court Judges but to the overall approach of increasing their number. It seems to us therefore, that for all for political and practical purposes, the matter has been presented to us, with dissolution looming, as a "fait accompli". We note that, this measure is subject to QMV, and therefore could be passed without UK Government support.

13.6 Without wishing to pre-empt our successor Committee, it seems likely to us that, timing willing, the wider House may wish to express a view on this document and on any subsequent formal legislative proposal in a debate on the floor of the House early in the next Parliament.

13.7 In the meantime, the current document remains under scrutiny.

Full details of the document: Response of the Court of Justice to the Presidency's invitation to present new proposals on the procedures for increasing the number of Judges at the General Court of the European Union: (36554), 14448/1/14, —.

Background and previous scrutiny

13.8 An account of the last proposal to amend the Statute of the Court of Justice and the Government's view of it were scrutinised in our Ninth Report of 2012-13, our Forty-seventh and Thirty-fourth Reports of 2010-12. That document was cleared after having been debated on the floor of the House on 12 July 2012.[37]

Minister's letter of 4 March 2015

13.9 The Minister for Europe (Mr David Lidington) referring to the history of the previous 2011 proposal to increase by 12 the number of judges in the General Court, explains that it failed because Member States could not agree on a selection mechanism. He adds:

    "An increase in the numbers of judges by up to twelve would have meant that at any one time there would have been more judges from some Member States than from others. While the UK, some other Member States, the European Parliament and the Court itself have argued historically that it is the professional quality of these judges that matters the most, other Member States have refused to accept any system that would not guarantee 'equal representation' of Member States over time. Four years on, the impetus in Brussels is now to resolve this question."

13.10 He then explains the genesis of the current document. In response to being informed by the Greek Presidency of the failure to resolve the issue of the selection mechanism and that there was little prospect of success of any proposal that did not involve each Member State having an additional judge, the President of the Court of Justice put forward the current document. This not only proposes doubling the number of judges to 56 in total, but also abolishing the Civil Service Tribunal (CST) and re-allocated its caseload to the General Court.

13.11 The Minister then sets out a summary of how the mechanism would work, but the way this has been developed under the Latvian Presidency is detailed later in the Minister's letter:

    "The proposed increase in judges would be phased-in in three tranches: an initial increase of twelve judges in 2015, a further increase of seven in 2016 consequent upon the dissolution of the CST and the transfer of its case-load to the General Court and finally an additional nine judges being appointed in 2019. He argued that this suggestion would resolve the existing backlog of cases in the General Court whilst also equipping it to address an anticipated future increase in its case-load. President Skouris' suggestion was not accompanied by a revised legislative proposal to amend the statute of the General Court to reflect these ideas. The Court of Justice estimates that the net increase in operating costs would be about €23m per year after tranche 3 had been appointed."

13.12 The progress of the negotiations on the Court's proposal is then described by the Minister:

    "During the course of the Italian Presidency, discussions proceeded on the basis of the President's letter, albeit absent a formal legislative proposal. Although it was widely known that the General Court itself was opposed to the proposal and some Member States indicated reservations, it became apparent that many also believed that the only way that the current impasse could be resolved was if all Member States were assured an additional judge, and that doing nothing was not an option given the serious backlog in cases and increasing risk of claims for damages being brought against the EU due to undue delays in the General Court.

    "Against this back-drop the respective positions of the Member States in the discussions to date can be broadly categorised as follows;

    -  Those which fully support the proposal;

    -  Those which will not oppose the proposal, but want to look closely at the costs involved and possible efficiencies;

    -  Those which support the proposal only on the condition that all phases are provided for and agreed in a single legal instrument;

    -  The UK, which does not support this proposal.

    "At the COREPER meeting held on 11 December the Italian Presidency concluded that there was broad agreement that negotiations could proceed on the basis of President Skouris' proposed approach, despite UK opposition and the absence of any formal proposal text. Only the UK opposed this, although several Member States indicated that they would want to look at the cost implications associated with the proposal as matters were taken forward. The key question of which Member States would secure an additional judge under tranche 1 was left for the incoming Latvian Presidency to resolve."

13.13 The Minister then reports on progress on the proposal which the Latvian Presidency is now prioritising; in particular, on the question of determining which Member States would qualify for judges in each separate tranche of the selection mechanism. He explains that at an informal COREPER meeting of 18 February, the Presidency sought Member States' views on whether quadrilogues (between the Commission, Presidency, European Parliament and the Court) could proceed on the proposal and on the question of the details of the three phase selection mechanism. He then explains that in respect of that selection mechanism, the Council has concluded that consensus would be required:

    "While the proposal to amend the Statute of the Court to make provision for the additional judges requires a qualified majority in the Council, Article 254 of the Treaty on the Functioning of the European Union requires the common accord of all Member States to the appointment of every individual judge. The Council has therefore been proceeding on the basis that Member State agreement by consensus would be required to a selection method for which judges would be appointed under each tranche."

13.14 The Minister says that the Latvian Presidency is proposing the following selection mechanism:

    "Tranche 1 — September 2015 (12 judges)

    a.  The first judge to be appointed under Tranche 1 will be drawn by lot from a total of 24 Member States (the four Member States who have sitting CST judges will be automatically excluded from the first stage);

    b.  The next eleven judges in Tranche 1 will then follow based on the order of the Rotating Presidency following on from the first Member State (i.e. if UK were to be drawn first then the next potential candidate would be Estonia);

    c.  If Portugal, Bulgaria and Belgium are drawn in Tranche 1 they could opt to take either a General Court judge or have their outstanding candidate for the CST appointed to the CST; and

    d.  Any Member State drawn in Tranche1 but which indicates that it does not intend to nominate a candidate will then be placed in Tranche 3.

    "Tranche 2 — September 2016 (7 judges)

    "The Member States who have sitting CST judges would have the option to nominate their CST judges to the General Court or select a new candidate to be appointed; and

    "Tranche 3 — September 2019 (9 judges)

    "Remaining Member States secure their second judge."

13.15 The UK is alone in opposing this proposal. All the others are also content for quadrilogue talks to proceed, despite the absence of a formal proposal. The Minister than sets out the Government's position on the proposal:

    "The Government recognises the problem of the backlog in the General Court. Delays have been increasingly raised before the Court of Justice in appeals from General Court judgments and, in three key cases, the Court of Justice has found that the delays in resolving those cases were unreasonable, and breached Article 47 of the Charter on Fundamental Rights. As a result, actions for damages have been commenced which seek a cumulative amount of €20m. An efficient and well-functioning Court is in the interests of British business, and accordingly, the Government has consistently engaged with the proposals to increase the number of judges in the General Court with the aim of ensuring that the General Court's case handling can be improved and that any reforms to the General Court promote the effective passage of justice, are based on clear evidence of need, minimise additional costs - or ideally involve no additional cost - and avoid full-scale treaty change. On the question of appointing additional judges, we have aimed to ensure that any selection model should promote the UK's interests and offer equality of Member State representation (in particular in terms of civil and common law legal systems), supporting judicial continuity and expertise, as well as being relatively simple and cost-effective.

    "However, the UK has been consistently clear that we do not consider these new proposals to be a proportionate way to address the General Court's backlog. It is extremely disappointing that more proportionate alternative solutions - such as the institution of new specialist courts - have not been properly considered. Other Member States also expressed doubts that this was the best way to address this problem, or that all these judges are actually needed. Nevertheless, after four years of negotiations, many Member States and the EU institutions have concluded that this is the least bad proposal on the table, and that it will break the deadlock and improve the capacity of the General Court. The proposal therefore has real momentum and is supported by all Member States except the UK. There is now no appetite to consider any alternative way forward and a great desire to put in place the additional judges as soon as possible."

13.16 Next, the Minister addresses the implications for Parliamentary scrutiny, including the requirements of the EU Act 2011 of their being no formal proposal as yet:

    "The Government recognises its obligations under the EU Act 2011 to ensure that both Houses of Parliament give their assent before the Government moves to support a proposal to modify the Statute of the Court. At present, there is no legal proposal to put to a motion before either House, and there are important elements to these proposals that still need resolution, most particularly, the issue of how these proposals might be financed, and the question of whether there will be appropriate levels of common law representation throughout the proposed phased increase. I intend to submit the legislative proposals, when they come, to Parliament on a scrutiny basis in the usual manner."

13.17 He then recognises that, as a QMV dossier, the Government, being as yet in a minority in its opposition, will try to influence the substance of the proposal in other ways:

    "The Government considers that there are better ways to address the General Court's backlog. However, since this is a QMV dossier, the Government intends to engage on the substance of the proposal and to work with other budget sensitive allies to ensure the costs of the changes will not increase payment appropriations beyond the adopted annual EU Budget in the immediate term and to ensure the reform does not result in changes to the 2014-2020 Multiannual Financial Framework (MFF) in the longer term. The UK will also seek to encourage further efficiencies and professional improvements in the General Court, so that it can better serve its customers. The Government will also seek to ensure fair representation of the common law system at each stage."

13.18 Looking forward, the Minister says that after informal "quadrilogue" discussions, he understands that a finalised draft text will be presented to the Council and European Parliament for adoption. He adds:

    "We have consistently expressed our concerns about the lack of transparency in these negotiations and the need to ensure that national Parliaments are given a proper opportunity to scrutinise the text of the proposed amendment to the Statute of the Court. We continue to voice our concerns in this regard and have also highlighted that we cannot agree to any text unless it has been approved by both Houses of Parliament in accordance with the provisions of the EU Act 2011.

    "To allow Member States to meet their obligations under the ambitious timeline, the Presidency propose that, without prejudice to the decision on whether to adopt the proposed amendments to the Statute, the Member States responsible for making nominations in the first tranche could be chosen.

    "I will make clear that the UK will not agree to any appointments being made under these proposals, nor will I endorse the proposed amendments to the statute, until Parliament has been given proper opportunity to scrutinise the formal proposals."

13.19 The Minster then commits to keeping the Committee updated on this "rapidly moving dossier" and negotiations. He encloses the Presidency's limité informal quadrilogue document, which is subject to the normal disclosure restrictions.

Previous Committee Reports

None, but see (32675), 8787/11: Ninth Report HC 86-ix (2012-13) (11 July 2012); 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).

35   (32675), 8787/11: Regulation 2011/0901A(COD) of the European Parliament and of the Council (amending the Protocol on the Statute of the Court of Justice of the European Union and Annex 1 thereto). Back

36   The motion to approve the Government's intention to support the adoption of draft Regulation 2011/0901A(COD) was put during the debate of 12 July 2012 referred to in paragraph 13.2 above. Back

37   HC Deb, 12 July 2012, cols. 501-514. Back

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Prepared 27 March 2015