Select Committee on European Communities Twenty-Fifth Report

PART 3 JUSTIFICATION FOR THE PROPOSAL AND VIEWS OF WITNESSES

THE IMPLEMENTATION OF THE SINGLE JUDGE PROPOSAL

The cases eligible for delegation

  59.    On the question of determining the cases which were suitable for disposal by a single Judge, the Court envisaged recourse to a single Judge "in particular in areas where there is substantial litigation and a highly developed case­law and in repetitive cases". The Court mentioned certain types of staff case and claims for damages as satisfying those criteria. It also envisaged that trade mark cases might in due course be heard by a single Judge once a sufficiently clear and consistent line of case law had developed[19].

  60.    The CFI said that one of the situations in which delegation of a case to a single Judge would be particularly appropriate was where there was a series of cases all having the same subject­matter. The CFI had been faced with a number of such series. The first arose in the context of the Community legislation on milk quotas, which gave rise to hundreds of actions for damages by milk producers wrongly refused a quota.[20] Series of cases were common in the field of the Community civil service. In the "Alexopoulou" cases, for example, approximately 80 applications had been brought by Community officials who claimed to be entitled to a higher administrative grade as a consequence of a ruling of the CFI.[21] More recently, hundreds of applications for damages had been brought by customs agents who claimed that the institutions had failed to protect their interests following the completion of the internal market.[22] In 1997, out of a total of 624 cases registered, 395 belonged to voluminous groups. Of the 1,106 cases pending at 31 December 1997, 629 belonged to such groups.

  61.    Some members of the Bar Council thought that the CFI could be trusted to use the facility of the single Judge in appropriate cases only and that confidence should be placed in the Community judiciary to employ the proposed power properly. Other members took the view that "trade mark cases on appeal from OHIM are classic non­single judge material due to the cross­cultural nature of European trade marks". They considered that such cases should therefore be dealt with by Chambers composed of three Judges in order to "pool a wider cultural and legal appreciation of the issues" (p 37).

  62.    Professor Vandersanden criticised the proposal that a single Judge should be able to refer a case back to the Chamber to which it was originally assigned if he considered that the conditions for delegating it were no longer satisfied. He pointed out that the single Judge might refer the case back even after the hearing had taken place and said "[t]his yo­yo effect would be decidedly undesirable". It would raise doubts in the mind of the litigant about the manner in which his case was being handled and split the proceedings up. Moreover, returning the case to the Chamber composed of three Judges would inevitably lengthen the proceedings (p 46).

  63.    The CCBE, those consulted by the Bar Council, the Faculty of Advocates, the Law Society of Scotland and the Délégation des Barreaux de France thought that the categories of case in which delegation to a single Judge would be permitted should be set out in the Council Decision setting up the CFI, rather than its Rules of Procedure, so that the Commission and the European Parliament would have to be consulted before the categories could be changed. Ms Finlay Geoghegan said that the CCBE had only been alerted to the present proposal because it had gone before the Parliament as a result of the alterations which were envisaged to the Decision of the Council (Q 27). Dr Lasok, however, commended the flexibility of the system contemplated by the Court: "The involvement of the ECJ and the Council appears to satisfy any legitimate concern that the application of the principle might get out of hand. The initial involvement of the Parliament and the Commission in the process leading to the adoption of the decision amending Decision No. 88/591 appears to satisfy the legitimate interests of those institutions in being consulted" (p 50).

  64.    Judge Vesterdorf said that the CFI would prefer it not to be made more difficult to change the categories of case in which delegation to a single Judge would be permitted, but would not object if that was necessary to secure acceptance of the proposal (Q 83). For the Government, Mr Hendry explained that the Council Working Group had begun work on the present proposal very soon after it emerged from the Court of Justice. It had not been able to make progress as quickly as it might have wished because it was required to wait for the opinions of the European Parliament and the Commission (QQ 115, 118).

  65.    As for the categories of case in which delegation would not be permitted, Dr Lasok thought that it was unduly restrictive to exclude from the possibility of delegation to a single Judge, for example, a competition case that involved no difficult or important question of fact or law (p 50). Dr Plender said that the draft amendments originally proposed setting out the circumstances in which cases might or might not be delegated to a single Judge were too imprecise and were liable to give rise to disputes (p 54). That view was shared by the Deutscher AnwaltVerein (p 39). Professor Vandersanden described the criteria for deciding whether a case should be delegated to a single Judge as "particularly vague and substantially subjective" (p 46). Dr Plender thought a better approach would be to define the cases which might and might not be delegated to a single Judge by reference to the Treaty articles on which they were based rather than their subject­matter. He referred to a recent publication[23] in which he had suggested that the new rule might be based on the criteria for allocating cases to Chambers (p 55).

  66.    The CCBE criticised the reference in the latest draft of the proposal to cases that "do not raise questions not clarified by established case­law". Ms Finlay Geoghegan described that criterion as "very imprecise". She explained: "The difficulty we perceive is that if you do, as an advocate, for example, get a decision that your case is being referred to a single judge on the basis that it does not raise questions not clarified by existing case­law and you know that the existing case­law is pretty well against you but you believe you have an answer to that, you must challenge that decision. That will give rise to appeals ..." (QQ 42, 44).

  67.    Some members of the Bar Council suggested that, with the exception of staff cases, there were no simple cases in the CFI (p 37). Professor Vandersanden went further: "In reality, no case is less important than any other. Cases differ in nature, but they all deserve the same attention" (p 46). However, Dr Plender thought that some cases were relatively straightforward and gave the example of a case belonging to a series raising identical issues where an earlier case in the series had already been resolved (p 55).

  68.    The FFPE said that the explicit exclusion of certain types of trade protection case from the possibility of delegation to a single Judge gave the impression that other cases were intrinsically less important (p 42). Professor Vandersanden asked whether it was to be assumed that business­related cases were automatically more important than other cases. He added that to make the distinction between the two categories in a legislative instrument might give the litigant in a case delegated to a single Judge the impression that he was being dealt with in a cursory manner (p 46).

  69.    For the CCBE, Ms Finlay Geoghegan suggested that the proposal "may primarily be used in relation to staff cases," but that a proposal confined to such cases would not be acceptable to the staff associations. She added that the Court was not in a position to limit its proposal to staff cases because that might have been taken to suggest that it considered those cases less important than others (QQ 14, 17). Judge Vesterdorf emphasised that "this proposal does not only concern staff cases but it is evident that most of the cases or at least many of the cases that would be dealt with by a single Judge would be staff cases. It is a fact of life that this is the area in which we find most of the cases that could be allocated to a single Judge, but it is not the only area" (Q 76).

  70.    The FFPE pointed out that in many national systems first instance labour tribunals were composed of at least three judges. Similarly, in systems where annulment proceedings were heard before a Council of State, the chambers dealing with public service cases were always composed of three judges. The FFPE saw "no cogent argument in the proposal for treating European staff cases any differently from national practice in respect of public service cases, or more generally of employer v employee cases under national legislations" and was reluctant to see a "downgrading of the appeal process" along the lines envisaged by the proposal (p 42).

Should all the parties have a right to object to delegation?

  71.    The original version of the proposal envisaged that a Member State or a Community institution which was a party to a case would have a right to prevent its delegation to a single Judge. Other parties would have no right to be heard on the matter. A later draft would require all the parties to be heard by the Chamber before which the case was pending before a decision to delegate it to a single Judge was taken. However, the right to prevent such delegation would still be confined to Member States and Community institutions which were parties to the proceedings and would not be extended to private parties. Views were divided on whether this was acceptable.

  72.    The CFI maintained that allowing a Member State or a Community institution, if a party, to object to delegation was "consistent with the logic" of the rule allowing such parties to insist on five Judges[24]. Mr Jung said: "it would not make sense to allow a Member State or an institution to insist on five but not to be able to insist on three instead of one." He added that the right to insist on five Judges was exercised very rarely (QQ 104, 105). Mr Collins said that he did not anticipate that the Government would intervene in many cases which were eligible for delegation to a single Judge. However, "if we were in a case and were satisfied that there was no reason why it should not go to the single Judge, I do not see why we should oppose delegation simply as a matter of principle" (Q 137).

  73.    Dr Plender agreed that it would be illogical to maintain the rule authorising Member States and Community institutions to object to the allocation of a case to a Chamber composed of three Judges if they were not to be allowed to object to delegation to a single Judge. He said it would "hold hostage to fortune" to make delegation to a single Judge dependent on the agreement of all the parties (p 55). Mr Collins, for the Government, observed: "It might be fair to say that if private parties were given the right [to prevent delegation], very few of them would actually agree that their case is so straightforward that it could be dealt with by one judge" (Q 147). Dr Lasok acknowledged that the proposal to confine to Member States and Community institutions which were parties to a case the right to object to its delegation to a single Judge preserved consistency in the Rules of Procedure. He suggested that all the parties should be entitled to request that a case be delegated to a single Judge if they considered this appropriate (p 51).

  74.    The CCBE, the Faculty of Advocates, the Deutscher AnwaltVerein, the FFPE and Professor Vandersanden objected to the proposal not to extend to private parties the right to object to the delegation of a case to a single Judge. The CCBE described such "inequality of arms" between the parties to a case as "in principle unacceptable" and maintained that there was no obvious reason why ordinary parties should not have the same right as Member States and Community institutions to object to delegation. Deciding whether a case should be dealt with by three Judges or by one was qualitatively different from deciding whether it should be heard by a Chamber composed of five Judges or by a Chamber composed of three. Ms Finlay Geoghegan said that it would be preferable if no party had a veto, "but if any parties are going to have a veto then all parties should have a veto." (p 5, QQ 13, 30, 34)

ALTERNATIVES TO THE SINGLE JUDGE

  75.    The Court of Justice foresaw that the burgeoning workload of the CFI might make it necessary to increase the number of Judges and provide for the creation of new specialised chambers. However, it said, these steps would have certain drawbacks and "should be regarded as a last resort, to be contemplated only after exhausting all the possibilities of improving the functioning of the Court [of First Instance] in its present composition and of increasing the number of cases which could be dealt with by the present number of Judges"[25].

  76.    Judge Vesterdorf made it clear that in his view "the single Judge is not the solution to all the problems of the Court of First Instance." He said that, if the expected volume of trade mark cases materialised, additional Judges would be needed well before the next enlargement of the Union. He envisaged that the CFI would be asking for "something like six because that would permit us to create two extra three­man Chambers and two extra five­man Chambers." Judge Vesterdorf thought it would be helpful if the Member States had regard in appointing additional Judges to the nature of the work with which they would be expected to deal and in particular to the large number of intellectual property cases with which the CFI was likely to be confronted. Judge Vesterdorf said the CFI was also willing to contemplate the possibility of specialised Chambers. However, the efficiency gains which specialised Judges and specialised Chambers could be expected to produce had to be balanced against the risk that Judges who became too specialised might lose the broader perspective: "I do believe that many of the cases would be better served by a broader look into the cases because we have to make sure that these cases do not deviate from the general principles of Community Law" (QQ 66, 81, 82, 99, 100).

  77.    Judge Vesterdorf added that the CFI was hampered in adapting its working methods to cope with its growing caseload by the fact that it was not the master of its own Rules of Procedure, which could only be modified with the unanimous agreement of the Council. He said that "we would really prefer that these rules could be modified by the Court itself." Judge Bellamy observed: "What we very badly need at the minimum is the power to experiment and to try new methods for dealing with new situations" (QQ 69, 84, 106).

  78.    A particular possibility mentioned by Judge Vesterdorf was the creation of fast­track procedures for certain cases. These might involve going directly to the oral hearing once the application and the defence had been lodged or dispensing with the oral hearing, perhaps after putting written questions to the parties. He mentioned merger cases as a category which might benefit from a fast­track procedure. Judge Vesterdorf accepted that it might also be useful to establish a users' committee to enable the clients of lawyers who appeared before the CFI to be consulted by the Judges on matters of common interest (QQ 67, 68, 91).

  79.    For the Government, Mr Hendry said that a problem with increasing the number of Judges was that it "would exceed the existing resources available to the Court and cost money." Mr Collins thought that most Member States would be "very reluctant to give the Court a completely open door to change the Rules of Procedure as they wished." He maintained that the Member States went some way towards representing the interests of litigants, because Governments were involved in litigation before the Community Courts themselves and in Council frequently sought to ensure that private parties were protected. "Therefore, if the present system of approval by the Council were changed, that check on the procedure might be lost. Whether or not it should be as rigid though as unanimous approval is another matter." Mr Hendry explained that the Government had been prepared at the last IGC to accept that the Council might approve amendments to the Rules of Procedure by qualified majority and that it remained willing to consider such a change. He suggested that "it might be possible to identify parts of the Rules of Procedure which are regarded as more entrenched than others". He mentioned the precedent of the Court's Statute, parts of which could be amended by the Council, parts of which could only be amended by the same procedures as a Treaty (QQ 128, 129, 148, 149).

  80.    The CCBE maintained that the CFI needed more resources, particularly an increase in the number of Judges. Ms Finlay Geoghegan said: "In our view a minimum of six additional Judges should be appointed. This would permit two additional Chambers of three and one additional Chamber of five." The CCBE also advocated a more fundamental re­examination of the way in which staff cases were handled. It suggested that consideration might be given to the establishment of a specialised tribunal, distinct from the CFI, comprising lay representatives with a legally qualified chairman, who might even be a member of the CFI. Mr Waelbroeck took the view, however, that the establishment of such a tribunal should be effected by way of Treaty amendment. If a specialised staff tribunal were established without changing the Treaty, its decisions would be amenable to review before the CFI and then, on appeal, before the Court of Justice, a "luxury of justice" which no­one really wanted. More generally, Ms Finlay Geoghegan said there was "an urgent need to reassess the judicial structure within the Communities" (QQ 2, 14, 41).

  81.    These proposals were broadly supported by the Deutscher AnwaltVerein. Those consulted by the Bar Council agreed that the establishment of an employment tribunal to deal with staff cases was desirable (p 36). The Faculty of Advocates called for a review of all aspects of the constitution and jurisdiction of both the Court of Justice and the CFI and said it could "see the case for changes in the handling of staff cases" (p 40). The Délégation des Barreaux de France added its voice to the call for more resources to be devoted to the CFI and advocated the creation of a special tribunal along the lines of the French Conseil de Prud'hommes to deal with staff cases (p 38). The Law Society of Scotland questioned whether the Court's proposal would solve the problems caused by the CFI's lack of resources and called for a more radical review of the Community's judicial structure (p 54). Dr Plender agreed that the resources of the CFI would soon have to be augmented and thought that there would be advantage in a more radical review of the CFI's procedures (p 55).

  82.    The FFPE acknowledged that there was a case for establishing a specialist court to deal with staff cases, provided this did not entail a reduction in the rights currently enjoyed by staff and that the new court had the same status as other specialist courts which might be established. Appeals from the new court should lie to the Court of Justice. The FFPE added that a review of the mechanisms for handling staff disputes within the institutions might lead to a reduction in the number of staff cases brought before the CFI (p 42).

  83.    Professor Vandersanden set out a detailed catalogue of suggested reforms to the Community's judicial architecture, some more far­reaching than others. He called for a specialist staff tribunal to be set up at the earliest opportunity. He said it should be based in Brussels and comprise seven Judges, equal in status to the members of the CFI but selected specifically for their expertise in employment disputes. Appeal from the decisions of such a court should lie to the Court of Justice. Within the existing framework, Professor Vandersanden thought that the establishment of specialised Chambers within the CFI or the Court of Justice might be desirable. He mentioned staff cases and trade mark cases as potentially suitable for assignment to such Chambers, but acknowledged the difficulty of maintaining consistency across Chambers if they were too independent of each other. Professor Vandersanden was not convinced of the need to increase the number of Judges. He pointed out that problems of consistency would arise if there were too many Judges and that there would in any event be an increase when new Member States acceded to the Union. In the longer term, Professor Vandersanden advocated the establishment of decentralised courts of first instance modelled on the CFI (p 44).

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19   Appendix 3, para 3. Back

20   See Joined Cases C­104/89 and C­37/90, Mulder v. Council and Commission: [1992] ECR I­3061. Back

21   Case T­17/95, Alexopoulou v. Commission: [1995] ECR­SC I­A­227. Back

22   See e.g. Case T­113/96, Dubois v. Council and Commission: [1998] 1 CMLR 1335. Back

23   Plender, Hague Lectures, Procedure in the European Courts: Comparisons and Proposals, 267 Recueil des cours (1997), pp 292­293. Back

24   Appendix 3, explanatory note on proposed amendments to Art. 51, Rules of Procedure. Back

25   Appendix 3, para 1. Back