Examination of Witnesses (Questions 120-133)
Mr Onno Brouwer and Mr Georg Berrisch
29 NOVEMBER 2006
Q120 Chairman: As to where it sits I
do not know it greatly matters, but would you envisage it would
usefully continue to sit in Luxembourg?
Mr Berrisch: We think it would be useful to
have all the Courts of the Community in one place.
Q121 Chairman: As to appeals, obviously
if there were judicial panels, then on the face of the statute
under 225a appeals would go before the CFI, which is why you are
introducing by that scheme a fourth level. But if it is another
chamber of the existing CFI then nothing has changed; is that
right?
Mr Berrisch: That is right.
Q122 Chairman: I do not think there is
much more we need ask on that aspect, do we? If contrary to your
view there were to be a fourth layer, a new panel, then should
the appeal be to a specialised chamber of the CFI?
Mr Berrisch: We do not think that this would
necessarily have to be a specialised chamber of the CFI because
we think these appeals should be on points of law only and not
on points of fact. We do not think that this would necessarily
have to be a specialised chamber.
Q123 Chairman: Assuming that the CFI
were freed from these cases at first instance, should they be
given jurisdiction to hear preliminary references from the courts
in Community competition law cases?
Mr Brouwer: We have debated that point a number
of times within our delegation and it is quite a difficult debate
because there are pros and cons on transferring preliminary ruling
procedure decisions to the CFI. That has to do with the function
that the Court of Justice actually fulfils in safeguarding the
consistency and uniformity of the application of Community law.
The suggestion has been made in some of the debates that maybe
there is indeed a logic, if you do have a more specialised chamber
in the Court of First Instance, to have at least pure competition
law questions eventually referred to the CFI. As has been indicated,
often questions are however linked in with other questions of
Community law, so you may have very few cases where there is a
pure question of competition law and no other element of Community
law involved, but one could think about that and whether it then
makes sense to actually allow for a question to be referred to
the CFI, with the proviso of course that if the CFI then feels
that the case raises broader questions, if it is a very fundamental
question, then the CFI can still refer it to the Court of Justice
to rule upon.
Q124 Chairman: The Civil Service Tribunal,
as I understand it, is currently the only form of judicial panel
brought into being under Article 225a, is that right, with effect
from 1 January this year?
Mr Berrisch: That is right.
Q125 Chairman: Do you know roughly how
long that took to bring into being? How long a process would it
be if it were thought by some a good idea to introduce new judicial
panels to deal with competition cases or merger cases?
Mr Brouwer: It will take a number of years—many
years.
Mr Berrisch: The possibility was included in
the Nice Treaty. I do not recall when exactly the Nice Treaty
came into force but since then the possibility has existed. If
I remember correctly, that was one of the first tribunal possibilities
discussed, and you see how long it took, and that should not have
been so difficult because it is politically not a very controversial
area. So it will take some time.
Mr Brouwer: Many years.
Mr Berrisch: Of course, once you have one tribunal
in place you can experience how these panels work and you can
learn from that, and establishing a second time might be significantly
easier.
Q126 Chairman: If you were simply introducing
new competition chambers within the CFI and doing that as a scheme
different merely from having a larger CFI and therefore a greater
capacity to take competition appeals, how long would that take
and would it need any alteration to the procedural rules that
we discussed earlier as requiring unanimity in Council?
Mr Berrisch: My Lord Chairman, my understanding
is that the CFI already now decides which case to allocate to
which chamber and to which reporting judge and also decides on
the composition of the chambers. These two possibilities combined—the
chambers with competition experts that are at the Court and then
just make sure to assign these cases to these chambers and then
you are there.
Q127 Chairman: So that reform could take
place if it was thought a good idea without any especial delay?
Mr Berrisch: That would be my understanding.
Q128 Chairman: Is there anything else
that your august body, the CCBE, feels that we should know or
should usefully be taken into account by us as a possible way
ahead in terms of improving the existing practices?
Mr Brouwer: My Lord Chairman, if I may I would
just like to come back on one point that has been mentioned; the
autonomy of the Court to adopt its own rules, because I think
it is important to know that our permanent delegation is in favour
of having more autonomy for the Court to adopt the rules. We are
slightly cautious in the sense there is another important point
we are also making, which is that we very much advocate that the
European Community actually adheres to the European Convention
of Human Rights, because that will also make a difference. At
present, if ever you have procedures before the courts which you
would consider problematic, you do not have external control.
Q129 Chairman: So you want the Community
to accede to the Strasbourg Convention and that would eliminate
the need for the present restrictions on the Court's autonomy
and ability to regulate its own procedures? Is that your point?
Mr Brouwer: I think it is an important point
to say that there is a certain link.
Q130 Chairman: I follow that point entirely.
Can I just be clear insofar as you think it would be a good idea
to give them more autonomy, in what specific area, what particular
procedural rules do you think at the moment are inhibiting the
sorts of reform and expedition that we are looking to achieve
here?
Mr Berrisch: I think now you have a very strict
way in which procedures have to be conducted: application two
months before a defence; the possibility of a reply and rejoinder;
no possibility of bringing new pieces of evidence or introducing
new evidence during the course of the proceedings. This makes
it a very rigid procedure. If one could give more flexibility
to the Court to conduct that and not have this rigid regime in
place, I imagine that could lead to efficiency gains. There are
maybe other possibilities of allowing the Court to dispose of
some pleas that are clearly unmerited in a more simple way so
the Court does not have to explain everything in detail, more
of a summary judgment on certain points. At the moment the Court
is also very cautious that its judgments are subject to appeal
to the European Court of Justice, and one of the grounds of appeal
could always be that the Court has not provided sufficient reasoning
for its decision. These are all areas where you could have flexibility
introduced.
Chairman: I think it would be enormously
helpful, and I hope it will not be too tiresome for you, if we
could possibly prevail upon you to supply us in writing with a
short list of the procedural rules that you currently think are
too constrictive and which could, with advantage, cease to be
subject to the constraints of unanimity in Council, to indicate
how, in other words, you would shift the line to allow the Court
to improve its own procedures. Do you see what I am asking for?
That would help us enormously.
Q131 Lord Lester of Herne Hill: I wonder
whether in doing that you could reflect on the following: I perfectly
understand if I were a Dutch or German lawyer in societies ruled
by the rule of law, why I would be cautious about giving to courts
the power to fashion their own rules of procedure rather than
saying the legislature had the primary obligation to get the core
rules. I understand all of that, but in the context of the European
Union, the general principles of law recognised already by the
Court of Justice include, do they not, rules about proportionality
and fairness and natural justice which the Court regards itself
as bound by. One can always go to Strasbourg in a theoretical
case and say the Court of Justice got it wrong and the Member
States are all liable for authorising it. Therefore, would it
not be sensible to give the Court of Justice as much discretion
as possible, while emphasising the principles that must be applied
by the Court in fashioning its rules, rather than trying to demarcate
that which the legislator should deal with and that which the
Court should deal with?
Mr Brouwer: That is a very clear point and we
will also comment upon that because I think that it is also a
very good point. What is clear, and we have seen this in the Senator
Lines case in Strasbourg, is that if you do feel there is
an issue you have to bring a case against all the Member States...
Q132 Lord Lester of Herne Hill: I
appreciate that.
Mr Brouwer: ...and that is quite a big issue
but of course we will also comment upon that.
Q133 Lord Lester of Herne Hill: Of course
this Committee has in the past reported our wish that the European
Community should be able to be directly bound, so in the history
of our Committee we have come to that conclusion.
Mr Brouwer: It is an important point for us;
we have advocated that very strongly.
Chairman: Thank you very much. Unless
anyone else has other questions, it only remains for me to thank
you very much indeed for coming. Can I, like Lord Jay, commend
the brevity of your written contribution as an example to us all,
and no doubt others. Thank you very much indeed.
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