Examination of Witnesses (Questions 171-179)
SIR CHRISTOPHER
BELLAMY, MR
CHARLES DHANOWA
6 DECEMBER 2006
Q171Chairman: Sir Christopher, we are extremely
grateful to you for coming and also, Mr Dhanowa whom, likewise,
I have met, we are very grateful to both of you. I know that you
have read or had the opportunity to read the various written evidence
statements which have been assembled by the Committee in this
inquiry and perhaps also the transcripts of our earlier hearings.
We have not, I think, got a statement from you and I just wondered
whether you would like to say anything in opening. We all know
of your obviously distinguished career and the great expertise,
therefore, that you bring to this inquiry, but perhaps, for others
who do not know you as well as I do, you could say just one or
two words by way of opening.
Sir Christopher Bellamy: Thank you, my Lord
Chairman. Perhaps to set the scene, I could just say that I was
a judge of the CFI from 1992 to 1999 and in the late 1990s I led
the CFI delegation to a joint working party that worked up the
proposal that ultimately became the judicial panel which was adopted
in the Treaty of Nice. Since 1999, I have been President of the
Competition Appeal Tribunal in this country. Last year, I was
nominated by the Council of Ministers to the Selection Committee
to select the judges for the new Civil Service Tribunal. We had,
for the first time, I think, in the history of the Community,
an open competition for those judges and we were able to pay particular
attention to the expertise and abilities of the judges that were
eventually selected, which was seven judges out of the 25 Member
States. If I may say so, I have not had the time to master the
detail of all the evidence you have been presented with which
seems in general to be of rather high quality, as far as one can
see, and I did not think it appropriate to put in any personal
evidence on my own account certainly while I am still an officer
of the CAT. I would, by way of opening, simply observe that this
current problem with competition cases could perhaps be looked
at in the wider context of how the CFI and the court itself are
organised as a whole, in other words, a rather holistic approach,
because these kinds of issues really exist across the board in
all sorts of areas and quite how one solves them is an important
question and one should not perhaps just look at the buttress
and forget the rest of the cathedral, as it were. Similarly, with
the specific case of mergers, I think the procedure needs to be
considered in the context of the whole procedure from the beginning
of the administrative stage in the Commission right through to
the end of the final appeal to see where the shoe pinches, as
it were, and it is probably true to say that the present system
is fairly tight at the administrative stage. There are criticisms
of it of course, but there is at least a timetable. You get to
the end of the administrative stage and the procedure then drops
off a cliff and disappears into a judicial void from which it
may or may not emerge until several years later. My own general
view is that that present situation is not acceptable, but that
it is not entirely obvious what the right solution is, although
I have one or two ideas which no doubt you will be exploring as
we proceed.
Q172 Chairman: I am immediately tempted
to ask, how would you address that particular problem, how would
you cross the void?
Sir Christopher Bellamy: The main solutions,
I think, are already being canvassed within the Committee which
are some kind of way of getting the existing CFI to work better,
whether through some kind of specialised chamber or some other
route, or whether you should not go down the route of the judicial
panel following the example of the staff tribunal referred to
a moment ago. My own view is that there are pros and cons to both
ideas. If you take a very broad five-to-ten-year view, it seems
to me that something like a judicial panel is inevitable in the
next period and one might as well get on with starting to think
about it now.
Q173 Chairman: Is this because of the
growth in competition work?
Sir Christopher Bellamy: It is because of the
general growth in the system, the increasing need to look at the
kind of expertise that Community judges need, and have, and the
way in which judges are recruited. I am not myself sure, with
the enormous demands at a technical level and knowledge of so
many wide areas of law, that the existing system whereby each
Member State just nominates someone to go and do it who may or
may not have any practical linguistic or other background is necessarily
going to prove to be the best, or even a workable, system in the
years to come. I would see, among the advantages of the judicial
panel, the ability to at least begin to think about the kind of
recruitment procedures that we tried out in the staff tribunal,
in other words, procedures that did help you make sure that you
actually got judges who had a background more relevant to the
subject, including linguistic abilities that were appropriate
and the ability to not exactly start afresh, but at least start
with a clean sheet or a cleaner sheet in the ways that things
are done. It seems to me that that is, as I say, part of a wider
picture or a bigger question, but it happens to pose itself in
the competition law area. It is perhaps no accident that, when
the CFI was set up in 1989, it was set up because of worries about
staff cases and competition cases. We now have a staff tribunal
and we are still worried about competition cases 20 years on,
and that is because the nature of those cases is that they are
very fact-intensive, very complicated and they do not fall into
the kind of run-of-the-mill questions that an administrative judge
would normally be handling. I think in very broad terms, and it
is not an exact analogy, so please do not hold me to it, one of
the questions is whether, to use a domestic analogy, all this
is just left in the general list of the administrative court or
whether you need some sort of CAT to help it along, and that is
where I would focus the questions. I think the existing structures
of the CFI may prove quite hard to change to useful effect. This
is not because the judges at the CFI are not very competent, they
are very competent, and it is not that they do not work very hard,
they do work very hard, but they are facing very great difficulties,
practical difficulties, which make it intrinsically difficult
to work the present system in an efficient way at optimum efficiency,
and that of course takes us into the language question and other
questions which I am sure you will want to explore as we go along.
Q174 Chairman: Just before I throw this
open to questioning, and I know one or two members have questions
for you, really there are perhaps three basic ways one could go.
One could create, as I understand it, only for the second time,
a new judicial panel, like the Civil Service Tribunal, introduced
on 1 January this year, the only other use of this Treaty power,
so that is one way.
Sir Christopher Bellamy: Yes.
Q175 Chairman: And you say, I think,
on a five-to-ten-year view that that has to be the way.
Sir Christopher Bellamy: Yes.
Q176 Chairman: Or you could create further
chambers within the CFI, specialist or otherwise, or you could
simply try and improve on the existing opportunities for better
case management and so forth possibly with the need to relax some
of the procedural rules that currently inhibit improvements. Maybe
in the medium and shorter term you would have to use those latter
two anyway, but is that the sort of spectrum or context in which
we have to conduct this inquiry?
Sir Christopher Bellamy: I think those are essentially
the choices, yes.
Q177 Chairman: We also possibly have
to have an eye on the political realities of course.
Sir Christopher Bellamy: Yes.
Q178 Lord Mance: I just wanted to pick
up one point which interested me. I do not want to accuse you
of suggesting that the tail should wag the dog because I have
a lot of sympathy with the suggestion, but you indicated that
existing nomination procedures were not going to be the way forward
to get the requisite expertise, the existing Court being nominated
on a national basis. I think you are suggesting that the advantage
of a judicial panel system, and you told us you sat on the Selection
Committee of the staff tribunal, was that it, by definition, could
not operate on a national basis and you had a small group of judges
who had to be selected by some more impartial way.
Sir Christopher Bellamy: Yes.
Q179 Lord Mance: That does seem to me
actually, even if it is the tail wagging the dog, quite an important
point and, as I think you were hinting, it might be of more general
importance and apply in other areas, such as perhaps general private
international law work.
Sir Christopher Bellamy: Yes, I think, as time
goes on, it is an issue that increasingly presents itself with
the kind of complexities that the judicial system now has to cope
with and the increasing judicial role.
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