Examination of Witnesses (Questions 180-199)
SIR CHRISTOPHER
BELLAMY, MR
CHARLES DHANOWA
6 DECEMBER 2006
Q180 Lord Mance: Just reversing the argument,
is it possible that the very reasons why States like to hang on
to their own power to appoint their own judges would actually
mean that States were unenthusiastic about another judicial panel?
Sir Christopher Bellamy: Well, that may be and
of course the staff panel was a relatively easy threshold to cross
because it is in the house and once you are out of the house,
you have got a very big issue. This is really a very big political
issue as to which direction you go in.
Q181 Lord Mance: So the competition area
would be seen as nationally sensitive?
Sir Christopher Bellamy: Not particularly, I
think, if you took state aid out of it, state aid is still sensitive,
but one is surely going to have to go down this road with patents
and trademarks, whatever the solution is, you just could not do
it in a "General Court" and there will be other specialist
areas where this sort of thing will help.
Q182 Chairman: I really ought to know
the answer to this, but, as matters presently stand, when a particular
country is involved in a particular dispute, is that country's
judge necessarily on the court, as is the case, of course, in
Strasbourg?
Sir Christopher Bellamy: No, far from it and
it is not now the case in either court.
Q183 Chairman: When you say "either",
you mean—
Sir Christopher Bellamy: The main court or the
CFI.
Q184 Chairman: It is the case, of course,
in Strasbourg but not in Luxembourg?
Sir Christopher Bellamy: Not in Luxembourg.
Q185 Lord Jay of Ewelme: This is
a question partly about timing and partly about the three options
outlined by the Lord Chairman. My question is whether or not those
three options are mutually exclusive. I note another piece of
written evidence that we have got mentions that judicial panels
plan for, one, patent and, two, trademark, and design cases are
likely to take precedence over any competition panel. My question
is if that is going to happen then presumably we are talking about
quite a long time before you get to the stage of having a judicial
panel for mergers or competition cases in place. If that is the
case then will you not also need to explore some of the other
measures in order to ensure that there is some redress in the
short or medium term?
Sir Christopher Bellamy: Yes.
Q186 Lord Jay of Ewelme: Are we,
in fact, talking about both?
Sir Christopher Bellamy: I think that is undoubtedly
clear. Indeed, if it was decided tomorrow that there should be
a judicial panel, it would take a while to set it up. The Civil
Service Tribunal came into existence 11 months after the decision
was taken to set it up which is quite good going by Community
standards but, yes, there is a present problem that needs to be
addressed even if the longer-range solution is a bit more long
range.
Q187 Lord Jay of Ewelme: Could I
just ask one further question, my Lord Chairman, drawing on your
experience of recruitment for the Civil Service judicial panel.
Did you consider the question in that context as to whether Article
225a would allow other than lawyers to be members of judicial
panels, and what is your view on that?
Sir Christopher Bellamy: I do not remember considering
it, but on its wording it does not look to me as if it does exclude
other people other than lawyers. In other words, you could, and
I think there is now quite a bit of experience across Europe in
all sorts of judicial contexts where people other than lawyers
do sit on these sorts of cases.
Q188 Chairman: There is nothing except
the clause in Article 225a: "may create judicial panels".
There is no indication at all as to who the members shall consist
of or who can qualify as judges, is that right?
Sir Christopher Bellamy: There is a requirement
of independence, I think.
Lord Jay of Ewelme: Subparagraph 4: "chosen
from persons whose independence is beyond doubt and who possess
the ability", and not the qualifications, "required
for appointment to judicial office".
Q189 Chairman: How would that become,
in effect, a political decision?
Sir Christopher Bellamy: That would also be,
I think, a political decision. If you were going down this route
there would presumably be a public invitation to present candidatures
and that would specify the criteria and the qualifications and
make it clear whether it was just lawyers or other people.
Q190 Chairman: Is that saying an
equivalent provision would govern the appointment of the CFI or
ECJ?
Sir Christopher Bellamy: The CFI is slightly
tighter and for the ECJ you have to be qualified to hold the highest
judicial office in your Member State.
Q191 Chairman: I see. The CFI is somewhere
between the two?
Sir Christopher Bellamy: It is somewhere between
the two, I do not remember the exact words.
Q192 Chairman: But nobody yet, even indeed
for the Civil Service judicial panel, has ever actually specifically
contemplated a non-lawyer?
Sir Christopher Bellamy: A non-lawyer, no, though
it is common to have professors and people who are former civil
servants and not necessarily practitioners.
Lord Bowness: I want to clarify this
about the Court of First Instance. Maybe I am reading the wrong
paragraph, but the wording for judges of the Court of the First
Instance looks exactly the same as for members of the judicial
panel.
Chairman: Which article are you reading?
Q193 Lord Bowness: 224, the second
paragraph, which looks the same to me as the fourth paragraph
of 225a, unless I am wrong.
Sir Christopher Bellamy: I can remember there
was a slight difference, my Lord Chairman, but I may well have
missed it.
Lord Jay of Ewelme: The words "high
judicial".
Q194 Chairman: Could we perhaps then
draw for a moment on your experience as President of the Competition
Appeal Tribunal because various witnesses have pointed to the
efficiency with which that Tribunal deals with merger appeals
under domestic legislation. One wonders whether or not the CFI
could learn from that. Is there scope to improve the CFI's fast-track
procedure through any of the various practices that you adopt
to improve CAT procedures?
Sir Christopher Bellamy: If I could start by
saying that the CAT has at least three enormous advantages as
compared with the CFI. First, we were able to start with a completely
clean sheet, the system could be designed from scratch. We acquired
our merger jurisdiction in 2003, so it is still quite recent,
but we were able to immediately create rules that were adapted
for the situation. Secondly, of course, we are only working in
one language. Thirdly, we have not yet got anything like the caseload
that the CFI is grappling with, so there are limits to the analogy,
I think. Just before directly answering your question, my Lord
Chairman, if I may reiterate the difficulty the CFI faces in relation
to translation and language. Even now, if a competition case or
a merger case comes into a cabinet that is not one of the
Anglophone cabinets and it is in English, it will be translated
into French, then worked on in French, there will be the preparation
of a document called "the report for the hearing" that
will be prepared in French, that document will then be sent to
the translation service to be translated into English for the
hearing, the hearing will then take place in English through simultaneous
translation, the deliberations, internal notes and so forth will
all go on in French, there will then be a judgment prepared in
French and that judgment will then be sent back to be translated
into English for a final version for parties. That is, clearly,
a very cumbersome procedure. You probably have got to have one
language in a court like this; it might just be possible sometimes
to work in two, but as long as that is the situation there is
going to be a limit to how fast you can do things. One possibility
is that if a case comes in in a language other than French you
may be able to establish a chamber or some system that is able
to deal with that case in the original language, thus cutting
out the translation so that everything is done in German, English
or whatever it happens to be. That does require an enormous amount
of linguistic ability on the part of the judges and their staff.
It is difficult enough, I find, to draft in English, let alone
draft in any other language to the sort of level that is required,
so there is always going to be that sort of problem. However,
in a new judicial panel it may be possible to so adapt it that
there is less need to translate because there are more judges
who are able, or willing, to do the case in the original language.
I would have thought that could be so in this kind of area, but
it is extremely difficult for anyone of English mother tongue
to suggest that the working language ought to be a language other
than French. That is one problem. In terms of how you can improve
the procedures, which I think was your question—
Q195 Chairman: Language was included.
Sir Christopher Bellamy: We are lucky in the
CAT because we do not have a language problem and it is quite
easy to see very quickly what a case is about, to say to the parties,
as is our practice in a merger case at least, within a week of
the case coming in, "Would you kindly turn up on Thursday
and tell us a little bit what this case is about and we will make
a plan of how we are going to handle it", which is what we
do, so within a week or 10 days of a case beginning we have a
plan. We will have a hearing on a certain day, we will dispense
with the pleadings, a skeleton argument will stand as the case
for the competent authority, we will limit the hearing to one
day maximum, say, "You have got an hour, you have got an
hour and the interveners have got an hour" or whatever it
is and we will deliver judgment by no later than some specified
of date. That can be done in our present situation on our present
scale. It is much more difficult if a case comes in in German
and is allocated to a Portuguese cabinet that is already
absolutely snowed under with other cases, to work out what the
case is about early enough to establish an effective regime for
case managing it because you may well be dependent on translation
for telling you what the case exactly is about and you have got
lots of other things that you need to do. Inevitably, it is difficult.
It is possible to do and great efforts have been made to do it,
but it would be quite complicated to manage it in a way we are
able to manage it at national level. That said, my own view is
that there are not really serious problems with the rules as such.
In my closing months at the CFI, if I remember rightly, we had
got some fairly good fast-track rules in place, we worked it out.
I used to chair the Procedure Committee on the rules of procedure
and I thought we had done a reasonable job at the time. You do
not need a rule to say to the parties, "We want to have a
meeting next week", just ask them to turn up, so I am not
sure the problem lies in the rules, though I have sympathy with
Sir David Edward's point that it would be better if they could
be changed more flexibly and more quickly, but that does raise
constitutional problems because quite a number of Member States
are needed for a majority. I would not have thought the problem
lies in the rules, I think the problem lies intrinsically in how
to manage it and also in the way the chamber system is managed.
There is, again, here a complication that I do not think has been
referred to in the papers I have seen which is the principle,
solemnly observed by both Luxembourg courts, of what the French
would call the juge legal, that is to say the automatic
attribution of cases on a rotation basis first to a chamber, and
then it would move around by rotation within the chamber in a
way that does not really permit a kind of "horses for courses"
selection. That is a very important rule of German constitutional
law which arises very obviously from 1930s and 1940s experience
which would require some adaptation in this instance. If one is
going down the route of more specialised chambers within the CFI
and is looking at that for a moment, it seems to me that one of
the difficulties is the following: if you are going to do it for
all competition cases you probably need at least two chambers,
I would have thought, you probably could not manage on one. Effectively,
that means you have got to take six judges out of the life of
the CFI and tell them to get on with competition cases. It is
probably the case that among those six would be at least two judges
from major Member States who would, as it were, peel off and do
competition. Now if you assume one of those judges might be the
United Kingdom judge, for example, what you have effectively achieved
is to take the United Kingdom judge out of the CFI, ie he is not
participating, or hardly participating, in the other 900 cases
the Court is doing because he has been told to specialise in competition.
Whether or not that is an entirely desirable development, I am
not at all sure. In fact, on balance I would find it rather troubling
if that was the case, but apart from the difficulty in deciding
within the existing structures who does what, who is told to go
and do competition and who does not, I can see from a more practical
and human level that might be a rather difficult decision to take,
and in itself raise not exactly political questions but raised
eyebrows as to exactly how do the courts decide which judges are
doing what, especially in some of the more sensitive merger cases.
It is not obvious to me that that sort of solution is necessarily
a healthy one.
Q196 Chairman: If you appointed additional
judges so that you had two additional chambers.
Sir Christopher Bellamy: That is a possibility.
Q197 Chairman: How would it work then?
Which nations would provide them? To what extent would you have
regard for their linguistic skills or skills as competition lawyers?
Could it work?
Sir Christopher Bellamy: Again, I think, and
this is partly a psychological factor, when the CFI was very much
under siege from the point of view of workload in the 1990s, we
did suggest to the Council of Ministers, or asked the Council
of Ministers, to appoint another six judges. The proposal got
nowhere because no-one could agree on who the other six would
be and which privileged states would have a second judge. That
was politically impossible to get agreement on. One of the advantages,
if you can call it an advantage, of the judicial panel is that
you circumnavigate this problem by saying, "Very well, we
are going to have nine judges", something like that, "and
we are going to leave it to someone else to choose them, have
proper, effective procedures to choose them and we are not going
to leave it to a political haggle".
Q198 Chairman: I am not quite sure why
that does circumvent it. Why is there any less of a political
haggle if you are appointing at a lower level?
Sir Christopher Bellamy: It depends on a political
decision to go down that route and I just do not know whether
Member States would be prepared to do it in the end. I would imagine
that rather than slightly destabilising the CFI by having in the
same institution some Member States which had double the numbers
of judges than other Member States, putting it in a different
box, as it were—
Q199 Chairman: More palatable to create
them at a lower level.
Sir Christopher Bellamy: It could be more palatable,
particularly since they were at a lower level and they could be
seen to be at a lower level and, therefore, subject to control
of the judges who are appointed by Member States the next level
up. I could just imagine that as more of a way through than trying
the bolt-on option.
|
