Examination of Witnesses (Questions 200-219)
SIR CHRISTOPHER
BELLAMY, MR
CHARLES DHANOWA
6 DECEMBER 2006
Q200 Chairman: As a matter of interest,
if you do appoint them at a lower level to a subordinate court,
are you going to get as good judges as if they were at the CFI
level and, if you are not, is that not rather a pity?
Sir Christopher Bellamy: I was astonished by
the quality of the applications that we had for the Civil Service
Tribunal, both by the depth and skill of the applications we had
from this country, which were most impressive, but also generally.
We had several Supreme Court judges apply from various Member
States—I say several, I think three from memory—and
at Court of Appeal level and other similar levels, so there was
no shortage of people who were interested in participating judicially
in what the Community is doing at even what might be seen as a
fairly modest level.
Q201 Chairman: How very surprising.
Sir Christopher Bellamy: I would not for one
moment be thought to think that I have any problems with the existing
quality of the CFI judges, I do not at all. It is just that I
am not sure we can carry on indefinitely like this given the kinds
of considerations that Lord Mance mentioned with new responsibilities
and life getting more complicated every day.
Q202 Lord Mance: I wondered whether
the several Supreme Court judges came from the eastern part of
Europe?
Sir Christopher Bellamy: There was one from
Germany, one from the Czech Republic and the third one escapes
me now, I forget which country was the third one.
Q203 Chairman: Could we go back to the
question of language for a moment. I know how politically sensitive
it is, but it does seem to be the single, most obvious blockage
to any real progress towards a speedier process.
Sir Christopher Bellamy: It is.
Q204 Chairman: As a matter of interest,
roughly what proportion of the entire Luxembourg enterprise is
translation costs?
Sir Christopher Bellamy: I cannot give you a
precise figure without checking, but it must be far and away a
major proportion. We have now got 20 language divisions, I think,
so there must be 800 or 900 translators.
Q205 Chairman: If you could have some
measure of flexibility there and you did not have to do it, you
could afford to appoint new panels.
Sir Christopher Bellamy: Yes. It is something
with which the Member States need to grapple, it is a very sensitive
issue. If you were in a position where you could at least do,
let us be frank and say, English language cases in English, so
you cut out all those stages I referred to earlier, that would
cut a major proportion of the merger cases, which are to a large
extent in English, in terms of time very dramatically. You would
probably halve it.
Q206 Chairman: How many merger cases
a year roughly are there now? We have been given the overall statistics
of the situation.
Sir Christopher Bellamy: I would have to refer
back, my Lord Chairman. I am not entirely sure.
Q207 Chairman: Assuming there are
three or four a year, I doubt there are any more, at least to
reconcile any more with the overall figures we have, roughly how
many of them would be in English?
Sir Christopher Bellamy: Again, we would need
to check historically, but I would have thought three-quarters
probably.
Q208 Chairman: The bulk?
Sir Christopher Bellamy: Yes, the vast bulk
would be in English, which is often the preferred language for
other countries, such as Finland or even countries from the Iberian
Peninsula. That is partly because this competition law area is
an area where English is the vehicular language and, therefore,
the lawyers work in English, therefore the Commission's decision
is in English and therefore the proceedings are in English.
Q209 Chairman: I think we have already
touched, Sir Christopher, on the question of the CFI's lack of
autonomy in relation to its rules. You have said you have some
sympathy with what Sir David Edward says but it is a bit patchy,
he rather over-emphasises the extent of that particular problem,
you could work within the existing rules you feel.
Sir Christopher Bellamy: On the whole, yes.
Q210 Chairman: On the whole. If you
had to single out any particular rule that you would like to have
relaxed to enable a greater degree of case management, language
aside, what would it be?
Sir Christopher Bellamy: I would need to go
back to the rules, my Lord Chairman, and have a good look.
Q211 Chairman: If there are to be either
new panels or new chambers, in either event what should their
jurisdiction be? Should it be all competition cases or, within
that, just mergers or everything but state aid? How do you see
it?
Sir Christopher Bellamy: I would doubt on either
main scenario whether it could be done just for merger cases.
Q212 Chairman: It would not be enough?
Sir Christopher Bellamy: It probably would not
quite have the caseload to do it just for those, so I would have
thought competition cases generally in terms of appeals from decisions
of the Commission would be the right solution and I would not
do state aid, not yet.
Q213 Chairman: Why not?
Sir Christopher Bellamy: State aid is more politically
sensitive and I would see how it went first, wait for this, whatever
it was, to get some more experience under its belt before doing
it.
Q214 Chairman: Again, whether they are
new powers or new chambers, should the Court have the power in
the first place to conduct some re-hearing, in other words to
go with a more intensive review process? Secondly, at the end
of the process if it does not agree with the Commission should
it be able to adopt a decision itself?
Sir Christopher Bellamy: I would favour that.
We have that power in the CAT, though exactly how we exercise
it is fiercely debated and not yet ruled on by the Court of Appeal.
I think this would, however, require a treaty change. It does
exist in the trademark regulation, as you have probably been told,
but no-one has dared use it, un pouvoir de re«formulation,
I think it is called, a power to change it basically, or re-take
the decision rather than send it back.
Q215 Chairman: Sorry to interrupt
but in trademarks you have not got a shifting scene whereas presumably
in merger cases you possibly have. Is there a development of the
facts?
Sir Christopher Bellamy: Yes.
Q216 Chairman: You do have a shift in
the scene? Is that an additional problem here that would arise
in trademark cases?
Sir Christopher Bellamy: Yes. No, it is a highly
desirable power particularly in merger cases but also in other
cases that avoids the obvious ping-pong of sending it back and
forwards. The only other unknown factor which is difficult to
estimate is that, although there is a small number of merger appeals
a year, nobody quite knows which cases are not appealed because
people are so gloomy about the prospects and think the system
is so inefficient, hopeless and time-consuming that they just
do not bother. I think there is at least some element of that;
I would be surprised if there was not. Perhaps it is also worth
mentioning that the Commission is likely, understandably, to be
sceptical about the advantages of reform in this area, not least
because it might mean a slightly closer look at some of the things
that they do, which is not always something that is attractive
to the administrative authority.
Q217 Chairman: We were told by Dr Bishop
who, as you know, preceded you in the chair this evening that
since your time in 2002 they lost three cases and that has, I
do not know whether the right word is "shamed", but
certainly stimulated them into a substantial revision and improvement
of their own processes.
Sir Christopher Bellamy: Certainly at least
one of those cases, the Airtours case, would never have
been brought if it was not for the sheer bloody-mindedness of
the company whose merger had been killed off, and could just as
easily have commercially justified walking away from it but decided,
"Up with this I will not put" and, therefore, brought
the case as a matter of principle. It was only because someone
was brave enough to do that that some of the ways in which these
cases were being decided were scrutinised by the Court.
Q218 Baroness Kingsmill: Sir Christopher,
this whole process has been motivated by the desire to speed up
things in Europe and that is the basis of the CBI's contention.
From the evidence that you have given us so far, it would seem—my
assessment of what you have said anyway is—that the language
difficulties are as far as you can see at the moment the most
difficult. Do you think if you could overcome that and could impose
the kind of fixed timetables that you and I have both been accustomed
to doing, would that solve the problem with the existing process?
Is the Competition Court proposal taking a sledgehammer to crack
a nut?
Sir Christopher Bellamy: I think my answer is
that it is going to be quite difficult to solve either of those
problems in the existing structure and easier to tackle them on
a clean-sheet basis with a new body or institution.
Q219 Baroness Kingsmill: Because
of the constitutional and political overtones of making these
changes which sound simple but which would be fundamentally very
difficult?
Sir Christopher Bellamy: Yes, the sheer difficulty
of doing it within the existing institution, changing mindsets
and ways of thinking and the hearings.
| 
